EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
Depositor,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
JPMORGAN CHASE BANK, N.A.
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2005
Mortgage Asset-Backed Pass-Through Certificates
Series 2005-RZ3
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................................7
Section 1.01. Definitions...............................................................7
Section 1.02. Determination of One-Month LIBOR.........................................61
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES..................63
Section 2.01. Conveyance of Mortgage Loans.............................................63
Section 2.02. Acceptance by Trustee....................................................66
Section 2.03. Representations, Warranties and Covenants of the Master Servicer
and the Depositor.......................................................68
Section 2.04. Representations and Warranties of Sellers................................70
Section 2.05. Execution and Authentication of Certificates; Conveyance of
Uncertificated REMIC Regular Interests..................................72
Section 2.06. Purposes and Powers of the Trust.........................................73
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..................................74
Section 3.01. Master Servicer to Act as Servicer.......................................74
Section 3.02. Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' Obligations; Special Servicing.............75
Section 3.03. Successor Subservicers...................................................76
Section 3.04. Liability of the Master Servicer.........................................77
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders......................................................77
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee..........77
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account.......................................................78
Section 3.08. Subservicing Accounts; Servicing Accounts................................80
Section 3.09. Access to Certain Documentation and Information Regarding the
Mortgage Loans..........................................................82
Section 3.10. Permitted Withdrawals from the Custodial Account.........................82
Section 3.11. Maintenance of Primary Insurance Coverage................................84
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity Coverage........85
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments.........................................86
Section 3.14. Realization Upon Defaulted Mortgage Loans................................88
Section 3.15. Trustee to Cooperate; Release of Mortgage Files..........................91
Section 3.16. Servicing and Other Compensation; Compensating Interest..................92
Section 3.17. Reports to the Trustee and the Depositor.................................93
Section 3.18. Annual Statement as to Compliance........................................93
Section 3.19. Annual Independent Public Accountants' Servicing Report..................94
Section 3.20. Right of the Depositor in Respect of the Master Servicer.................94
Section 3.21. Advance Facility.........................................................95
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS...................................................99
Section 4.01. Certificate Account......................................................99
Section 4.02. Distributions............................................................99
Section 4.03. Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting.................................................103
Section 4.04. Distribution of Reports to the Trustee and the Depositor; Advances
by the Master Servicer.................................................107
Section 4.05. Allocation of Realized Losses...........................................108
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property...........110
Section 4.07. Optional Purchase of Defaulted Mortgage Loans...........................110
Section 4.08. Swap Agreement..........................................................111
ARTICLE V THE CERTIFICATES.................................................................114
Section 5.01. The Certificates........................................................114
Section 5.02. Registration of Transfer and Exchange of Certificates...................116
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.......................121
Section 5.04. Persons Deemed Owners...................................................121
Section 5.05. Appointment of Paying Agent.............................................122
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER...........................................123
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer.........123
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer.......123
Section 6.03. Limitation on Liability of the Depositor, the Master Servicer and
Others.................................................................124
Section 6.04. Depositor and Master Servicer Not to Resign.............................125
ARTICLE VII DEFAULT........................................................................126
Section 7.01. Events of Default.......................................................126
Section 7.02. Trustee or Depositor to Act; Appointment of Successor...................128
Section 7.03. Notification to Certificateholders......................................129
Section 7.04. Waiver of Events of Default.............................................129
ARTICLE VIII CONCERNING THE TRUSTEE........................................................130
Section 8.01. Duties of Trustee.......................................................130
Section 8.02. Certain Matters Affecting the Trustee...................................131
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans...................133
Section 8.04. Trustee May Own Certificates............................................133
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses; Indemnification.....133
Section 8.06. Eligibility Requirements for Trustee....................................134
Section 8.07. Resignation and Removal of the Trustee..................................135
Section 8.08. Successor Trustee.......................................................136
Section 8.09. Merger or Consolidation of Trustee......................................136
Section 8.10. Appointment of Co-Trustee or Separate Trustee...........................136
Section 8.11. Appointment of Custodians...............................................137
Section 8.12. Appointment of Office or Agency.........................................138
Section 8.13. DTC Letter of Representations...........................................138
Section 8.14. Swap Agreement..........................................................138
ARTICLE IX TERMINATION.....................................................................139
Section 9.01. Termination Upon Purchase or Liquidation of All Mortgage Loans..........139
Section 9.02. Additional Termination Requirements.....................................144
ARTICLE X REMIC PROVISIONS.................................................................145
Section 10.01. REMIC Administration....................................................145
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification........148
ARTICLE XI MISCELLANEOUS PROVISIONS........................................................150
Section 11.01. Amendment...............................................................150
Section 11.02. Recordation of Agreement; Counterparts..................................152
Section 11.03. Limitation on Rights of Certificateholders..............................153
Section 11.04. Governing Law...........................................................153
Section 11.05. Notices.................................................................154
Section 11.06. Notices to Rating Agencies..............................................154
Section 11.07. Severability of Provisions..............................................155
Section 11.08. Supplemental Provisions for Resecuritization............................155
Section 11.09. Intended Third Party Beneficiary........................................156
EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B Form of Class M Certificate
Exhibit C Form of Class SB Certificate
Exhibit D Form of Class R Certificate
Exhibit E Form of Custodial Agreement
Exhibit F Mortgage Loan Schedule
Exhibit G Form of Request for Release
Exhibit H-1 Form of Transfer Affidavit and Agreement
Exhibit H-2 Form of Transferor Certificate
Exhibit I Form of Investor Representation Letter
Exhibit J Form of Transferor Representation Letter
Exhibit K Form of Form 10-K Certification
Exhibit L Form of Back-Up Certification to Form 10-K Certification Exhibit M
Form of Lender Certification for Assignment of Mortgage Loan Exhibit N Form of
Rule 144A Investment Representation Exhibit O Form of ERISA Representation
Letter for Class SB Certificates Exhibit P Form of ERISA Representation Letter
for Class M
Certificates
Exhibit Q Information to be Provided by the Master
Servicer to the Rating Agencies
Relating to Reportable Modified Mortgage Loans
Exhibit R Schedule of Swap Agreement Notional Balances
Exhibit S Swap Agreement
This Pooling and Servicing Agreement, effective as of September 1, 2005,
among RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as the depositor (together with
its permitted successors and assigns, the "Depositor"), RESIDENTIAL FUNDING
CORPORATION, as master servicer (together with its permitted successors and
assigns, the "Master Servicer"), and JPMORGAN CHASE BANK, N.A., a banking
association organized under the laws of the United States, as trustee (together
with its permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage asset-backed pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
seventeen classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans (as defined herein) and certain other
related assets.
REMIC I
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Mortgage Loans and certain
other related assets (exclusive of the Swap Account and the Swap Agreement)
subject to this Agreement as a real estate mortgage investment conduit (a
"REMIC") for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC I." The Class R-I Certificates will represent the
sole Class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, remittance rate (the "Uncertificated
REMIC I Pass-Through Rate") and initial Uncertificated Principal Balance for
each of the "regular interests" in REMIC I (the "REMIC I Regular Interests").
The "latest possible maturity date" (determined solely for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) for each REMIC I
Regular Interest shall be the Maturity Date. None of the REMIC I Regular
Interests will be certificated.
UNCERTIFICATED
REMIC I INITIAL UNCERTIFICATED REMIC I LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
I-1-A Variable(1) $994,681.47 September 2035
I-1-B Variable(1) $994,681.47 September 2035
I-2-A Variable(1) $1,506,275.82 September 2035
I-2-B Variable(1) $1,506,275.82 September 2035
I-3-A Variable(1) $2,023,738.85 September 2035
I-3-B Variable(1) $2,023,738.85 September 2035
I-4-A Variable(1) $2,686,992.34 September 2035
I-4-B Variable(1) $2,686,992.34 September 2035
I-5-A Variable(1) $3,056,932.17 September 2035
I-5-B Variable(1) $3,056,932.17 September 2035
I-6-A Variable(1) $3,565,966.24 September 2035
I-6-B Variable(1) $3,565,966.24 September 2035
I-7-A Variable(1) $4,063,120.71 September 2035
I-7-B Variable(1) $4,063,120.71 September 2035
I-8-A Variable(1) $4,543,544.32 September 2035
I-8-B Variable(1) $4,543,544.32 September 2035
I-9-A Variable(1) $5,002,331.29 September 2035
I-9-B Variable(1) $5,002,331.29 September 2035
I-10-A Variable(1) $5,434,503.55 September 2035
I-10-B Variable(1) $5,434,503.55 September 2035
I-11-A Variable(1) $5,835,594.04 September 2035
I-11-B Variable(1) $5,835,594.04 September 2035
I-12-A Variable(1) $6,200,450.11 September 2035
I-12-B Variable(1) $6,200,450.11 September 2035
I-13-A Variable(1) $5,906,047.79 September 2035
I-13-B Variable(1) $5,906,047.79 September 2035
I-14-A Variable(1) $5,625,690.31 September 2035
I-14-B Variable(1) $5,625,690.31 September 2035
I-15-A Variable(1) $5,358,704.91 September 2035
I-15-B Variable(1) $5,358,704.91 September 2035
I-16-A Variable(1) $5,104,451.21 September 2035
I-16-B Variable(1) $5,104,451.21 September 2035
I-17-A Variable(1) $4,862,319.58 September 2035
I-17-B Variable(1) $4,862,319.58 September 2035
I-18-A Variable(1) $4,631,729.72 September 2035
I-18-B Variable(1) $4,631,729.72 September 2035
I-19-A Variable(1) $4,412,129.11 September 2035
I-19-B Variable(1) $4,412,129.11 September 2035
I-20-A Variable(1) $4,202,991.90 September 2035
I-20-B Variable(1) $4,202,991.90 September 2035
I-21-A Variable(1) $5,035,735.68 September 2035
I-21-B Variable(1) $5,035,735.68 September 2035
I-22-A Variable(1) $35,022,599.21 September 2035
I-22-B Variable(1) $35,022,599.21 September 2035
I-23-A Variable(1) $2,042,074.68 September 2035
I-23-B Variable(1) $2,042,074.68 September 2035
I-24-A Variable(1) $1,948,400.38 September 2035
I-24-B Variable(1) $1,948,400.38 September 2035
I-25-A Variable(1) $1,859,061.84 September 2035
I-25-B Variable(1) $1,859,061.84 September 2035
I-26-A Variable(1) $1,773,856.70 September 2035
I-26-B Variable(1) $1,773,856.70 September 2035
I-27-A Variable(1) $1,692,592.14 September 2035
I-27-B Variable(1) $1,692,592.14 September 2035
I-28-A Variable(1) $1,615,084.39 September 2035
I-28-B Variable(1) $1,615,084.39 September 2035
I-29-A Variable(1) $1,541,158.31 September 2035
I-29-B Variable(1) $1,541,158.31 September 2035
I-30-A Variable(1) $1,470,646.99 September 2035
I-30-B Variable(1) $1,470,646.99 September 2035
I-31-A Variable(1) $1,403,391.35 September 2035
I-31-B Variable(1) $1,403,391.35 September 2035
I-32-A Variable(1) $1,339,239.82 September 2035
I-32-B Variable(1) $1,339,239.82 September 2035
I-33-A Variable(1) $1,401,786.60 September 2035
I-33-B Variable(1) $1,401,786.60 September 2035
I-34-A Variable(1) $2,350,056.48 September 2035
I-34-B Variable(1) $2,350,056.48 September 2035
I-35-A Variable(1) $13,834,079.16 September 2035
I-35-B Variable(1) $13,834,079.16 September 2035
I-36-A Variable(1) $421,226.11 September 2035
I-36-B Variable(1) $421,226.11 September 2035
I-37-A Variable(1) $404,630.36 September 2035
I-37-B Variable(1) $404,630.36 September 2035
I-38-A Variable(1) $388,687.56 September 2035
I-38-B Variable(1) $388,687.56 September 2035
I-39-A Variable(1) $373,372.06 September 2035
I-39-B Variable(1) $373,372.06 September 2035
I-40-A Variable(1) $358,659.16 September 2035
I-40-B Variable(1) $358,659.16 September 2035
I-41-A Variable(1) $344,525.16 September 2035
I-41-B Variable(1) $344,525.16 September 2035
I-42-A Variable(1) $330,947.32 September 2035
I-42-B Variable(1) $330,947.32 September 2035
I-43-A Variable(1) $317,903.74 September 2035
I-43-B Variable(1) $317,903.74 September 2035
I-44-A Variable(1) $305,373.40 September 2035
I-44-B Variable(1) $305,373.40 September 2035
I-45-A Variable(1) $293,336.15 September 2035
I-45-B Variable(1) $293,336.15 September 2035
I-46-A Variable(1) $281,772.56 September 2035
I-46-B Variable(1) $281,772.56 September 2035
I-47-A Variable(1) $270,664.02 September 2035
I-47-B Variable(1) $270,664.02 September 2035
I-48-A Variable(1) $6,573,443.31 September 2035
I-48-B Variable(1) $6,573,443.31 September 2035
A-I Variable(1) $9,975,032.44 September 2035
_______________
(1) Calculated as provided in the definition of Uncertificated REMIC I
Pass-Through Rate.
REMIC II
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the REMIC I Regular Interests
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC II." The Class R-II
Certificates will represent the sole Class of "residual interests" in REMIC II
for purposes of the REMIC Provisions (as defined herein) under federal income
tax law. The following table irrevocably sets forth the designation, remittance
rate (the "Uncertificated REMIC II Pass-Through Rate") and initial
Uncertificated Principal Balance for each of the "regular interests" in REMIC II
(the "REMIC II Regular Interests"). The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii)) for each REMIC II Regular Interest shall be the Maturity
Date. None of the REMIC II Regular Interests will be certificated.
INITIAL UNCERTIFICATED
UNCERTIFICATED REMIC II REMIC II LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
LT1 Variable(1) $349,942,342.27 September 2035
LT2 Variable(1) $12,309.84 September 2035
LT3 Variable(1) $22,690.17 September 2035
LT4 Variable(1) $22,690.17 September 2035
LT-IO Variable(1) (2) September 2035
_______________
(1) Calculated as provided in the definition of Uncertificated REMIC II
Pass-Through Rate.
(2) REMIC II Regular Interest LT-IO will not have an Uncertificated
Principal Balance but will accrue interest on its uncertificated
notional amount calculated in accordance with the definition of
"Uncertificated Notional Amount" herein.
REMIC III
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as REMIC III. The Class R-III Certificates will represent the sole
Class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, Pass-Through Rate, aggregate Initial Certificate Principal Balance,
certain features, month of Final Scheduled Distribution Date and initial ratings
for each Class of Certificates comprising the interests representing "regular
interests" in REMIC III. The "latest possible maturity date" (determined solely
for purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii)) for
each Class of REMIC III Regular Certificates shall be the Maturity Date.
MONTH OF
AGGREGATE FINAL
INITIAL SCHEDULED
PASS-THROUGH CERTIFICATE DISTRIBUTION
DESIGNATION TYPE RATE PRINCIPAL BALANCE FEATURES DATE INITIAL RATINGS
S&P ▇▇▇▇▇'▇ Fitch
Class A-1 Regular(1) Adjustable $ 142,401,000.00 Senior/Adjustable Rate September 2035 AAA Aaa AAA
Class A-2 Regular(1) Adjustable $ 116,001,000.00 Senior/Adjustable Rate September 2035 AAA Aaa AAA
Class A-3 Regular(1) Adjustable $ 20,723,000.00 Senior/Adjustable Rate September 2035 AAA Aaa AAA
Class M-1 Regular(1) Adjustable(2)(3)$ 11,550,000.00 Mezzanine/Adjustable September 2035 AA+ Aa1 AA+
Rate
Class M-2 Regular(1) Adjustable(2)(3)$ 10,850,000.00 Mezzanine/Adjustable September 2035 AA+ Aa2 AA
Rate
Class M-3 Regular(1) Adjustable(2)(3)$ 7,350,000.00 Mezzanine/Adjustable September 2035 AA Aa3 AA
Rate
Class M-4 Regular(1) Adjustable(2)(3)$ 5,600,000.00 Mezzanine/Adjustable September 2035 AA A1 AA-
Rate
Class M-5 Regular(1) Adjustable(2)(3)$ 5,775,000.00 Mezzanine/Adjustable September 2035 AA- A2 A+
Rate
Class M-6 Regular(1) Adjustable(2)(3)$ 4,900,000.00 Mezzanine/Adjustable September 2035 A+ A3 A
Rate
Class M-7 Regular(1) Adjustable(2)(3)$ 4,900,000.00 Mezzanine/Adjustable September 2035 A Baa1 A-
Rate
Class M-8 Regular(1) Adjustable(2)(3)$ 3,325,000.00 Mezzanine/Adjustable September 2035 A Baa2 A-
Rate
Class M-9 Regular(1) Adjustable(2)(3)$ 3,150,000.00 Mezzanine/Adjustable September 2035 A- Baa3 BBB+
Rate
Class M-10 Regular(1) Adjustable(2)(3)$ 3,500,000.00 Mezzanine/Adjustable September 2035 BBB+ Ba1 BBB
Rate
Class SB Regular (4) N/A $ 9,975,032.44 Subordinate N/A N/A N/A N/A
R-I ▇/▇ ▇▇▇▇▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
R-II ▇/▇ ▇▇▇▇▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
R-III ▇/▇ ▇▇▇▇▇▇▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
_______________
(1) This Class of Certificates represents ownership of a REMIC III Regular
Interest together with (i) certain rights to payments to be made from
amounts received under the Swap Agreement which will be deemed made for
federal income tax purposes outside of REMIC III by the holder of the Class
SB Certificates as the owner of the Swap Agreement and (ii) the obligation
to pay the Class IO Distribution Amount. Any amount distributed on this
Class of Certificates on any Distribution Date in excess of the amount
distributable on the related REMIC III Regular Interest on such Distribution
Date shall be treated for federal income tax purposes as having been paid
from the Swap Account and any amount distributable on such REMIC III Regular
Interest on such Distribution Date in excess of the amount distributable on
such Class of Certificates on such Distribution Date shall be treated as
having been paid to the Swap Account, all pursuant to and as further
provided in Section 4.08 hereof.
(2) The REMIC III Regular Interests ownership of which is represented by the
Class A and Class M Certificates, will accrue interest at a per annum rate
equal to LIBOR plus the applicable Margin, each subject to a payment cap as
described in the definition of "Pass-Through Rate" and the provisions for
the payment of Basis Risk Shortfalls herein, which payments will not be part
of the entitlement of the REMIC III Regular Interests related to such
Certificates.
(3) The Class A and Class M Certificates will also entitle their holders to
certain payments from the Holder of the Class SB Certificates from amounts
to which the related REMIC III Regular Interest is entitled and from amounts
received under the Swap Agreement, which will not be a part of their
ownership of the REMIC III Regular Interests.
(4) The Class SB Certificates will accrue interest as described in the
definition of Accrued Certificate Interest. The Class SB Certificates will
not accrue interest on their Certificate Principal Balance. The Class SB
Certificates will be comprised of two REMIC III regular interests, a
principal only regular interest designated SB-PO and an interest only
regular interest designated SB-IO, which will be entitled to distributions
as set forth herein. The rights of the Holder of the Class SB Certificates
to payments from the Swap Agreement shall be outside and apart from its
rights under the REMIC III Regular Interests SB-IO and SB-PO.
(5) REMIC III Regular Interest IO will be held as an asset of the Swap Account
established by the Trustee.
(6) For federal income tax purposes, REMIC III Regular Interest IO will not have
a Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC II Regular Interest LT-IO.
(7) For federal income tax purposes, REMIC III Regular Interest IO will not have
an Uncertificated Principal Balance, but will have a notional amount equal
to the Uncertificated Notional Amount of REMIC II Regular Interest LT-IO.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accrued Certificate Interest: With respect to each Distribution Date and
each Class of Class A Certificates and Class M Certificates, an amount equal to
interest accrued during the related Interest Accrual Period on the Certificate
Principal Balance thereof immediately prior to such Distribution Date at the
related Pass-Through Rate for that Distribution Date.
The amount of Accrued Certificate Interest on each Class of Certificates
shall be reduced by the amount of (a) Prepayment Interest Shortfalls on the
Mortgage Loans during the prior calendar month (to the extent not covered by
Eligible Master Servicing Compensation pursuant to Section 3.16) and Relief Act
Shortfalls on Mortgage Loans during the related Due Period, in each case
allocated to each Class of Certificates pro rata, on the basis of Accrued
Certificate Interest payable on such Distribution Date absent such reductions;
and (b) the interest portion of Realized Losses allocated to such Class through
Subordination as described in Section 4.05.
Accrued Certificate Interest shall accrue on the basis of a 360-day year
and the actual number of days in the related Interest Accrual Period.
With respect to each Distribution Date and the Class SB Certificates,
interest accrued during the preceding Interest Accrual Period at the
Pass-Through Rate on the Uncertificated Notional Amount as specified in the
definition of Pass-Through Rate, immediately prior to such Distribution Date,
reduced by any interest shortfalls with respect to the Mortgage Loans, including
Prepayment Interest Shortfalls to the extent not covered by Compensating
Interest pursuant to Section 3.16 or by Excess Cash Flow pursuant to Section
4.02(c)(v) and (vi). Accrued Certificate Interest on the Class SB Certificates
shall accrue on the basis of a 360-day year and the actual number of days in the
related Interest Accrual Period.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date
of determination, the Mortgage Rate borne by the related Mortgage Note, less the
rate at which the related Subservicing Fee accrues.
Adjustment Date: With respect to each adjustable-rate Mortgage Loan,
each date set forth in the related Mortgage Note on which an adjustment to the
interest rate on such Mortgage Loan becomes effective.
Advance: With respect to any Mortgage Loan, any advance made by the
Master Servicer, pursuant to Section 4.04.
Affected Party: As defined in the Swap Agreement.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Amount Held for Future Distribution: With respect to any Distribution
Date, the total of the amounts held in the Custodial Account at the close of
business on the preceding Determination Date on account of (i) Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent Recoveries, REO
Proceeds, Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04 or
4.07 and Mortgage Loan substitutions made pursuant to Section 2.03 or 2.04
received or made in the month of such Distribution Date (other than such
Liquidation Proceeds, Subsequent Recoveries, Insurance Proceeds, REO Proceeds
and purchases of Mortgage Loans that the Master Servicer has deemed to have been
received in the preceding month in accordance with Section 3.07(b)) and (ii)
payments which represent early receipt of scheduled payments of principal and
interest due on a date or dates subsequent to the Due Date in the related Due
Period.
Appraised Value: With respect to any Mortgaged Property, one of the
following: (i) the lesser of (a) the appraised value of such Mortgaged Property
based upon the appraisal or appraisals (or field review) made at the time of the
origination of the related Mortgage Loan, and (b) the sales price of the
Mortgaged Property at such time of origination, or (ii) in the case of a
Mortgaged Property securing a refinanced or modified Mortgage Loan, one of (1)
the appraised value based upon the appraisal made at the time of origination of
the loan which was refinanced or modified, (2) the appraised value determined in
an appraisal made at the time of refinancing or modification or (3) the sales
price of the Mortgaged Property.
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the Trustee for the benefit of
Certificateholders, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law and accompanied by an Opinion of Counsel to that effect.
Assignment Agreement: The Assignment and Assumption Agreement, dated the
Closing Date, between Residential Funding and the Depositor relating to the
transfer and assignment of the Mortgage Loans.
Available Distribution Amount: With respect to any Distribution Date, an
amount equal to (a) the sum of (i) the amount on deposit in the Custodial
Account as of the close of business on the immediately preceding Determination
Date, including any Subsequent Recoveries, and amounts deposited in the
Custodial Account in connection with the substitution of Qualified Substitute
Mortgage Loans, (ii) the amount of any Advance made on the immediately preceding
Certificate Account Deposit Date, (iii) any amount deposited in the Certificate
Account on the related Certificate Account Deposit Date pursuant to the second
paragraph of Section 3.12(a), (iv) any amount that the Master Servicer is not
permitted to withdraw from the Custodial Account pursuant to Section 3.16(e) in
respect of the Mortgage Loans and (v) any amount deposited in the Certificate
Account pursuant to Section 4.07 or 9.01, reduced by (b) the sum as of the close
of business on the immediately preceding Determination Date of (i) any payments
or collections consisting of prepayment charges on the Mortgage Loans that were
received during the related Prepayment Period, (ii) the Amount Held for Future
Distribution, (iii) amounts permitted to be withdrawn by the Master Servicer
from the Custodial Account pursuant to clauses (ii)-(x), inclusive, of Section
3.10(a), and (iv) any Net Swap Payments required to be made to the Swap
Counterparty and Swap Termination Payments not due to a Swap Counterparty
Trigger Event for such Distribution Date.
Balloon Loan: Each of the Mortgage Loans having an original term to
maturity that is shorter than the related amortization term.
Balloon Payment: With respect to any Balloon Loan, the related Monthly
Payment payable on the stated maturity date of such Balloon Loan.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Basis Risk Shortfall: Any Class A Basis Risk Shortfall or Class M Basis
Risk Shortfall.
Basis Risk Shortfall Carry-Forward Amount: Any Class A Basis Risk
Shortfall Carry-Forward Amount or Class M Basis Risk Shortfall Carry-Forward
Amount.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York, the State of
California, the State of Texas, the State of Minnesota or the State of Illinois
(and such other state or states in which the Custodial Account or the
Certificate Account are at the time located) are required or authorized by law
or executive order to be closed.
Calendar Quarter: A Calendar Quarter shall consist of one of the
following time periods in any given year: January 1 through March 31, April 1
through June 30, July 1 through September 30, and October 1 through December 31.
Capitalization Reimbursement Amount: With respect to any Distribution
Date, the amount of unreimbursed Advances or Servicing Advances that were added
to the Stated Principal Balance of the Mortgage Loans during the preceding
calendar month and reimbursed to the Master Servicer or Subservicer pursuant to
Section 3.10(a)(vii) on or prior to such Distribution Date.
Cash Liquidation: With respect to any defaulted Mortgage Loan other than
a Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with respect to
such Mortgage Loan.
Certificate: Any Class A Certificate, Class M Certificate, Class SB
Certificate or Class R Certificate.
Certificate Account: The account or accounts created and maintained
pursuant to Section 4.01, which shall be entitled "JPMorgan Chase Bank, N.A., as
trustee, in trust for the registered holders of Residential Asset Mortgage
Products, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series
2005-RZ3" and which account shall be held for the benefit of the
Certificateholders and which must be an Eligible Account.
Certificate Account Deposit Date: With respect to any Distribution Date,
the Business Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that neither a Disqualified
Organization nor a Non-United States Person shall be a holder of a Class R
Certificate for any purpose hereof. Solely for the purpose of giving any consent
or direction pursuant to this Agreement, any Certificate, other than a Class R
Certificate, registered in the name of the Depositor, the Master Servicer or any
Subservicer or any Affiliate thereof shall be deemed not to be outstanding and
the Percentage Interest or Voting Rights evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
or Voting Rights necessary to effect any such consent or direction has been
obtained. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent, if any, and otherwise on the books of a Depository Participant, if any,
and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to any Class A Certificate
or Class M Certificate, on any date of determination, an amount equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, minus
(ii) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(c) and (y) the aggregate
of all reductions in Certificate Principal Balance of such
Certificates deemed to have occurred in connection with Realized
Losses which were previously allocated to such Certificate (or
any predecessor Certificate) pursuant to Section 4.05;
provided, that with respect to any Distribution Date, the Certificate Principal
Balances of the Class A Certificates and Class M Certificates will be increased,
in each case to the extent of Realized Losses previously allocated thereto and
remaining unreimbursed, to the extent of Subsequent Recoveries in the following
order of priority: first to the Class A Certificates, pro rata, and then to the
Class M-1 Certificates , Class M-2 Certificates, Class M-3 Certificates , Class
M-4 Certificates , Class M-5 Certificates , Class M-6 Certificates , Class M-7
Certificates, Class M-8 Certificates, Class M-9 Certificates and Class M-10
Certificates, in that order.
With respect to any Class SB Certificate, on any date of determination,
an amount equal to the Percentage Interest evidenced by such Certificate
multiplied by an amount equal to (i) the excess, if any, of (A) the then
aggregate Stated Principal Balance of the Mortgage Loans over (B) the then
aggregate Certificate Principal Balance of the Class A Certificates and Class M
Certificates then outstanding, which represents the sum of (i) the Initial
Principal Balance of the REMIC III Regular Interest SB-PO, as reduced by
Realized Losses allocated thereto and payments deemed made thereon, and (ii)
accrued and unpaid interest on the REMIC III Regular Interest SB-IO, as reduced
by Realized Losses allocated thereto.
The Class R Certificates will not have a Certificate Principal Balance.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates or uncertificated interests
bearing the
same designation.
Class A Basis Risk Shortfall: With respect to each Class of Class A
Certificates and any Distribution Date for which the Pass-Through Rate for any
such Class of Certificates is equal to the Net WAC Cap Rate, the excess, if any,
of (x) the lesser of (a) Accrued Certificate Interest on that Class of
Certificates on such Distribution Date, calculated at a rate equal to One-Month
LIBOR plus the related Margin, as calculated for such Distribution Date, and (b)
11.00% per annum, over (y) Accrued Certificate Interest on such Class of Class A
Certificates for such Distribution Date calculated at the Net WAC Cap Rate.
Class A Basis Risk Shortfall Carry-Forward Amount: With respect to each
Class of Class A Certificates and any Distribution Date, the sum of (a) the
aggregate amount of Class A Basis Risk Shortfall for such Class on such
Distribution Date plus (b) any Class A Basis Risk Shortfall Carry-Forward Amount
for such Class remaining unpaid from the preceding Distribution Date, plus (c)
one month's interest on the amount in clause (b) (based on the number of days in
the preceding Interest Accrual Period), to the extent previously unreimbursed by
Excess Cash Flow or the Swap Agreement pursuant to this Agreement, at a rate
equal to the related Pass-Through Rate.
Class A Certificates: Collectively, the Class A-1 Certificates, Class
A-2 Certificates and Class A-3 Certificates.
Class A Principal Distribution Amount: With respect to any Distribution
Date (a) prior to the Stepdown Date or on or after the Stepdown Date if a
Trigger Event is in effect for that Distribution Date, the Principal
Distribution Amount for that Distribution Date or (b) on or after the Stepdown
Date if a Trigger Event is not in effect for that Distribution Date, the lesser
of:
(i) the Principal Distribution Amount for that Distribution Date; and
(ii) the excess, if any, of (A) the aggregate Certificate Principal
Balance of the Class A Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1)
the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class A-1 Certificate: Any one of the Class A-1 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit A, senior to the Class M Certificates, the Class
SB Certificates and the Class R Certificates with respect to distributions and
the allocation of Realized Losses in respect of the Mortgage Loans as set forth
in Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right to
receive payments under the Swap Agreement and (iii) the obligation to pay the
Class IO Distribution Amount.
Class A-1 Margin: Initially, 0.130% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.260% per annum.
Class A-2 Certificate: Any one of the Class A-2 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit A, senior to the Class M Certificates, the Class
SB Certificates and the Class R Certificates with respect to distributions and
the allocation of Realized Losses in respect of the Mortgage Loans as set forth
in Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right to
receive payments under the Swap Agreement and (iii) the obligation to pay the
Class IO Distribution Amount.
Class A-2 Margin: Initially, 0.270% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.540% per annum.
Class A-3 Certificate: Any one of the Class A-3 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit A, senior to the Class M Certificates, the Class
SB Certificates and the Class R Certificates with respect to distributions and
the allocation of Realized Losses in respect of the Mortgage Loans as set forth
in Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right to
receive payments under the Swap Agreement and (iii) the obligation to pay the
Class IO Distribution Amount.
Class A-3 Margin: Initially, 0.400% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.800% per annum.
Class IO Distribution Amount: As defined in Section 4.08(f) hereof. For
purposes of clarity, the Class IO Distribution Amount for any Distribution Date
shall equal the amount payable to the Swap Account on such Distribution Date in
excess of the amount payable on REMIC III Regular Interest IO on such
Distribution Date, all as further provided in Section 4.08(b) hereof.
Class M Basis Risk Shortfall: With respect to each Class of Class M
Certificates and any Distribution Date for which the Pass-Through Rate for any
such Class of Certificates is equal to the Net WAC Cap Rate, the excess, if any,
of (x) the lesser of (a) Accrued Certificate Interest on that Class of
Certificates on such Distribution Date, calculated at a rate equal to One-Month
LIBOR plus the related Margin, as calculated for such Distribution Date, and (b)
11.00% per annum, over (y) Accrued Certificate Interest on such Class of Class M
Certificates for such Distribution Date calculated at the Net WAC Cap Rate.
Class M Basis Risk Shortfall Carry-Forward Amount: With respect to each
Class of Class M Certificates and any Distribution Date, the sum of (a) the
aggregate amount of Class M Basis Risk Shortfall for such Class on such
Distribution Date plus (b) any Class M Basis Risk Shortfall Carry-Forward Amount
for such Class remaining unpaid from the preceding Distribution Date, plus (c)
one month's interest on the amount in clause (b) (based on the number of days in
the preceding Interest Accrual Period), to the extent previously unreimbursed by
Excess Cash Flow or the Swap Agreement pursuant to this Agreement, at a rate
equal to the related Pass-Through Rate.
Class M Certificates: Collectively, the Class M-1 Certificates, Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates, Class M-9 Certificates and Class M-10 Certificates.
Class M-1 Certificate: Any one of the Class M-1 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates, the Class M-10 Certificates, the Class
SB Certificates and the Class R Certificates with respect to distributions and
the allocation of Realized Losses as set forth in Section 4.05, and evidencing
(i) an interest designated as a "regular interest" in REMIC III for purposes of
the REMIC Provisions, (ii) the right to receive payments under the Swap
Agreement and (iii) the obligation to pay the Class IO Distribution Amount.
Class M-1 Margin: Initially, 0.480% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.720% per annum.
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount or (b) on or after the Stepdown Date
if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates (after
taking into account the payment of the Class A Principal
Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-1 Certificates
immediately prior to that Distribution Date over (B) the lesser
of (x) the product of (1) the applicable Subordination
Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made
on that Distribution Date and (y) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution
Date, over the Overcollateralization Floor.
Class M-2 Certificate: Any one of the Class M-2 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-3 Certificates, the
Class M-4 Certificates, the Class M-5 Certificates, the Class M-6 Certificates,
the Class M-7 Certificates, the Class M-8 Certificates, the Class M-9
Certificates, the Class M-10 Certificates, the Class SB Certificates and the
Class R Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.05, and evidencing (i) an interest
designated as a "regular interest" in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive payments under the Swap Agreement and
(iii) the obligation to pay the Class IO Distribution Amount.
Class M-2 Margin: Initially, 0.500% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.750% per annum.
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount and the Class M-1 Principal
Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event is
not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount and the Class M-1 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates and
Class M-1 Certificates (after taking into account the payment of
the Class A Principal Distribution Amount and the Class M-1
Principal Distribution Amount for that Distribution Date) and
(2) the Certificate Principal Balance of the Class M-2
Certificates immediately prior to that Distribution Date over
(B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made
on that Distribution Date, over the Overcollateralization Floor.
Class M-3 Certificate: Any one of the Class M-3 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-4 Certificates, the
Class M-5 Certificates, the Class M-6 Certificates, the Class M-7 Certificates,
the Class M-8 Certificates, the Class M-9 Certificates, the Class M-10
Certificates, the Class SB Certificates and the Class R Certificates with
respect to distributions and the allocation of Realized Losses as set forth in
Section 4.05, and evidencing (i) an interest designated as a "regular interest"
in REMIC III for purposes of the REMIC Provisions, (ii) the right to receive
payments under the Swap Agreement and (iii) the obligation to pay the Class IO
Distribution Amount.
Class M-3 Margin: Initially, 0.550% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.825% per annum.
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount and the Class M-2 Principal Distribution Amount or (b) on or after the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount and the Class
M-2 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates and Class M-2 Certificates (after taking into
account the payment of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount and the
Class M-2 Principal Distribution Amount for that Distribution
Date) and (2) the Certificate Principal Balance of the Class M-3
Certificates immediately prior to that Distribution Date over
(B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made
on that Distribution Date, over the Overcollateralization Floor.
Class M-4 Certificate: Any one of the Class M-4 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-5 Certificates, the
Class M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates,
the Class M-9 Certificates, the Class M-10 Certificates, the Class SB
Certificates and the Class R Certificates with respect to distributions and the
allocation of Realized Losses as set forth in Section 4.05, and evidencing (i)
an interest designated as a "regular interest" in REMIC III for purposes of the
REMIC Provisions, (ii) the right to receive payments under the Swap Agreement
and (iii) the obligation to pay the Class IO Distribution Amount.
Class M-4 Margin: Initially, 0.620% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.930% per annum.
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount and the Class M-3 Principal
Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event is
not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class
M-2 Principal Distribution Amount and the Class M-3 Principal
Distribution Amount ; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates, Class M-2 Certificates and Class M-3
Certificates (after taking into account the payment of the Class
A Principal Distribution Amount, the Class M-1 Principal
Distribution Amount, the Class M-2 Principal Distribution Amount
and the Class M-3 Principal Distribution Amount for that
Distribution Date) and (2) the Certificate Principal Balance of
the Class M-4 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1)
the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-5 Certificate: Any one of the Class M-5 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-6 Certificates, the
Class M-7 Certificates, the Class M-8 Certificates, the Class M-9 Certificates,
the Class M-10 Certificates, the Class SB Certificates and the Class R
Certificates with respect to distributions and the allocation of Realized Losses
as set forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC III for purposes of the REMIC Provisions, (ii) the
right to receive payments under the Swap Agreement and (iii) the obligation to
pay the Class IO Distribution Amount.
Class M-5 Margin: Initially, 0.680% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 1.020% per annum.
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount and the Class M-4 Principal Distribution Amount or (b) on or
after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A Principal
Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3
Principal Distribution Amount and the Class M-4 Principal
Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates
and Class M-4 Certificates (after taking into account the
payment of the Class A Principal Distribution Amount, the Class
M-1 Principal Distribution Amount, the Class M-2 Principal
Distribution Amount, Class M-3 Principal Distribution Amount and
the Class M-4 Principal Distribution Amount for that
Distribution Date) and (2) the Certificate Principal Balance of
the Class M-5 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1)
the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-6 Certificate: Any one of the Class M-6 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-7 Certificates, the
Class M-8 Certificates, the Class M-9 Certificates, the Class M-10 Certificates,
the Class SB Certificates and the Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section
4.05, and evidencing (i) an interest designated as a "regular interest" in REMIC
III for purposes of the REMIC Provisions, (ii) the right to receive payments
under the Swap Agreement and (iii) the obligation to pay the Class IO
Distribution Amount.
Class M-6 Margin: Initially, 0.750% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 1.125% per annum.
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount and the Class M-5
Principal Distribution Amount or (b) on or after the Stepdown Date if a Trigger
Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class
M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount and
the Class M-5 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates and Class M-5 Certificates
(after taking into account the payment of the Class A Principal
Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3
Principal Distribution Amount, Class M-4 Principal Distribution
Amount and the Class M-5 Principal Distribution Amount for that
Distribution Date) and (2) the Certificate Principal Balance of
the Class M-6 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1)
the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-7 Certificate: Any one of the Class M-7 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-8 Certificates, the
Class M-9 Certificates, the Class M-10 Certificates, the Class SB Certificates
and the Class R Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.05, and evidencing (i) an interest
designated as a "regular interest" in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive payments under the Swap Agreement and
(iii) the obligation to pay the Class IO Distribution Amount.
Class M-7 Margin: Initially, 1.200% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 1.800% per annum.
Class M-7 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount, Class M-5
Principal Distribution Amount and the Class M-6 Principal Distribution Amount or
(b) on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class
M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount and the Class M-6
Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates and
Class M-6 Certificates (after taking into account the payment of
the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal
Distribution Amount, Class M-3 Principal Distribution Amount,
Class M-4 Principal Distribution Amount, Class M-5 Principal
Distribution Amount and the Class M-6 Principal Distribution
Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-7 Certificates immediately
prior to that Distribution Date over (B) the lesser of (x) the
product of (1) the applicable Subordination Percentage and (2)
the aggregate Stated Principal Balance of the Mortgage Loans
after giving effect to distributions to be made on that
Distribution Date and (y) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date,
over the Overcollateralization Floor.
Class M-8 Certificate: Any one of the Class M-8 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-9 Certificates, the
Class M-10 Certificates, the Class SB Certificates and the Class R Certificates
with respect to distributions and the allocation of Realized Losses as set forth
in Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right to
receive payments under the Swap Agreement and (iii) the obligation to pay the
Class IO Distribution Amount.
Class M-8 Margin: Initially, 1.350% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 2.025% per annum.
Class M-8 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount, Class M-5
Principal Distribution Amount, the Class M-6 Principal Distribution Amount and
the Class M-7 Principal Distribution Amount or (b) on or after the Stepdown Date
if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class
M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount and the Class M-7 Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates,
Class M-6 Certificates and Class M-7 Certificates (after taking
into account the payment of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class
M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount and the Class M-7 Principal Distribution
Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-8 Certificates immediately
prior to that Distribution Date over (B) the lesser of (x) the
product of (1) the applicable Subordination Percentage and (2)
the aggregate Stated Principal Balance of the Mortgage Loans
after giving effect to distributions to be made on that
Distribution Date and (y) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date,
over the Overcollateralization Floor.
Class M-9 Certificate: Any one of the Class M-9 Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B-1, senior to the Class M-10 Certificates, the
Class SB Certificates and the Class R Certificates with respect to distributions
and the allocation of Realized Losses as set forth in Section 4.05, and
evidencing (i) an interest designated as a "regular interest" in REMIC III for
purposes of the REMIC Provisions, (ii) the right to receive payments under the
Swap Agreement and (iii) the obligation to pay the Class IO Distribution Amount.
Class M-9 Margin: Initially, 1.800% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 2.700% per annum.
Class M-9 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount, Class M-5
Principal Distribution Amount, the Class M-6 Principal Distribution Amount, the
Class M-7 Principal Distribution Amount and the Class M-8 Principal Distribution
Amount or (b) on or after the Stepdown Date if a Trigger Event is not in effect
for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class
M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount, the Class M-7 Principal Distribution Amount
and the Class M-8 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates,
Class M-6 Certificates, Class M-7 Certificates and Class M-8
Certificates (after taking into account the payment of the Class
A Principal Distribution Amount, the Class M-1 Principal
Distribution Amount, the Class M-2 Principal Distribution
Amount, Class M-3 Principal Distribution Amount, Class M-4
Principal Distribution Amount, Class M-5 Principal Distribution
Amount, the Class M-6 Principal Distribution Amount, the Class
M-7 Principal Distribution Amount and the Class M-8 Principal
Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-9 Certificates
immediately prior to that Distribution Date over (B) the lesser
of (x) the product of (1) the applicable Subordination
Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made
on that Distribution Date and (y) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution
Date, over the Overcollateralization Floor.
Class M-10 Certificate: Any one of the Class M-10 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit B-1, senior to the Class SB Certificates and
the Class R Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.05, and evidencing (i) an interest
designated as a "regular interest" in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive payments under the Swap Agreement and
(iii) the obligation to pay the Class IO Distribution Amount.
Class M-10 Margin: Initially, a 3.00% annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional
Termination Date, 4.500% per annum.
Class M-10 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the remaining
Principal Distribution Amount for that Distribution Date after distribution of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount, Class M-5
Principal Distribution Amount, the Class M-6 Principal Distribution Amount, the
Class M-7 Principal Distribution Amount, the Class M-8 Principal Distribution
Amount and the Class M-9 Principal Distribution Amount or (b) on or after the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
(i) the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A Principal
Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, Class M-3
Principal Distribution Amount, Class M-4 Principal Distribution
Amount, Class M-5 Principal Distribution Amount, the Class M-6
Principal Distribution Amount, the Class M-7 Principal
Distribution Amount, the Class M-8 Principal Distribution Amount
and the Class M-9 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates, Class
M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates,
Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates and Class M-9 Certificates (after taking into
account the payment of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class
M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount, the Class M-7 Principal Distribution
Amount, the Class M-8 Principal Distribution Amount and the
Class M-9 Principal Distribution Amount for that Distribution
Date) and (2) the Certificate Principal Balance of the Class
M-10 Certificates immediately prior to that Distribution Date
over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made
on that Distribution Date, over the Overcollateralization Floor.
Class R Certificate: Any one of the Class R-I, Class R-II or Class R-III
Certificates.
Class R-I Certificate: Any one of the Class R-I Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit D and evidencing an interest designated as a
"residual interest" in REMIC I for purposes of the REMIC Provisions.
Class R-II Certificate: Any one of the Class R-II Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit D and evidencing an interest designated as a
"residual interest" in REMIC II for purposes of the REMIC Provisions.
Class R-III Certificate: Any one of the Class R-III Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit D and evidencing an interest
designated as a "residual interest" in REMIC III for purposes of the REMIC
Provisions.
Class SB Certificate: Any one of the Class SB Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit C, subordinate to the Class A Certificates and
Class M Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.05, and evidencing an interest
comprised of "regular interests" in REMIC III for purposes of the REMIC
Provisions together with certain rights to payments under the Swap Agreement for
purposes of the REMIC Provisions.
Closing Date: September 23, 2005.
Code: The Internal Revenue Code of 1986.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date, any amount
paid by the Master Servicer in accordance with Section 3.16(f).
Corporate Trust Office: The principal office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Residential Asset Mortgage Products, Inc.,
Series 2005-RZ3.
Credit Repository: Equifax, Transunion and Experian, or their successors
in interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.07 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
Custodial Agreement: An agreement that may be entered into among the
Depositor, the Master Servicer, the Trustee and a Custodian in substantially the
form of Exhibit E hereto.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
Cut-off Date Balance: $350,000,032.44.
Cut-off Date: September 1, 2005.
Cut-off Date Principal Balance: With respect to any Mortgage Loan, the
unpaid principal balance thereof at the Cut-off Date after giving effect to all
installments of principal due on or prior thereto (or due during the month of
the Cut-off Date), whether or not received.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificate: Any definitive, fully-registered Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Delinquent: As used herein, a Mortgage Loan is considered to be: "30 to
59 days" or "30 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the next following monthly
scheduled due date; "60 to 89 days" or "60 or more days" delinquent when a
payment due on any scheduled due date remains unpaid as of the close of business
on the second following monthly scheduled due date; and so on. The determination
as to whether a Mortgage Loan falls into these categories is made as of the
close of business on the last business day of each month. For example, a
Mortgage Loan with a payment due on May 1 that remained unpaid as of the close
of business on June 30 would then be considered to be 30 to 59 days delinquent.
Delinquency information as of the Cut-off Date is determined and prepared as of
the close of business on the last business day immediately prior to the Cut-off
Date.
Depositor: As defined in the preamble hereto.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: With respect to any Distribution Date, the 20th day
(or if such 20th day is not a Business Day, the Business Day immediately
following such 20th day) of the month of the related Distribution Date.
Disqualified Organization: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, including, if not otherwise
included, any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) and
(iv) rural electric and telephone cooperatives described in Section
1381(a)(2)(C) of the Code. A Disqualified Organization also includes any
"electing large partnership," as defined in Section 775(a) of the Code and any
other Person so designated by the Trustee based upon an Opinion of Counsel that
the holding of an Ownership Interest in a Class R Certificate by such Person may
cause any REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R Certificate to such Person. The terms
"United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 25th day of any month beginning in October 2005
or, if such 25th day is not a Business Day, the Business Day immediately
following such 25th day.
DTC Letter: The Letter of Representations, dated September 22, 2005,
among the Trustee on behalf of the Trust Fund, JPMorgan Chase Bank, N.A., in its
individual capacity as agent thereunder and the Depository.
Due Date: With respect to any Distribution Date and any Mortgage Loan,
the day during the related Due Period on which the Monthly Payment is due.
Due Period: With respect to any Distribution Date, the calendar month of
such Distribution Date.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Certificates have a
claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, or (iii) in the case of the Custodial Account, a trust account or
accounts maintained in the corporate trust department of JPMorgan Chase Bank,
N.A., or (iv) in the case of the Certificate Account, a trust account or
accounts maintained in the corporate trust division of JPMorgan Chase Bank,
N.A., or (v) an account or accounts of a depository institution acceptable each
Rating Agency (as evidenced in writing by each Rating Agency that use of any
such account as the Custodial Account or the Certificate Account will not reduce
the rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency.
Eligible Master Servicing Compensation: With respect to any Distribution
Date, the lesser of (a) one-twelfth of 0.125% of the Stated Principal Balance of
the Mortgage Loans immediately preceding such Distribution Date and (b) the sum
of the Servicing Fee and all income and gain on amounts held in the Custodial
Account and the Certificate Account and payable to the Certificateholders with
respect to such Distribution Date; provided that for purposes of this definition
the amount of the Servicing Fee will not be reduced pursuant to Section 7.02(a)
except as may be required pursuant to the last sentence of such Section.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 7.01.
Excess Cash Flow: With respect to any Distribution Date, an amount equal
to the sum of (A) the excess of (i) the Available Distribution Amount for that
Distribution Date over (ii) the sum of (a) the Interest Distribution Amount for
that Distribution Date and (b) the lesser of (1) the aggregate Certificate
Principal Balance of Class A Certificates and Class M Certificates immediately
prior to such Distribution Date and (2) the Principal Remittance Amount for that
Distribution Date to the extent not applied to pay interest on the Class A
Certificates and Class M Certificates on such Distribution Date and (B) the
Overcollateralization Reduction Amount, if any, for that Distribution Date.
Excess Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralization Amount on such
Distribution Date over (b) the Required Overcollateralization Amount for such
Distribution Date.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Exchange Date: As defined in Section 5.02(e)(iii).
Expense Fee Rate: With respect to any Mortgage Loan as of any date of
determination, the sum of the applicable Servicing Fee Rate and the per annum
rate at which the applicable Subservicing Fee accrues.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Fitch: Fitch Ratings, or its successors in interest.
Fixed Swap Payment: With respect to any Distribution Date on or prior to
the Distribution Date in September 2009, an amount equal to the product of (x) a
fixed rate equal to 4.2225%, (y) the Swap Agreement Notional Balance for that
Distribution Date and (z) a fraction, the numerator of which is (a) 32 for the
Distribution Date in October 2005 and (b) 30 for any Distribution Date occurring
after the Distribution Date in October 2005, and the denominator of which is
360.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
9.01, which Final Distribution Date shall in no event be later than the end of
the 90-day liquidation period described in Section 9.02.
Final Scheduled Distribution Date: Solely for purposes of the face of
the Certificates, the Distribution Date occurring in September 2035. No event of
default under this Agreement will arise or become applicable solely by reason of
the failure to retire the entire Certificate Principal Balance of any Class of
Class A Certificates or Class M Certificates on or before its Final Scheduled
Distribution Date.
Floating Swap Payment: With respect to any Distribution Date on or prior
to the Distribution Date in September 2009, an amount equal to the product of
(x) Swap LIBOR, (y) the Swap Agreement Notional Balance for that Distribution
Date and (z) a fraction, the numerator of which is equal to the number of days
in the related calculation period as provided in the Swap Agreement and the
denominator of which is 360.
Foreclosure Profits: With respect to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition occurred in the
related Prepayment Period over the sum of the unpaid principal balance of such
Mortgage Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
Form 10-K Certification: As defined in Section 4.03(e).
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac, a corporate instrumentality of the United
States created and existing under Title III of the Emergency Home Finance Act of
1970, as amended, or any successor thereto.
HUD: The United States Department of Housing and Urban Development.
Independent: When used with respect to any specified Person, means such
a Person who (i) is in fact independent of the Depositor, the Master Servicer
and the Trustee, or any Affiliate thereof, (ii) does not have any direct
financial interest or any material indirect financial interest in the Depositor,
the Master Servicer or the Trustee or in an Affiliate thereof, and (iii) is not
connected with the Depositor, the Master Servicer or the Trustee as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
Index: With respect to each adjustable-rate Mortgage Loan and as to any
Adjustment Date therefor, the related index as stated in the related Mortgage
Note.
Initial Certificate Principal Balance: With respect to each Class of
Certificates (other than the Class R Certificates), the Certificate Principal
Balance of such Class of Certificates as of the Cut-off Date as set forth in the
Preliminary Statement hereto.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan, to the extent such proceeds are payable to the
mortgagee under the Mortgage, any Subservicer, the Master Servicer or the
Trustee and are not applied to the restoration of the related Mortgaged Property
or released to the Mortgagor in accordance with the procedures that the Master
Servicer would follow in servicing mortgage loans held for its own account.
Interest Accrual Period: With respect to the Class A Certificates, Class
M Certificates and Class SB Certificates (i) with respect to the Distribution
Date in October 2005, the period commencing the Closing Date and ending on the
day preceding the Distribution Date in October 2005, and (ii) with respect to
any Distribution Date after the Distribution Date in October 2005, the period
commencing on the Distribution Date in the month immediately preceding the month
in which such Distribution Date occurs and ending on the day preceding such
Distribution Date.
Interest Distribution Amount: For any Distribution Date, the amounts
payable pursuant to Section 4.02(c)(i)-(iii).
Interim Certification: As defined in Section 2.02.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
LIBOR Business Day: Any day other than (i) a Saturday or Sunday or (ii)
a day on which banking institutions in London, England are required or
authorized to by law to be closed.
LIBOR Certificates: The Class A Certificates and Class M Certificates.
LIBOR Rate Adjustment Date: With respect to each Distribution Date, the
second LIBOR Business Day immediately preceding the commencement of the related
Interest Accrual Period.
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received
by the Master Servicer in connection with the taking of an entire Mortgaged
Property by exercise of the power of eminent domain or condemnation or in
connection with the liquidation of a defaulted Mortgage Loan through trustee's
sale, foreclosure sale or otherwise, other than REO Proceeds and Subsequent
Recoveries.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of which
is the Appraised Value of the related Mortgaged Property.
Margin: The Class A-1 Margin, Class A-2 Margin, Class A-3 Margin, Class
M-1 Margin, Class M-2 Margin, Class M-3 Margin, Class M-4 Margin, Class M-5
Margin, Class M-6 Margin, Class M-7 Margin, Class M-8 Margin, Class M-9 Margin
and Class M-10 Margin, as applicable.
Marker Rate: With respect to the Class SB Certificates or REMIC III
Regular Interest SB-IO and any Distribution Date, in relation to the REMIC II
Regular Interests LT1, LT2, LT3, and LT4, a per annum rate equal to two (2)
times the weighted average of the Uncertificated REMIC II Pass-Through Rates for
REMIC II Regular Interest LT2 and REMIC II Regular Interest LT3.
Master Servicer: As defined in the preamble hereto.
Maturity Date: With respect to each Class of Certificates of regular
interest or Uncertificated Regular Interest issued by any REMIC hereunder, the
latest possible maturity date, solely for purposes of Section
1.860G-1(a)(4)(iii) of the Treasury Regulations, by which the Certificate
Principal Balance of each such Class of Certificates representing a regular
interest in the Trust Fund would be reduced to zero, which is, for each such
regular interest, September 25, 2035, which is the Distribution Date occurring
in the month following the last scheduled monthly payment of the Mortgage Loans.
Maximum Mortgage Rate: As to any adjustable-rate Mortgage Loan, the per
annum rate indicated in Exhibit F hereto as the "NOTE CEILING," which rate is
the maximum interest rate that may be applicable to such Mortgage Loan at any
time during the life of such Mortgage Loan.
Maximum Net Mortgage Rate: As to any adjustable-rate Mortgage Loan and
any date of determination, the Maximum Mortgage Rate minus the sum of the per
annum rate at which the Subservicing Fee accrues and the Servicing Fee Rate.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
Minimum Mortgage Rate: As to any adjustable-rate Mortgage Loan, a per
annum rate equal to the greater of (i) the Note Margin and (ii) the rate
indicated in Exhibit F hereto as the "NOTE FLOOR," which rate may be applicable
to such Mortgage Loan at any time during the life of such adjustable-rate
Mortgage Loan.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a
Servicing Modification.
Modified Net Mortgage Rate: With respect to any Mortgage Loan that is
the subject of a Servicing Modification, the Net Mortgage Rate minus the rate
per annum by which the Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and the Due Date in any Due Period, the payment of principal and
interest due thereon in accordance with the amortization schedule at the time
applicable thereto (after adjustment, if any, for Curtailments and for Deficient
Valuations occurring prior to such Due Date but before any adjustment to such
amortization schedule by reason of any bankruptcy, other than a Deficient
Valuation, or similar proceeding or any moratorium or similar waiver or grace
period and before any Servicing Modification that constitutes a reduction of the
interest rate on such Mortgage Loan).
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note related to a Mortgage Loan,
the mortgage, deed of trust or other comparable instrument creating a first or
junior lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as from time to time are held or deemed to
be held as a part of the Trust Fund, the Mortgage Loans originally so held being
identified in the initial Mortgage Loan Schedule attached hereto as Exhibit F,
and Qualified Substitute Mortgage Loans held or deemed held as part of the Trust
Fund including, without limitation, each related Mortgage Note, Mortgage and
Mortgage File and all rights appertaining thereto.
Mortgage Loan Schedule: The lists of the Mortgage Loans attached hereto
as Exhibit F (as amended from time to time to reflect the addition of Qualified
Substitute Mortgage Loans), which lists shall set forth at a minimum the
following information as to each Mortgage Loan:
(i) the Mortgage Loan identifying number ("RFC LOAN #");
(ii) the state, city and zip code of the Mortgaged Property;
(iii) the maturity of the Mortgage Note ("MATURITY DATE," or "MATURITY
DT" for Mortgage Loans and if such Mortgage Loan is a Balloon
Loan, the amortization term thereof;
(iv) (for the adjustable-rate Mortgage Loans, the Mortgage Rate as of
origination ("ORIG RATE");
(v) the Mortgage Rate as of the Cut-off Date ("CURR RATE")
(vi) the Net Mortgage Rate as of the Cut-off Date ("CURR NET");
(vii) the scheduled monthly payment of principal, if any, and interest
as of the Cut-off Date ("ORIGINAL P & I");
(viii) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(ix) the Loan-to-Value Ratio at origination ("LTV");
(x) a code "T," "BT" or "CT" under the column "LN FEATURE,"
indicating that the Mortgage Loan is secured by a second or
vacation residence (the absence of any such code means the
Mortgage Loan is secured by a primary residence); and
(xi) a code "N" under the column "OCCP CODE," indicating that the
Mortgage Loan is secured by a non-owner occupied residence (the
absence of any such code means the Mortgage Loan is secured by an
owner occupied residence).
(xii) for the adjustable-rate Mortgage Loans, the Maximum Mortgage Rate
("NOTE CEILING");
(xiii) for the adjustable-rate Mortgage Loans, the maximum Net Mortgage
Rate ("NET CEILING");
(xiv) for the adjustable-rate Mortgage Loans, the Note Margin ("NOTE
MARGIN");
(xv) for the adjustable-rate Mortgage Loans, the first Adjustment Date
after the Cut-off Date ("NXT INT CHG DT");
(xvi) for the adjustable-rate Mortgage Loans, the Periodic Cap
("PERIODIC DECR" or "PERIODIC INCR");
Such schedule may consist of multiple reports that collectively set
forth all of the information required.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with any modification thereto.
Mortgage Rate: With respect to any Mortgage Loan, the interest rate
borne by the related Mortgage Note, or any modification thereto other than a
Servicing Modification. The Mortgage Rate on the adjustable-rate Mortgage Loans
will adjust on each Adjustment Date to equal the sum (rounded to the nearest
multiple of one eighth of one percent (0.125%) or up to the nearest one-eighth
of one percent, which are indicated by a "U" on the Mortgage Loan Schedule,
except in the case of the adjustable-rate Mortgage Loans indicated by an "X" on
the Mortgage Loan Schedule under the heading "NOTE METHOD"), of the related
Index plus the Note Margin, in each case subject to the applicable Periodic Cap,
Maximum Mortgage Rate and Minimum Mortgage Rate.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: With respect to any Mortgage Loan as of any date of
determination, a per annum rate equal to the Adjusted Mortgage Rate for such
Mortgage Loan as of such date minus the Servicing Fee Rate.
Net Swap Payment: With respect to each Distribution Date, the net
payment required to be made pursuant to the terms of the Swap Agreement by
either the Swap Counterparty or the Trustee, on behalf of the Trust, which net
payment shall not take into account any Swap Termination Payment.
Net WAC Cap Rate: With respect to any Distribution Date and the Class A
Certificates and Class M Certificates, a per annum rate equal to (i) the product
of (a) weighted average of the Net Mortgage Rates (or, if applicable, the
Modified Net Mortgage Rates) on the Mortgage Loans using the Net Mortgage Rates
in effect for the Monthly Payments due on such Mortgage Loans during the related
Due Period, weighted on the basis of the respective Stated Principal Balances
thereof for such Distribution Date, (b) a fraction expressed as a percentage the
numerator of which is 30 and the denominator of which is the actual number of
days in the related Interest Accrual Period, minus (ii) the product of (a) a
fraction expressed as a percentage, the numerator of which is the amount of any
Net Swap Payments or Swap Termination Payment not due to a Swap Counterparty
Trigger Event due to the Swap Counterparty as of such Distribution Date and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans as of such Distribution Date and (b) a fraction expressed as a percentage
the numerator of which is 360 and the denominator of which is the actual number
of days in the related Interest Accrual Period.
Non-Primary Residence Loans: The Mortgage Loans designated as secured by
second or vacation residences, or by non-owner occupied residences, on the
Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be
made by the Master Servicer or Subservicer in respect of a Mortgage Loan (other
than a Deleted Mortgage Loan) which, in the good faith judgment of the Master
Servicer, will not, or, in the case of a proposed Advance, would not, be
ultimately recoverable by the Master Servicer from related Late Collections,
Insurance Proceeds, Liquidation Proceeds or REO Proceeds. To the extent that any
Mortgagor is not obligated under the related Mortgage documents to pay or
reimburse any portion of any Servicing Advances that are outstanding with
respect to the related Mortgage Loan as a result of a modification of such
Mortgage Loan by the Master Servicer, which forgives amounts which the Master
Servicer or Subservicer had previously advanced, and the Master Servicer
determines that no other source of payment or reimbursement for such advances is
available to it, such Servicing Advances shall be deemed to be Nonrecoverable
Advances. The determination by the Master Servicer that it has made a
Nonrecoverable Advance shall be evidenced by an Officers' Certificate delivered
to the Depositor, the Trustee and the Master Servicer. Notwithstanding the
above, the Trustee shall be entitled to rely upon any determination by the
Master Servicer that any Advance previously made is a Nonrecoverable Advance or
that any proposed Advance, if made, would constitute a Nonrecoverable Advance.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Note Margin: With respect to each adjustable-rate Mortgage Loan, the
fixed percentage set forth in the related Mortgage Note and indicated on the
Mortgage Loan Schedule as the "NOTE MARGIN," which percentage is added to the
Index on each Adjustment Date to determine (subject to rounding in accordance
with the related Mortgage Note, the Periodic Cap, the Maximum Mortgage Rate and
the Minimum Mortgage Rate) the interest rate to be borne by such adjustable-rate
Mortgage Loan until the next Adjustment Date.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the President, a Vice President, Assistant Vice President, Director,
Managing Director, the Treasurer, the Secretary, an Assistant Treasurer or an
Assistant Secretary of the Depositor or the Master Servicer, as the case may be,
and delivered to the Trustee, as required by this Agreement.
One-Month LIBOR: With respect to any Distribution Date, the arithmetic
mean of the London interbank offered rate quotations for one-month United States
dollar deposits, determined on the preceding LIBOR Rate Adjustment Date as set
forth in Section 1.02 hereof.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Master Servicer and which counsel may be counsel for the
Depositor or the Master Servicer, provided that any opinion of counsel (i)
referred to in the definition of "Disqualified Organization" or (ii) relating to
the qualification of any REMIC hereunder as a REMIC or compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Optional Termination Date: Any Distribution Date on or after which the
Stated Principal Balance (after giving effect to distributions to be made on
such Distribution Date) of the Mortgage Loans is less than 10.00% of the Cut-off
Date Balance.
Outstanding Mortgage Loan: With respect to the Due Date in any Due
Period, a Mortgage Loan (including an REO Property) that was not the subject of
a Principal Prepayment in Full, Cash Liquidation or REO Disposition and that was
not purchased, deleted or substituted for prior to such Due Date pursuant to
Section 2.02, 2.03, 2.04 or 4.07.
Overcollateralization Amount: With respect to any Distribution Date, the
excess, if any, of (a) the aggregate Stated Principal Balance of the Mortgage
Loans before giving effect to distributions of principal to be made on such
Distribution Date over (b) the aggregate Certificate Principal Balance of the
Class A Certificates and Class M Certificates immediately prior to such date.
Overcollateralization Floor: With respect to the Mortgage Loans, an
amount equal to the product of (a) 0.50% and (b) the Cut-off Date Balance.
Overcollateralization Increase Amount: With respect to any Distribution
Date, the lesser of (a) the sum of (i) Excess Cash Flow for that Distribution
Date (to the extent not used to cover the amounts described in clauses (iv) and
(v) of the definition of Principal Distribution Amount as of such Distribution
Date) and (ii) Net Swap Payments payable to the Trust that are used to increase
overcollateralization, and (b) the excess of (1) the Required
Overcollateralization Amount for such Distribution Date over (2) the
Overcollateralization Amount for such Distribution Date.
Overcollateralization Reduction Amount: With respect to any Distribution
Date, to the extent the Excess Overcollateralization Amount is, after taking
into account all other distributions to be made on such Distribution Date,
greater than zero, the Overcollateralization Reduction Amount shall be equal to
the lesser of (i) the Excess Overcollateralization Amount for that Distribution
Date and (ii) the Principal Remittance Amount for such Distribution Date.
Ownership Interest: With respect to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to each Class of Class A Certificates
and Class M Certificates and any Distribution Date, the least of (i) One-Month
LIBOR plus the related Margin, (ii) the related Net WAC Cap Rate and (iii)
11.00% per annum.
With respect to the Class SB Certificates or REMIC III Regular Interest
SB-IO and any Distribution Date, a per annum rate equal to the percentage
equivalent of a fraction, the numerator of which is the sum of the amounts
calculated pursuant to clauses (i) through (iii) below, and the denominator of
which is the aggregate principal balance of the REMIC II Regular Interests. For
purposes of calculating the Pass-Through Rate for the Class SB Certificates or
REMIC III Regular Interest SB-IO, the numerator is equal to the sum of the
following components:
(i) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT1 minus the related Marker Rate, applied to a notional
amount equal to the Uncertificated Principal Balance of REMIC II
Regular Interest LT1;
(ii) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT2 minus the related Marker Rate, applied to a notional
amount equal to the Uncertificated Principal Balance of REMIC II
Regular Interest LT2; and
(iii) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT4 minus twice the related Marker Rate, applied to a
notional amount equal to the Uncertificated Principal Balance of
REMIC II Regular Interest LT4.
Paying Agent: JPMorgan Chase Bank, N.A. or any successor Paying Agent
appointed by the Trustee.
Percentage Interest: With respect to any Class A Certificate or Class M
Certificate, the undivided percentage ownership interest in the related Class
evidenced by such Certificate, which percentage ownership interest shall be
equal to the Initial Certificate Principal Balance thereof divided by the
aggregate Initial Certificate Principal Balance of all of the Certificates of
the same Class. The Percentage Interest with respect to a Class SB Certificate
or Class R Certificate shall be stated on the face thereof.
Periodic Cap: With respect to each adjustable-rate Mortgage Loan, the
periodic rate cap that limits the increase or the decrease of the related
Mortgage Rate on any Adjustment Date pursuant to the terms of the related
Mortgage Note.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition
thereof, provided that the unsecured obligations of the party
agreeing to repurchase such obligations are at the time rated by
each Rating Agency in its highest short-term rating available;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity
of more than 365 days or a remaining maturity of more than 30
days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a
foreign depository institution or trust company; provided that
the debt obligations of such depository institution or trust
company at the date of acquisition thereof have been rated by
each Rating Agency in its highest short-term rating available;
and, provided further that, if the original maturity of such
short-term obligations of a domestic branch of a foreign
depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be A-1+ in the case
of Standard & Poor's if Standard & Poor's is a Rating Agency;
(iv) commercial paper and demand notes (having original maturities of
not more than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof which on the date
of acquisition has been rated by each Rating Agency in its
highest short term rating available; provided that such
commercial paper and demand notes shall have a remaining maturity
of not more than 30 days;
(v) a money market fund or a qualified investment fund rated by each
Rating Agency in its highest long-term rating available (which
may be managed by the Trustee or one of its Affiliates); and
(vi) other obligations or securities that are acceptable to each
Rating Agency as a Permitted Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by such
Rating Agency below the then-current rating assigned to such
Certificates by such Rating Agency, as evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's and Aaa in the
case of Moody's, and for purposes of this Agreement, any references herein to
the highest rating available on unsecured commercial paper and short-term debt
obligations shall mean the following: A-1 in the case of Standard & Poor's and
P-1 in the case of Moody's; provided, however, that any Permitted Investment
that is a short-term debt obligation rated A-1 by Standard & Poor's must satisfy
the following additional conditions: (i) the total amount of debt from A-1
issuers must be limited to the investment of monthly principal and interest
payments (assuming fully amortizing collateral); (ii) the total amount of A-1
investments must not represent more than 20% of the aggregate outstanding
Certificate Principal Balance of the Certificates and each investment must not
mature beyond 30 days; (iii) the terms of the debt must have a predetermined
fixed dollar amount of principal due at maturity that cannot vary; and (iv) if
the investments may be liquidated prior to their maturity or are being relied on
to meet a certain yield, interest must be tied to a single interest rate index
plus a single fixed spread (if any) and must move proportionately with that
index. Any Permitted Investment may be purchased by or through the Trustee or
its Affiliates.
Permitted Transferee: Any Transferee of a Class R Certificate, other
than a Disqualified Organization or Non-United States Person.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepayment Assumption: With respect to the Class A and Class M
Certificates, the prepayment assumption to be used for determining the accrual
of original issue discount and premium and market discount on such Certificates
for federal income tax purposes, which (a) with respect to the fixed rate
Mortgage Loans, assumes a constant prepayment rate of 4% per annum of the then
outstanding principal balance of the Mortgage Loans in the first month of the
life of the fixed-rate Mortgage Loans, and an additional approximate 1.9091% per
annum in each month thereafter until the twelfth month, and then beginning in
the twelfth month and in each month thereafter during the life of the fixed-rate
Mortgage Loans, a constant prepayment rate of 25.0% per annum each month and (b)
with respect to the adjustable-rate Mortgage Loans, assumes a constant
prepayment rate of 4% per annum of the then outstanding principal balance of the
adjustable-rate Mortgage Loans in the first month of the life of the
adjustable-rate Mortgage Loans, and an additional approximate 2.8182% per annum
in each month thereafter until the twelfth month, and then beginning in the
twelfth month and in each month thereafter during the life of the
adjustable-rate Mortgage Loans, a constant prepayment rate of 35% per annum each
month.
Prepayment Interest Shortfall: With respect to any Distribution Date and
any Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that
was the subject of (a) a Principal Prepayment in Full during the related
Prepayment Period, an amount equal to the excess of one month's interest at the
related Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a
Modified Mortgage Loan) on the Stated Principal Balance of such Mortgage Loan
over the amount of interest (adjusted to the related Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan)) paid by the
Mortgagor for such Prepayment Period to the date of such Principal Prepayment in
Full or (b) a Curtailment during the prior calendar month, an amount equal to
one month's interest at the related Net Mortgage Rate (or Modified Net Mortgage
Rate in the case of a Modified Mortgage Loan) on the amount of such Curtailment.
Prepayment Period: With respect to any Distribution Date, the calendar
month preceding the month of distribution.
Primary Insurance Policy: With respect to any Mortgage Loan, each
primary policy of mortgage guaranty insurance or replacement policy therefor.
Each Mortgage Loan with a Primary Insurance Policy is identified on Exhibit F
with the exception of either code "23" or "96" under the column "MI CO CODE."
Principal Distribution Amount: With respect to any Distribution Date,
the lesser of (a) the excess of (x) the Available Distribution Amount over (y)
the Interest Distribution Amount and (b) the sum of:
(i) the principal portion of each Monthly Payment received or
Advanced with respect to the related Due Period on each
Outstanding Mortgage Loan;
(ii) the Stated Principal Balance of any Mortgage Loan repurchased
during the related Prepayment Period (or deemed to have been so
repurchased in accordance with Section 3.07(b)) pursuant to
Section 2.02, 2.03, 2.04 or 4.07 and the amount of any shortfall
deposited in the Custodial Account in connection with the
substitution of a Deleted Mortgage Loan pursuant to Section 2.03
or 2.04 during the related Prepayment Period;
(iii) the principal portion of all other unscheduled collections, other
than Subsequent Recoveries, on the Mortgage Loans (including,
without limitation, Principal Prepayments in Full, Curtailments,
Insurance Proceeds, Liquidation Proceeds and REO Proceeds)
received during the related Prepayment Period (or deemed to have
been so received) to the extent applied by the Master Servicer as
recoveries of principal of the Mortgage Loans pursuant to Section
3.14;
(iv) the lesser of (1) Subsequent Recoveries for such Distribution
Date and (2) the principal portion of any Realized Losses
allocated to any Class of Certificates on a prior Distribution
Date and remaining unpaid;
(v) the lesser of (1) the Excess Cash Flow for such Distribution Date
(to the extent not used pursuant to clause (iv) of this
definition on such Distribution Date) and (2) the principal
portion of any Realized Losses incurred (or deemed to have been
incurred) on any Mortgage Loans in the calendar month preceding
such Distribution Date after taking into account amounts
withdrawn from the Swap Account pursuant to Section 4.08(c) for
that Distribution Date; and
(vi) the lesser of (1) the Excess Cash Flow and amounts withdrawn from
the Swap Account pursuant to Section 4.08(c) for that
Distribution Date (to the extent not used pursuant to clauses
(iv) and (v) of this definition on such Distribution Date) and
(2) the Overcollateralization Increase Amount for such
Distribution Date after taking into account amounts withdrawn
from the Swap Account pursuant to Section 4.08(c);
minus
(vii) (A) the amount of any Overcollateralization Reduction Amount for
such Distribution Date and (B) the amount of any Capitalization
Reimbursement Amount for such Distribution Date; and
(ix) any Net Swap Payments or Swap Termination Payment not due to a
Swap Counterparty Trigger Event due to the Swap Counterparty to
the extent not previously paid from interest or principal
collections on the Mortgage Loans.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is received in advance of its scheduled Due Date
and is not accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date, all
amounts described in clauses (b)(i) through (iii) of the definition of Principal
Distribution Amount for that Distribution Date.
Program Guide: The Residential Funding Seller Guide for mortgage
collateral sellers that participate in Residential Funding's standard mortgage
programs, and Residential Funding's Servicing Guide and any other subservicing
arrangements which Residential Funding has arranged to accommodate the servicing
of the Mortgage Loans.
Purchase Price: With respect to any Mortgage Loan (or REO Property)
required to be or otherwise purchased on any date pursuant to Section 2.02,
2.03, 2.04 or 4.07, an amount equal to the sum of (i) if such Mortgage Loan (or
REO Property) is being purchased pursuant to Sections 2.02, 2.03, 2.04 or 4.07
of this Agreement, 100% of the Stated Principal Balance thereof plus the
principal portion of any related unreimbursed Advances and (ii) unpaid accrued
interest at the Adjusted Mortgage Rate (or Modified Net Mortgage Rate plus the
rate per annum at which the Servicing Fee is calculated in the case of a
Modified Mortgage Loan) (or at the Net Mortgage Rate (or Modified Net Mortgage
Rate in the case of a Modified Mortgage Loan)) on the Stated Principal Balance
thereof to the first day of the month following the month of purchase from the
Due Date to which interest was last paid by the Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
Residential Funding or the Depositor for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee,
(i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall to be deposited by Residential
Funding, in the Custodial Account in the month of substitution);
(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than and
not more than 1% per annum higher than the Mortgage Rate and Net
Mortgage Rate, respectively, of the Deleted Mortgage Loan as of
the date of substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no higher
than that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a Note Margin not less than that of the Deleted Mortgage
Loan;
(v) have a Periodic Rate Cap that is equal to that of the Deleted
Mortgage Loan;
(vi) have a next Adjustment Date no later than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to stated maturity not greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan; and
(viii) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment
Agreement.
Rating Agency: Each of Fitch, Standard & Poor's and Moody's. If any
agency or a successor is no longer in existence, "Rating Agency" shall be such
statistical credit rating agency, or other comparable Person, designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Master Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property) as
to which a Cash Liquidation or REO Disposition has occurred, an amount (not less
than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan (or
REO Property) as of the date of Cash Liquidation or REO Disposition, plus (ii)
interest (and REO Imputed Interest, if any) at the Net Mortgage Rate from the
Due Date as to which interest was last paid or advanced to Certificateholders up
to the last day of the month in which the Cash Liquidation (or REO Disposition)
occurred on the Stated Principal Balance of such Mortgage Loan (or REO Property)
outstanding during each Due Period that such interest was not paid or advanced,
minus (iii) the proceeds, if any, received during the month in which such Cash
Liquidation (or REO Disposition) occurred, to the extent applied as recoveries
of interest at the Net Mortgage Rate and to principal of the Mortgage Loan, net
of the portion thereof reimbursable to the Master Servicer or any Subservicer
with respect to related Advances, Servicing Advances or other expenses as to
which the Master Servicer or Subservicer is entitled to reimbursement thereunder
but which have not been previously reimbursed. With respect to each Mortgage
Loan which is the subject of a Servicing Modification, (a) (1) the amount by
which the interest portion of a Monthly Payment or the principal balance of such
Mortgage Loan was reduced or (2) the sum of any other amounts owing under the
Mortgage Loan that were forgiven and that constitute Servicing Advances that are
reimbursable to the Master Servicer or a Subservicer, and (b) any such amount
with respect to a Monthly Payment that was or would have been due in the month
immediately following the month in which a Principal Prepayment or the Purchase
Price of such Mortgage Loan is received or is deemed to have been received. With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation. With respect
to each Mortgage Loan which has become the object of a Debt Service Reduction,
the amount of such Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a Debt
Service Reduction shall be deemed a Realized Loss hereunder so long as the
Master Servicer has notified the Trustee in writing that the Master Servicer is
diligently pursuing any remedies that may exist in connection with the
representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by the Master Servicer or a
Subservicer, in either case without giving effect to any Debt Service Reduction.
Realized Losses allocated to the Class SB Certificates shall be
allocated first to the REMIC III Regular Interest SB-IO in reduction of the
accrued but unpaid interest thereon until such accrued and unpaid interest shall
have been reduced to zero and then to the REMIC III Regular Interest SB-PO in
reduction of the Principal Balance thereof.
To the extent the Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of the Realized Loss with respect to
that Mortgage Loan will be reduced to the extent such recoveries are applied to
reduce the Certificate Principal Balance of any Class of Certificates on any
Distribution Date.
Record Date: With respect to the Class A Certificates and Class M
Certificates and each Distribution Date, the close of business on the Business
Day immediately preceding such Distribution Date. With respect to the Class SB
and Class R Certificates, and each Distribution Date, the close of business on
the last Business Day of the month next preceding the month in which the related
Distribution Date occurs or, with respect to the first Distribution Date, the
Closing Date.
Reference Bank Rate: As defined in Section 1.02.
Regular Certificates: The Class A Certificates, Class M Certificates and
Class SB Certificates.
Regular Interest: Any one of the REMIC regular interests in the Trust
Fund.
Relief Act: The Servicemembers Civil Relief Act, formerly known as the
Soldiers' and Sailors' Civil Relief Act of 1940.
Relief Act Shortfalls: Interest shortfalls on the Mortgage Loans
resulting from the Relief Act or similar legislation or regulations.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code. As used herein, the term "REMIC" shall mean REMIC I,
REMIC II or REMIC III.
REMIC Administrator: Residential Funding Corporation. If Residential
Funding Corporation is found by a court of competent jurisdiction to no longer
be able to fulfill its obligations as REMIC Administrator under this Agreement
the Master Servicer or Trustee acting as successor Master Servicer shall appoint
a successor REMIC Administrator, subject to assumption of the REMIC
Administrator obligations under this Agreement.
REMIC Net WAC Rate: For any Distribution Date, a per annum rate equal to
the product of (i) the weighted average of the Net Mortgage Rates (or, if
applicable, the Modified Net Mortgage Rates) on the Mortgage Loans using the Net
Mortgage Rates in effect for the Monthly Payments due on such Mortgage Loans
during the related Due Period, weighted on the basis of the respective Stated
Principal Balances thereof for such Distribution Date and (ii) a fraction equal
to 30 divided by the actual number of days in the related Interest Accrual
Period. The foregoing rate is equal to the weighted average of the
Uncertificated REMIC I Pass-Through Rates with respect to the REMIC I Regular
Interests, weighted in each case by their respective Uncertificated Principal
Balances.
REMIC I: The segregated pool of assets subject hereto, constituting a
portion of the primary trust created hereby and to be administered hereunder,
with respect to which a separate REMIC election is to be made, consisting of:
(i) the Mortgage Loans and the related Mortgage Files; (ii) all payments on and
collections in respect of the Mortgage Loans due after the Cut-off Date (other
than Monthly Payments due in the month of the Cut-off Date) as shall be on
deposit in the Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund; (iii) property which secured a Mortgage Loan and
which has been acquired for the benefit of the Certificateholders by foreclosure
or deed in lieu of foreclosure; (iv) the hazard insurance policies and Primary
Insurance Policies pertaining to the Mortgage Loans, if any; and (v) all
proceeds of clauses (i) through (iv) above.
REMIC I Available Distribution Amount: The Available Distribution
Amount.
REMIC I Distribution Amount: For any Distribution Date, the REMIC I
Available Distribution Amount shall be distributed to REMIC II in respect of the
REMIC I Regular Interests and the Class R-I Certificates in the following
amounts and priority:
(a) to REMIC I Regular Interest A-I and REMIC I Regular Interest I-1-A
through I-48-B, pro rata, in an amount equal to (A) Uncertificated Accrued
Interest for such REMIC I Regular Interests for such Distribution Date, plus (B)
any amounts payable in respect thereof remaining unpaid from previous
Distribution Dates; and
(b) to the extent of amounts remaining after the distributions made
pursuant to clause (a) above, payments of principal shall be allocated as
follows: first, to REMIC I Regular Interests I-1-A through I-48-B starting with
the lowest numerical denomination until the Uncertificated Principal Balance of
each such REMIC I Regular Interest is reduced to zero, provided that, for REMIC
I Regular Interests with the same numerical denomination, such payments of
principal shall be allocated pro rata between such REMIC I Regular Interests and
second, to the extent of any Overcollateralization Reduction Amount to REMIC I
Regular Interest A-I until the Uncertificated Principal Balance of such REMIC I
Regular Interest is reduced to zero.
REMIC I Interests: The REMIC I Regular Interests and the Class R-I
Certificates.
REMIC I Realized Losses: All Realized Losses on the Mortgage Loans shall
be allocated first, on each Distribution Date, to REMIC I Regular Interest A-I
until such REMIC I Regular Interest has been reduced to zero. Second, Realized
Losses shall be allocated to REMIC I Regular Interest I-1-A through REMIC I
Regular Interest I-48-B, starting with the lowest numerical denomination until
such REMIC I Regular Interest has been reduced to zero, provided that, for REMIC
I Regular Interests with the same numerical denomination, such Realized Losses
shall be allocated pro rata between such REMIC I Regular Interests.
REMIC I Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC I Regular Interests are set
forth in the Preliminary Statement hereto.
REMIC I Regular Interest A-I: A regular interest in REMIC I that is held
as an asset of REMIC II, that has an initial principal balance equal to the
related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC II: The segregated pool of assets subject hereto, constituting a
portion of the primary trust created hereby and to be administered hereunder,
with respect to which a separate REMIC election is to be made, consisting of the
REMIC I Regular Interests.
REMIC II Available Distribution Amount: For any Distribution Date, the
amount distributed from REMIC I to REMIC II on such Distribution Date in respect
of the REMIC I Regular Interests.
REMIC II Distribution Amount: For any Distribution Date, the REMIC II
Available Distribution Amount shall be distributed to REMIC III in respect of
the REMIC II Regular Interests and the Class R-II Certificates in the following
amounts and priority:
(a)....to REMIC II Regular Interest LT-IO, in an amount equal to
(i) Uncertificated Accrued Interest for such REMIC II Regular Interest for such
Distribution Date, plus (ii) any amounts in respect thereof remaining unpaid
from previous Distribution Dates;
(b)....to the extent of amounts remaining after the distributions
made pursuant to clause (a) above, to REMIC II Regular Interests LT1, LT2, LT3
and LT4, pro rata, in an amount equal to (i) their Uncertificated Accrued
Interest for such Distribution Date, plus (ii) any amounts in respect thereof
remaining unpaid from previous Distribution Dates; and
(c)....to the extent of amounts remaining after the distributions
made pursuant to clauses (a) and (b) above:
(i) to REMIC I Regular Interests LT2, LT3 and LT4, their
respective
Principal Distribution Amounts;
(ii) to REMIC I Regular Interest LT1 any remainder until
the
Uncertificated Principal Balance thereof is reduced to zero;
(iii) any remainder to REMIC II Regular Interests LT2, LT3
and LT4,
pro rata according to their respective Uncertificated Principal Balances as
reduced by the distributions deemed made pursuant to (i) above, until their
respective Uncertificated Principal Balances are reduced to zero; and
(d) to the extent of amounts remaining after the distributions made
pursuant to clauses (a) through (c) above:
(i) first, to each of the REMIC II Regular Interests, pro
rata
according to the amount of unreimbursed Realized Losses allocable to principal
previously allocated to each such REMIC II Regular Interest, the aggregate
amount of any distributions to the Certificates as reimbursement of such
Realized Losses on such Distribution Date pursuant to clause (ix) in Section
4.02(c); provided, however, that any amounts distributed pursuant to this
paragraph (d)(i) of this definition of "REMIC II Distribution Amount" shall not
cause a reduction in the Uncertificated Principal Balances of any of the REMIC
II Regular Interests; and
(ii) second, to the Class R-II Certificates, any remaining
amount.
REMIC II Net WAC Rate: With respect to any Distribution Date, a per
annum rate equal to the weighted average of (x) with respect to REMIC I Regular
Interests ending with the designation "B", the weighted average of the
Uncertificated REMIC I Pass-Through Rates for such REMIC I Regular Interests,
weighted on the basis of the Uncertificated Principal Balance of such REMIC I
Regular Interests for each such Distribution Date, (y) with respect to REMIC I
Regular Interest A-I, the Uncertificated REMIC I Pass-Through Rate for such
REMIC I Regular Interest, and (z) with respect to REMIC I Regular Interests
ending with the designation "A", for each Distribution Date listed below, the
weighted average of the rates listed below for each such REMIC I Regular
Interest listed below, weighted on the basis of the Uncertificated Principal
Balance of each such REMIC I Regular Interest for each such Distribution Date:
DISTRIBUTION
DATE REMIC I REGULAR INTEREST RATE
1 I-1-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
2 I-2-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A Uncertificated REMIC I Pass-Through Rate
3 I-3-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A and I-2-A Uncertificated REMIC I Pass-Through Rate
4 I-4-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-3-A Uncertificated REMIC I Pass-Through Rate
5 I-5-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-4-A Uncertificated REMIC I Pass-Through Rate
6 I-6-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-5-A Uncertificated REMIC I Pass-Through Rate
7 I-7-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-6-A Uncertificated REMIC I Pass-Through Rate
8 I-8-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-7-A Uncertificated REMIC I Pass-Through Rate
9 I-9-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-8-A Uncertificated REMIC I Pass-Through Rate
10 I-10-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-9-A Uncertificated REMIC I Pass-Through Rate
11 I-11-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-10-A Uncertificated REMIC I Pass-Through Rate
12 I-12-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-11-A Uncertificated REMIC I Pass-Through Rate
13 I-13-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-12-A Uncertificated REMIC I Pass-Through Rate
14 I-14-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-13-A Uncertificated REMIC I Pass-Through Rate
15 I-15-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-14-A Uncertificated REMIC I Pass-Through Rate
16 I-16-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-15-A Uncertificated REMIC I Pass-Through Rate
17 I-17-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-16-A Uncertificated REMIC I Pass-Through Rate
18 I-18-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-17-A Uncertificated REMIC I Pass-Through Rate
19 I-19-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-18-A Uncertificated REMIC I Pass-Through Rate
20 I-20-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-19-A Uncertificated REMIC I Pass-Through Rate
21 I-21-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-20-A Uncertificated REMIC I Pass-Through Rate
22 I-22-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-21-A Uncertificated REMIC I Pass-Through Rate
23 I-23-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-22-A Uncertificated REMIC I Pass-Through Rate
24 I-24-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-23-A Uncertificated REMIC I Pass-Through Rate
25 I-25-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-24-A Uncertificated REMIC I Pass-Through Rate
26 I-26-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-25-A Uncertificated REMIC I Pass-Through Rate
27 I-27-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-26-A Uncertificated REMIC I Pass-Through Rate
28 I-28-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-27-A Uncertificated REMIC I Pass-Through Rate
29 I-29-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-28-A Uncertificated REMIC I Pass-Through Rate
30 I-30-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-29-A Uncertificated REMIC I Pass-Through Rate
31 I-31-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-30-A Uncertificated REMIC I Pass-Through Rate
32 I-32-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-31-A Uncertificated REMIC I Pass-Through Rate
33 I-33-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-32-A Uncertificated REMIC I Pass-Through Rate
34 I-34-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-33-A Uncertificated REMIC I Pass-Through Rate
35 I-35-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-34-A Uncertificated REMIC I Pass-Through Rate
36 I-36-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-35-A Uncertificated REMIC I Pass-Through Rate
37 I-37-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-36-A Uncertificated REMIC I Pass-Through Rate
38 I-38-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-37-A Uncertificated REMIC I Pass-Through Rate
39 I-39-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-38-A Uncertificated REMIC I Pass-Through Rate
40 I-40-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-39-A Uncertificated REMIC I Pass-Through Rate
41 I-41-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-40-A Uncertificated REMIC I Pass-Through Rate
42 I-42-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-41-A Uncertificated REMIC I Pass-Through Rate
43 I-43-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-42-A Uncertificated REMIC I Pass-Through Rate
44 I-44-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-43-A Uncertificated REMIC I Pass-Through Rate
45 I-45-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-44-A Uncertificated REMIC I Pass-Through Rate
46 I-46-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-45-A Uncertificated REMIC I Pass-Through Rate
47 I-47-A through I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-46-A Uncertificated REMIC I Pass-Through Rate
48 I-48-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-47-A Uncertificated REMIC I Pass-Through Rate
Thereafter I-1-A through I-48-A Uncertificated REMIC I Pass-Through Rate
REMIC II Principal Reduction Amounts: For any Distribution Date, the
amounts by which the principal balances of the REMIC II Regular Interests LT1,
LT2, LT3 and LT4, respectively will be reduced on such Distribution Date by the
allocation of Realized Losses and the distribution of principal, determined as
follows:
For purposes of the succeeding formulas the following symbols shall have
the meanings set forth below:
Y1 = the principal balance of the REMIC II Regular Interest LT1
after distributions on the prior Distribution Date.
Y2 = the principal balance of the REMIC II Regular Interest LT2
after distributions on the prior Distribution Date.
Y3 = the principal balance of the REMIC II Regular Interest LT3
after distributions on the prior Distribution Date.
Y4 = the principal balance of the REMIC II Regular Interest LT4
after distributions on the prior Distribution Date (note: Y3 =
Y4).
AY1 = the REMIC II Regular Interest LT1 Principal Reduction
Amount.
AY2 = the REMIC II Regular Interest LT2 Principal Reduction
Amount.
AY3 = the REMIC II Regular Interest LT3 Principal Reduction
Amount.
AY4 = the REMIC II Regular Interest LT4 Principal Reduction
Amount.
P0 = the aggregate principal balance of REMIC II Regular Interests
LT1, LT2, LT3 and LT4 after distributions and the allocation of
Realized Losses on the prior Distribution Date.
P1 = the aggregate principal balance of the REMIC II Regular
Interest LT1, LT2, LT3 and LT4 after distributions and the
allocation of Realized Losses to be made on such Distribution
Date.
AP = P0 - P1 = the aggregate of the REMIC II Regular Interest LT1,
LT2, LT3 and LT4 Principal Reduction Amounts.
= the aggregate of the principal portions of Realized Losses to be
allocated to, and the principal distributions to be made on, the
Certificates on such Distribution Date (including distributions
of accrued and unpaid interest on the Class SB Certificates for
prior Distribution Dates).
R0 = the REMIC Net WAC Rate (stated as a monthly rate) after giving
effect to amounts distributed and Realized Losses allocated on
the prior Distribution Date.
R1 = the REMIC Net WAC Rate (stated as a monthly rate) after giving
effect to amounts to be distributed and Realized Losses to be
allocated on such Distribution Date.
(alpha) (Y2 + Y3)/P0. The initial value of (alpha) on the Closing Date
for use = on the first Distribution Date shall be 0.0001. (gamma)0 the
lesser of (A) the sum for all Classes of Certificates other than = the
Class SB Certificates of the product for each Class of (i) the
monthly interest rate (as limited by the REMIC Net WAC Rate, if
applicable) for such Class applicable for distributions to be
made on such Distribution Date and (ii) the aggregate
Certificate Principal Balance for such Class after distributions
and the allocation of Realized Losses on the prior Distribution
Date and (B) R0*P0.
(gamma)1 the lesser of (A) the sum for all Classes of
Certificates other than = the Class SB Certificates of the
product for each Class of (i) the monthly interest rate (as
limited by the REMIC Net WAC Rate, if applicable) for such Class
applicable for distributions to be made on the next succeeding
Distribution Date and (ii) the aggregate Certificate Principal
Balance for such Class after distributions and the allocation of
Realized Losses to be made on such Distribution Date and (B)
R1*P1.
Then, based on the foregoing definitions: AY1 = AP - AY2 - AY3 - AY4; AY2
= ((alpha)A2){( (gamma)0R1 - (gamma)1R0)/R0R1}; AY3 = (alpha)AP - AY2;
and AY4 = AY3.
if both AY2 and AY3, as so determined, are non-negative numbers. Otherwise:
(1) If AY2, as so determined, is negative, then AY2 = 0; AY3 =
(▇▇▇▇▇){(▇▇▇▇▇)▇▇▇▇▇ - (▇▇▇▇▇)▇▇▇▇▇} (▇▇▇▇▇)▇▇▇}; ▇▇▇ = AY3; and AY1 = ▇▇
- ▇▇▇ - ▇▇▇ - ▇▇▇.
(2) If AY3, as so determined, is negative, then AY3 = 0; AY2 =
(▇▇▇▇▇){(▇▇▇▇▇)▇▇▇▇▇ - (▇▇▇▇▇)▇▇▇▇▇}/{▇▇▇▇▇▇▇ - (▇▇▇▇▇)▇▇▇}; ▇▇▇ = AY3;
and AY1 = ▇▇ - ▇▇▇ - ▇▇▇ - ▇▇▇.
REMIC II Realized Losses: Realized Losses on the Mortgage Loans shall be
allocated to the REMIC II Regular Interests as follows. The interest portion of
Realized Losses on the Mortgage Loans, if any, shall be allocated among REMIC II
Regular Interests LT1, LT2 and LT4, pro rata according to the amount of interest
accrued but unpaid thereon, in reduction thereof. Any interest portion of such
Realized Losses in excess of the amount allocated pursuant to the preceding
sentence shall be treated as a principal portion of Realized Losses not
attributable to any specific Mortgage Loan and allocated pursuant to the
succeeding sentences. The principal portion of Realized Losses with respect to
Mortgage Loans shall be allocated to the REMIC II Regular Interests as follows:
first, to REMIC II Regular Interests LT2, LT3 and LT4, pro-rata according to
their respective REMIC II Principal Reduction Amounts to the extent thereof in
reduction of the Uncertificated Principal Balance of such REMIC II Regular
Interests and, second, the remainder, if any, of such principal portion of such
Realized Losses shall be allocated to REMIC II Regular Interest LT1 in reduction
of the Uncertificated Principal Balance thereof.
REMIC II Regular Interests: REMIC II Regular Interest LT1, REMIC II
Regular Interest LT2, REMIC II Regular Interest LT3, REMIC II Regular Interest
LT4 and REMIC II Regular Interest LT-IO.
REMIC II Regular Interest LT1: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC II Pass-Through Rate, and that has such other terms as are
described herein.
REMIC II Regular Interest LT1 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT1
Principal Reduction Amount for such Distribution Date over the Realized Losses
allocated to the REMIC II Regular Interest LT1 on such Distribution Date.
REMIC II Regular Interest LT2: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC II Pass-Through Rate, and that has such other terms as are
described herein.
REMIC II Regular Interest LT2 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT2
Principal Reduction Amount for such Distribution Date over the Realized Losses
allocated to the REMIC II Regular Interest LT2 on such Distribution Date.
REMIC II Regular Interest LT3: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC II Pass-Through Rate, and that has such other terms as are
described herein.
REMIC II Regular Interest LT3 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT3
Principal Reduction Amount for such Distribution Date over the Realized Losses
allocated to the REMIC II Regular Interest LT3 on such Distribution Date.
REMIC II Regular Interest LT4: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC II Pass-Through Rate, and that has such other terms as are
described herein.
REMIC II Regular Interest LT4 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT4
Principal Reduction Amount for such Distribution Date over the Realized Losses
allocated to the REMIC II Regular Interest LT4 on such Distribution Date.
REMIC II Regular Interest LT-IO: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC II Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III: The segregated pool of assets subject hereto, constituting a
portion of the primary trust created hereby and to be administered hereunder,
with respect to which a separate REMIC election is to be made, consisting of the
REMIC II Regular Interests.
REMIC III Regular Interest SB-PO: A separate non-certificated beneficial
ownership interests in REMIC III issued hereunder and designated as a Regular
Interest in REMIC III. REMIC III Regular Interest SB-PO shall have no
entitlement to interest, and shall be entitled to distributions of principal
subject to the terms and conditions hereof, in aggregate amount equal to the
initial Certificate Principal Balance of the Class SB Certificates as set forth
in the Preliminary Statement hereto.
REMIC III Regular Interest SB-IO: A separate non-certificated beneficial
ownership interests in REMIC III issued hereunder and designated as a Regular
Interest in REMIC III. REMIC III Regular Interest SB-IO shall have no
entitlement to principal, and shall be entitled to distributions of interest
subject to the terms and conditions hereof, in aggregate amount equal to the
interest distributable with respect to the Class SB Certificates pursuant to the
terms and conditions hereof.
REMIC III Regular Interest IO: A separate non-certificated beneficial
ownership interests in REMIC III issued hereunder and designated as a Regular
Interest in REMIC III. REMIC III Regular Interest IO shall have no entitlement
to principal, and shall be entitled to distributions of interest subject to the
terms and conditions hereof, in aggregate amount equal to the interest
distributable with respect to REMIC II Regular Interest LT-IO.
REMIC III Regular Interests: REMIC III Regular Interests SB-IO, SB-PO
and IO, together with the Class A Certificates and Class M Certificates.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Acquisition: The acquisition by the Master Servicer on behalf of the
Trustee for the benefit of the Certificateholders of any REO Property pursuant
to Section 3.14.
REO Disposition: With respect to any REO Property, a determination by
the Master Servicer that it has received substantially all Insurance Proceeds,
Liquidation Proceeds, REO Proceeds and other payments and recoveries (including
proceeds of a final sale) which the Master Servicer expects to be finally
recoverable from the sale or other disposition of the REO Property.
REO Imputed Interest: With respect to any REO Property, for any period,
an amount equivalent to interest (at a rate equal to the Net Mortgage Rate that
would have been applicable to the related Mortgage Loan had it been outstanding)
on the unpaid principal balance of the Mortgage Loan as of the date of
acquisition thereof for such period.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO
Property (including, without limitation, proceeds from the rental of the related
Mortgaged Property) which proceeds are required to be deposited into the
Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer on
behalf of the Trust Fund for the benefit of the Certificateholders through
foreclosure or deed in lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Modified Mortgage Loan: Any Mortgage Loan that (i) has been
subject to an interest rate reduction, (ii) has been subject to a term extension
or (iii) has had amounts owing on such Mortgage Loan capitalized by adding such
amount to the Stated Principal Balance of such Mortgage Loan; provided, however,
that a Mortgage Loan modified in accordance with clause (i) above for a
temporary period shall not be a Reportable Modified Mortgage Loan if such
Mortgage Loan has not been delinquent in payments of principal and interest for
six months since the date of such modification if that interest rate reduction
is not made permanent thereafter.
Repurchase Event: As defined in the Assignment Agreement.
Request for Release: A request for release, the form of which is
attached as Exhibit G hereto, or an electronic request in a form acceptable to
the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement, the Program Guide or the related Subservicing Agreement in respect of
such Mortgage Loan.
Required Overcollateralization Amount: With respect to any Distribution
Date, (a) prior to the Stepdown Date, an amount equal to 2.85% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, (b) on or
after the Stepdown Date if a Trigger Event is not in effect, the greater of (i)
an amount equal to 5.70% of the aggregate outstanding Stated Principal Balance
of the Mortgage Loans after giving effect to distributions made on that
Distribution Date and (ii) the Overcollateralization Floor or (c) on or after
the Stepdown Date if a Trigger Event is in effect, an amount equal to the
Required Overcollateralization Amount from the immediately preceding
Distribution Date. The Required Overcollateralization Amount may be reduced so
long as written confirmation is obtained from each Rating Agency that such
reduction shall not reduce the ratings assigned to any Class of Certificates by
such Rating Agency below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date by such Rating Agency.
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Depositor
and any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Department of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee with direct responsibility for the administration of this Agreement.
Restricted Class A Certificate: As defined in Section 5.02(e).
Rule 144A: Rule 144A under the Securities Act of 1933, as in effect from
time to time.
Seller: With respect to any Mortgage Loan, a Person, including any
Subservicer, that executed a Seller's Agreement applicable to such Mortgage
Loan.
Seller's Agreement: An agreement for the origination and sale of
Mortgage Loans generally in the form of the seller contract referred to or
contained in the Program Guide, or in such other form as has been approved by
the Master Servicer and the Depositor.
Senior Enhancement Percentage: For any Distribution Date, the fraction,
expressed as a percentage, the numerator of which is the sum of (i) the
aggregate Certificate Principal Balance of the Class M Certificates and (ii) the
Overcollateralization Amount, in each case prior to the distribution of the
Principal Distribution Amount on such Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution Date.
Servicing Accounts: The account or accounts created and maintained
pursuant to Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency or
other unanticipated event by the Master Servicer or a Subservicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged
Property, (ii) any enforcement or judicial proceedings, including foreclosures,
including any expenses incurred in relation to any such proceedings that result
from the Mortgage Loan being registered on the MERS(R) System, (iii) the
management and liquidation of any REO Property, (iv) any mitigation procedures
implemented in accordance with Section 3.07, and (v) compliance with the
obligations under Sections 3.01, 3.08, 3.12(a) and 3.14, including, if the
Master Servicer or any Affiliate of the Master Servicer provides services such
as appraisals and brokerage services that are customarily provided by Persons
other than servicers of mortgage loans, reasonable compensation for such
services.
Servicing Fee: With respect to any Mortgage Loan and Distribution Date,
the fee payable monthly to the Master Servicer in respect of master servicing
compensation that accrues at an annual rate equal to the Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the
related Due Date in the related Due Period, as may be adjusted pursuant to
Section 3.16(e).
Servicing Fee Rate: With respect to any Mortgage Loan, the per annum
rate designated on the Mortgage Loan Schedule as the "MSTR SERV FEE," as may be
adjusted with respect to successor Master Servicers as provided in Section 7.02,
which rate shall never be greater than the Mortgage Rate of such Mortgage Loan.
Servicing Modification: Any reduction of the interest rate on or the
outstanding principal balance of a Mortgage Loan, any extension of the final
maturity date of a Mortgage Loan, and any increase to the Stated Principal
Balance of a Mortgage Loan by adding to the Stated Principal Balance unpaid
principal and interest and other amounts owing under the Mortgage Loan, in each
case pursuant to a modification of a Mortgage Loan that is in default or, in the
judgment of the Master Servicer, default is reasonably foreseeable in accordance
with Section 3.07(a).
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date, as such list may from
time to time be amended.
Sixty-Plus Delinquency Percentage: With respect to any Distribution Date
on or after the Stepdown Date, the arithmetic average, for each of the three
Distribution Dates ending with such Distribution Date, of the fraction,
expressed as a percentage, equal to (x) the aggregate Stated Principal Balance
of the Mortgage Loans that are 60 or more days delinquent in payment of
principal and interest for that Distribution Date, including Mortgage Loans in
foreclosure and REO Properties, over (y) the aggregate Stated Principal Balance
of the Mortgage Loans immediately preceding that Distribution Date.
Standard & Poor's: Standard & Poor's Ratings Services, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its successors in interest.
Startup Date: The day designated as such pursuant to Article X hereof.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, at any given time, (i) the sum of (a) the Cut-off Date Principal
Balance of the Mortgage Loan and (b) any amount by which the Stated Principal
Balance of the Mortgage Loan has been increased pursuant to a Servicing
Modification, minus (ii) the sum of (a) the principal portion of the Monthly
Payments due with respect to such Mortgage Loan or REO Property during each Due
Period ending with the Due Period relating to the most recent Distribution Date
which were received or with respect to which an Advance was made, (b) all
Principal Prepayments with respect to such Mortgage Loan or REO Property, and
all Insurance Proceeds, Liquidation Proceeds and REO Proceeds, to the extent
applied by the Master Servicer as recoveries of principal in accordance with
Section 3.14 with respect to such Mortgage Loan or REO Property, in each case
which were distributed pursuant to Section 4.02 on any previous Distribution
Date, and (c) any Realized Loss allocated to Certificateholders with respect
thereto for any previous Distribution Date.
Stepdown Date: That Distribution Date which is the later to occur of (i)
the Distribution Date in October 2008 and (ii) the first Distribution Date on
which the Senior Enhancement Percentage is equal to or greater than 40.50%.
Subordination: The provisions described in Section 4.05 relating to the
allocation of Realized Losses other than a pro rata basis.
Subordination Percentage: With respect to any Class of Class A
Certificates or Class M Certificates, the respective percentage set forth below.
CLASS PERCENTAGE CLASS PERCENTAGE
A 59.50% M-6 85.80%
M-1 66.10% M-7 88.60%
M-2 72.30% M-8 90.50%
M-3 76.50% M-9 92.30%
M-4 79.70% M-10 94.30%
M-5 83.00%
Subsequent Recoveries: As of any Distribution Date, amounts received by
the Master Servicer (net of any related expenses permitted to be reimbursed
pursuant to Section 3.10) or surplus amounts held by the Master Servicer to
cover estimated expenses (including, but not limited to, recoveries in respect
of the representations and warranties made by the related Seller pursuant to the
applicable Seller's Agreement and assigned to the Trustee pursuant to Section
2.04) specifically related to a Mortgage Loan that was the subject of a Cash
Liquidation or an REO Disposition prior to the related Prepayment Period and
that resulted in a Realized Loss.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is subject to a Subservicing Agreement.
Subservicer: Any Person with whom the Master Servicer has entered into a
Subservicing Agreement and who generally satisfied the requirements set forth in
the Program Guide in respect of the qualification of a Subservicer as of the
date of its approval as a Subservicer by the Master Servicer.
Subservicer Advance: Any delinquent installment of principal and
interest on a Mortgage Loan which is advanced by the related Subservicer (net of
its Subservicing Fee) pursuant to the Subservicing Agreement.
Subservicing Account: An account established by a Subservicer in
accordance with Section 3.08.
Subservicing Agreement: The written contract between the Master Servicer
and any Subservicer relating to servicing and administration of certain Mortgage
Loans as provided in Section 3.02, generally in the form of the servicer
contract referred to or contained in the Program Guide or in such other form as
has been approved by the Master Servicer and the Depositor.
Subservicing Fee: With respect to any Mortgage Loan, the fee payable
monthly to the related Subservicer (or, in the case of a Nonsubserviced Mortgage
Loan, to the Master Servicer) in respect of subservicing and other compensation
that accrues with respect to each Distribution Date at an annual rate designated
as "SUBSERV FEE" on the Mortgage Loan Schedule.
Swap Account: The separate trust account created and maintained by the
Trustee pursuant to Section 4.08(a).
Swap Agreement: The interest rate swap agreement between the Swap
Counterparty and the Trustee, on behalf of the Trust, which agreement provides
for Net Swap Payments and Swap Termination Payments to be paid, as provided
therein, together with any schedules, confirmations or other agreements relating
thereto, attached hereto as Exhibit S.
Swap Agreement Notional Balance: As to the Swap Agreement and each
Floating Rate Payer Payment Date and Fixed Rate Payer Payment Date (each as
defined in the Swap Agreement) the amount set forth on Exhibit R hereto for such
Floating Rate Payer Payment Date.
Swap Counterparty: The swap counterparty under the Swap Agreement either
(a) entitled to receive payments from the Trustee from amounts payable by the
Trust Fund under this Agreement or (b) required to make payments to the Trustee
for payment to the Trust Fund, in either case pursuant to the terms of the Swap
Agreement, and any successor in interest or assign. Initially, the Swap
Counterparty shall be Bear ▇▇▇▇▇▇▇ Financial Products Inc.
Swap Counterparty Trigger Event: With respect to any Distribution Date,
(i) an Event of Default under the Swap Agreement with respect to which the Swap
Counterparty is a Defaulting Party, (ii) a Termination Event under the Swap
Agreement with respect to which the Swap Counterparty is the sole Affected
Party, or (iii) an additional termination event under the Swap Agreement with
respect to which the Swap Counterparty is the sole Affected Party.
Swap LIBOR: LIBOR as determined pursuant to the Swap Agreement.
Swap Termination Payment: Upon the designation of an "Early Termination
Date" as defined in the Swap Agreement, the payment to be made by the Trustee on
behalf of the Trust to the Swap Counterparty from payments from the Trust Fund,
or by the Swap Counterparty to the Trustee for payment to the Trust Fund, as
applicable, pursuant to the terms of the Swap Agreement.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of any REMIC hereunder due to its classification as a REMIC under the
REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the Internal Revenue Service or any other governmental taxing authority
under any applicable provisions of federal, state or local tax laws.
Telerate Screen Page 3750: As defined in Section 1.02.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transfer Affidavit and Agreement: As defined in Section 5.02(e).
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
Trigger Event: A Trigger Event is in effect with respect to any
Distribution Date if either (a) on or after the Stepdown Date the Sixty-Plus
Delinquency Percentage for that Distribution Date exceeds 24.50% of the current
Senior Enhancement Percentage or (b) on or after the Distribution Date in
October 2008, the aggregate amount of Realized Losses on the Mortgage Loans as a
percentage of the Cut-off Date Balance exceeds the applicable amount set forth
below:
October 2008 to September 2009: 2.85%
with respect to October 2008,
plus an additional 1/12th of
1.90% for each month thereafter;
October 2009 to September 2010: 4.75%
with respect to October 2009,
plus an additional 1/12th of
1.50% for each month thereafter;
October 2010 to September 2011: 6.25%
with respect to October 2010,
plus an additional 1/12th of
0.80% for each month thereafter;
and
October 2011 and thereafter: 7.05%.
Trustee: As defined in the preamble hereto.
Trust Fund: Collectively, the assets of each REMIC hereunder.
Uncertificated Accrued Interest: With respect to any Uncertificated
Regular Interest for any Distribution Date, one month's interest at the related
Uncertificated Pass-Through Rate for such Distribution Date, accrued on the
Uncertificated Principal Balance or Uncertificated Notional Amount, as
applicable, immediately prior to such Distribution Date. Uncertificated Accrued
Interest for the Uncertificated Regular Interests shall accrue on the basis of a
360-day year consisting of twelve 30-day months. For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC I Regular Interests for
any Distribution Date, any Prepayment Interest Shortfalls and Relief Act
Shortfalls (to the extent not covered by Compensating Interest) shall be
allocated among REMIC I Regular Interests, pro rata, based on, and to the extent
of, Uncertificated Accrued Interest, as calculated without application of this
sentence. For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC II Regular Interests for any Distribution Date, any
Prepayment Interest Shortfalls and Relief Act Shortfalls (to the extent not
covered by Compensating Interest) shall be allocated among the REMIC II Regular
Interests, pro rata, based on, and to the extent of, Uncertificated Accrued
Interest, as calculated without application of this sentence. Uncertificated
Interest on REMIC III Regular Interest SB-PO shall be zero. Uncertificated
Accrued Interest on the REMIC III Regular Interest SB-IO for each Distribution
Date shall equal Accrued Certificate Interest for the Class SB Certificates.
Uncertificated Notional Amount: With respect to the Class SB
Certificates or the REMIC III Regular Interest SB-IO, immediately prior to any
Distribution Date, the aggregate of the Uncertificated Principal Balances of the
REMIC II Regular Interests.
With respect to REMIC II Regular Interest LT-IO and each Distribution
Date listed below, the aggregate Uncertificated Principal Balance of the REMIC I
Regular Interests ending with the designation "A" listed below:
DISTRIBUTION
DATE REMIC I REGULAR INTERESTS
1 I-1-A through ▇-▇▇-▇
▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇ ▇-▇-▇ through ▇-▇▇-▇
▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇ ▇-▇-▇ through ▇-▇▇-▇
▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇ ▇-▇-▇ through ▇-▇▇-▇
▇ ▇-▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇-▇
▇ ▇-▇-▇ through I-48-A
10 I-10-A through I-48-A
11 I-11-A through I-48-A
12 I-12-A through I-48-A
13 I-13-A through I-48-A
14 I-14-A through I-48-A
15 I-15-A through I-48-A
16 I-16-A through I-48-A
17 I-17-A through I-48-A
18 I-18-A through I-48-A
19 I-19-A through I-48-A
20 I-20-A through I-48-A
21 I-21-A through I-48-A
22 I-22-A through I-48-A
23 I-23-A through I-48-A
24 I-24-A through I-48-A
25 I-25-A through I-48-A
26 I-26-A through I-48-A
27 I-27-A through I-48-A
28 I-28-A through I-48-A
29 I-29-A through I-48-A
30 I-30-A through I-48-A
31 I-31-A through I-48-A
32 I-32-A through I-48-A
33 I-33-A through I-48-A
34 I-34-A through I-48-A
35 I-35-A through I-48-A
36 I-36-A through I-48-A
37 I-37-A through I-48-A
38 I-38-A through I-48-A
39 I-39-A through I-48-A
40 I-40-A through I-48-A
41 I-41-A through I-48-A
42 I-42-A through I-48-A
43 I-43-A through I-48-A
44 I-44-A through I-48-A
45 I-45-A through I-48-A
46 I-46-A through I-48-A
47 I-47-A through I-48-A
48 I-48-A
thereafter $0.00
With respect to REMIC III Regular Interest IO, immediately prior to any
Distribution Date, an amount equal to the Uncertificated Notional Amount of
REMIC II Regular Interest LT-IO.
Uncertificated Pass-Through Rate: The Uncertificated REMIC I
Pass-Through Rate or the Uncertificated REMIC II Pass-Through Rate, as
applicable.
Uncertificated Principal Balance: The principal amount of any
Uncertificated Regular Interest outstanding as of any date of determination. The
Uncertificated Principal Balance of each REMIC Regular Interest shall never be
less than zero. With respect to REMIC III Regular Interest SB-PO the initial
amount set forth with respect thereto in the Preliminary Statement as reduced by
distributions deemed made in respect thereof pursuant to Section 4.02 and
Realized Losses allocated thereto pursuant to Section 4.05.
Uncertificated Regular Interests: The REMIC I Regular Interests and the
REMIC II Regular Interests.
Uncertificated REMIC I Pass-Through Rate: With respect to each REMIC I
Regular Interest ending with the designation "A", a per annum rate equal to the
weighted average Net Mortgage Rate of the Mortgage Loans multiplied by two (2),
subject to a maximum rate of 8.445%. With respect to each REMIC I Regular
Interest ending with the designation "B", the greater of (x) a per annum rate
equal to the excess, if any, of (i) 2 multiplied by the weighted average Net
Mortgage Rate of the Mortgage Loans over (ii) 8.445% and (y) 0.00000%. With
respect to REMIC I Regular Interest A-I, the weighted average Net Mortgage Rate
of the Mortgage Loans.
Uncertificated REMIC II Pass-Through Rate: With respect to any
Distribution Date and (i) REMIC II Regular Interests LT1 and LT2, the REMIC II
Net WAC Rate, (ii) REMIC II Regular Interest LT3, zero (0.00%), (iii) REMIC II
Regular Interest LT4, twice the REMIC II Net WAC Rate, and (iv) REMIC II Regular
Interest LT-IO, the excess of (i) the weighted average of the Uncertificated
REMIC I Pass-Through Rates for REMIC I Regular Interests ending with the
designation "A", over (ii) 2 multiplied by Swap LIBOR.
Uniform Single Attestation Program for Mortgage Bankers: The Uniform
Single Attestation Program for Mortgage Bankers, as published by the Mortgage
Bankers Association of America and effective with respect to fiscal periods
ending on or after March 15, 1995.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity (treated as a corporation or
partnership for United States federal income tax purposes) created or organized
in, or under the laws of, the United States, any state thereof, or the District
of Columbia (except in the case of a partnership, to the extent provided in
Treasury regulations) provided that, for purposes solely of the restrictions on
the transfer of Class R Certificates, no partnership or other entity treated as
a partnership for United States federal income tax purposes shall be treated as
a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are required by the applicable
operative agreement to be United States Persons, 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.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. 98.00% of all of the Voting
Rights shall be allocated among Holders of the Class A Certificates and the
Class M Certificates in proportion to the outstanding Certificate Principal
Balances of their respective Certificates; 1% of all of the Voting Rights shall
be allocated to the Holders of the Class SB Certificates, and 0.33% , 0.33% and
0.34% of all of the Voting Rights shall be allocated to the Holders of the Class
R-I Certificates, the Class R-II Certificates and the Class R-III Certificates,
respectively; in each case to be allocated among the Certificates of such Class
in accordance with their respective Percentage Interests.
Section 1.02. Determination of One-Month LIBOR
One-Month LIBOR applicable to the calculation of the Pass-Through Rate
on the LIBOR Certificates for any Interest Accrual Period (including the initial
Interest Accrual Period) will be determined on each LIBOR Rate Adjustment Date.
On each LIBOR Rate Adjustment Date, or if such LIBOR Rate Adjustment
Date is not a Business Day, then on the next succeeding Business Day, One-Month
LIBOR shall be established by the Trustee and, as to any Interest Accrual
Period, shall equal the rate for one month United States dollar deposits that
appears on the Telerate Screen Page 3750 of the Moneyline Telerate Capital
Markets Report as of 11:00 a.m., London time, on the LIBOR Rate Adjustment Date.
"Telerate Screen Page 3750" means the display designated as page 3750 on the
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks). If
such rate does not appear on such page (or such other page as may replace that
page on that service, or if such service is no longer offered, such other
service for displaying One-Month LIBOR or comparable rates as may be selected by
the Trustee after consultation with the Master Servicer), the rate will be the
Reference Bank Rate.
The "Reference Bank Rate" will be determined on the basis of the rates
at which deposits in U.S. Dollars are offered by the reference banks (which
shall be any three major banks that are engaged in transactions in the London
interbank market, selected by the Trustee after consultation with the Master
Servicer) as of 11:00 a.m., London time, on the LIBOR Rate Adjustment Date to
prime banks in the London interbank market for a period of one month in amounts
approximately equal to the aggregate Certificate Principal Balance of the LIBOR
Certificates then outstanding. The Trustee shall request the principal London
office of each of the reference banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate will be the arithmetic mean of
the quotations rounded up to the next multiple of 1/16%. If on such date fewer
than two quotations are provided as requested, the rate will be the arithmetic
mean of the rates quoted by one or more major banks in New York City, selected
by the Trustee after consultation with the Master Servicer, as of 11:00 a.m.,
New York City time, on such date for loans in U.S. Dollars to leading European
banks for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the LIBOR Certificates then outstanding. If no
such quotations can be obtained, the rate will be One-Month LIBOR for the prior
Distribution Date; provided, however, if, under the priorities described above,
One-Month LIBOR for a Distribution Date would be based on One-Month LIBOR for
the previous Distribution Date for the third consecutive Distribution Date, the
Trustee shall select an alternative comparable index (over which the Trustee has
no control), used for determining one-month Eurodollar lending rates that is
calculated and published (or otherwise made available) by an independent party.
The establishment of One-Month LIBOR by the Trustee on any LIBOR Rate
Adjustment Date and the Trustee's subsequent calculation of the Pass-Through
Rates applicable to the LIBOR Certificates for the relevant Interest Accrual
Period, in the absence of manifest error, will be final and binding.
Promptly following each LIBOR Rate Adjustment Date the Trustee shall
supply the Master Servicer with the results of its determination of One-Month
LIBOR on such date. Furthermore, the Trustee shall supply to any
Certificateholder so calling the Bondholder Inquiry Line at ▇-▇▇▇-▇▇▇-▇▇▇▇ and
requesting the Pass-Through Rate on the LIBOR Certificates for the current and
the immediately preceding Interest Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans
(a) The Depositor, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee in respect of the Trust Fund without recourse all
the right, title and interest of the Depositor in and to (i) the Mortgage Loans,
including all interest and principal received on or with respect to the Mortgage
Loans after the Cut-off Date (other than payments of principal and interest due
on the Mortgage Loans in the month of the Cut-off Date) and (ii) all proceeds of
the foregoing. In addition, on the Closing Date, the Trustee is hereby directed
to enter into the Swap Agreement on behalf of the Trust Fund with the Swap
Counterparty.
(b) In connection with such assignment, and contemporaneously with the delivery
of this Agreement, except as set forth in Section 2.01(c) below and subject to
Section 2.01(d) below, the Depositor does hereby deliver to, and deposit with,
the Trustee, or to and with one or more Custodians, as the duly appointed agent
or agents of the Trustee for such purpose, the following documents or
instruments (or copies thereof as permitted by this Section) with respect to
each Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to the order of the
Trustee and showing an unbroken chain of endorsements from the originator
thereof to the Person endorsing it to the Trustee, or with respect to any
Destroyed Mortgage Note, an original lost note affidavit from the related Seller
or Residential Funding stating that the original Mortgage Note was lost,
misplaced or destroyed, together with a copy of the related Mortgage Note;
(ii) The original Mortgage, noting the presence of the MIN of the Mortgage Loan
and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan, with evidence of recording indicated thereon or, if the
original Mortgage has not yet been returned from the public recording office, a
copy of the original Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, the
assignment (which may be included in one or more blanket assignments if
permitted by applicable law) of the Mortgage to the Trustee with evidence of
recording indicated thereon or a copy of such assignment with evidence of
recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an
unbroken chain of title from the originator to the Person assigning it to the
Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R) System
and noting the presence of a MIN) with evidence of recordation noted thereon or
attached thereto, or a copy of such assignment or assignments of the Mortgage
with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan
agreement, if any, relating to such Mortgage Loan, or a copy of each
modification, assumption agreement or preferred loan agreement.
The Depositor may, in lieu of delivering the original of the documents
set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as
permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such
documents to the Master Servicer, and the Master Servicer shall hold such
documents in trust for the use and benefit of all present and future
Certificateholders until such time as is set forth in the next sentence. Within
thirty Business Days following the earlier of (i) the receipt of the original of
all of the documents or instruments set forth in Section 2.01(b)(ii), (iii),
(iv) and (v) (or copies thereof as permitted by such Section) for any Mortgage
Loan and (ii) a written request by the Trustee to deliver those documents with
respect to any or all of the Mortgage Loans then being held by the Master
Servicer, the Master Servicer shall deliver a complete set of such documents to
the Trustee or the Custodian that are the duly appointed agent or agents of the
Trustee.
On the Closing Date, the Master Servicer shall certify that it has in
its possession an original or copy of each of the documents referred to in
Section 2.01(b)(ii), (iii), (iv) and (v) which has been delivered to it by the
Depositor.
The Depositor, the Master Servicer and the Trustee agree that it is not
intended that any mortgage loan be included in the Trust Fund that is (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Predatory Home Practices Act
effective November 7, 2004 or (iv) a "High-Cost Home Loan" as defined in the
Indiana High Cost Home Loan Law effective January 1, 2005.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in
connection with any Mortgage Loan, if the Depositor cannot deliver the original
of the Mortgage, any assignment, modification, assumption agreement or preferred
loan agreement (or copy thereof as permitted by Section 2.01(b)) with evidence
of recording thereon concurrently with the execution and delivery of this
Agreement because of (i) a delay caused by the public recording office where
such Mortgage, assignment, modification, assumption agreement or preferred loan
agreement as the case may be, has been delivered for recordation, or (ii) a
delay in the receipt of certain information necessary to prepare the related
assignments, the Depositor shall deliver or cause to be delivered to the Trustee
or the respective Custodian a copy of such Mortgage, assignment, modification,
assumption agreement or preferred loan agreement.
The Depositor shall promptly cause to be recorded in the appropriate
public office for real property records the Assignment referred to in clause
(iii) of Section 2.01(b), except (a) in states where, in the opinion of counsel
acceptable to the Trustee and the Master Servicer, such recording is not
required to protect the Trustee's interests in the Mortgage Loan or (b) if MERS
is identified on the Mortgage or on a properly recorded assignment of the
Mortgage, as applicable, as the mortgagee of record solely as nominee for
Residential Funding and its successors and assigns. If any Assignment is lost or
returned unrecorded to the Depositor because of any defect therein, the
Depositor shall prepare a substitute Assignment or cure such defect, as the case
may be, and cause such Assignment to be recorded in accordance with this
paragraph. The Depositor shall promptly deliver or cause to be delivered to the
Trustee or the respective Custodian such Mortgage or Assignment, as applicable
(or copy thereof as permitted by Section 2.01(b)), with evidence of recording
indicated thereon upon receipt thereof from the public recording office or from
the related Subservicer or Seller.
If the Depositor delivers to the Trustee or Custodian any Mortgage Note
or Assignment of Mortgage in blank, the Depositor shall, or shall cause the
Custodian to, complete the endorsement of the Mortgage Note and the Assignment
of Mortgage in the name of the Trustee in conjunction with the Interim
Certification issued by the Custodian, as contemplated by Section 2.02.
Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v)
and that may be delivered as a copy rather than the original may be delivered to
the Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, the Depositor further agrees that it will cause, at the
Depositor's own expense, within 30 Business Days after the Closing Date, the
MERS(R) System to indicate that such Mortgage Loans have been assigned by the
Depositor to the Trustee in accordance with this Agreement for the benefit of
the Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the code
in the field "Pool Field" which identifies the series of the Certificates issued
in connection with such Mortgage Loans. The Depositor further agrees that it
will not, and will not permit the Master Servicer to, and the Master Servicer
agrees that it will not, alter the codes referenced in this paragraph with
respect to any Mortgage Loan during the term of this Agreement unless and until
such Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
(d) It is intended that the conveyances by the Depositor to the Trustee of the
Mortgage Loans as provided for in this Section 2.01 and the Uncertificated
Regular Interests be construed as a sale by the Depositor to the Trustee of the
Mortgage Loans and the Uncertificated Regular Interests for the benefit of the
Certificateholders. Further, it is not intended that any such conveyance be
deemed to be a pledge of the Mortgage Loans and the Uncertificated Regular
Interests by the Depositor to the Trustee to secure a debt or other obligation
of the Depositor. Nonetheless, (a) this Agreement is intended to be and hereby
is a security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyances provided for in this Section 2.01 shall be
deemed to be (1) a grant by the Depositor to the Trustee of a security interest
in all of the Depositor's right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to (A) the
Mortgage Loans, including the related Mortgage Note, the Mortgage, any insurance
policies and all other documents in the related Mortgage File, (B) all amounts
payable pursuant to the Mortgage Loans or the Swap Agreement in accordance with
the terms thereof, (C) any Uncertificated Regular Interests and any and all
general intangibles, payment intangibles, accounts, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and investment property and other property of whatever
kind or description now existing or hereafter acquired consisting of, arising
from or relating to any of the foregoing, and (D) all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts from time
to time held or invested in the Certificate Account or the Custodial Account,
whether in the form of cash, instruments, securities or other property and (2)
an assignment by the Depositor to the Trustee of any security interest in any
and all of Residential Funding's right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
the property described in the foregoing clauses (1)(A), (B), (C) and (D) granted
by Residential Funding to the Depositor pursuant to the Assignment Agreement;
(c) the possession by the Trustee, the Custodian or any other agent of the
Trustee of Mortgage Notes or such other items of property as constitute
instruments, money, payment intangibles, negotiable documents, goods, deposit
accounts, letters of credit, advices of credit, investment property,
certificated securities or chattel paper shall be deemed to be "possession by
the secured party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to the
Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction as in effect (including, without limitation, Sections
8-106, 9-313 and 9-106 thereof); and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for, (as applicable) the Trustee for the purpose of perfecting such
security interest under applicable law.
The Depositor and, at the Depositor's direction, Residential Funding and
the Trustee shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the
Uncertificated Regular Interests and the other property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. Without limiting the generality of the foregoing, the
Depositor shall prepare and deliver to the Trustee not less than 15 days prior
to any filing date and, the Trustee shall forward for filing, or shall cause to
be forwarded for filing, at the expense of the Depositor, all filings necessary
to maintain the effectiveness of any original filings necessary under the
Uniform Commercial Code as in effect in any jurisdiction to perfect the
Trustee's security interest in or lien on the Mortgage Loans and the
Uncertificated Regular Interests, as evidenced by an Officers' Certificate of
the Depositor, including without limitation (x) continuation statements, and (y)
such other statements as may be occasioned by (1) any change of name of
Residential Funding, the Depositor or the Trustee (such preparation and filing
shall be at the expense of the Trustee, if occasioned by a change in the
Trustee's name), (2) any change of location of the place of business or the
chief executive office of Residential Funding or the Depositor, (3) any transfer
of any interest of Residential Funding or the Depositor in any Mortgage Loan or
(4) any transfer of any interest of Residential Funding or the Depositor in any
Uncertificated Regular Interests.
Section 2.02. Acceptance by Trustee
The Trustee acknowledges receipt (or, with respect to Mortgage Loans
subject to a Custodial Agreement, and based solely upon a receipt or
certification executed by the Custodian, receipt by the respective Custodian as
the duly appointed agent of the Trustee) of the documents referred to in Section
2.01(b)(i) above (except that for purposes of such acknowledgement only, a
Mortgage Note may be endorsed in blank and an Assignment of Mortgage may be in
blank) and declares that it, or a Custodian as its agent, holds and will hold
such documents and the other documents constituting a part of the Mortgage Files
delivered to it, or a Custodian as its agent, in trust for the use and benefit
of all present and future Certificateholders. The Trustee or Custodian (such
Custodian being so obligated under a Custodial Agreement) agrees, for the
benefit of Certificateholders, to review each Mortgage File delivered to it
pursuant to Section 2.01(b) within 90 days after the Closing Date to ascertain
that all required documents (specifically as set forth in Section 2.01(b)), have
been executed and received, and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule, as supplemented, that have been
conveyed to it, and to deliver to the Trustee a certificate (the "Interim
Certification") to the effect that all documents required to be delivered
pursuant to Section 2.01(b) above have been executed and received and that such
documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule,
except for any exceptions listed on Schedule A attached to such Interim
Certification. Upon delivery of the Mortgage Files by the Depositor or the
Master Servicer, the Trustee shall acknowledge receipt (or, with respect to
Mortgage Loans subject to a Custodial Agreement, and based solely upon a receipt
or certification executed by the Custodian, receipt by the respective Custodian
as the duly appointed agent of the Trustee) of the documents referred to in
Section 2.01(b) above.
If the Custodian, as the Trustee's agent, finds any document or
documents constituting a part of a Mortgage File to be missing or defective,
upon receipt of notification from the Custodian as specified in the succeeding
sentence, the Trustee shall promptly so notify or cause the Custodian to notify
the Master Servicer and the Depositor. Pursuant to Section 2.3 of the Custodial
Agreement, the Custodian will notify the Master Servicer, the Depositor and the
Trustee of any such omission or defect found by it in respect of any Mortgage
File held by it in respect of the items received by it pursuant to the Custodial
Agreement. If such omission or defect materially and adversely affects the
interests in the related Mortgage Loan of the Certificateholders, the Master
Servicer shall promptly notify the related Seller or Subservicer of such
omission or defect and request that such Seller or Subservicer correct or cure
such omission or defect within 60 days from the date the Master Servicer was
notified of such omission or defect and, if such Seller or Subservicer does not
correct or cure such omission or defect within such period, that such Seller or
Subservicer purchase such Mortgage Loan from the Trust Fund at its Purchase
Price, in either case within 90 days from the date the Master Servicer was
notified of such omission or defect; provided that if the omission or defect
would cause the Mortgage Loan to be other than a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code, any such cure or repurchase must occur within
90 days from the date such breach was discovered. The Purchase Price for any
such Mortgage Loan shall be deposited or caused to be deposited by the Master
Servicer in the Custodial Account maintained by it pursuant to Section 3.07 and,
upon receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee or any Custodian, as the case may be, shall
release to the Master Servicer the related Mortgage File and the Trustee shall
execute and deliver such instruments of transfer or assignment prepared by the
Master Servicer, in each case without recourse, as shall be necessary to vest in
the Seller or the Subservicer or its designee, as the case may be, any Mortgage
Loan released pursuant hereto and thereafter such Mortgage Loan shall not be
part of the Trust Fund. In furtherance of the foregoing and Section 2.04, if the
Seller or the Subservicer that repurchases the Mortgage Loan is not a member of
MERS and the Mortgage is registered on the MERS(R) System, the Master Servicer,
at its own expense and without any right of reimbursement, shall cause MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to such Seller or the Subservicer or Residential Funding
and shall cause such Mortgage to be removed from registration on the MERS(R)
System in accordance with MERS' rules and regulations. It is understood and
agreed that the obligation of the Seller or the Subservicer, to so cure or
purchase any Mortgage Loan as to which a material and adverse defect in or
omission of a constituent document exists shall constitute the sole remedy
respecting such defect or omission available to Certificateholders or the
Trustee on behalf of Certificateholders.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Depositor
(a) The Master Servicer hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that:
(i) The Master Servicer is a corporation duly organized, validly existing and in
good standing under the laws governing its creation and existence and is or will
be in compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not violate the
Master Servicer's Certificate of Incorporation or Bylaws or constitute a
material default (or an event which, with notice or lapse of time, or both,
would constitute a material default) under, or result in the material breach of,
any material contract, agreement or other instrument to which the Master
Servicer is a party or which may be applicable to the Master Servicer or any of
its assets;
(iii) This Agreement, assuming due authorization, execution and delivery by the
Trustee and the Depositor, constitutes a valid, legal and binding obligation of
the Master Servicer, 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;
(iv) The Master Servicer 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 Master Servicer or its properties or might have consequences that would
materially adversely affect its performance hereunder;
(v) No litigation is pending or, to the best of the Master Servicer's knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vi) The Master Servicer shall comply in all material respects in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under each Required Insurance Policy;
(vii) No information, certificate of an officer, statement furnished in writing
or report delivered to the Depositor, any Affiliate of the Depositor or the
Trustee by the Master Servicer will, to the knowledge of the Master Servicer,
contain any untrue statement of a material fact or omit a material fact
necessary to make the information, certificate, statement or report not
misleading;
(viii) The Master Servicer has examined each existing, and will examine each
new, Subservicing Agreement and is or will be familiar with the terms thereof.
The terms of each existing Subservicing Agreement and each designated
Subservicer are acceptable to the Master Servicer and any new Subservicing
Agreements will comply with the provisions of Section 3.02;
(ix) The Master Servicer is a member of MERS in good standing, and will comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered with MERS; and
(x) The Servicing Guide of the Master Servicer requires that the Subservicer for
each Mortgage Loan accurately and fully reports its borrower credit files to
each of the Credit Repositories in a timely manner.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(a) shall survive delivery of the respective Mortgage
Files to the Trustee or any Custodian.
Upon discovery by either the Depositor, the Master Servicer, the Trustee
or any Custodian of a breach of any representation or warranty set forth in this
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties (any Custodian being so
obligated under a Custodial Agreement). Within 90 days of its discovery or its
receipt of notice of such breach, the Master Servicer shall either (i) cure such
breach in all material respects or (ii) to the extent that such breach is with
respect to a Mortgage Loan or a related document, purchase such Mortgage Loan
from the Trust Fund at the Purchase Price and in the manner set forth in Section
2.02; provided that if the breach would cause the Mortgage Loan to be other than
a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
cure or repurchase must occur within 90 days from the date such breach was
discovered. The obligation of the Master Servicer to cure such breach or to so
purchase such Mortgage Loan shall constitute the sole remedy in respect of a
breach of a representation and warranty set forth in this Section 2.03(a)
available to the Certificateholders or the Trustee on behalf of the
Certificateholders.
(b) The Depositor hereby represents and warrants to the Trustee for the benefit
of the Certificateholders that as of the Closing Date (or, if otherwise
specified below, as of the date so specified): (i) the information set forth in
Exhibit F hereto with respect to each Mortgage Loan or the Mortgage Loans, as
the case may be, is true and correct in all material respects at the respective
date or dates which such information is furnished; (ii) immediately prior to the
conveyance of the Mortgage Loans to the Trustee, the Depositor had good title
to, and was the sole owner of, each Mortgage Loan free and clear of any pledge,
lien, encumbrance or security interest (other than rights to servicing and
related compensation) and such conveyance validly transfers ownership of the
Mortgage Loans to the Trustee free and clear of any pledge, lien, encumbrance or
security interest; and (iii) each Mortgage Loan constitutes a qualified mortgage
under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1).
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the respective Mortgage
Files to the Trustee or any Custodian.
Upon discovery by any of the Depositor, the Master Servicer, the Trustee
or any Custodian of a breach of any of the representations and warranties set
forth in this Section 2.03(b) which materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); provided, however, that in the
event of a breach of the representation and warranty set forth in Section
2.03(b)(iii), the party discovering such breach shall give such notice within
five days of discovery. Within 90 days of its discovery or its receipt of notice
of breach, the Depositor shall either (i) cure such breach in all material
respects or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that the Depositor
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the omission or defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure, substitution or repurchase must occur
within 90 days from the date such breach was discovered. Any such substitution
shall be effected by the Depositor under the same terms and conditions as
provided in Section 2.04 for substitutions by Residential Funding. It is
understood and agreed that the obligation of the Depositor to cure such breach
or to so purchase or substitute for any Mortgage Loan as to which such a breach
has occurred and is continuing shall constitute the sole remedy respecting such
breach available to the Certificateholders or the Trustee on behalf of the
Certificateholders. Notwithstanding the foregoing, the Depositor shall not be
required to cure breaches or purchase or substitute for Mortgage Loans as
provided in this Section 2.03(b) if the substance of the breach of a
representation set forth above also constitutes fraud in the origination of the
Mortgage Loan.
Section 2.04. Representations and Warranties of Sellers
The Depositor, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of the
Certificateholders all of its right, title and interest in respect of the
Assignment Agreement and each Seller's Agreement applicable to a Mortgage Loan
as and to the extent set forth in the Assignment Agreement. Insofar as the
Assignment Agreement or such Seller's Agreement relates to the representations
and warranties made by Residential Funding or the related Seller in respect of
such Mortgage Loan and any remedies provided thereunder for any breach of such
representations and warranties, such right, title and interest may be enforced
by the Master Servicer on behalf of the Trustee and the Certificateholders. Upon
the discovery by the Depositor, the Master Servicer, the Trustee or any
Custodian of a breach of any of the representations and warranties made in a
Seller's Agreement or the Assignment Agreement in respect of any Mortgage Loan
or of any Repurchase Event which materially and adversely affects the interests
of the Certificateholders in such Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement). The Master Servicer shall
promptly notify the related Seller and Residential Funding of such breach or
Repurchase Event and request that such Seller or Residential Funding either (i)
cure such breach or Repurchase Event in all material respects within 90 days
from the date the Master Servicer was notified of such breach or Repurchase
Event or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that, in the case of
a breach or Repurchase Event under the Assignment Agreement Residential Funding
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the breach would cause the Mortgage
Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of
the Code, any such cure or substitution must occur within 90 days from the date
the breach was discovered. If the breach of representation and warranty that
gave rise to the obligation to repurchase or substitute a Mortgage Loan pursuant
to Section 4 of the Assignment Agreement was the representation and warranty set
forth in clause (w) of Section 4 thereof, then the Master Servicer shall request
that Residential Funding pay to the Trust Fund, concurrently with and in
addition to the remedies provided in the preceding sentence, an amount equal to
any liability, penalty or expense that was actually incurred and paid out of or
on behalf of the Trust Fund, and that directly resulted from such breach, or if
incurred and paid by the Trust Fund thereafter, concurrently with such payment.
In the event that Residential Funding elects to substitute a Qualified
Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant to this
Section 2.04, Residential Funding shall deliver to the Trustee for the benefit
of the Certificateholders with respect to such Qualified Substitute Mortgage
Loan or Loans, the original Mortgage Note, the Mortgage, an Assignment of the
Mortgage in recordable form, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed as required by Section
2.01. No substitution will be made in any calendar month after the Determination
Date for such month. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution shall not be part of the Trust Fund
and will be retained by the Master Servicer and remitted by the Master Servicer
to Residential Funding on the next succeeding Distribution Date. For the month
of substitution, distributions to the Certificateholders will include the
Monthly Payment due on a Deleted Mortgage Loan for such month and thereafter
Residential Funding shall be entitled to retain all amounts received in respect
of such Deleted Mortgage Loan. The Master Servicer shall amend or cause to be
amended the Mortgage Loan Schedule for the benefit of the Certificateholders to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Qualified Substitute Mortgage Loan or Loans and the Master Servicer shall
deliver the amended Mortgage Loan Schedule to the Trustee. Upon such
substitution, the Qualified Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement and the related Subservicing Agreement in all
respects, Residential Funding shall be deemed to have made the representations
and warranties with respect to the Qualified Substitute Mortgage Loan (other
than those of a statistical nature) contained in Section 4 of the Assignment
Agreement as of the date of substitution, and the covenants, representations and
warranties set forth in this Section 2.04, and in Section 2.03(a) hereof and in
Section 4 of the Assignment Agreement, and the Master Servicer shall be
obligated to repurchase or substitute for any Qualified Substitute Mortgage Loan
as to which a Repurchase Event (as defined in the Assignment Agreement) has
occurred pursuant to Section 4 of the Assignment Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer shall
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to the
Certificateholders in the month of substitution). Residential Funding shall
deposit the amount of such shortfall into the Custodial Account on the day of
substitution, without any reimbursement therefor. Residential Funding shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall
and (subject to Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any portion of any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (and in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing and to make any additional
payments required under the Assignment Agreement in connection with a breach of
the representation and warranty in clause (w) of Section 4 thereof shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of the Certificateholders. If the
Master Servicer is Residential Funding, then the Trustee shall also have the
right to give the notification and require the purchase or substitution provided
for in the second preceding paragraph in the event of such a breach of a
representation or warranty made by Residential Funding in the Assignment
Agreement. In connection with the purchase of or substitution for any such
Mortgage Loan by Residential Funding, the Trustee shall assign to Residential
Funding all of the right, title and interest in respect of the Seller's
Agreement and the Assignment Agreement applicable to such Mortgage Loan.
Section 2.05. Execution and Authentication of Certificates; Conveyance
of Uncertificated REMIC Regular Interests
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery of the Mortgage Files to it, or any Custodian on its behalf, subject to
any exceptions noted, together with the assignment to it of all other assets
included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such delivery and in exchange therefor, the Trustee, pursuant
to the written request of the Depositor executed by an officer of the Depositor,
has executed and caused to be authenticated and delivered to or upon the order
of the Depositor the Certificates in authorized denominations which evidence
ownership of the entire Trust Fund.
(b) The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey in trust to the Trustee
without recourse all the right, title and interest of the Depositor in and to
the REMIC I Regular Interests and the REMIC II Regular Interests for the benefit
of the Holders of each Class of Certificates (other than the Class R-I
Certificates and the Class R-II Certificates). The Trustee acknowledges receipt
of the REMIC I Regular Interests and the REMIC II Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of each Class of Certificates (other than the Class R-I
Certificates and the Class R-II Certificates). The interests evidenced by the
Class R-III Certificates, together with the REMIC III Regular Interests,
constitute the entire beneficial ownership interest in REMIC III.
Section 2.06. Purposes and Powers of the Trust
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Certificates to the Depositor in exchange for the Mortgage
Loans;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Notwithstanding the provisions of Section 11.01, the trust shall not engage in
any activity other than in connection with the foregoing or other than as
required or authorized by the terms of this Agreement while any Certificate is
outstanding, and this Section 2.06 may not be amended, without the consent of
the Certificateholders evidencing a majority of the aggregate Voting Rights of
the Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer
(a) The Master Servicer shall service and administer the Mortgage Loans in
accordance with the terms of this Agreement and the respective Mortgage Loans,
following such procedures as it would employ in its good faith business judgment
and which are normal and usual in its general mortgage servicing activities, and
shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do any and all things which it may deem necessary
or desirable in connection with such servicing and administration. Without
limiting the generality of the foregoing, the Master Servicer in its own name or
in the name of a Subservicer is hereby authorized and empowered by the Trustee
when the Master Servicer or the Subservicer, as the case may be, believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
consent to assumption or modification in connection with a proposed conveyance,
or of assignment of any Mortgage and Mortgage Note in connection with the
repurchase of a Mortgage Loan and all other comparable instruments, or with
respect to the modification or re-recording of a Mortgage for the purpose of
correcting the Mortgage, the subordination of the lien of the Mortgage in favor
of a public utility company or government agency or unit with powers of eminent
domain, the taking of a deed in lieu of foreclosure, the commencement,
prosecution or completion of judicial or non-judicial foreclosure, the
conveyance of a Mortgaged Property to the related insurer, the acquisition of
any property acquired by foreclosure or deed in lieu of foreclosure, or the
management, marketing and conveyance of any property acquired by foreclosure or
deed in lieu of foreclosure with respect to the Mortgage Loans and with respect
to the Mortgaged Properties. The Master Servicer further is authorized and
empowered by the Trustee, on behalf of the Certificateholders and the Trustee,
in its own name or in the name of the Subservicer, when the Master Servicer or
the Subservicer, as the case may be, believes it is appropriate in its best
judgment to register any Mortgage Loan on the MERS(R) System, or cause the
removal from the registration of any Mortgage Loan on the MERS(R) System, to
execute and deliver, on behalf of the Trustee and the Certificateholders or any
of them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Trustee and its successors and assigns. Any
expenses incurred in connection with the actions described in the preceding
sentence shall be borne by the Master Servicer in accordance with Section
3.16(c), with no right of reimbursement; provided, that if, as a result of MERS
discontinuing or becoming unable to continue operations in connection with the
MERS(R) System, it becomes necessary to remove any Mortgage Loan from
registration on the MERS(R) System and to arrange for the assignment of the
related Mortgages to the Trustee, then any related expenses shall be
reimbursable to the Master Servicer as set forth in Section 3.10(a)(ii).
Notwithstanding the foregoing, subject to Section 3.07(a), the Master Servicer
shall not permit any modification with respect to any Mortgage Loan that would
both constitute a sale or exchange of such Mortgage Loan within the meaning of
Section 1001 of the Code and any proposed, temporary or final regulations
promulgated thereunder (other than in connection with a proposed conveyance or
assumption of such Mortgage Loan that is treated as a Principal Prepayment in
Full pursuant to Section 3.13(d) hereof) and cause any REMIC created hereunder
to fail to qualify as a REMIC under the Code. The Trustee shall furnish the
Master Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Master Servicer to service and administer the Mortgage
Loans. The Trustee shall not be liable for any action taken by the Master
Servicer or any Subservicer pursuant to such powers of attorney or other
documents. In servicing and administering any Nonsubserviced Mortgage Loan, the
Master Servicer shall, to the extent not inconsistent with this Agreement,
comply with the Program Guide as if it were the originator of such Mortgage Loan
and had retained the servicing rights and obligations in respect thereof. In
connection with servicing and administering the Mortgage Loans, the Master
Servicer and any Affiliate of the Master Servicer (i) may perform services such
as appraisals and brokerage services that are customarily provided by Persons
other than servicers of mortgage loans, and shall be entitled to reasonable
compensation therefor in accordance with Section 3.10 and (ii) may, at its own
discretion and on behalf of the Trustee, obtain credit information in the form
of a "credit score" from a credit repository.
(b) All costs incurred by the Master Servicer or by Subservicers in effecting
the timely payment of taxes and assessments on the properties subject to the
Mortgage Loans shall not, for the purpose of calculating monthly distributions
to the Certificateholders, be added to the amount owing under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loan so permit,
and such costs shall be recoverable to the extent permitted by Section
3.10(a)(ii).
(c) The Master Servicer may enter into one or more agreements in connection with
the offering of pass-through certificates evidencing interests in one or more of
the Certificates providing for the payment by the Master Servicer of amounts
received by the Master Servicer as servicing compensation hereunder and required
to cover certain Prepayment Interest Shortfalls on the Mortgage Loans, which
payment obligation will thereafter be an obligation of the Master Servicer
hereunder.
Section 3.02. Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' Obligations; Special Servicing
(a) The Master Servicer may continue in effect Subservicing Agreements entered
into by Residential Funding and Subservicers prior to the execution and delivery
of this Agreement, and may enter into new Subservicing Agreements with
Subservicers, for the servicing and administration of all or some of the
Mortgage Loans. Each Subservicer shall be either (i) an institution the accounts
of which are insured by the FDIC or (ii) another entity that engages in the
business of originating or servicing mortgage loans, and in either case shall be
authorized to transact business in the state or states in which the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Subservicer to perform its obligations
hereunder and under the Subservicing Agreement, and in either case shall be a
▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or HUD approved mortgage servicer. Each Subservicer of a
Mortgage Loan shall be entitled to receive and retain, as provided in the
related Subservicing Agreement and in Section 3.07, the related Subservicing Fee
from payments of interest received on such Mortgage Loan after payment of all
amounts required to be remitted to the Master Servicer in respect of such
Mortgage Loan. For any Mortgage Loan that is a Nonsubserviced Mortgage Loan, the
Master Servicer shall be entitled to receive and retain an amount equal to the
Subservicing Fee from payments of interest. Unless the context otherwise
requires, references in this Agreement to actions taken or to be taken by the
Master Servicer in servicing the Mortgage Loans include actions taken or to be
taken by a Subservicer on behalf of the Master Servicer. Each Subservicing
Agreement will be upon such terms and conditions as are generally required by,
permitted by or consistent with the Program Guide and are not inconsistent with
this Agreement and as the Master Servicer and the Subservicer have agreed. With
the approval of the Master Servicer, a Subservicer may delegate its servicing
obligations to third-party servicers, but such Subservicer will remain obligated
under the related Subservicing Agreement. The Master Servicer and a Subservicer
may enter into amendments thereto or a different form of Subservicing Agreement,
and the form referred to or included in the Program Guide is merely provided for
information and shall not be deemed to limit in any respect the discretion of
the Master Servicer to modify or enter into different Subservicing Agreements;
provided, however, that any such amendments or different forms shall be
consistent with and not violate the provisions of either this Agreement or the
Program Guide in a manner which would materially and adversely affect the
interests of the Certificateholders. The Program Guide and any other
Subservicing Agreement entered into between the Master Servicer and any
Subservicer shall require the Subservicer to accurately and fully report its
borrower credit files to each of the Credit Repositories in a timely manner.
(b) As part of its servicing activities hereunder, the Master Servicer, for the
benefit of the Trustee and the Certificateholders, shall use its best reasonable
efforts to enforce the obligations of each Subservicer under the related
Subservicing Agreement and of each Seller under the related Seller's Agreement,
to the extent that the non-performance of any such obligation would have a
material and adverse effect on a Mortgage Loan, including, without limitation,
the obligation to purchase a Mortgage Loan on account of defective
documentation, as described in Section 2.02, or on account of a breach of a
representation or warranty, as described in Section 2.04. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Subservicing Agreements or Seller's Agreements, as appropriate, and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer would employ in its good faith
business judgment and which are normal and usual in its general mortgage
servicing activities. The Master Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor only (i) from a
general recovery resulting from such enforcement to the extent, if any, that
such recovery exceeds all amounts due in respect of the related Mortgage Loan or
(ii) from a specific recovery of costs, expenses or attorneys fees against the
party against whom such enforcement is directed. For purposes of clarification
only, the parties agree that the foregoing is not intended to, and does not,
limit the ability of the Master Servicer to be reimbursed for expenses that are
incurred in connection with the enforcement of a Seller's obligations and are
reimbursable pursuant to Section 3.10(a)(vii).
Section 3.03. Successor Subservicers
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Servicer or any Affiliate of
Residential Funding acts as servicer, it will not assume liability for the
representations and warranties of the Subservicer which it replaces. If the
Master Servicer enters into a Subservicing Agreement with a successor
Subservicer, the Master Servicer shall use reasonable efforts to have the
successor Subservicer assume liability for the representations and warranties
made by the terminated Subservicer in respect of the related Mortgage Loans and,
in the event of any such assumption by the successor Subservicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Subservicer from liability for such representations and warranties.
Section 3.04. Liability of the Master Servicer
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or reference to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to the Trustee
and Certificateholders for the servicing and administering of the Mortgage Loans
in accordance with the provisions of Section 3.01 without diminution of such
obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer or the
Depositor and to the same extent and under the same terms and conditions as if
the Master Servicer alone were servicing and administering the Mortgage Loans.
The Master Servicer shall be entitled to enter into any agreement with a
Subservicer or Seller for indemnification of the Master Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders
Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Master Servicer alone and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer in
its capacity as such except as set forth in Section 3.06. The foregoing
provision shall not in any way limit a Subservicer's obligation to cure an
omission or defect or to repurchase a Mortgage Loan as referred to in Section
2.02 hereof.
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee
(a) In the event the Master Servicer shall for any reason no longer be the
master servicer (including by reason of an Event of Default), the Trustee, its
designee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer under each Subservicing Agreement that may
have been entered into. The Trustee, its designee or the successor servicer for
the Trustee shall be deemed to have assumed all of the Master Servicer's
interest therein and to have replaced the Master Servicer as a party to the
Subservicing Agreement to the same extent as if the Subservicing Agreement had
been assigned to the assuming party except that the Master Servicer shall not
thereby be relieved of any liability or obligations under the Subservicing
Agreement.
(b) The Master Servicer shall, upon request of the Trustee but at the expense of
the Master Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of each
Subservicing Agreement to the assuming party.
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account
(a) The Master Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans, and shall, to
the extent such procedures shall be consistent with this Agreement and the terms
and provisions of any related Primary Insurance Policy, follow such collection
procedures as it would employ in its good faith business judgment and which are
normal and usual in its general mortgage servicing activities. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the Due Date for payments due
on a Mortgage Loan in accordance with the Program Guide, provided, however, that
the Master Servicer shall first determine that any such waiver or extension will
not impair the coverage of any related Primary Insurance Policy or materially
adversely affect the lien of the related Mortgage. Notwithstanding anything in
this Section to the contrary, the Master Servicer or any Subservicer shall not
enforce any prepayment charge to the extent that such enforcement would violate
any applicable law. In the event of any such arrangement, the Master Servicer
shall make timely advances on the related Mortgage Loan during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements unless otherwise
agreed to by the Holders of the Classes of Certificates affected thereby;
provided, however, that no such extension shall be made if any advance would be
a Nonrecoverable Advance. Consistent with the terms of this Agreement, the
Master Servicer may also waive, modify or vary any term of any Mortgage Loan or
consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in the Master Servicer's
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Certificateholders (taking into
account any estimated Realized Loss that might result absent such action),
provided, however, that the Master Servicer may not modify materially or permit
any Subservicer to modify any Mortgage Loan, including without limitation any
modification that would change the Mortgage Rate, forgive the payment of any
principal or interest (unless in connection with the liquidation of the related
Mortgage Loan or except in connection with prepayments to the extent that such
reamortization is not inconsistent with the terms of the Mortgage Loan),
capitalize any amounts owing on the Mortgage Loan by adding such amount to the
outstanding principal balance of the Mortgage Loan, or extend the final maturity
date of such Mortgage Loan, unless such Mortgage Loan is in default or, in the
judgment of the Master Servicer, such default is reasonably foreseeable. No such
modification shall reduce the Mortgage Rate on a Mortgage Loan below one-half of
the Mortgage Rate as in effect on the Cut-off Date, but not less than the sum of
the rates at which the Servicing Fee and the Subservicing Fee accrue. The final
maturity date for any Mortgage Loan shall not be extended beyond the Maturity
Date. Also, the Stated Principal Balance of all Reportable Modified Mortgage
Loans subject to Servicing Modifications (measured at the time of the Servicing
Modification and after giving effect to any Servicing Modification) can be no
more than five percent of the aggregate principal balance of the Mortgage Loans
as of the Cut-off Date, unless such limit is increased from time to time with
the consent of the Rating Agencies. In addition, any amounts owing on a Mortgage
Loan added to the outstanding principal balance of such Mortgage Loan must be
fully amortized over the term of such Mortgage Loan, and such amounts may be
added to the outstanding principal balance of a Mortgage Loan only once during
the life of such Mortgage Loan. Also, the addition of such amounts described in
the preceding sentence shall be implemented in accordance with the Program Guide
and may be implemented only by Subservicers that have been approved by the
Master Servicer for such purposes. In connection with any Curtailment of a
Mortgage Loan, the Master Servicer, to the extent not inconsistent with the
terms of the Mortgage Note and local law and practice, may permit the Mortgage
Loan to be re-amortized such that the Monthly Payment is recalculated as an
amount that will fully amortize the remaining principal balance thereof by the
original maturity date based on the original Mortgage Rate; provided, that such
reamortization shall not be permitted if it would constitute a reissuance of the
Mortgage Loan for federal income tax purposes.
(b) The Master Servicer shall establish and maintain a Custodial Account in
which the Master Servicer shall deposit or cause to be deposited on a daily
basis, except as otherwise specifically provided herein, the following payments
and collections remitted by Subservicers or received by it in respect of the
Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due on or before the Cut-off Date):
(i) All payments on account of principal, including Principal Prepayments made
by Mortgagors on the Mortgage Loans and the principal component of any
Subservicer Advance or of any REO Proceeds received in connection with an REO
Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate on the
Mortgage Loans, including the interest component of any Subservicer Advance or
of any REO Proceeds received in connection with an REO Property for which an REO
Disposition has occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds (net of
any related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section 2.02,
2.03, 2.04 or 4.07 (including amounts received from Residential Funding pursuant
to the last paragraph of Section 4 of the Assignment Agreement in respect of any
liability, penalty or expense that resulted from a breach of the representation
and warranty set forth in clause 4(w) of the Assignment Agreement) and all
amounts required to be deposited in connection with the substitution of a
Qualified Substitute Mortgage Loan pursuant to Section 2.03 or 2.04; and
(v) Any amounts required to be deposited pursuant to Section 3.07(c) and any
payments or collections received in the nature of prepayment charges.
The foregoing requirements for deposit in the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments on the Mortgage Loans which are not part of the Trust
Fund (consisting of payments in respect of principal and interest on the
Mortgage Loans received prior to the Cut-off Date) and payments or collections
consisting of late payment charges or assumption fees may but need not be
deposited by the Master Servicer in the Custodial Account. In the event any
amount not required to be deposited in the Custodial Account is so deposited,
the Master Servicer may at any time withdraw such amount from the Custodial
Account, any provision herein to the contrary notwithstanding. The Custodial
Account may contain funds that belong to one or more trust funds created for
mortgage pass-through certificates of other series and may contain other funds
respecting payments on mortgage loans belonging to the Master Servicer or
serviced or master serviced by it on behalf of others. Notwithstanding such
commingling of funds, the Master Servicer shall keep records that accurately
reflect the funds on deposit in the Custodial Account that have been identified
by it as being attributable to the Mortgage Loans.
With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds,
Subsequent Recoveries and the proceeds of the purchase of any Mortgage Loan
pursuant to Sections 2.02, 2.03, 2.04 and 4.07 received in any calendar month,
the Master Servicer may elect to treat such amounts as included in the Available
Distribution Amount for the Distribution Date in the month of receipt, but is
not obligated to do so. If the Master Servicer so elects, such amounts will be
deemed to have been received (and any related Realized Loss shall be deemed to
have occurred) on the last day of the month prior to the receipt thereof.
(c) The Master Servicer shall use its best efforts to cause the institution
maintaining the Custodial Account to invest the funds in the Custodial Account
attributable to the Mortgage Loans in Permitted Investments which shall mature
not later than the Certificate Account Deposit Date next following the date of
such investment (with the exception of the Amount Held for Future Distribution)
and which shall not be sold or disposed of prior to their maturities. All income
and gain realized from any such investment shall be for the benefit of the
Master Servicer as additional servicing compensation and shall be subject to its
withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments attributable to the investment of amounts in
respect of the Mortgage Loans shall be deposited in the Custodial Account by the
Master Servicer out of its own funds immediately as realized.
(d) The Master Servicer shall give notice to the Trustee and the Depositor of
any change in the location of the Custodial Account and the location of the
Certificate Account prior to the use thereof.
Section 3.08. Subservicing Accounts; Servicing Accounts
(a) In those cases where a Subservicer is servicing a Mortgage Loan pursuant to
a Subservicing Agreement, the Master Servicer shall cause the Subservicer,
pursuant to the Subservicing Agreement, to establish and maintain one or more
Subservicing Accounts which shall be an Eligible Account or, if such account is
not an Eligible Account, shall generally satisfy the requirements of the Program
Guide and be otherwise acceptable to the Master Servicer and each Rating Agency.
The Subservicer will be required thereby to deposit into the Subservicing
Account on a daily basis all proceeds of Mortgage Loans received by the
Subservicer, less its Subservicing Fees and unreimbursed advances and expenses,
to the extent permitted by the Subservicing Agreement. If the Subservicing
Account is not an Eligible Account, the Master Servicer shall be deemed to have
received such monies upon receipt thereof by the Subservicer. The Subservicer
shall not be required to deposit in the Subservicing Account payments or
collections in the nature of late charges or assumption fees, or payments or
collections received in the nature of prepayment charges to the extent that the
Subservicer is entitled to retain such amounts pursuant to the Subservicing
Agreement. On or before the date specified in the Program Guide, but in no event
later than the Determination Date, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to remit to the Master
Servicer for deposit in the Custodial Account all funds held in the Subservicing
Account with respect to each Mortgage Loan serviced by such Subservicer that are
required to be remitted to the Master Servicer. The Subservicer will also be
required, pursuant to the Subservicing Agreement, to advance on such scheduled
date of remittance amounts equal to any scheduled monthly installments of
principal and interest less its Subservicing Fees on any Mortgage Loans for
which payment was not received by the Subservicer. This obligation to advance
with respect to each Mortgage Loan will continue up to and including the first
of the month following the date on which the related Mortgaged Property is sold
at a foreclosure sale or is acquired by the Trust Fund by deed in lieu of
foreclosure or otherwise. All such advances received by the Master Servicer
shall be deposited promptly by it in the Custodial Account.
(b) The Subservicer may also be required, pursuant to the Subservicing
Agreement, to remit to the Master Servicer for deposit in the Custodial Account
interest at the Adjusted Mortgage Rate (or Modified Net Mortgage Rate plus the
rate per annum at which the Servicing Fee, if any, accrues in the case of a
Modified Mortgage Loan) on any Curtailment received by such Subservicer in
respect of a Mortgage Loan from the related Mortgagor during any month that is
to be applied by the Subservicer to reduce the unpaid principal balance of the
related Mortgage Loan as of the first day of such month, from the date of
application of such Curtailment to the first day of the following month. Any
amounts paid by a Subservicer pursuant to the preceding sentence shall be for
the benefit of the Master Servicer as additional servicing compensation and
shall be subject to its withdrawal or order from time to time pursuant to
Sections 3.10(a)(iv) and (v).
(c) In addition to the Custodial Account and the Certificate Account, the Master
Servicer shall for any Nonsubserviced Mortgage Loan, and shall cause the
Subservicers for Subserviced Mortgage Loans to, establish and maintain one or
more Servicing Accounts and deposit and retain therein all collections from the
Mortgagors (or advances from Subservicers) for the payment of taxes,
assessments, hazard insurance premiums, Primary Insurance Policy premiums, if
applicable, or comparable items for the account of the Mortgagors. Each
Servicing Account shall satisfy the requirements for a Subservicing Account and,
to the extent permitted by the Program Guide or as is otherwise acceptable to
the Master Servicer, may also function as a Subservicing Account. Withdrawals of
amounts related to the Mortgage Loans from the Servicing Accounts may be made
only to effect timely payment of taxes, assessments, hazard insurance premiums,
Primary Insurance Policy premiums, if applicable, or comparable items, to
reimburse the Master Servicer or Subservicer out of related collections for any
payments made pursuant to Sections 3.11 (with respect to the Primary Insurance
Policy) and 3.12(a) (with respect to hazard insurance), to refund to any
Mortgagors any sums as may be determined to be overages, to pay interest, if
required, to Mortgagors on balances in the Servicing Account or to clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01 or in accordance with the Program Guide. As part of
its servicing duties, the Master Servicer shall, and the Subservicers will,
pursuant to the Subservicing Agreements, be required to pay to the Mortgagors
interest on funds in this account to the extent required by law.
(d) The Master Servicer shall advance the payments referred to in the preceding
subsection that are not timely paid by the Mortgagors or advanced by the
Subservicers on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of the
Master Servicer, will be recoverable by the Master Servicer out of Insurance
Proceeds, Liquidation Proceeds or otherwise.
Section 3.09. Access to Certain Documentation and Information Regarding the
Mortgage Loans
In the event that compliance with this Section 3.09 shall make any Class
of Certificates legal for investment by federally insured savings and loan
associations, the Master Servicer shall provide, or cause the Subservicers to
provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices designated by the Master
Servicer. The Master Servicer shall permit such representatives to photocopy any
such documentation and shall provide equipment for that purpose at a charge
reasonably approximating the cost of such photocopying to the Master Servicer.
Section 3.10. Permitted Withdrawals from the Custodial Account
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant to
Section 3.07 that are attributable to the Mortgage Loans for the following
purposes:
(i) to make deposits into the Certificate Account in the amounts and in the
manner provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer for previously unreimbursed
Advances, Servicing Advances or other expenses made pursuant to Sections 3.01,
3.07(a), 3.08, 3.11, 3.12(a), 3.14 and 4.04 or otherwise reimbursable pursuant
to the terms of this Agreement, such withdrawal right being limited to amounts
received on the related Mortgage Loans (including, for this purpose, REO
Proceeds, Insurance Proceeds, Liquidation Proceeds and proceeds from the
purchase of a Mortgage Loan pursuant to Section 2.02, 2.03, 2.04 or 4.07) which
represent (A) Late Collections of Monthly Payments for which any such advance
was made in the case of Subservicer Advances or Advances pursuant to Section
4.04 and (B) recoveries of amounts in respect of which such advances were made
in the case of Servicing Advances;
(iii) to pay to itself or the related Subservicer (if not previously retained by
such Subservicer) out of each payment received by the Master Servicer on account
of interest on a Mortgage Loan as contemplated by Sections 3.14 and 3.16, an
amount equal to that remaining portion of any such payment as to interest (but
not in excess of the Servicing Fee and the Subservicing Fee, if not previously
retained) which, when deducted, will result in the remaining amount of such
interest being interest at a rate per annum equal to the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
amount specified in the amortization schedule of the related Mortgage Loan as
the principal balance thereof at the beginning of the period respecting which
such interest was paid after giving effect to any previous Curtailments;
(iv) to pay to itself as additional servicing compensation any interest or
investment income earned on funds and other property deposited in or credited to
the Custodial Account that it is entitled to withdraw pursuant to Section
3.07(c);
(v) to pay to itself as additional servicing compensation any Foreclosure
Profits, and any amounts remitted by Subservicers as interest in respect of
Curtailments pursuant to Section 3.08(b);
(vi) to pay to itself, a Subservicer, a Seller, Residential Funding, the
Depositor or any other appropriate Person, as the case may be, with respect to
each Mortgage Loan or property acquired in respect thereof that has been
purchased or otherwise transferred pursuant to Section 2.02, 2.03, 2.04, 4.07 or
9.01, all amounts received thereon and not required to be distributed to
Certificateholders as of the date on which the related Stated Principal Balance
or Purchase Price is determined;
(vii) to reimburse itself or the related Subservicer for any Nonrecoverable
Advance or Advances in the manner and to the extent provided in subsection (c)
below, and any Advance or Servicing Advance made in connection with a modified
Mortgage Loan that is in default or, in the judgment of the Master Servicer,
default is reasonably foreseeable pursuant to Section 3.07(a), to the extent the
amount of the Advance or Servicing Advance was added to the Stated Principal
Balance of the Mortgage Loan in a prior calendar month;
(viii) to reimburse itself or the Depositor for expenses incurred by and
reimbursable to it or the Depositor pursuant to Section 3.01(a), 3.11, 3.13,
3.14(c), 6.03, 10.01 or otherwise, or in connection with enforcing any
repurchase, substitution or indemnification obligation of any Seller (other than
the Depositor or an Affiliate of the Depositor) pursuant to the related Seller's
Agreement;
(ix) to reimburse itself for amounts expended by it (a) pursuant to Section 3.14
in good faith in connection with the restoration of property damaged by an
Uninsured Cause, and (b) in connection with the liquidation of a Mortgage Loan
or disposition of an REO Property to the extent not otherwise reimbursed
pursuant to clause (ii) or (viii) above; and
(x) to withdraw any amount deposited in the Custodial Account that was not
required to be deposited therein pursuant to Section 3.07, including any payoff
fees or penalties or any other additional amounts payable to the Master Servicer
or Subservicer pursuant to the terms of the Mortgage Note.
(b) Since, in connection with withdrawals pursuant to clauses (ii), (iii), (v)
and (vi), the Master Servicer's entitlement thereto is limited to collections or
other recoveries on the related Mortgage Loan, the Master Servicer shall keep
and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for
the purpose of justifying any withdrawal from the Custodial Account pursuant to
such clauses.
(c) The Master Servicer shall be entitled to reimburse itself or the related
Subservicer for any advance made in respect of a Mortgage Loan that the Master
Servicer determines to be a Nonrecoverable Advance by withdrawal from the
Custodial Account of amounts on deposit therein attributable to the Mortgage
Loans on any Certificate Account Deposit Date succeeding the date of such
determination. Such right of reimbursement in respect of a Nonrecoverable
Advance relating to an Advance made pursuant to Section 4.04 on any such
Certificate Account Deposit Date shall be limited to an amount not exceeding the
portion of such advance previously paid to Certificateholders (and not
theretofore reimbursed to the Master Servicer or the related Subservicer).
Section 3.11. Maintenance of Primary Insurance Coverage
(a) The Master Servicer shall not take, or permit any Subservicer to take, any
action which would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of the Master Servicer or
Subservicer, would have been covered thereunder. To the extent coverage is
available, the Master Servicer shall keep or cause to be kept in full force and
effect each such Primary Insurance Policy until the principal balance of the
related Mortgage Loan secured by a Mortgaged Property is reduced to 80% or less
of the Appraised Value at origination in the case of such a Mortgage Loan having
a Loan-to-Value Ratio at origination in excess of 80%, provided that such
Primary Insurance Policy was in place as of the Cut-off Date and the Master
Servicer had knowledge of such Primary Insurance Policy. The Master Servicer
shall not cancel or refuse to renew any such Primary Insurance Policy applicable
to a Nonsubserviced Mortgage Loan, or consent to any Subservicer canceling or
refusing to renew any such Primary Insurance Policy applicable to a Mortgage
Loan subserviced by it, that is in effect at the date of the initial issuance of
the Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy is
maintained with an insurer whose claims-paying ability is acceptable to each
Rating Agency for mortgage pass-through certificates having a rating equal to or
better than the lower of the then-current rating or the rating assigned to the
Certificates as of the Closing Date by such Rating Agency.
(b) In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present or to cause the related
Subservicer to present, on behalf of the Master Servicer, the Subservicer, if
any, the Trustee and Certificateholders, claims to the insurer under any Primary
Insurance Policies, in a timely manner in accordance with such policies, and, in
this regard, to take or cause to be taken such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Pursuant to Section 3.07, any Insurance Proceeds
collected by or remitted to the Master Servicer under any Primary Insurance
Policies shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 3.10.
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity Coverage
(a) The Master Servicer shall cause to be maintained for each Mortgage Loan fire
insurance with extended coverage in an amount which is equal to the lesser of
the principal balance owing on such Mortgage Loan or 100% of the insurable value
of the improvements; provided, however, that such coverage may not be less than
the minimum amount required to fully compensate for any loss or damage on a
replacement cost basis. To the extent it may do so without breaching the related
Subservicing Agreement, the Master Servicer shall replace any Subservicer that
does not cause such insurance, to the extent it is available, to be maintained.
The Master Servicer shall also cause to be maintained on property acquired upon
foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan, fire
insurance with extended coverage in an amount which is at least equal to the
amount necessary to avoid the application of any co-insurance clause contained
in the related hazard insurance policy. Pursuant to Section 3.07, any amounts
collected by the Master Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or
property thus acquired or amounts released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures) shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 3.10. Any cost
incurred by the Master Servicer in maintaining any such insurance shall not, for
the purpose of calculating monthly distributions to Certificateholders, be added
to the amount owing under the Mortgage Loan, notwithstanding that the terms of
the Mortgage Loan so permit. Such costs shall be recoverable by the Master
Servicer out of related late payments by the Mortgagor or out of Insurance
Proceeds and Liquidation Proceeds to the extent permitted by Section 3.10. It is
understood and agreed that no earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage Loan other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
Whenever the improvements securing a Mortgage Loan are located at the time of
origination of such Mortgage Loan in a federally designated special flood hazard
area, the Master Servicer shall cause flood insurance (to the extent available)
to be maintained in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the amount required to compensate for any loss or
damage to the Mortgaged Property on a replacement cost basis and (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program (assuming that the area in which such
Mortgaged Property is located is participating in such program).
In the event that the Master Servicer shall obtain and maintain a
blanket fire insurance policy with extended coverage insuring against hazard
losses on all of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its obligations as set forth in the first sentence of this Section
3.12(a), it being understood and agreed that such policy may contain a
deductible clause, in which case the Master Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 3.12(a) and there shall have
been a loss which would have been covered by such policy, deposit in the
Certificate Account the amount not otherwise payable under the blanket policy
because of such deductible clause. Any such deposit by the Master Servicer shall
be made on the Certificate Account Deposit Date next preceding the Distribution
Date which occurs in the month following the month in which payments under any
such policy would have been deposited in the Custodial Account. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
Master Servicer agrees to present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy.
(b) The Master Servicer shall obtain and maintain at its own expense and keep in
full force and effect throughout the term of this Agreement a blanket fidelity
bond and an errors and omissions insurance policy covering the Master Servicer's
officers and employees and other persons acting on behalf of the Master Servicer
in connection with its activities under this Agreement. The amount of coverage
shall be at least equal to the coverage that would be required by ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac, whichever is greater, with respect to the Master Servicer if the
Master Servicer were servicing and administering the Mortgage Loans for ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac. In the event that any such bond or policy ceases to be in
effect, the Master Servicer shall obtain a comparable replacement bond or policy
from an issuer or insurer, as the case may be, meeting the requirements, if any,
of the Program Guide and acceptable to the Depositor. Coverage of the Master
Servicer under a policy or bond obtained by an Affiliate of the Master Servicer
and providing the coverage required by this Section 3.12(b) shall satisfy the
requirements of this Section 3.12(b).
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Master
Servicer or Subservicer, to the extent it has knowledge of such conveyance,
shall enforce any due-on-sale clause contained in any Mortgage Note or Mortgage,
to the extent permitted under applicable law and governmental regulations, but
only to the extent that such enforcement will not adversely affect or jeopardize
coverage under any Required Insurance Policy or otherwise adversely affect the
interests of the Certificateholders. Notwithstanding the foregoing:
(i) the Master Servicer shall not be deemed to be in default under this Section
3.13(a) by reason of any transfer or assumption which the Master Servicer is
restricted by law from preventing; and
(ii) if the Master Servicer determines that it is reasonably likely that any
Mortgagor will bring, or if any Mortgagor does bring, legal action to declare
invalid or otherwise avoid enforcement of a due-on-sale clause contained in any
Mortgage Note or Mortgage, the Master Servicer shall not be required to enforce
the due-on-sale clause or to contest such action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause to
the extent set forth in Section 3.13(a), in any case in which a Mortgaged
Property is to be conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption or modification agreement or supplement to the Mortgage
Note or Mortgage which requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the Mortgagor
from liability on the Mortgage Loan, the Master Servicer is authorized, subject
to the requirements of the sentence next following, to execute and deliver, on
behalf of the Trustee, the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person; provided, however, none of
such terms and requirements shall both constitute a "significant modification"
effecting an exchange or reissuance of such Mortgage Loan under the Code (or
final, temporary or proposed Treasury regulations promulgated thereunder) and
cause any REMIC created hereunder to fail to qualify as a REMIC under the Code
or the imposition of any tax on "prohibited transactions" or "contributions"
after the Startup Date under the REMIC Provisions. The Master Servicer shall
execute and deliver such documents only if it reasonably determines that (i) its
execution and delivery thereof will not conflict with or violate any terms of
this Agreement or cause the unpaid balance and interest on the Mortgage Loan to
be uncollectible in whole or in part, (ii) any required consents of insurers
under any Required Insurance Policies have been obtained and (iii) subsequent to
the closing of the transaction involving the assumption or transfer (A) the
Mortgage Loan will continue to be secured by a first mortgage lien pursuant to
the terms of the Mortgage, (B) such transaction will not adversely affect the
coverage under any Required Insurance Policies, (C) the Mortgage Loan will fully
amortize over the remaining term thereof, (D) no material term of the Mortgage
Loan (including the interest rate on the Mortgage Loan) will be altered nor will
the term of the Mortgage Loan be changed and (E) if the seller/transferor of the
Mortgaged Property is to be released from liability on the Mortgage Loan, the
buyer/transferee of the Mortgaged Property would be qualified to assume the
Mortgage Loan based on generally comparable credit quality and such release will
not (based on the Master Servicer's or Subservicer's good faith determination)
adversely affect the collectability of the Mortgage Loan. Upon receipt of
appropriate instructions from the Master Servicer in accordance with the
foregoing, the Trustee shall execute any necessary instruments for such
assumption or substitution of liability as directed by the Master Servicer. Upon
the closing of the transactions contemplated by such documents, the Master
Servicer shall cause the originals or true and correct copies of the assumption
agreement, the release (if any), or the modification or supplement to the
Mortgage Note or Mortgage to be delivered to the Trustee or the Custodian and
deposited with the Mortgage File for such Mortgage Loan. Any fee collected by
the Master Servicer or such related Subservicer for entering into an assumption
or substitution of liability agreement will be retained by the Master Servicer
or such Subservicer as additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be, shall be
entitled to approve a request from a Mortgagor for a partial release of the
related Mortgaged Property, the granting of an easement thereon in favor of
another Person, any alteration or demolition of the related Mortgaged Property
or other similar matters if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of the
related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected thereby
and that any REMIC created hereunder would not fail to continue to qualify as a
REMIC under the Code as a result thereof and (subject to Section 10.01(f)) that
no tax on "prohibited transactions" or "contributions" after the Startup Date
would be imposed on any REMIC created hereunder as a result thereof. Any fee
collected by the Master Servicer or the related Subservicer for processing such
a request will be retained by the Master Servicer or such Subservicer as
additional servicing compensation.
(d) Subject to any other applicable terms and conditions of this Agreement, the
Trustee and Master Servicer shall be entitled to approve an assignment in lieu
of satisfaction with respect to any Mortgage Loan, provided the obligee with
respect to such Mortgage Loan following such proposed assignment provides the
Trustee and Master Servicer with a "Lender Certification for Assignment of
Mortgage Loan" in the form attached hereto as Exhibit M, in form and substance
satisfactory to the Trustee and Master Servicer, providing the following: (i)
that the Mortgage Loan is secured by Mortgaged Property located in a
jurisdiction in which an assignment in lieu of satisfaction is required to
preserve lien priority, minimize or avoid mortgage recording taxes or otherwise
comply with, or facilitate a refinancing under, the laws of such jurisdiction;
(ii) that the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and that the form of the transaction is solely
to comply with, or facilitate the transaction under, such local laws; (iii) that
the Mortgage Loan following the proposed assignment will have a rate of interest
at least 0.25% below or above the rate of interest on such Mortgage Loan prior
to such proposed assignment; and (iv) that such assignment is at the request of
the borrower under the related Mortgage Loan. Upon approval of an assignment in
lieu of satisfaction with respect to any Mortgage Loan, the Master Servicer
shall receive cash in an amount equal to the unpaid principal balance of and
accrued interest on such Mortgage Loan and the Master Servicer shall treat such
amount as a Principal Prepayment in Full with respect to such Mortgage Loan for
all purposes hereof.
Section 3.14. Realization Upon Defaulted Mortgage Loans
(a) The Master Servicer shall foreclose upon or otherwise comparably convert
(which may include an REO Acquisition) the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07. Alternatively, the Master Servicer may take other
actions in respect of a defaulted Mortgage Loan, which may include (i) accepting
a short sale (a payoff of the Mortgage Loan for an amount less than the total
amount contractually owed in order to facilitate a sale of the Mortgaged
Property by the Mortgagor) or permitting a short refinancing (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed in
order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (ii) arranging for a repayment plan or (iii)
agreeing to a modification in accordance with Section 3.07. In connection with
such foreclosure or other conversion or action, the Master Servicer shall,
consistent with Section 3.11, follow such practices and procedures as it shall
deem necessary or advisable, as shall be normal and usual in its general
mortgage servicing activities and as shall be required or permitted by the
Program Guide; provided that the Master Servicer shall not be liable in any
respect hereunder if the Master Servicer is acting in connection with any such
foreclosure or other conversion or action in a manner that is consistent with
the provisions of this Agreement. The Master Servicer, however, shall not be
required to expend its own funds or incur other reimbursable charges in
connection with any foreclosure, or attempted foreclosure which is not
completed, or towards the correction of any default on a related senior mortgage
loan, or towards the restoration of any property unless it shall determine (i)
that such restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Holders of Certificates of one or more
Classes after reimbursement to itself for such expenses or charges and (ii) that
such expenses and charges will be recoverable to it through Liquidation
Proceeds, Insurance Proceeds, or REO Proceeds (respecting which it shall have
priority for purposes of withdrawals from the Custodial Account pursuant to
Section 3.10, whether or not such expenses and charges are actually recoverable
from related Liquidation Proceeds, Insurance Proceeds or REO Proceeds). In the
event of such a determination by the Master Servicer pursuant to this Section
3.14(a), the Master Servicer shall be entitled to reimbursement of its funds so
expended pursuant to Section 3.10.
In addition, the Master Servicer may pursue any remedies that may be
available in connection with a breach of a representation and warranty with
respect to any such Mortgage Loan in accordance with Sections 2.03 and 2.04.
However, the Master Servicer is not required to continue to pursue both
foreclosure (or similar remedies) with respect to the Mortgage Loans and
remedies in connection with a breach of a representation and warranty if the
Master Servicer determines in its reasonable discretion that one such remedy is
more likely to result in a greater recovery as to the Mortgage Loan. Upon the
occurrence of a Cash Liquidation or REO Disposition, following the deposit in
the Custodial Account of all Insurance Proceeds, Liquidation Proceeds and other
payments and recoveries referred to in the definition of "Cash Liquidation" or
"REO Disposition," as applicable, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, the Trustee or any
Custodian, as the case may be, shall release to the Master Servicer the related
Mortgage File and the Trustee shall execute and deliver such instruments of
transfer or assignment prepared by the Master Servicer, in each case without
recourse, as shall be necessary to vest in the Master Servicer or its designee,
as the case may be, the related Mortgage Loan, and thereafter such Mortgage Loan
shall not be part of the Trust Fund. Notwithstanding the foregoing or any other
provision of this Agreement, in the Master Servicer's sole discretion with
respect to any defaulted Mortgage Loan or REO Property as to either of the
following provisions, (i) a Cash Liquidation or REO Disposition may be deemed to
have occurred if substantially all amounts expected by the Master Servicer to be
received in connection with the related defaulted Mortgage Loan or REO Property
have been received, and (ii) for purposes of determining the amount of any
Liquidation Proceeds, Insurance Proceeds, REO Proceeds or other unscheduled
collections or the amount of any Realized Loss, the Master Servicer may take
into account minimal amounts of additional receipts expected to be received or
any estimated additional liquidation expenses expected to be incurred in
connection with the related defaulted Mortgage Loan or REO Property.
(b) In the event that title to any Mortgaged Property is acquired by the Trust
Fund as an REO Property by foreclosure or by deed in lieu of foreclosure, the
deed or certificate of sale shall be issued to the Trustee or to its nominee on
behalf of Certificateholders. Notwithstanding any such acquisition of title and
cancellation of the related Mortgage Loan, such REO Property shall (except as
otherwise expressly provided herein) be considered to be an Outstanding Mortgage
Loan held in the Trust Fund until such time as the REO Property shall be sold.
Consistent with the foregoing for purposes of all calculations hereunder so long
as such REO Property shall be considered to be an Outstanding Mortgage Loan it
shall be assumed that, notwithstanding that the indebtedness evidenced by the
related Mortgage Note shall have been discharged, such Mortgage Note and the
related amortization schedule in effect at the time of any such acquisition of
title (after giving effect to any previous Curtailments and before any
adjustment thereto by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period) remain in effect.
(c) In the event that the Trust Fund acquires any REO Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the Master Servicer on behalf of the Trust Fund shall dispose of such REO
Property as soon as practicable, giving due consideration to the interests of
the Certificateholders, but in all cases, within three full years after the
taxable year of its acquisition by the Trust Fund for purposes of Section
860G(a)(8) of the Code (or such shorter period as may be necessary under
applicable state (including any state in which such property is located) law to
maintain the status of each REMIC created hereunder as a REMIC under applicable
state law and avoid taxes resulting from such property failing to be foreclosure
property under applicable state law) or, at the expense of the Trust Fund,
request, more than 60 days before the day on which such grace period would
otherwise expire, an extension of such grace period unless the Master Servicer
(subject to Section 10.01(f)) obtains for the Trustee an Opinion of Counsel,
addressed to the Trustee and the Master Servicer, to the effect that the holding
by the Trust Fund of such REO Property subsequent to such period will not result
in the imposition of taxes on "prohibited transactions" as defined in Section
860F of the Code or cause any REMIC created hereunder to fail to qualify as a
REMIC (for federal (or any applicable State or local) income tax purposes) at
any time that any Certificates are outstanding, in which case the Trust Fund may
continue to hold such REO Property (subject to any conditions contained in such
Opinion of Counsel). The Master Servicer shall be entitled to be reimbursed from
the Custodial Account for any costs incurred in obtaining such Opinion of
Counsel, as provided in Section 3.10. Notwithstanding any other provision of
this Agreement, no REO Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) subject any REMIC created hereunder to
the imposition of any federal income taxes on the income earned from such REO
Property, including any taxes imposed by reason of Section 860G(c) of the Code,
unless the Master Servicer has agreed to indemnify and hold harmless the Trust
Fund with respect to the imposition of any such taxes.
(d) The proceeds of any Cash Liquidation, REO Disposition or purchase or
repurchase of any Mortgage Loan pursuant to the terms of this Agreement, as well
as any recovery (other than Subsequent Recoveries) resulting from a collection
of Liquidation Proceeds, Insurance Proceeds or REO Proceeds, will be applied in
the following order of priority: first, to reimburse the Master Servicer or the
related Subservicer in accordance with Section 3.10(a)(ii); second, to the
Certificateholders to the extent of accrued and unpaid interest on the Mortgage
Loan, and any related REO Imputed Interest, at the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), to the Due
Date in the related Due Period prior to the Distribution Date on which such
amounts are to be distributed; third, to the Certificateholders as a recovery of
principal on the Mortgage Loan (or REO Property); fourth, to all Servicing Fees
and Subservicing Fees payable therefrom (and the Master Servicer and the
Subservicer shall have no claims for any deficiencies with respect to such fees
which result from the foregoing allocation); and fifth, to Foreclosure Profits.
(e) In the event of a default on a Mortgage Loan one or more of whose obligors
is not a United States Person, in connection with any foreclosure or acquisition
of a deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer shall cause compliance with the provisions of
Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary
to assure that no withholding tax obligation arises with respect to the proceeds
of such foreclosure except to the extent, if any, that proceeds of such
foreclosure are required to be remitted to the obligors on such Mortgage Loan.
Section 3.15. Trustee to Cooperate; Release of Mortgage Files
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or upon the
receipt by the Master Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer shall
immediately notify the Trustee (if it holds the related Mortgage File) or the
Custodian by a certification of a Servicing Officer (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the Custodial
Account pursuant to Section 3.07 have been or will be so deposited),
substantially in the form attached hereto as Exhibit G, or, in the case of the
Custodian, an electronic request in a form acceptable to the Custodian,
requesting delivery to it of the Mortgage File. Upon receipt of such
certification and request, the Trustee shall promptly release, or cause the
Custodian to release, the related Mortgage File to the Master Servicer. The
Master Servicer is authorized to execute and deliver to the Mortgagor the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage, together with
the Mortgage Note with, as appropriate, written evidence of cancellation thereon
and to cause the removal from the registration on the MERS(R) System of such
Mortgage and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation or of partial or full release, including any applicable UCC
termination statements. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account or the Certificate Account.
(b) From time to time as is appropriate for the servicing or foreclosure of any
Mortgage Loan, the Master Servicer shall deliver to the Custodian, with a copy
to the Trustee, a certificate of a Servicing Officer substantially in the form
attached as Exhibit G hereto, or, in the case of the Custodian, an electronic
request in a form acceptable to the Custodian, requesting that possession of
all, or any document constituting part of, the Mortgage File be released to the
Master Servicer and certifying as to the reason for such release and that such
release will not invalidate any insurance coverage provided in respect of the
Mortgage Loan under any Required Insurance Policy. Upon receipt of the
foregoing, the Trustee shall deliver, or cause the Custodian to deliver, the
Mortgage File or any document therein to the Master Servicer. The Master
Servicer shall cause each Mortgage File or any document therein so released to
be returned to the Trustee, or the Custodian as agent for the Trustee when the
need therefor by the Master Servicer no longer exists, unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Custodial Account or (ii) the Mortgage File or
such document has been delivered directly or through a Subservicer to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
the Master Servicer has delivered directly or through a Subservicer to the
Trustee a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. In the event of the liquidation of
a Mortgage Loan, the Trustee shall deliver the Request for Release with respect
thereto to the Master Servicer upon the Trustee's receipt of notification from
the Master Servicer of the deposit of the related Liquidation Proceeds in the
Custodial Account.
(c) The Trustee or the Master Servicer on the Trustee's behalf shall execute and
deliver to the Master Servicer, if necessary, any court pleadings, requests for
trustee's sale or other documents necessary to the foreclosure or trustee's sale
in respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note or Mortgage or otherwise available at law or in equity. Together
with such documents or pleadings (if signed by the Trustee), the Master Servicer
shall deliver to the Trustee a certificate of a Servicing Officer requesting
that such pleadings or documents be executed by the Trustee and certifying as to
the reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee shall not invalidate any insurance coverage
under any Required Insurance Policy or invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
Section 3.16. Servicing and Other Compensation; Compensating Interest
(a) The Master Servicer, as compensation for its activities hereunder, shall be
entitled to receive on each Distribution Date the amounts provided for by
clauses (iii), (iv), (v) and (vi) of Section 3.10(a), subject to clause (e)
below. The amount of servicing compensation provided for in such clauses shall
be accounted for on a Mortgage Loan-by-Mortgage Loan basis. In the event that
Liquidation Proceeds, Insurance Proceeds and REO Proceeds (net of amounts
reimbursable therefrom pursuant to Section 3.10(a)(ii)) in respect of a Cash
Liquidation or REO Disposition exceed the unpaid principal balance of such
Mortgage Loan plus unpaid interest accrued thereon (including REO Imputed
Interest) at a per annum rate equal to the related Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), the Master
Servicer shall be entitled to retain therefrom and to pay to itself and/or the
related Subservicer, any Foreclosure Profits and any Servicing Fee or
Subservicing Fee considered to be accrued but unpaid.
(b) Additional servicing compensation in the form of late payment charges,
assumption fees, investment income on amounts in the Custodial Account or the
Certificate Account or otherwise shall be retained by the Master Servicer or the
Subservicer to the extent provided herein.
(c) The Master Servicer shall be required to pay, or cause to be paid, all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of premiums for the Primary Insurance Policies, if any, to
the extent such premiums are not required to be paid by the related Mortgagors,
and the fees and expenses of the Trustee and any Custodian) and shall not be
entitled to reimbursement therefor except as specifically provided in Sections
3.10 and 3.14.
(d) The Master Servicer's right to receive servicing compensation may not be
transferred in whole or in part except in connection with the transfer of all of
its responsibilities and obligations of the Master Servicer under this
Agreement.
(e) Notwithstanding clauses (a) and (b) above, the amount of servicing
compensation that the Master Servicer shall be entitled to receive for its
activities hereunder for the period ending on each Distribution Date shall be
reduced (but not below zero) by the amount of Compensating Interest (if any) for
such Distribution Date used to cover Prepayment Interest Shortfalls as provided
in Section 3.16(f) below. Such reduction shall be applied during such period as
follows: first, to any Servicing Fee or Subservicing Fee to which the Master
Servicer is entitled pursuant to Section 3.10(a)(iii); and second, to any income
or gain realized from any investment of funds held in the Custodial Account or
the Certificate Account to which the Master Servicer is entitled pursuant to
Sections 3.07(c) or 4.01(b), respectively. In making such reduction, the Master
Servicer shall not withdraw from the Custodial Account any such amount
representing all or a portion of the Servicing Fee to which it is entitled
pursuant to Section 3.10(a)(iii) and shall not withdraw from the Custodial
Account or Certificate Account any such amount to which it is entitled pursuant
to Section 3.07(c) or 4.01(b).
(f) With respect to any Distribution Date, Prepayment Interest Shortfalls on the
Mortgage Loans will be covered first, by the Master Servicer, but only to the
extent such Prepayment Interest Shortfalls do not exceed Eligible Master
Servicing Compensation.
Section 3.17. Reports to the Trustee and the Depositor
Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee and the Depositor a statement, certified
by a Servicing Officer, setting forth the status of the Custodial Account as of
the close of business on such Distribution Date as it relates to the Mortgage
Loans and showing, for the period covered by such statement, the aggregate of
deposits in or withdrawals from the Custodial Account in respect of the Mortgage
Loans for each category of deposit specified in Section 3.07 and each category
of withdrawal specified in Section 3.10.
Section 3.18. Annual Statement as to Compliance
The Master Servicer shall deliver to the Depositor and the Trustee on or
before the earlier of (a) March 31 of each year, beginning with the first March
31 that occurs at least six months after the Cut-off Date or (b) with respect to
any calendar year during which the Depositor's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, on or before the date on which the annual report
on Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, an Officers' Certificate stating, as to
each signer thereof, that (i) a review of the activities of the Master Servicer
during the preceding calendar year related to its servicing of mortgage loans
and of its performance under the pooling and servicing agreements, including
this Agreement, has been made under such officers' supervision, (ii) to the best
of such officers' knowledge, based on such review, the Master Servicer has
complied in all material respects with the minimum servicing standards set forth
in the Uniform Single Attestation Program for Mortgage Bankers and has fulfilled
all of its material obligations relating to this Agreement in all material
respects throughout such year, or, if there has been material noncompliance with
such servicing standards or a default in the fulfillment in all material
respects of any such obligation relating to this Agreement, such statement shall
include a description of such noncompliance or specify each such default, as the
case may be, known to such officer and the nature and status thereof and (iii)
to the best of such officers' knowledge, each Subservicer has complied in all
material respects with the minimum servicing standards set forth in the Uniform
Single Attestation Program for Mortgage Bankers and has fulfilled all of its
material obligations under its Subservicing Agreement in all material respects
throughout such year, or if there has been material noncompliance with such
servicing standards or a material default in the fulfillment of such obligations
relating to this Agreement, specifying such statement shall include a
description of such noncompliance or specify each such default, as the case may
be, known to such officer and the nature and status thereof.
Section 3.19. Annual Independent Public Accountants' Servicing Report
On or before the earlier of (a) March 31 of each year, beginning with
the first March 31 that occurs at least six months after the Cut-off Date or (b)
with respect to any calendar year during which the Depositor's annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, on or before the date on which the
annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, the Master
Servicer at its expense shall cause a firm of independent public accountants
which shall be members of the American Institute of Certified Public Accountants
to furnish a report to the Depositor and the Trustee stating its opinion that,
on the basis of an examination conducted by such firm substantially in
accordance with standards established by the American Institute of Certified
Public Accountants, the assertions made pursuant to Section 3.18 regarding
compliance with the minimum servicing standards set forth in the Uniform Single
Attestation Program for Mortgage Bankers during the preceding calendar year are
fairly stated in all material respects, subject to such exceptions and other
qualifications that, in the opinion of such firm, such accounting standards
require it to report. In rendering such statement, such firm may rely, as to
matters relating to the direct servicing of mortgage loans by Subservicers, upon
comparable statements for examinations conducted by independent public
accountants substantially in accordance with standards established by the
American Institute of Certified Public Accountants (rendered within one year of
such statement) with respect to such Subservicers.
Section 3.20. Right of the Depositor in Respect of the Master Servicer
The Master Servicer shall afford the Depositor and the Trustee, upon
reasonable notice, during normal business hours access to all records maintained
by the Master Servicer in respect of its rights and obligations hereunder and
access to officers of the Master Servicer responsible for such obligations. Upon
request, the Master Servicer shall furnish the Depositor with its most recent
financial statements and such other information as the Master Servicer possesses
regarding its business, affairs, property and condition, financial or otherwise.
The Master Servicer shall also cooperate with all reasonable requests for
information including, but not limited to, notices, tapes and copies of files,
regarding itself, the Mortgage Loans or the Certificates from any Person or
Persons identified by the Depositor or Residential Funding. The Depositor may
enforce the obligation of the Master Servicer hereunder and may, but it is not
obligated to, perform or cause a designee to perform, any defaulted obligation
of the Master Servicer hereunder or exercise the rights of the Master Servicer
hereunder; provided that the Master Servicer shall not be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. Neither the Depositor nor the Trustee shall have the responsibility or
liability for any action or failure to act by the Master Servicer and the
Depositor is not obligated to supervise the performance of the Master Servicer
under this Agreement or otherwise.
Section 3.21. Advance Facility
(a) The Master Servicer is hereby authorized to enter into a financing or other
facility (any such arrangement, an "Advance Facility") under which (1) the
Master Servicer sells, assigns or pledges to another Person (an "Advancing
Person") the Master Servicer's rights under this Agreement to be reimbursed for
any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund
some or all Advances and/or Servicing Advances required to be made by the Master
Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee,
the Certificateholders or any other party shall be required before the Master
Servicer may enter into an Advance Facility. Notwithstanding the existence of
any Advance Facility under which an Advancing Person agrees to fund Advances
and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer
shall remain obligated pursuant to this Agreement to make Advances and Servicing
Advances pursuant to and as required by this Agreement. If the Master Servicer
enters into an Advance Facility, and for so long as an Advancing Person remains
entitled to receive reimbursement for any Advances including Nonrecoverable
Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including
Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together
with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to
the extent such type of Reimbursement Amount is included in the Advance
Facility), as applicable, pursuant to this Agreement, then the Master Servicer
shall identify such Reimbursement Amounts consistent with the reimbursement
rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement
Amounts in accordance with this Section 3.21 or otherwise in accordance with the
documentation establishing the Advance Facility to such Advancing Person or to a
trustee, agent or custodian (an "Advance Facility Trustee") designated by such
Advancing Person in an Advance Facility Notice described below in Section
3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of
the Advance Facility, the Master Servicer may direct, and if so directed in
writing the Trustee is hereby authorized to and shall pay to the Advance
Facility Trustee the Reimbursement Amounts identified pursuant to the preceding
sentence. An Advancing Person whose obligations hereunder are limited to the
funding of Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a)
or 6.02(c) hereof and shall not be deemed to be a Subservicer under this
Agreement. Notwithstanding anything to the contrary herein, in no event shall
Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be
included in the Available Distribution Amount or distributed to
Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes the
election set forth in Section 3.21(a), the Master Servicer and the related
Advancing Person shall deliver to the Trustee a written notice and payment
instruction (an "Advance Facility Notice"), providing the Trustee with written
payment instructions as to where to remit Advance Reimbursement Amounts and/or
Servicing Advance Reimbursement Amounts (each to the extent such type of
Reimbursement Amount is included within the Advance Facility) on subsequent
Distribution Dates. The payment instruction shall require the applicable
Reimbursement Amounts to be distributed to the Advancing Person or to an Advance
Facility Trustee designated in the Advance Facility Notice. An Advance Facility
Notice may only be terminated by the joint written direction of the Master
Servicer and the related Advancing Person (and any related Advance Facility
Trustee).
(c) Reimbursement Amounts shall consist solely of amounts in respect of Advances
and/or Servicing Advances made with respect to the Mortgage Loans for which the
Master Servicer would be permitted to reimburse itself in accordance with
Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the
Advancing Person had made the related Advance(s) and/or Servicing Advance(s).
Notwithstanding the foregoing, except with respect to reimbursement of
Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no
Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this
Agreement. Neither the Depositor nor the Trustee shall have any duty or
liability with respect to the calculation of any Reimbursement Amount, nor shall
the Depositor or the Trustee have any responsibility to track or monitor the
administration of the Advance Facility and the Depositor shall not have any
responsibility to track, monitor or verify the payment of Reimbursement Amounts
to the related Advancing Person or Advance Facility Trustee. The Master Servicer
shall maintain and provide to any successor master servicer a detailed
accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or
assigned to, and reimbursed to any Advancing Person. The successor master
servicer shall be entitled to rely on any such information provided by the
Master Servicer and the successor master servicer shall not be liable for any
errors in such information.
(d) Upon the direction of and at the expense of the Master Servicer, the Trustee
agrees to execute such acknowledgments, certificates, and other documents
reasonably satisfactory to the Trustee provided by the Master Servicer
recognizing the interests of any Advancing Person or Advance Facility Trustee in
such Reimbursement Amounts as the Master Servicer may cause to be made subject
to Advance Facilities pursuant to this Section 3.21, and such other documents in
connection with such Advance Facility as may be reasonably requested from time
to time by any Advancing Person or Advance Facility Trustee and reasonably
satisfactory to the Trustee.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be
allocated to outstanding unreimbursed Advances or Servicing Advances (as the
case may be) made with respect to that Mortgage Loan on a "first-in, first out"
("FIFO") basis, subject to the qualifications set forth below:
(i) Any successor Master Servicer to Residential Funding (a "Successor Master
Servicer") and the Advancing Person or Advance Facility Trustee shall be
required to apply all amounts available in accordance with this Section 3.21(e)
to the reimbursement of Advances and Servicing Advances in the manner provided
for herein; provided, however, that after the succession of a Successor Master
Servicer, (A) to the extent that any Advances or Servicing Advances with respect
to any particular Mortgage Loan are reimbursed from payments or recoveries, if
any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds,
if any, with respect to that Mortgage Loan, reimbursement shall be made, first,
to the Advancing Person or Advance Facility Trustee in respect of Advances
and/or Servicing Advances related to that Mortgage Loan to the extent of the
interest of the Advancing Person or Advance Facility Trustee in such Advances
and/or Servicing Advances, second to the Master Servicer in respect of Advances
and/or Servicing Advances related to that Mortgage Loan in excess of those in
which the Advancing Person or Advance Facility Trustee Person has an interest,
and third, to the Successor Master Servicer in respect of any other Advances
and/or Servicing Advances related to that Mortgage Loan, from such sources as
and when collected, and (B) reimbursements of Advances and Servicing Advances
that are Nonrecoverable Advances shall be made pro rata to the Advancing Person
or Advance Facility Trustee, on the one hand, and any such Successor Master
Servicer, on the other hand, on the basis of the respective aggregate
outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable
Advances owed to the Advancing Person, Advance Facility Trustee or Master
Servicer pursuant to this Agreement, on the one hand, and any such Successor
Master Servicer, on the other hand, and without regard to the date on which any
such Advances or Servicing Advances shall have been made. In the event that, as
a result of the FIFO allocation made pursuant to this Section 3.21(e), some or
all of a Reimbursement Amount paid to the Advancing Person or Advance Facility
Trustee relates to Advances or Servicing Advances that were made by a Person
other than Residential Funding or the Advancing Person or Advance Facility
Trustee, then the Advancing Person or Advance Facility Trustee shall be required
to remit any portion of such Reimbursement Amount to the Person entitled to such
portion of such Reimbursement Amount. Without limiting the generality of the
foregoing, Residential Funding shall remain entitled to be reimbursed by the
Advancing Person or Advance Facility Trustee for all Advances and Servicing
Advances funded by Residential Funding to the extent the related Reimbursement
Amount(s) have not been assigned or pledged to an Advancing Person or Advance
Facility Trustee. The documentation establishing any Advance Facility shall
require Residential Funding to provide to the related Advancing Person or
Advance Facility Trustee loan by loan information with respect to each
Reimbursement Amount distributed to such Advancing Person or Advance Facility
Trustee on each date of remittance thereof to such Advancing Person or Advance
Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to
make the FIFO allocation of each Reimbursement Amount with respect to each
Mortgage Loan.
(ii) By way of illustration, and not by way of limiting the generality of the
foregoing, if the Master Servicer resigns or is terminated at a time when the
Master Servicer is a party to an Advance Facility, and is replaced by a
Successor Master Servicer, and the Successor Master Servicer directly funds
Advances or Servicing Advances with respect to a Mortgage Loan and does not
assign or pledge the related Reimbursement Amounts to the related Advancing
Person or Advance Facility Trustee, then all payments and recoveries received
from the related Mortgagor or received in the form of Liquidation Proceeds with
respect to such Mortgage Loan (including Insurance Proceeds collected in
connection with a liquidation of such Mortgage Loan) will be allocated first to
the Advancing Person or Advance Facility Trustee until the related Reimbursement
Amounts attributable to such Mortgage Loan that are owed to the Master Servicer
and the Advancing Person, which were made prior to any Advances or Servicing
Advances made by the Successor Master Servicer, have been reimbursed in full, at
which point the Successor Master Servicer shall be entitled to retain all
related Reimbursement Amounts subsequently collected with respect to that
Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the
Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on
an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement
paid in this manner will be made pro rata to the Advancing Person or Advance
Facility Trustee, on the one hand, and the Successor Master Servicer, on the
other hand, as described in clause (i)(B) above.
(f) The Master Servicer shall remain entitled to be reimbursed for all Advances
and Servicing Advances funded by the Master Servicer to the extent the related
rights to be reimbursed therefor have not been sold, assigned or pledged to an
Advancing Person.
(g) Any amendment to this Section 3.21 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an Advance
Facility as described generally in this Section 3.21, including amendments to
add provisions relating to a successor master servicer, may be entered into by
the Trustee, Depositor and the Master Servicer without the consent of any
Certificateholder, with written confirmation from each Rating Agency that the
amendment will not result in the reduction of the ratings on any class of the
Certificates below the lesser of the then current or original ratings on such
Certificates, notwithstanding anything to the contrary in Section 11.01 of or
elsewhere in this Agreement.
(h) Any rights of set-off that the Trust Fund, the Trustee, the Depositor, any
Successor Master Servicer or any other Person might otherwise have against the
Master Servicer under this Agreement shall not attach to any rights to be
reimbursed for Advances or Servicing Advances that have been sold, transferred,
pledged, conveyed or assigned to any Advancing Person.
(i) At any time when an Advancing Person shall have ceased funding Advances
and/or Servicing Advances (as the case may be) and the Advancing Person or
related Advance Facility Trustee shall have received Reimbursement Amounts
sufficient in the aggregate to reimburse all Advances and/or Servicing Advances
(as the case may be) the right to reimbursement for which were assigned to the
Advancing Person, then upon the delivery of a written notice signed by the
Advancing Person and the Master Servicer or its successor or assign) to the
Trustee terminating the Advance Facility Notice (the "Notice of Facility
Termination"), the Master Servicer or its Successor Master Servicer shall again
be entitled to withdraw and retain the related Reimbursement Amounts from the
Custodial Account pursuant to Section 3.10.
(j) After delivery of any Advance Facility Notice, and until any such Advance
Facility Notice has been terminated by a Notice of Facility Termination, this
Section 3.21 may not be amended or otherwise modified without the prior written
consent of the related Advancing Person.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account
(a) The Master Servicer acting as agent of the Trustee shall establish and
maintain a Certificate Account in which the Master Servicer shall cause to be
deposited on behalf of the Trustee on or before 2:00 P.M. New York time on each
Certificate Account Deposit Date by wire transfer of immediately available funds
an amount equal to the sum of (i) any Advance for the immediately succeeding
Distribution Date, (ii) any amount required to be deposited in the Certificate
Account pursuant to Section 3.12(a), (iii) any amount required to be deposited
in the Certificate Account pursuant to Section 3.16(e) or Section 4.07, (iv) any
amount required to be paid pursuant to Section 9.01, (v) all other amounts
constituting the Available Distribution Amount for the immediately succeeding
Distribution Date and (vi) any payments or collections in the nature of
prepayment charges received by the Master Servicer in respect of the Mortgage
Loans and the related Prepayment Period.
(b) On or prior to the Business Day immediately following each Determination
Date, the Master Servicer shall determine any amounts owed by the Swap
Counterparty under the Swap Agreement and inform the Trustee in writing of the
amount so calculated.
(c) The Trustee shall, upon written request from the Master Servicer, invest or
cause the institution maintaining the Certificate Account to invest the funds in
the Certificate Account in Permitted Investments designated in the name of the
Trustee for the benefit of the Certificateholders, which shall mature not later
than the Business Day next preceding the Distribution Date next following the
date of such investment (except that (i) if such Permitted Investment is an
obligation of the institution that maintains such account or a fund for which
such institution serves as custodian, then such Permitted Investment may mature
on such Distribution Date and (ii) any other investment may mature on such
Distribution Date if the Trustee shall advance funds on such Distribution Date
to the Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
distributions on the Certificates) and shall not be sold or disposed of prior to
maturity. All income and gain realized from any such investment shall be for the
benefit of the Master Servicer and shall be subject to its withdrawal or order
from time to time. The amount of any losses incurred in respect of any such
investments shall be deposited in the Certificate Account by the Master Servicer
out of its own funds immediately as realized.
Section 4.02. Distributions
(a) On each Distribution Date, the Trustee (or the Paying Agent on
behalf of the Trustee) shall allocate and distribute the
Available Distribution Amount for such date to the interests
issued in respect of REMIC I, REMIC II and REMIC III as specified
in this Section.
(b) (1) On each Distribution Date, the REMIC I Distribution Amount
shall be distributed by REMIC I to REMIC II on account of the
REMIC I Regular Interests in the amounts and with the priorities
set forth in the definition thereof.
(2) On each Distribution Date, the REMIC II Distribution Amount shall
be distributed by REMIC II to REMIC III on account of the REMIC
II Regular Interests in the amounts and with the priorities set
forth in the definition thereof.
(3) Notwithstanding the distributions on the REMIC Regular Interests
described in this Section 4.02(b), distribution of funds from the
Certificate Account shall be made only in accordance with
Sections 4.02(c) and (d).
(c) On each Distribution Date (x) the Master Servicer on behalf of
the Trustee or (y) the Paying Agent appointed by the Trustee,
shall distribute to each Certificateholder of record on the next
preceding Record Date (other than as provided in Section 9.01
respecting the final distribution) either in immediately
available funds (by wire transfer or otherwise) to the account of
such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder has so
notified the Master Servicer or the Paying Agent, as the case may
be, or, if such Certificateholder has not so notified the Master
Servicer or the Paying Agent by the Record Date, by check mailed
to such Certificateholder at the address of such Holder appearing
in the Certificate Register such Certificateholder's share (which
share with respect to each Class of Certificates, shall be based
on the aggregate of the Percentage Interests represented by
Certificates of the applicable Class held by such Holder of the
following amounts), in the following order of priority, in each
case to the extent of the Available Distribution Amount on
deposit in the Certificate Account (or, with respect to clause
(xi)(B) below, to the extent of prepayment charges on deposit in
the Certificate Account) and to the extent not covered by amounts
on deposit in the Swap Account pursuant to Section 4.08(c):
(i) to the Class A Certificateholders, the Accrued Certificate
Interest payable on the Class A Certificates with respect to such
Distribution Date, plus any related amounts accrued pursuant to
this clause (i) but remaining unpaid from any prior Distribution
Date, being paid from and in reduction of the Available
Distribution Amount for such Distribution Date;
(ii) to the Class M Certificateholders from the amount, if any, of the
Available Distribution Amount remaining after the foregoing
distributions, the Accrued Certificate Interest payable on the
Class M Certificates with respect to such Distribution Date, plus
any related amounts accrued pursuant to this clause (ii) but
remaining unpaid from any prior Distribution Date, sequentially,
to the Class M-1 Certificateholders, Class M-2
Certificateholders, Class M-3 Certificateholders, Class M-4
Certificateholders, Class M-5 Certificateholders, Class M-6
Certificateholders, Class M-7 Certificateholders, Class M-8
Certificateholders, Class M-9 Certificateholders and Class M-10
Certificateholders, in that order, being paid from and in
reduction of the Available Distribution Amount for such
Distribution Date;
(iii) [reserved]
(iv) the Principal Distribution Amount shall be distributed as
follows, in each case to the extent of the remaining Principal
Distribution Amount:
(A) first, the Class A Principal Distribution Amount, sequentially,
to the Class A-1 Certificateholders, Class A-2 Certificateholders
and Class A-3 Certificateholders, in that order, until the
aggregate Certificate Principal Balance of the Class A
Certificates has been reduced to zero;
(B) third, to the Class M-1 Certificateholders, the Class M-1
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-1 Certificates has been reduced to zero;
(C) fourth, to the Class M-2 Certificateholders, the Class M-2
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-2 Certificates has been reduced to zero;
(D) fifth, to the Class M-3 Certificateholders, the Class M-3
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-3 Certificates has been reduced to zero;
(E) sixth, to the Class M-4 Certificateholders, the Class M-4
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-4 Certificates has been reduced to zero;
(F) seventh, to the Class M-5 Certificateholders, the Class M-5
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-5 Certificates has been reduced to zero;
(G) eighth, to the Class M-6 Certificateholders, the Class M-6
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-6 Certificates has been reduced to zero;
(H) ninth, to the Class M-7 Certificateholders, the Class M-7
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-7 Certificates has been reduced to zero;
(I) tenth, to the Class M-8 Certificateholders, the Class M-8
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-8 Certificates has been reduced to zero;
(J) eleventh, to the Class M-9 Certificateholders, the Class M-9
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-9 Certificates has been reduced to zero;
(K) twelfth, to the Class M-10 Certificateholders, the Class M-10
Principal Distribution Amount, until the Certificate Principal
Balance of the Class M-10 Certificates has been reduced to zero;
and
(v) to the Class A Certificateholders and Class M Certificateholders,
the amount of any Prepayment Interest Shortfalls allocated
thereto for such Distribution Date, on a pro rata basis based on
Prepayment Interest Shortfalls allocated thereto to the extent
not offset by Eligible Master Servicing Compensation on such
Distribution Date;
(vi) to the Class A Certificateholders and Class M Certificateholders,
the amount of any Prepayment Interest Shortfalls previously
allocated thereto remaining unpaid from prior Distribution Dates
together with interest thereon at the related Pass-Through Rate,
on a pro rata basis based on unpaid Prepayment Interest
Shortfalls previously allocated thereto;
(vii) to the Class A Certificateholders, the amount of any unpaid Class
A Basis Risk Shortfall Carry-Forward Amounts allocated thereto,
on a pro rata basis based on the amount of unpaid Class A Basis
Risk Shortfall Carry-Forward Amounts allocated thereto, and then
sequentially, to the Class M-1 Certificateholders, the Class M-2
Certificateholders, the Class M-3 Certificateholders, the Class
M-4 Certificateholders, the Class M-5 Certificateholders, the
Class M-6 Certificateholders, the Class M-7 Certificateholders,
the Class M-8 Certificateholders, the Class M-9
Certificateholders and Class M-10 Certificateholders, in that
order, the amount of any unpaid Basis Risk Shortfall
Carry-Forward Amounts allocated thereto;
(viii) to the Class A Certificateholders and Class M Certificateholders,
Relief Act Shortfalls allocated thereto for such Distribution
Date, on a pro rata basis based on Relief Act Shortfalls
allocated thereto for such Distribution Date,
(ix) first, to the Class A Certificateholders, the principal portion
of any Realized Losses previously allocated to those Certificates
and remaining unreimbursed, on a pro rata basis based on their
respective principal portion of any Realized Losses previously
allocated to those Certificates and remaining unreimbursed, and
then, sequentially, to the Class M-1 Certificateholders, the
Class M-2 Certificateholders, the Class M-3 Certificateholders,
the Class M-4 Certificateholders, the Class M-5
Certificateholders, the Class M-6 Certificateholders, the Class
M-7 Certificateholders, the Class M-8 Certificateholders, the
Class M-9 Certificateholders and the Class M-10
Certificateholders, in that order, the principal portion of any
Realized Losses previously allocated to such Class and remaining
unreimbursed;
(x) to the Swap Account for payment to the Swap Counterparty, any
Swap Termination Payments due to a Swap Counterparty Trigger
Event.
(xi) to the Class SB Certificates, (A) from the amount, if any, of the
Excess Cash Flow remaining after the foregoing distributions, the
sum of (I) Accrued Certificate Interest thereon, (II) the amount
of any Overcollateralization Reduction Amount for such
Distribution Date and (III) for any Distribution Date after the
Certificate Principal Balance of each Class of Class A
Certificates and Class M Certificates has been reduced to zero,
the Overcollateralization Amount, (B) from prepayment charges on
deposit in the Certificate Account, any prepayment charges
received on the Mortgage Loans during the related Prepayment
Period and (C) from the Net Swap Payments owed by the Swap
Counterparty, if any, the amount of such Net Swap Payments
remaining after the foregoing distributions; and
(xii) to the Class R-III Certificateholders, the balance, if any, of
the Excess Cash Flow.
Notwithstanding anything in this Agreement to the contrary, all amounts
owed by the Trust to the Swap Counterparty under the Swap Agreement in any
calendar month shall be limited by the Available Distribution Amount for the
Distribution Date in such calendar month, before giving effect to any reductions
to the Available Distribution Amount to account for any Net Swap Payments
required to be made to the Swap Counterparty.
(d) Notwithstanding the foregoing clause (c), upon the reduction of the
Certificate Principal Balance of a Class of Class A Certificates and Class M
Certificates to zero, such Class of Certificates will not be entitled to further
distributions pursuant to Section 4.02.
(e) Each distribution with respect to a Book-Entry Certificate shall be paid to
the Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(f) Except as otherwise provided in Section 9.01, if the Master Servicer
anticipates that a final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Master Servicer shall, no later
than the Determination Date in the month of such final distribution, notify the
Trustee and the Trustee shall, no later than two (2) Business Days after such
Determination Date, mail on such date to each Holder of such Class of
Certificates a notice to the effect that: (i) the Trustee anticipates that the
final distribution with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Trustee or as otherwise specified therein, and
(ii) no interest shall accrue on such Certificates from and after the end of the
prior calendar month. In the event that Certificateholders required to surrender
their Certificates pursuant to Section 9.01(c) do not surrender their
Certificates for final cancellation, the Trustee shall cause funds distributable
with respect to such Certificates to be withdrawn from the Certificate Account
and credited to a separate escrow account for the benefit of such
Certificateholders as provided in Section 9.01(d).
Section 4.03. Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting
(a) Concurrently with each distribution charged to the Certificate Account and
with respect to each Distribution Date the Master Servicer shall forward to the
Trustee and the Trustee shall forward by mail or otherwise make available
electronically on its website (which may be obtained by any Certificateholder by
telephoning the Trustee at (▇▇▇) ▇▇▇-▇▇▇▇) to each Holder and the Depositor a
statement setting forth the following information as to each Class of
Certificates, in each case to the extent applicable:
(i) (A) the amount of such distribution to the Certificateholders of such Class
applied to reduce the Certificate Principal Balance thereof, and (B) the
aggregate amount included therein representing Principal Prepayments;
(ii) the amount of such distribution to Holders of such Class of Certificates
allocable to interest;
(iii) if the distribution to the Holders of such Class of Certificates is less
than the full amount that would be distributable to such Holders if there were
sufficient funds available therefor, the amount of the shortfall;
(iv) the amount of any Advance by the Master Servicer pursuant to Section 4.04;
(v) the number and aggregate Stated Principal Balance of the Mortgage Loans in
the aggregate after giving effect to the distribution of principal on such
Distribution Date;
(vi) the aggregate Certificate Principal Balance of each Class of the
Certificates, after giving effect to the amounts distributed on such
Distribution Date, separately identifying any reduction thereof due to Realized
Losses other than pursuant to an actual distribution of principal;
(vii) on the basis of the most recent reports furnished to it by Subservicers,
(a) the number and aggregate principal balances of Mortgage Loans that are
Delinquent (1) 30-59 days, (2) 60-89 days and (3) 90 or more days and the number
and aggregate principal balance of Mortgage Loans that are in foreclosure, (b)
the number and aggregate principal balances of the Mortgage Loans in the
aggregate that are Reportable Modified Mortgage Loans that are in foreclosure
and are REO Property, indicating in each case capitalized Mortgage Loans, other
Servicing Modifications and totals, and (c) for all Reportable Modified Mortgage
Loans, the number and aggregate principal balances of the Mortgage Loans in the
aggregate that have been liquidated, the subject of pay-offs and that have been
repurchased by the Master Servicer or Seller;
(viii) the number, aggregate principal balance and book value of any REO
Properties with respect to Mortgage Loans;
(ix) the aggregate Accrued Certificate Interest remaining unpaid, if any, for
each Class of Certificates, after giving effect to the distribution made on such
Distribution Date;
(x) the aggregate amount of Realized Losses with respect to the Mortgage Loans
for such Distribution Date and the aggregate amount of Realized Losses with
respect to the Mortgage Loans incurred since the Cut-off Date;
(xi) the Pass-Through Rate on each Class of Certificates, separately identifying
One-Month LIBOR for such Distribution Date and the Net WAC Cap Rate;
(xii) the Overcollateralization Amount and the Required Overcollateralization
Amount following such Distribution Date;
(xiii) the number and aggregate principal balance of the Mortgage Loans
repurchased under Section 4.07;
(xiv) the aggregate amount of any recoveries with respect to the Mortgage Loans
on previously foreclosed loans from Residential Funding due to a breach of
representation or warranty;
(xv) the weighted average remaining term to maturity of the Mortgage Loans after
giving effect to the amounts distributed on such Distribution Date;
(xvi) the weighted average Mortgage Rates of the Mortgage Loans after giving
effect to the amounts distributed on such Distribution Date;
(xvii) the Class A Basis Risk Shortfall, Class A Basis Risk Shortfall
Carry-Forward Amount, Class M Basis Risk Shortfall, Class M Basis Risk Shortfall
Carry-Forward Amount and Prepayment Interest Shortfalls;
(xviii) the amount of any Net Swap Payment payable to the Trustee on behalf of
the Trust, any Net Swap Payment payable to the Swap Counterparty, any Swap
Termination Payment payable to the Trustee on behalf of the Trust and any Swap
Termination Payment payable to the Swap Counterparty; and
(xix) the occurrence of the Stepdown Date.
In the case of information furnished pursuant to clauses (i) and (ii)
above, the amounts shall be expressed as a dollar amount per Certificate with a
$1,000 denomination. In addition to the statement provided to the Trustee as set
forth in this Section 4.03(a), the Master Servicer shall provide to any manager
of a trust fund consisting of some or all of the Certificates, upon reasonable
request, such additional information as is reasonably obtainable by the Master
Servicer at no additional expense to the Master Servicer. Also, at the request
of a Rating Agency, the Master Servicer shall provide the information relating
to the Reportable Modified Mortgage Loans substantially in the form attached
hereto as Exhibit P to such Rating Agency within a reasonable period of time;
provided, however, that the Master Servicer shall not be required to provide
such information more than four times in a calendar year to any Rating Agency.
(b) Within a reasonable period of time after the end of each calendar year, the
Master Servicer shall prepare, or cause to be prepared, and the Trustee shall
forward, or cause to be forwarded, upon the Trustee's receipt thereof, to each
Person who at any time during the calendar year was the Holder of a Certificate,
other than a Class R Certificate, a statement containing the information set
forth in clauses (i) and (ii) of subsection (a) above aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Master Servicer and Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Master Servicer and Trustee pursuant to any
requirements of the Code.
(c) Within a reasonable period of time after the end of each calendar year, the
Master Servicer shall prepare, or cause to be prepared, and the Trustee shall
forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Class R Certificate, a statement containing
the applicable distribution information provided pursuant to this Section 4.03
aggregated for such calendar year or applicable portion thereof during which
such Person was the Holder of a Class R Certificate. Such obligation of the
Master Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Master Servicer
and forwarded by the Trustee pursuant to any requirements of the Code.
(d) As soon as reasonably practicable, upon the written request of any Class SB
Certificateholder or Class R Certificateholder, the Master Servicer shall
provide the requesting Certificateholder with such information as is necessary
and appropriate, in the Master Servicer's sole discretion, for purposes of
satisfying applicable reporting requirements under Rule 144A.
(e) The Master Servicer shall, on behalf of the Depositor and in respect of the
Trust Fund, sign and cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Exchange Act, and the rules and
regulations of the Commission thereunder. In connection with the preparation and
filing of such periodic reports, the Trustee shall timely provide to the Master
Servicer (I) a list of Certificateholders as shown on the Certificate Register
as of the end of each calendar year, (II) copies of all pleadings, other legal
process and any other documents relating to any claims, charges or complaints
involving the Trustee, as trustee hereunder, or the Trust Fund that are received
by the Trustee, (III) notice of all matters that, to the actual knowledge of a
Responsible Officer of the Trustee, have been submitted to a vote of the
Certificateholders, other than those matters that have been submitted to a vote
of the Certificateholders at the request of the Depositor or the Master
Servicer, and (IV) notice of any failure of the Trustee to make any distribution
to the Certificateholders as required pursuant to this Agreement. Neither the
Master Servicer nor the Trustee shall have any liability with respect to the
Master Servicer's failure to properly prepare or file such periodic reports
resulting from or relating to the Master Servicer's inability or failure to
obtain any information not resulting from the Master Servicer's own negligence
or willful misconduct. Any Form 10-K filed with the Commission in connection
with this clause (e) shall include a certification, signed by the senior officer
in charge of the servicing functions of the Master Servicer, in the form
attached as Exhibit K hereto or such other form as may be required or permitted
by the Commission (the "Form 10-K Certification"), in compliance with Rule
13A-I-14 and 15d-14 under the Exchange Act and any additional directives of the
Commission. In connection with the Form 10-K Certification, the Trustee shall
provide the Master Servicer with a back-up certification substantially in the
form attached hereto as Exhibit L. This Section 4.03(e) may be amended in
accordance with this Agreement without the consent of the Certificateholders.
Section 4.04. Distribution of Reports to the Trustee and the Depositor; Advances
by the Master Servicer
(a) Prior to the close of business on the Business Day next succeeding each
Determination Date, the Master Servicer shall furnish a written statement (which
may be in a mutually agreeable electronic format) to the Trustee, any Paying
Agent and the Depositor (the information in such statement to be made available
to Certificateholders by the Master Servicer on request) (provided that the
Master Servicer shall use its best efforts to deliver such written statement not
later than 12:00 p.m. New York time on the second Business Day prior to the
Distribution Date) setting forth (i) the Available Distribution Amount, (ii) the
amounts required to be withdrawn from the Custodial Account and deposited into
the Certificate Account on the immediately succeeding Certificate Account
Deposit Date pursuant to clause (iii) of Section 4.01(a), (iii) the amount of
Prepayment Interest Shortfalls and Basis Risk Shortfall Carry-Forward Amounts
and (iv) the Net Swap Payments and Swap Termination Payments, if any, for such
Distribution Date. The determination by the Master Servicer of such amounts
shall, in the absence of obvious error, be presumptively deemed to be correct
for all purposes hereunder and the Trustee shall be protected in relying upon
the same without any independent check or verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account Deposit
Date, the Master Servicer shall either (i) remit to the Trustee for deposit in
the Certificate Account from its own funds, or funds received therefor from the
Subservicers, an amount equal to the Advances to be made by the Master Servicer
in respect of the related Distribution Date, which shall be in an aggregate
amount equal to the sum of (A) the aggregate amount of Monthly Payments other
than Balloon Payments (with each interest portion thereof adjusted to a per
annum rate equal to the Net Mortgage Rate), less the amount of any related
Servicing Modifications, Debt Service Reductions or Relief Act Shortfalls, on
the Outstanding Mortgage Loans as of the related Due Date in the related Due
Period, which Monthly Payments were due during the related Due Period and not
received as of the close of business as of the related Determination Date;
provided that no Advance shall be made if it would be a Nonrecoverable Advance
and (B) with respect to each Balloon Loan delinquent in respect of its Balloon
Payment as of the close of business on the related Determination Date, an amount
equal to the assumed Monthly Payment (with each interest portion thereof
adjusted to a per annum rate equal to the Net Mortgage Rate) that would have
been due on the related Due Date based on the original amortization schedule for
such Balloon Loan until such Balloon Loan is finally liquidated, over any
payments of interest or principal (with each interest portion thereof adjusted
to a per annum rate equal to the Net Mortgage Rate) received from the related
Mortgagor as of the close of business on the related Determination Date and
allocable to the Due Date during the related Due Period for each month until
such Balloon Loan is finally liquidated, (ii) withdraw from amounts on deposit
in the Custodial Account and remit to the Trustee for deposit in the Certificate
Account all or a portion of the Amount Held for Future Distribution in discharge
of any such Advance, or (iii) make advances in the form of any combination of
clauses (i) and (ii) aggregating the amount of such Advance. Any portion of the
Amount Held for Future Distribution so used shall be replaced by the Master
Servicer by deposit in the Certificate Account on or before 11:00 A.M. New York
time on any future Certificate Account Deposit Date to the extent that funds
attributable to the Mortgage Loans that are available in the Custodial Account
for deposit in the Certificate Account on such Certificate Account Deposit Date
shall be less than payments to Certificateholders required to be made on the
following Distribution Date. The Master Servicer shall be entitled to use any
Advance made by a Subservicer as described in Section 3.07(b) that has been
deposited in the Custodial Account on or before such Distribution Date as part
of the Advance made by the Master Servicer pursuant to this Section 4.04.
The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by a certificate of a Servicing
Officer delivered to the Depositor.
In the event that the Master Servicer determines as of the Business Day
preceding any Certificate Account Deposit Date that it will be unable to deposit
in the Certificate Account an amount equal to the Advance required to be made
for the immediately succeeding Distribution Date, it shall give notice to the
Trustee of its inability to advance (such notice may be given by telecopy), not
later than 3:00 P.M., New York time, on such Business Day, specifying the
portion of such amount that it will be unable to deposit. Not later than 3:00
P.M., New York time, on the Certificate Account Deposit Date the Trustee shall,
unless by 12:00 Noon, New York time, on such day the Trustee shall have been
notified in writing (by telecopy) that the Master Servicer shall have directly
or indirectly deposited in the Certificate Account such portion of the amount of
the Advance as to which the Master Servicer shall have given notice pursuant to
the preceding sentence, pursuant to Section 7.01, (a) terminate all of the
rights and obligations of the Master Servicer under this Agreement in accordance
with Section 7.01 and (b) assume the rights and obligations of the Master
Servicer hereunder, including the obligation to deposit in the Certificate
Account an amount equal to the Advance for the immediately succeeding
Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this Section
4.04(b) into the Certificate Account.
Section 4.05. Allocation of Realized Losses
(a) Prior to each Distribution Date, the Master
Servicer shall determine the total amount of
Realized Losses, if any, that resulted from any
Cash Liquidation, Servicing Modifications, Debt
Service Reduction, Deficient Valuation or REO
Disposition that occurred during the related
Prepayment Period or, in the case of a Servicing
Modification that constitutes a reduction of the
interest rate on a Mortgage Loan, the amount of the
reduction in the interest portion of the Monthly
Payment due in the month in which such Distribution
Date occurs. The amount of each Realized Loss shall
be evidenced by an Officers' Certificate.
(b) All Realized Losses on the Mortgage Loans shall be
allocated as follows:
(i) first, to Net Swap Payments received from the Swap
Counterparty;
(ii) second, to Excess Cash Flow in the amounts and
priority as provided in Section 4.02;
(iii) third, in reduction of the Overcollateralization
Amount, until such amount has been reduced to zero;
(iv) fourth, the Class M-10 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(v) fifth, to the Class M-9 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(vi) sixth, to the Class M-8 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(vii) seventh, to the Class M-7 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(viii) eighth, to the Class M-6 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(ix) ninth, to the Class M-5 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(x) tenth, to the Class M-4 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(xi) eleventh, to the Class M-3 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(xii) twelfth, to the Class M-2 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
(xiii) thirteenth, to the Class M-1 Certificates, until
the Certificate Principal Balance thereof has been
reduced to zero; and
(xiv) fourteenth, to the Class A Certificates on a pro
rata basis, based on their then outstanding
Certificate Principal Balances prior to giving
effect to distributions to be made on such
Distribution Date, until the aggregate Certificate
Principal Balance thereof has been reduced to zero.
(c) An allocation of a Realized Loss on a "pro rata
basis" among two or more specified Classes of
Certificates means an allocation on a pro rata
basis, among the various Classes so specified, to
each such Class of Certificates on the basis of
their then outstanding Certificate Principal
Balances prior to giving effect to distributions to
be made on such Distribution Date in the case of
the principal portion of a Realized Loss or based
on the Accrued Certificate Interest thereon payable
on such Distribution Date in the case of an
interest portion of a Realized Loss. Any allocation
of the principal portion of Realized Losses (other
than Debt Service Reductions) to the Class A
Certificates or Class M Certificates shall be made
by reducing the Certificate Principal Balance
thereof by the amount so allocated, which
allocation shall be deemed to have occurred on such
Distribution Date; provided, that no such reduction
shall reduce the aggregate Certificate Principal
Balance of the Certificates below the aggregate
Stated Principal Balance of the Mortgage Loans.
Allocations of the interest portions of Realized
Losses (other than any interest rate reduction
resulting from a Servicing Modification) shall be
made by operation of the definition of "Accrued
Certificate Interest" for each Class for such
Distribution Date. Allocations of the interest
portion of a Realized Loss resulting from an
interest rate reduction in connection with a
Servicing Modification shall be made by operation
of the priority of payment provisions of Section
4.02(c). Allocations of the principal portion of
Debt Service Reductions shall be made by operation
of the priority of payment provisions of Section
4.02(c). All Realized Losses and all other losses
allocated to a Class of Certificates hereunder will
be allocated among the Certificates of such Class
in proportion to the Percentage Interests evidenced
thereby.
(d) All Realized Losses on the Mortgage Loans shall be
allocated on each Distribution Date to the REMIC I
Regular Interests and the REMIC II Regular
Interests as provided in the definition of REMIC I
Realized Losses and REMIC II Realized Losses,
respectively.
(e) Realized Losses allocated to the Excess Cash Flow
or the Overcollateralization Amount pursuant to
paragraphs (a), (b) or (c) of this Section, the
definition of Accrued Certificate Interest and the
operation of Section 4.02(c) shall be deemed
allocated to the Class SB Certificates. Realized
Losses allocated to the Class SB Certificates
shall, to the extent such Realized Losses represent
Realized Losses on an interest portion, be
allocated to the REMIC III Regular Interest SB-IO.
Realized Losses allocated to the Excess Cash Flow
pursuant to paragraph (b) of this Section shall be
deemed to reduce Accrued Certificate Interest on
the REMIC III Regular Interest SB-IO. Realized
Losses allocated to the Overcollateralization
Amount pursuant to paragraph (b) of this Section
shall be deemed first to reduce the principal
balance of the REMIC I Regular Interest SB-PO until
such principal balance shall have been reduced to
zero and thereafter to reduce accrued and unpaid
interest on the REMIC III Regular Interest SB-IO.
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property
The Master Servicer or the Subservicers shall file information returns
with respect to the receipt of mortgage interest received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the informational returns relating to cancellation of indebtedness income
with respect to any Mortgaged Property required by Sections 6050H, 6050J and
6050P of the Code, respectively, and deliver to the Trustee an Officers'
Certificate on or before March 31 of each year, beginning with the first March
31 that occurs at least six months after the Cut off Date, stating that such
reports have been filed. Such reports shall be in form and substance sufficient
to meet the reporting requirements imposed by such Sections 6050H, 6050J and
6050P of the Code.
Section 4.07. Optional Purchase of Defaulted Mortgage Loans
(a) As to any Mortgage Loan which is delinquent in payment by 90 days or more,
the Master Servicer may, at its option, purchase such Mortgage Loan from the
Trustee at the Purchase Price therefor; provided, that any such Mortgage Loan
that becomes 90 days or more delinquent during any given Calendar Quarter shall
only be eligible for purchase pursuant to this Section 4.07 during the period
beginning on the first Business Day of the following Calendar Quarter, and
ending at the close of business on the second-to-last Business Day of such
following Calendar Quarter; and provided further, that such Mortgage Loan is 90
days or more delinquent at the time of repurchase. Such option if not exercised
shall not thereafter be reinstated as to any Mortgage Loan, unless the
delinquency is cured and the Mortgage Loan thereafter again becomes delinquent
in payment by 90 days or more in a subsequent Calendar Quarter.
(b) If at any time the Master Servicer makes a payment to the Certificate
Account covering the amount of the Purchase Price for such a Mortgage Loan, and
the Master Servicer provides to the Trustee a certification signed by a
Servicing Officer stating that the amount of such payment has been deposited in
the Certificate Account, then the Trustee shall execute the assignment of such
Mortgage Loan at the request of the Master Servicer without recourse to the
Master Servicer which shall succeed to all the Trustee's right, title and
interest in and to such Mortgage Loan, and all security and documents relative
thereto. Such assignment shall be an assignment outright and not for security.
The Master Servicer will thereupon own such Mortgage, and all such security and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
Section 4.08. Swap Agreement.
(a) On the Closing Date, the Trustee shall (i) establish and maintain
in its name, in trust for the benefit of Class A and Class M
Certificates, the Swap Account and (ii) for the benefit of the
Class A and Class M Certificates, cause the Trust to enter into
the Swap Agreement.
(b) The Trustee shall deposit in the Swap Account all payments that
are payable to the Trust Fund under the Swap Agreement. Net Swap
Payments and Swap Termination Payments (other than Swap
Termination Payments resulting from a Swap Counterparty Trigger
Event) payable by the Trust Fund to the Swap Counterparty
pursuant to the Swap Agreement shall be excluded from the
Available Distribution Amount and payable to the Swap
Counterparty prior to any distributions to the
Certificateholders. On each Distribution Date, such amounts will
be remitted by the Trustee to the Swap Account for payment to the
Swap Counterparty, first to make any Net Swap Payment owed to the
Swap Counterparty pursuant to the Swap Agreement for such
Distribution Date, and second to make any Swap Termination
Payment (not due to a Swap Counterparty Trigger Event) owed to
the Swap Counterparty pursuant to the Swap Agreement for such
Distribution Date. For federal income tax purposes, such amounts
paid to the Swap Account on each Distribution Date shall first be
deemed paid to the Swap Account in respect of REMIC III Regular
Interest IO to the extent of the amount distributable on such
REMIC III Regular Interest IO on such Distribution Date, and any
remaining amount shall be deemed paid to the Swap Account in
respect of the Class IO Distribution Amount. Any Swap Termination
Payment triggered by a Swap Counterparty Trigger Event owed to
the Swap Counterparty pursuant to the Swap Agreement will be
subordinated to distributions to the Holders of the Class A and
Class M Certificates and shall be paid as set forth under Section
4.02.
(c) Net Swap Payments payable by the Swap Counterparty to the Trustee
on behalf of the Trust Fund pursuant to the Swap Agreement will
be deposited by the Trustee into the Swap Account. On each
Distribution Date, to the extent required, the Trustee shall
withdraw such amounts from the Swap Account to distribute to the
Certificates in the following order of priority:
(A) first, as part of the Principal Distribution Amount to the Class
A Certificates and the Class M Certificates, the principal
portion of any Realized Losses incurred on the Mortgage Loans for
the preceding calendar month;
(B) second, to pay any Overcollateralization Increase Amount as part
of the Principal Distribution Amount to the Class A Certificates
and Class M Certificates;
(C) third, to the Class A Certificates and Class M Certificates to
pay Prepayment Interest Shortfalls on the Mortgage Loans as set
forth in Section 4.02 to the extent not covered by Eligible
Master Servicing Compensation on such Distribution Date on a pro
rata basis;
(D) fourth, to the Class A Certificates and Class M Certificates to
pay Prepayment Interest Shortfalls allocated thereto remaining
unpaid from prior Distribution Dates, together with interest
thereon, on a pro rata basis;
(E) fifth, to the Class A Certificates, to pay any Class A Basis Risk
Shortfall Carry-Forward Amounts, pro rata, then to the Class M
Certificates, to pay any Class M Basis Risk Shortfall
Carry-Forward Amounts, as applicable, in their order of payment
priority;
(F) sixth, to each class of Class A Certificates and Class M
Certificates, to pay Relief Act Shortfalls allocated thereto for
such Distribution Date, on a pro rata basis;
(G) seventh, to pay to the holders of the Class A Certificates, pro
rata, then to the Class M Certificates, in the order of their
payment priority, the principal portion of any Realized Losses
previously allocated thereto that remain unreimbursed; and
(H) eighth, to the Class SB Certificates.
(d) Subject to Sections 8.01 and 8.02 hereof, the Trustee agrees to
comply with the terms of the Swap Agreement and to enforce the
terms and provisions thereof against the Swap Counterparty at the
written direction of the Holders of Class A Certificates and
Class M Certificates entitled to at least 51% of the Voting
Rights of such Classes of Certificates, or if the Trustee does
not receive such direction from such Certificateholders, then at
the written direction of Residential Funding.
(e) The Swap Account shall be an Eligible Account. Amounts held in
the Swap Account from time to time shall continue to constitute
assets of the Trust Fund, but not of the REMICs, until released
from the Swap Account pursuant to this Section 4.08. The Swap
Account constitutes an "outside reserve fund" within the meaning
of Treasury Regulation Section 1.860G-2(h) and is not an asset of
the REMICs. The Class SB Certificateholders shall be the owners
of the Swap Account. The Trustee shall keep records that
accurately reflect the funds on deposit in the Swap Account. The
Trustee shall, at the direction of the Master Servicer, invest
amounts on deposit in the Swap Account in Permitted Investments.
In the absence of written direction to the Trustee from the
Master Servicer, all funds in the Swap Account shall remain
uninvested.
(f) The Trustee and the Master Servicer shall treat the holders of
each Class of Certificates (other than the Class SB Certificates
and Class R Certificates) as having entered into a notional
principal contract with the holders of the Class SB Certificates.
Pursuant to each such notional principal contract, all holders of
Certificates (other than the Class SB Certificates and Class R
Certificates) shall be treated as having agreed to pay, on each
Distribution Date, to the holder of the Class SB Certificates an
aggregate amount equal to the excess, if any, of (i) the amount
payable on such Distribution Date on the REMIC III Regular
Interest corresponding to such Class of Certificates over (ii)
the amount payable on such Class of Certificates on such
Distribution Date (such excess, a "Class IO Distribution
Amount"). In addition, pursuant to such notional principal
contract, the holder of the Class SB Certificates shall be
treated as having agreed to pay the related Basis Risk Shortfall
Carry Forward-Amounts to the holders of the Certificates (other
than the Class SB Certificates and Class R Certificates) in
accordance with the terms of this Agreement. Any payments to the
Certificates from amounts deemed received in respect of this
notional principal contract shall not be payments with respect to
a "regular interest" in a REMIC within the meaning of Code
Section 860G(a)(1). However, any payment from the Certificates
(other than the Class SB Certificates and Class R Certificates)
of a Class IO Distribution Amount shall be treated for tax
purposes as having been received by the holders of such
Certificates in respect of the REMIC III Regular Interest
corresponding to such Class of Certificates and as having been
paid by such holders to the Swap Account pursuant to the notional
principal contract. Thus, each Certificate (other than the Class
R Certificates) shall be treated as representing not only
ownership of regular interests in REMIC III, but also ownership
of an interest in, and obligations with respect to, a notional
principal contract.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates
(a) The Class A Certificates, Class M Certificates, Class SB Certificates and
Class R Certificates shall be substantially in the forms set forth in Exhibits
A, B, C and D, respectively, and shall, on original issue, be executed and
delivered by the Trustee to the Certificate Registrar for authentication and
delivery to or upon the order of the Depositor upon receipt by the Trustee or
one or more Custodians of the documents specified in Section 2.01. The Class A
and Class M-1 Certificates shall be issuable in minimum dollar denominations of
$100,000 and integral multiples of $1 in excess thereof. The Class M-2
Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates, Class M-9 Certificates and Class M-10 Certificates shall be
issuable in minimum dollar denominations of $250,000 and integral multiples of
$1 in excess thereof. The Class SB Certificates shall be issuable in registered,
certificated form in minimum percentage interests of 5.00% and integral
multiples of 0.01% in excess thereof. Each Class of Class R Certificates shall
be issued in registered, certificated form in minimum percentage interests of
20.00% and integral multiples of 0.01% in excess thereof; provided, however,
that one Class R Certificate of each Class will be issuable to the REMIC
Administrator as "tax matters person" pursuant to Section 10.01(c) in a minimum
denomination representing a Percentage Interest of not less than 0.01%.
The Certificates shall be executed by manual or facsimile signature on
behalf of an authorized officer of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Trustee shall bind the Trustee, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Certificate Registrar by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) The Class A Certificates and Class M Certificates shall initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided below, registration of such Certificates may not
be transferred by the Trustee except to another Depository that agrees to hold
such Certificates for the respective Certificate Owners with Ownership Interests
therein. The Certificate Owners shall hold their respective Ownership Interests
in and to each Class A Certificate and Class M Certificate, through the
book-entry facilities of the Depository and, except as provided below, shall not
be entitled to Definitive Certificates in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall transfer the Ownership
Interests only in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
The Trustee, the Master Servicer and the Depositor may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
If with respect to any Book-Entry Certificate (i)(A) the Depositor
advises the Trustee in writing that the Depository is no longer willing or able
to properly discharge its responsibilities as Depository with respect to such
Book-Entry Certificate and (B) the Depositor is unable to locate a qualified
successor, or (ii) (A) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system for such Book-Entry
Certificate through the Depository and (B) upon receipt of notice from the
Depository of the Depositor's election to terminate the book-entry system for
such Book-Entry Certificate, the Depository Participants holding beneficial
interests in such Book-Entry Certificates agree to initiate such termination,
the Trustee shall notify all Certificate Owners of such Book-Entry Certificate,
through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Definitive Certificates.
In addition, if an Event of Default has occurred and is continuing, each
Certificate Owner materially adversely affected thereby may at its option
request a Definitive Certificate evidencing such Certificate Owner's Percentage
Interest in the related Class of Certificates. In order to make such request,
such Certificate Owner shall, subject to the rules and procedures of the
Depository, provide the Depository or the related Depository Participant with
directions for the Certificate Registrar to exchange or cause the exchange of
the Certificate Owner's interest in such Class of Certificates for an equivalent
Percentage Interest in fully registered definitive form. Upon receipt by the
Certificate Registrar of instructions from the Depository directing the
Certificate Registrar to effect such exchange (such instructions to contain
information regarding the Class of Certificates and the Certificate Principal
Balance being exchanged, the Depository Participant account to be debited with
the decrease, the registered holder of and delivery instructions for the
Definitive Certificate, and any other information reasonably required by the
Certificate Registrar), (i) the Certificate Registrar shall instruct the
Depository to reduce the related Depository Participant's account by the
aggregate Certificate Principal Balance of the Definitive Certificate, (ii) the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in accordance with the registration and delivery instructions provided
by the Depository, a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in such Class of Certificates and (iii) the Trustee shall
execute and the Certificate Registrar shall authenticate a new Book-Entry
Certificate reflecting the reduction in the aggregate Certificate Principal
Balance of such Class of Certificates by the amount of the Definitive
Certificates.
Neither the Depositor, the Master Servicer nor the Trustee shall be
liable for any actions taken by the Depository or its nominee, including,
without limitation, any delay in delivery of any instructions required under
this Section 5.01 and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates, all
references herein to obligations imposed upon or to be performed by the
Depositor in connection with the issuance of the Definitive Certificates
pursuant to this Section 5.01 shall be deemed to be imposed upon and performed
by the Trustee, and the Trustee and the Master Servicer shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(c) Each of the Certificates is intended to be a "security" governed by Article
8 of the Uniform Commercial Code as in effect in the State of New York and any
other applicable jurisdiction, to the extent that any of such laws may be
applicable.
Section 5.02. Registration of Transfer and Exchange of Certificates
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the
provisions of Section 8.12 a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The
Trustee is initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges
of Certificates as herein provided. The Certificate Registrar, or
the Trustee, shall provide the Master Servicer with a certified
list of Certificateholders as of each Record Date prior to the
related Determination Date.
(b) Upon surrender for registration of transfer of any Certificate at
any office or agency of the Trustee maintained for such purpose
pursuant to Section 8.12 and, in the case of any Class SB
Certificate or Class R Certificate, upon satisfaction of the
conditions set forth below, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new
Certificates of a like Class and aggregate Percentage Interest.
(c) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a
like Class and aggregate Percentage Interest, upon surrender of
the Certificates to be exchanged at any such office or agency.
Whenever any Certificates are so surrendered for exchange the
Trustee shall execute and the Certificate Registrar shall
authenticate and deliver the Certificates of such Class which the
Certificateholder making the exchange is entitled to receive.
Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Trustee or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and
the Certificate Registrar duly executed by, the Holder thereof or
his attorney duly authorized in writing.
(d) No transfer, sale, pledge or other disposition of a Class SB
Certificate or Class R Certificate shall be made unless such
transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and any applicable state securities
laws or is made in accordance with said Act and laws. Except as
otherwise provided in this Section 5.02(d), in the event that a
transfer of a Class SB Certificate or Class R Certificate is to
be made, (i) unless the Depositor directs the Trustee otherwise,
the Trustee shall require a written Opinion of Counsel acceptable
to and in form and substance satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to
said Act and laws, which Opinion of Counsel shall not be an
expense of the Trustee, the Trust Fund, the Depositor or the
Master Servicer, and (ii) the Trustee shall require the
transferee to execute a representation letter, substantially in
the form of Exhibit I hereto, and the Trustee shall require the
transferor to execute a representation letter, substantially in
the form of Exhibit J hereto, each acceptable to and in form and
substance satisfactory to the Depositor and the Trustee
certifying to the Depositor and the Trustee the facts surrounding
such transfer, which representation letters shall not be an
expense of the Trustee, the Trust Fund, the Depositor or the
Master Servicer. In lieu of the requirements set forth in the
preceding sentence, transfers of Class SB Certificates or Class R
Certificates may be made in accordance with this Section 5.02(d)
if the prospective transferee of such a Certificate provides the
Trustee and the Master Servicer with an investment letter
substantially in the form of Exhibit N attached hereto, which
investment letter shall not be an expense of the Trustee, the
Depositor, or the Master Servicer, and which investment letter
states that, among other things, such transferee (i) 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 (ii) is
aware that the proposed transferor intends to rely on the
exemption from registration requirements under the 1933 Act
provided by Rule 144A. The Holder of a Class SB Certificate or
Class R Certificate desiring to effect any transfer, sale, pledge
or other disposition shall, and does hereby agree to, indemnify
the Trustee, the Depositor, the Master Servicer and the
Certificate Registrar against any liability that may result if
the transfer, sale, pledge or other disposition is not so exempt
or is not made in accordance with such federal and state laws and
this Agreement.
(e) (i) In the case of any Class A Certificate, Class M Certificate,
Class SB Certificate or Class R Certificate presented for
registration in the name of any Person, either (A) the Trustee
shall require an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Depositor and the
Master Servicer to the effect that the purchase or holding of
such Class SB Certificate or Class R Certificate is permissible
under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any
subsequent enactments), and will not subject the Trustee, the
Depositor or the Master 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 Agreement,
which Opinion of Counsel shall not be an expense of the Trustee,
the Depositor or the Master Servicer, or (B) the prospective
transferee shall be required to provide the Trustee, the
Depositor and the Master Servicer with a certification to the
effect set forth in Exhibit P (with respect to a Class A, Class M
or Class SB Certificate; provided, however; that such
certification shall be deemed to have been given by any Class A
Certificateholder or Class M Certificateholder who acquires a
Book-Entry Certificate) or in paragraph fifteen of Exhibit H-1
(with respect to a Class R Certificate), which the Trustee may
rely upon without further inquiry or investigation, or such other
certifications as the Trustee may deem desirable or necessary in
order to establish that such transferee or the Person in whose
name such registration is requested is not an employee benefit
plan or other plan or arrangement subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code, or
any Person (including an insurance company investing its general
accounts, an investment manager, a named fiduciary or a trustee
of any such plan) who is using "plan assets" of any such plan to
effect such acquisition (each of the foregoing, a "Plan
Investor").
(i) Any Transferee of a Class A Certificate or Class M Certificate
that does not deliver the Opinion of Counsel or certification
referred to in clause (i) above will be deemed to have
represented by virtue of its purchase or holding of such
Certificate (or interest therein) that such Transferee is not a
Plan Investor.
(ii) If any Class A Certificate or Class M Certificate (or any
interest therein) is acquired or held by any Person that does not
satisfy the conditions described in paragraph (i) and (ii) above,
then the last preceding Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such
Transfer of such Class A Certificate or Class M Certificate. The
Trustee shall be under no liability to any Person for making any
payments due on such Certificate to such preceding Transferee.
(iii) Any purported Certificate Owner whose acquisition or holding of
any Class A Certificate or Class M Certificate (or interest
therein) was effected in violation of the restrictions in this
Section 5.02(e) shall indemnify and hold harmless the Depositor,
the Trustee, the Master Servicer, any Subservicer, any
underwriter and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by such parties
as a result of such acquisition or holding.
(f) (i) Each Person who has or who acquires any Ownership Interest in
a Class R Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound
by the following provisions and to have irrevocably authorized
the Trustee or its designee under clause (iii)(A) below to
deliver payments to a Person other than such Person and to
negotiate the terms of any mandatory sale under clause (iii)(B)
below and to execute all instruments of transfer and to do all
other things necessary in connection with any such sale. The
rights of each Person acquiring any Ownership Interest in a Class
R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in
its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Trustee shall require
delivery to it, and shall not register the Transfer of any Class
R Certificate until its receipt of, (I) an affidavit and
agreement (a "Transfer Affidavit and Agreement," in the form
attached hereto as Exhibit H-1) from the proposed Transferee, in
form and substance satisfactory to the Master 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 5.02(f) and agrees to be
bound by them, and (II) a certificate, in the form attached
hereto as Exhibit H-2, from the Holder wishing to transfer the
Class R Certificate, in form and substance satisfactory to the
Master 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 Trustee 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 Trustee in the form attached
hereto as Exhibit H-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of Temporary
Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Class R Certificate, if it
is, or is holding an Ownership Interest in a Class R Certificate
on behalf of, a "pass-through interest holder."
(ii) The Trustee shall register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit
and Agreement, a certificate of the Holder requesting such
transfer in the form attached hereto as Exhibit H-2 and all of
such other documents as shall have been reasonably required by
the Trustee as a condition to such registration. Transfers of the
Class R Certificates to Non-United States Persons and
Disqualified Organizations (as defined in Section 860E(e)(5) of
the Code) are prohibited.
(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 Holder thereof retroactive to the
date of registration of such Transfer of such Class R
Certificate. If a Non-United States Person shall become a holder
of a Class R Certificate, then the last preceding United States
Person shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date
of registration of such Transfer of such Class R Certificate. If
a transfer of a Class R Certificate is disregarded pursuant to
the provisions of Treasury 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 Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. The
Trustee shall be under no liability to any Person for any
registration of Transfer of a Class R Certificate that is in
fact not permitted by this Section 5.02(f) 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 Holder of a Class R
Certificate in violation of the restrictions in this Section
5.02(f) and to the extent that the retroactive restoration of
the rights of the Holder of such Class R Certificate as
described in clause (iii)(A) above shall be invalid, illegal or
unenforceable, then the Master 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 Master Servicer on such terms as the Master
Servicer may choose. Such purported Transferee shall promptly
endorse and deliver each Class R Certificate in accordance with
the instructions of the Master Servicer. Such purchaser may be
the Master Servicer itself or any Affiliate of the Master
Servicer. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Master Servicer or
its Affiliates), expenses and taxes due, if any, will be
remitted by the Master 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 Master
Servicer, and the Master 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.
(iii) The Master Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information
necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Class R Certificate to any
Person who is 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 Master Servicer from such
Person.
(iv) The provisions of this Section 5.02(f) set forth prior to this
clause (v) may be modified, added to or eliminated, provided that
there shall have been delivered to the 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 Class A Certificates or Class M
Certificates below the lower of the then-current rating or the
rating assigned to such Certificates as of the Closing Date by
such Rating Agency; and
(B) A Certificate of the Master Servicer stating that the Master
Servicer has received an Opinion of Counsel, in form and
substance satisfactory to the Master Servicer, to the effect
that such modification, addition to or absence of such
provisions will not cause any REMIC to cease to qualify as a
REMIC and will not cause (x) any REMIC 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.
(g) No service charge shall be made for any transfer or exchange of
Certificates of any Class, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of
Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.04. Persons Deemed Owners
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Master Servicer, the Trustee, the Certificate Registrar and
any agent of the Depositor, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.02 and for all other purposes whatsoever, except as and to
the extent provided in the definition of "Certificateholder" and in Section
4.09, and neither the Depositor, the Master Servicer, the Trustee, the
Certificate Registrar nor any agent of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar shall be affected by notice to the contrary
except as provided in Section 5.02(f).
Section 5.05. Appointment of Paying Agent
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.02. In the event of
any such appointment, on or prior to each Distribution Date the Master Servicer
on behalf of the Trustee shall deposit or cause to be deposited with the Paying
Agent a sum sufficient to make the payments to Certificateholders in the amounts
and in the manner provided for in Section 4.02, such sum to be held in trust for
the benefit of Certificateholders.
The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Any sums so
held by such Paying Agent shall be held only in Eligible Accounts to the extent
such sums are not distributed to the Certificateholders on the date of receipt
by such Paying Agent.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Master Servicer herein. By
way of illustration and not limitation, the Depositor is not liable for the
servicing and administration of the Mortgage Loans, nor is it obligated by
Section 7.01 or Section 10.01 to assume any obligations of the Master Servicer
or to appoint a designee to assume such obligations, nor is it liable for any
other obligation hereunder that it may, but is not obligated to, assume unless
it elects to assume such obligation in accordance herewith.
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer
(a) The Depositor and the Master Servicer shall each keep in full effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Any Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; and provided further that each Rating Agency's
ratings, if any Class of Class A Certificates or Class M Certificates in effect
immediately prior to such merger or consolidation will not be qualified, reduced
or withdrawn as a result thereof (as evidenced by a letter to such effect from
each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04 to the
contrary, the Master Servicer may assign its rights and delegate its duties and
obligations under this Agreement; provided that the Person accepting such
assignment or delegation shall be a Person which is qualified to service
mortgage loans on behalf of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, is reasonably
satisfactory to the Trustee and the Depositor, is willing to service the
Mortgage Loans and executes and delivers to the Depositor and the Trustee an
agreement, in form and substance reasonably satisfactory to the Depositor and
the Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the Master Servicer under this Agreement; provided, further, that
each Rating Agency's rating of the Classes of Certificates that have been rated
in effect immediately prior to such assignment and delegation will not be
qualified, reduced or withdrawn as a result of such assignment and delegation
(as evidenced by a letter to such effect from each Rating Agency). In the case
of any such assignment and delegation, the Master Servicer shall be released
from its obligations under this Agreement, except that the Master Servicer shall
remain liable for all liabilities and obligations incurred by it as Master
Servicer hereunder prior to the satisfaction of the conditions to such
assignment and delegation set forth in the next preceding sentence.
Section 6.03. Limitation on Liability of the Depositor, the Master Servicer and
Others
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or any such
Person against any breach of warranties, representations or covenants made
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Depositor,
the Master Servicer and any director, officer, employee or agent of the
Depositor or the Master Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Master Servicer and any director,
officer, employee or agent of the Depositor or the Master Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder.
Neither the Depositor nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Depositor or the Master
Servicer may in its discretion undertake any such action, proceeding, hearing or
examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor and the Master Servicer shall be entitled to be reimbursed therefor
out of amounts attributable to the Mortgage Loans on deposit in the Custodial
Account as provided by Section 3.10 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated
in reduction of the Accrued Certificate Interest on each Class entitled thereto
in the same manner as if such expenses and costs constituted a Prepayment
Interest Shortfall.
Section 6.04. Depositor and Master Servicer Not to Resign
Subject to the provisions of Section 6.02, neither the Depositor nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Depositor or the Master Servicer shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until the Trustee or a successor servicer shall have assumed
the Master Servicer's responsibilities and obligations in accordance with
Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be distributed
to Holders of Certificates of any Class any distribution required to be
made under the terms of the Certificates of such Class and this
Agreement and, in either case, such failure shall continue unremedied
for a period of 5 days after the date upon which written notice of such
failure, requiring such failure to be remedied, shall have been given to
the Master Servicer by the Trustee or the Depositor or to the Master
Servicer, the Depositor and the Trustee by the Holders of Certificates
of such Class evidencing Percentage Interests aggregating not less than
25%; or
(ii) the Master Servicer shall fail to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Master Servicer contained in the Certificates of any Class or in this
Agreement and such failure shall continue unremedied for a period of 30
days (except that such number of days shall be 15 in the case of a
failure to pay the premium for any Required Insurance Policy) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee or
the Depositor, or to the Master Servicer, the Depositor and the Trustee
by the Holders of Certificates of any Class evidencing, as to such
Class, Percentage Interests aggregating not less than 25%; or
(iii) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or
appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities, or
similar proceedings of, or relating to, the Master Servicer or
of, or relating to, all or substantially all of the property of
the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) the Master Servicer shall notify the Trustee pursuant to Section
4.04(b) that it is unable to deposit in the Certificate Account
an amount equal to the Advance.
If an Event of Default described in clauses (i)-(v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, either the Depositor or the Trustee shall
at the direction of Holders of Certificates entitled to at least 51% of the
Voting Rights, by notice in writing to the Master Servicer (and to the Depositor
if given by the Trustee or to the Trustee if given by the Depositor), terminate
all of the rights and obligations of the Master Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof, other than its rights
as a Certificateholder hereunder; provided, however, that a successor to the
Master Servicer is appointed pursuant to Section 7.02 and such successor Master
Servicer shall have accepted the duties of Master Servicer effective upon the
resignation of the Master Servicer. If an Event of Default described in clause
(vi) hereof shall occur, the Trustee shall, by notice to the Master Servicer and
the Depositor, immediately terminate all of the rights and obligations of the
Master Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than its rights as a Certificateholder hereunder as
provided in Section 4.04(b). On or after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer under this
Agreement, whether with respect to the Certificates (other than as a Holder
thereof) or the Mortgage Loans or otherwise, shall subject to Section 7.02 pass
to and be vested in the Trustee or the Trustee's designee appointed pursuant to
Section 7.02; and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer agrees to cooperate with the Trustee as successor
Master Servicer in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee or its designee for administration by it of all cash
amounts which shall at the time be credited to the Custodial Account or the
Certificate Account or thereafter be received with respect to the Mortgage
Loans. No such termination shall release the Master Servicer for any liability
that it would otherwise have hereunder for any act or omission prior to the
effective time of such termination.
Notwithstanding any termination of the activities of Residential Funding
in its capacity as Master Servicer hereunder, Residential Funding shall be
entitled to receive, out of any late collection of a Monthly Payment on a
Mortgage Loan which was due prior to the notice terminating Residential
Funding's rights and obligations as Master Servicer hereunder and received after
such notice, that portion to which Residential Funding would have been entitled
pursuant to Sections 3.10(a)(ii), (vi) and (vii) as well as its Servicing Fee in
respect thereof, and any other amounts payable to Residential Funding hereunder
the entitlement to which arose prior to the termination of its activities
hereunder. Upon the termination of Residential Funding as Master Servicer
hereunder the Depositor shall deliver to the Trustee, as successor Master
Servicer, a copy of the Program Guide.
Section 7.02. Trustee or Depositor to Act; Appointment of Successor
(a) On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.01 or resigns in accordance with Section 6.04, the Trustee
or, upon notice to the Depositor and with the Depositor's consent a designee
(which meets the standards set forth below) of the Trustee, shall be the
successor in all respects to the Master Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Master Servicer (except for the responsibilities, duties
and liabilities contained in Sections 2.02 and 2.03(a), excluding the duty to
notify related Subservicers as set forth in such Sections, and its obligations
to deposit amounts in respect of losses incurred prior to such notice or
termination on the investment of funds in the Custodial Account or the
Certificate Account pursuant to Sections 3.07(c) and 4.01(b) by the terms and
provisions hereof); provided, however, that any failure to perform such duties
or responsibilities caused by the preceding Master Servicer's failure to provide
information required by Section 4.04 shall not be considered a default by the
Trustee hereunder, as successor Master Servicer. If the Trustee has become the
successor to the Master Servicer in accordance with Section 6.04 or Section
7.01, then notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, which is also a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac-approved mortgage
servicing institution, having a net worth of not less than $10,000,000 as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall become successor to the Master Servicer and shall act in such capacity as
hereinabove provided. As compensation therefor, the Trustee, as successor Master
Servicer, shall be entitled to all funds relating to the Mortgage Loans which
the Master Servicer would have been entitled to charge to the Custodial Account
or the Certificate Account if the Master Servicer had continued to act hereunder
and, in addition, shall be entitled to the income from any Permitted Investments
made with amounts attributable to the Mortgage Loans held in the Custodial
Account or the Certificate Account. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the initial Master Servicer hereunder. The Depositor, the Trustee, the
Custodian and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. The
Servicing Fee for any successor Master Servicer appointed pursuant to this
Section 7.02 will be lowered with respect to those Mortgage Loans, if any, where
the Subservicing Fee accrues at a rate of less than 0.200% per annum in the
event that the successor Master Servicer is not servicing such Mortgage Loans
directly and it is necessary to raise the related Subservicing Fee to a rate of
0.200% per annum in order to hire a Subservicer with respect to such Mortgage
Loans.
(b) In connection with the termination or resignation of the Master Servicer
hereunder, either (i) the successor Master Servicer, including the Trustee if
the Trustee is acting as successor Master Servicer, shall represent and warrant
that it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, in which case the
predecessor Master Servicer shall cooperate with the successor Master Servicer
in causing MERS to revise its records to reflect the transfer of servicing to
the successor Master Servicer as necessary under MERS' rules and regulations, or
(ii) the predecessor Master Servicer shall cooperate with the successor Master
Servicer in causing MERS to execute and deliver an assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Trustee and to execute
and deliver such other notices, documents and other instruments as may be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS(R) System to the successor Master Servicer.
The predecessor Master Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The predecessor Master Servicer
shall bear any and all fees of MERS, costs of preparing any assignments of
Mortgage, and fees and costs of filing any assignments of Mortgage that may be
required under this subsection (b). The successor Master Servicer shall cause
such assignment to be delivered to the Trustee or the Custodian promptly upon
receipt of the original with evidence of recording thereon or a copy certified
by the public recording office in which such assignment was recorded.
Section 7.03. Notification to Certificateholders
(a) Upon any such termination or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Within 60 days after the occurrence of any Event of Default, the Trustee
shall transmit by mail to all Holders of Certificates notice of each such Event
of Default hereunder known to the Trustee, unless such Event of Default shall
have been cured or waived as provided in Section 7.04 hereof.
Section 7.04. Waiver of Events of Default
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (i) of Section 7.01 may be waived only by all of the
Holders of Certificates affected by such default or Event of Default and (b) no
waiver pursuant to this Section 7.04 shall affect the Holders of Certificates in
the manner set forth in Section 11.01(b)(i), (ii) or (iii). Upon any such waiver
of a default or Event of Default by the Holders representing the requisite
percentage of Voting Rights of Certificates affected by such default or Event of
Default such default or Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee
(a) The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiver of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 4.03, 7.03, and 10.01. The Trustee shall furnish in a
timely fashion to the Master Servicer such information as the Master Servicer
may reasonably request from time to time for the Master Servicer to fulfill its
duties as set forth in this Agreement. The Trustee covenants and agrees that it
shall perform its obligations hereunder in a manner so as to maintain the status
of each REMIC created hereunder as a REMIC under the REMIC Provisions and
(subject to Section 10.01(f)) to prevent the imposition of any federal, state or
local income, prohibited transaction, contribution or other tax on the Trust
Fund to the extent that maintaining such status and avoiding such taxes are
reasonably within the control of the Trustee and are reasonably within the scope
of its duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or
waiver of all such Events of Default which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee by the Depositor or the Master Servicer and which on their face, do
not contradict the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of the Certificateholders holding Certificates which evidence,
Percentage Interests aggregating not less than 25% of the affected Classes as to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any default (other than
a default in payment to the Trustee) specified in clauses (i) and (ii) of
Section 7.01 or an Event of Default under clauses (iii), (iv) and (v) of Section
7.01 unless a Responsible Officer of the Trustee assigned to and working in the
Corporate Trust Office obtains actual knowledge of such failure or event or the
Trustee receives written notice of such failure or event at its Corporate Trust
Office from the Master Servicer, the Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 7.02, no provision in this
Agreement shall require the Trustee to expend or risk its own funds (including,
without limitation, the making of any Advance) or otherwise incur any personal
financial liability in the performance of any of its duties as Trustee
hereunder, or in the exercise of any of its rights or powers, if the Trustee
shall have reasonable grounds for believing that repayment of funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all
federal, state and local taxes imposed on the Trust Fund or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
Section 8.02. Certain Matters Affecting the Trustee
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, Officers' Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default (which
has not been cured), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests, aggregating not less than
50%; provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such expense or
liability as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Master Servicer, if an Event of Default shall
have occurred and is continuing, and otherwise by the Certificateholder
requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys
provided that the Trustee shall remain liable for any acts of such agents or
attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated
thereunder, each Holder of a Class R Certificate hereby irrevocably appoints and
authorizes the Trustee to be its attorney-in-fact for purposes of signing any
Tax Returns required to be filed on behalf of the Trust Fund. The Trustee shall
sign on behalf of the Trust Fund and deliver to the Master Servicer in a timely
manner any Tax Returns prepared by or on behalf of the Master Servicer that the
Trustee is required to sign as determined by the Master Servicer pursuant to
applicable federal, state or local tax laws, provided that the Master Servicer
shall indemnify the Trustee for signing any such Tax Returns that contain errors
or omissions.
(b) Following the issuance of the Certificates (and except as provided for in
Section 2.04), the Trustee shall not accept any contribution of assets to the
Trust Fund unless (subject to Section 10.01(f)) it shall have obtained or been
furnished with an Opinion of Counsel to the effect that such contribution will
not (i) cause any REMIC created hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding or (ii) cause the Trust Fund to be
subject to any federal tax as a result of such contribution (including the
imposition of any federal tax on "prohibited transactions" imposed under Section
860F(a) of the Code).
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Mortgage Loans) shall be taken as the statements of the Depositor or the Master
Servicer as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (except that the
Certificates shall be duly and validly executed and authenticated by it as
Certificate Registrar) or of any Mortgage Loan or related document, or of MERS
or the MERS(R) System. Except as otherwise provided herein, the Trustee shall
not be accountable for the use or application by the Depositor or the Master
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account or the Certificate Account by the Depositor or the Master
Servicer.
Section 8.04. Trustee May Own Certificates
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights it would have if it were not
Trustee.
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification
(a) The Master Servicer covenants and agrees to pay to the Trustee and any
co-trustee from time to time, and the Trustee and any co-trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by each of them in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee and any co-trustee, and the Master Servicer shall pay
or reimburse the Trustee and any co-trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or any
co-trustee in accordance with any of the provisions of this Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ, and the expenses incurred by the
Trustee or any co-trustee in connection with the appointment of an office or
agency pursuant to Section 8.12) except any such expense, disbursement or
advance as may arise from its negligence or bad faith.
(b) The Master Servicer agrees to indemnify the Trustee for, and to hold the
Trustee harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on its part, arising out of, or in connection
with, the acceptance and administration of the Trust Fund, including its
obligation to execute the DTC Letter in its individual capacity, and including
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against any claim in connection with the exercise or
performance of any of its powers or duties under this Agreement and the Swap
Agreement, and the Master Servicer further agrees to indemnify the Trustee for,
and to hold the Trustee harmless against, any loss, liability or expense arising
out of, or in connection with, the provisions set forth in the last paragraph of
Section 2.01(b) hereof, including without limitation, all costs, liabilities and
expenses (including reasonable legal fees and expenses) of investigating and
defending itself against any claim, action or proceeding, pending or threatened,
relating to the provisions of such paragraph, provided, that
(i) with respect to any such claim, the Trustee shall have given the Master
Servicer written notice thereof promptly after the Trustee shall have actual
knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall cooperate
and consult fully with the Master Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for settlement of any claim by the Trustee entered
into without the prior consent of the Master Servicer which consent shall not be
unreasonably withheld.
No termination of this Agreement shall affect the obligations created by
this Section 8.05(b) of the Master Servicer to indemnify the Trustee under the
conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 8.05(b) shall not pertain to any loss, liability
or expense of the Trustee, including the costs and expenses of defending itself
against any claim, incurred in connection with any actions taken by the Trustee
at the direction of Certificateholders pursuant to the terms of this Agreement.
Section 8.06. Eligibility Requirements for Trustee
The Trustee hereunder shall at all times be a national banking
association or a New York banking corporation having its principal office in a
state and city acceptable to the Depositor and organized and doing business
under the laws of such state or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
Section 8.07. Resignation and Removal of the Trustee
(a) The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor and the Master
Servicer. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation then the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Depositor may remove
the Trustee and appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee. In addition, in the event that the Depositor
determines that the Trustee has failed (i) to distribute or cause to be
distributed to Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee or its Paying Agent (other than
the Master Servicer or the Depositor) for distribution or (ii) to otherwise
observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period
of 5 days (in respect of clause (i) above) or 30 days (in respect of clause (ii)
above) after the date on which written notice of such failure, requiring that
the same be remedied, shall have been given to the Trustee by the Depositor,
then the Depositor, which consent shall not be unreasonably withheld, may remove
the Trustee and appoint a successor trustee by written instrument delivered as
provided in the preceding sentence. In connection with the appointment of a
successor trustee pursuant to the preceding sentence, the Depositor shall, on or
before the date on which any such appointment becomes effective, obtain from
each Rating Agency written confirmation that the appointment of any such
successor trustee will not result in the reduction of the ratings on any Class
of the Certificates below the lesser of the then current or original ratings on
such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Trustee so removed and
one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
8.08.
Section 8.08. Successor Trustee
(a) Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The predecessor trustee shall deliver to the
successor trustee all Mortgage Files and related documents and statements held
by it hereunder (other than any Mortgage Files at the time held by a Custodian,
which shall become the agent of any successor trustee hereunder), and the
Depositor, the Master Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in this
Section, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Depositor.
Section 8.09. Merger or Consolidation of Trustee
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall mail notice of any such merger or
consolidation to the Certificateholders at their address as shown in the
Certificate Register.
Section 8.10. Appointment of Co-Trustee or Separate Trustee
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee, and such separate trustee or co-trustee jointly,
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Master Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee. (d) Any separate trustee or
co-trustee may, at any time, constitute the Trustee, its agent or
attorney-in-fact, with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Agreement on its behalf
and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
Section 8.11. Appointment of Custodians
The Trustee may, with the consent of the Master Servicer and the
Depositor, appoint one or more Custodians who are not Affiliates of the
Depositor or the Master Servicer to hold all or a portion of the Mortgage Files
as agent for the Trustee, by entering into a Custodial Agreement. Subject to
Article VIII, the Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $15,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File. Each
Custodial Agreement may be amended only as provided in Section 11.01. The
Trustee shall notify the Certificateholders of the appointment of any Custodian
(other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11.
Section 8.12. Appointment of Office or Agency
The Trustee shall maintain an office or agency in the City of New York
where Certificates may be surrendered for registration of transfer or exchange.
The Trustee initially designates its offices located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ for the purpose of keeping the Certificate
Register. The Trustee shall maintain an office at the address stated in Section
11.05(c) hereof where notices and demands to or upon the Trustee in respect of
this Agreement may be served.
Section 8.13. DTC Letter of Representations.
The Trustee is hereby authorized and directed to, and agrees that it
shall, enter into the DTC Letter on behalf of the Trust Fund and in its
individual capacity as agent thereunder.
Section 8.14. Swap Agreement.
The Trustee is hereby authorized and directed to, and agrees that it
shall, enter into the Swap Agreement on behalf of the Trust Fund.
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and responsibilities of
the Depositor, the Master Servicer and the Trustee created hereby in respect of
the Certificates (other than the obligation of the Trustee to make certain
payments after the Final Distribution Date to Certificateholders and the
obligation of the Depositor to send certain notices as hereinafter set forth)
shall terminate upon the last action required to be taken by the Trustee on the
Final Distribution Date pursuant to this Article IX following the earlier of:
(i) the later of the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, or
(ii) at the option of the Holder of the Class SB Certificates or the Master
Servicer, as provided in Section 9.01(f), the purchase of all Mortgage Loans and
all property acquired in respect of any Mortgage Loan remaining in the Trust
Fund, at a price equal to the sum of (A) 100% of the unpaid principal balance of
each Mortgage Loan (or, if less than such unpaid principal balance, the fair
market value of the related underlying property of such Mortgage Loan with
respect to Mortgage Loans as to which title has been acquired if such fair
market value is less than such unpaid principal balance) (and if such purchase
is made by the Master Servicer only, net of any unreimbursed Advances
attributable to principal) on the day of repurchase, plus accrued interest
thereon at the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of
any Modified Mortgage Loan), to, but not including, the first day of the month
in which such repurchase price is distributed, and (B) any unpaid Swap
Termination Payment payable to the Swap Counterparty (or any Swap Termination
Payment payable to the Swap Counterparty as a result of the exercise of the
option provided for in this Section 9.01(a)(ii));
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof; and provided further, that
the purchase price set forth above shall be increased as is necessary, as
determined by the Master Servicer, to avoid disqualification of any REMIC
created hereunder as a REMIC.
The purchase price paid by the Holder of the Class SB Certificates or
the Master Servicer, as applicable, pursuant to Section 9.01(a)(ii) shall also
include any amounts owed by Residential Funding pursuant to the last paragraph
of Section 4 of the Assignment Agreement in respect of any liability, penalty or
expense that resulted from a breach of the representation and warranty set forth
in clause (w) of Section 4 of the Assignment Agreement that remain unpaid on the
date of such purchase.
The right of the Holder of the Class SB Certificates or the Master
Servicer, as applicable, to purchase all of the Mortgage Loans pursuant to
clause (ii) above is conditioned upon the date of such purchase occurring on or
after the Optional Termination Date. If such right is exercised by the Master
Servicer, the Master Servicer shall be deemed to have been reimbursed for the
full amount of any unreimbursed Advances theretofore made by it with respect to
the Mortgage Loans being purchased. In addition, the Master Servicer shall
provide to the Trustee the certification required by Section 3.15 and the
Trustee and any Custodian shall, promptly following payment of the purchase
price, release to the Holder of the Class SB Certificates or the Master
Servicer, as applicable, the Mortgage Files pertaining to the Mortgage Loans
being purchased.
In addition to the foregoing, on any Distribution Date on or after the
Optional Termination Date, the Holder of the Class SB Certificates or the Master
Servicer, as provided in Section 9.01(f), shall have the right, at its option,
to purchase the Class A Certificates, Class M Certificates and Class SB
Certificates in whole, but not in part, at a price equal to the sum of the
outstanding Certificate Principal Balance of such Certificates plus the sum of
one month's Accrued Certificate Interest thereon, any previously unpaid Accrued
Certificate Interest, and any unpaid Prepayment Interest Shortfalls previously
allocated thereto and, in the case of Prepayment Interest Shortfalls, accrued
interest thereon at the applicable Pass-Through Rate, plus, with respect to any
optional termination by the Holder of the Class SB Certificates, an amount equal
to all accrued and unpaid Servicing Fees and reimbursement for all unreimbursed
Advances and Servicing Advances, in each case through the date of such optional
termination. If the Master Servicer or Holder of the Class SB Certificates, as
applicable, exercises this right to purchase the outstanding Class A
Certificates, Class M Certificates and Class SB Certificates, the Holder of the
Class SB Certificates or the Master Servicer, as applicable, will promptly
terminate the respective obligations and responsibilities created hereby in
respect of these Certificates pursuant to this Article IX.
(b) The Master Servicer or the Holder of the Class SB Certificates, as
applicable, shall give the Trustee (and the Master Servicer if the Holder of the
Class SB Certificates is exercising its option) not less than 60 days' prior
notice of the Distribution Date on which (1) the Holder of the Class SB
Certificates or the Master Servicer, as applicable, anticipates that the final
distribution will be made to Certificateholders as a result of the exercise by
the Holder of the Class SB Certificates or the Master Servicer, as applicable,
of its right to purchase the Mortgage Loans) or (2) on which the Holder of the
Class SB Certificates or the Master Servicer, as applicable, anticipates that
the Certificates will be purchased as a result of the exercise by the Holder of
the Class SB Certificates or the Master Servicer, as applicable, to purchase the
outstanding Certificates. Notice of any termination, specifying the anticipated
Final Distribution Date (which shall be a date that would otherwise be a
Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Trustee (if so required by the terms hereof) for payment of
the final distribution and cancellation or notice of any purchase of the
outstanding Certificates, specifying the Distribution Date upon which the
Holders may surrender their Certificates to the Trustee for payment, shall be
given promptly by the Master Servicer (if it is exercising the right to purchase
the Mortgage Loans or to purchase the outstanding Certificates), or by the
Trustee (in any other case) by letter to the Certificateholders (with a copy to
the Certificate Registrar) mailed not earlier than the 15th day and not later
than the 25th day of the month next preceding the month of such final
distribution specifying:
(i) the anticipated Final Distribution Date upon which final payment of the
Certificates is anticipated to be made upon presentation and surrender of
Certificates at the office or agency of the Trustee therein designated where
required pursuant to this Agreement or, in the case of the purchase by the
Holder of the Class SB Certificates or the Master Servicer, as applicable, of
the outstanding Certificates, the Distribution Date on which such purchase is
made,
(ii) the amount of any such final payment or, in the case of the purchase of the
outstanding Certificates, the purchase price, in either case, if known, and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, and that payment will be made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein specified.
If the Master Servicer or the Trustee is obligated to give notice to
Certificateholders as required above, it shall give such notice to the
Certificate Registrar at the time such notice is given to Certificateholders. In
the event of a purchase of the Mortgage Loans by the Holder of the Class SB
Certificates or the Master Servicer, as applicable, the Holder of the Class SB
Certificates or the Master Servicer, as applicable, shall deposit in the
Certificate Account before the Final Distribution Date in immediately available
funds an amount equal to the purchase price computed as provided above. As a
result of the exercise by the Holder of the Class SB Certificates or the Master
Servicer, as applicable, of its right to purchase the outstanding Certificates,
the Holder of the Class SB Certificates or the Master Servicer, as applicable,
shall deposit in an Eligible Account, established by the Master Servicer on
behalf of the Trustee and separate from the Certificate Account, in the name of
the Trustee in trust for the registered holders of the Certificates, before the
Distribution Date on which such purchase is to occur, in immediately available
funds, an amount equal to the purchase price for the Certificates computed as
provided above, and provide notice of such deposit to the Trustee. The Trustee
shall withdraw from such account the amount specified in subsection (c) below
and distribute such amount to the Certificateholders as specified in subsection
(c) below. The Holder of the Class SB Certificates or the Master Servicer, as
applicable, shall provide to the Trustee written notification of any change to
the anticipated Final Distribution Date as soon as practicable. If the Trust
Fund is not terminated on the anticipated Final Distribution Date, for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(c) Upon presentation and surrender of the Class A Certificates, Class M
Certificates and Class SB Certificates by the Certificateholders thereof, the
Trustee shall distribute to such Certificateholders (i) the amount otherwise
distributable on such Distribution Date, if not in connection with the Holder's
of the Class SB Certificates or the Master Servicer's, as applicable, election
to repurchase the Mortgage Loans or the outstanding Class A Certificates, Class
M Certificates and Class SB Certificates, or (ii) if the Holder of the Class SB
Certificates or the Master Servicer, as applicable, elected to so repurchase the
Mortgage Loans or the outstanding Class A Certificates, Class M Certificates and
Class SB Certificates, an amount equal to the price paid pursuant to Section
9.01(a) as follows: first, with respect to any optional termination by the
Holder of the Class SB Certificates, payment of any accrued and unpaid Servicing
Fees and reimbursement for all unreimbursed Advances and Servicing Advances, in
each case through the date of such optional termination, to the Master Servicer,
second, with respect to the Class A Certificates, pari passu, the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest thereon
for the related Interest Accrual Period and any previously unpaid Accrued
Certificate Interest, third, with respect to the Class M-1 Certificates, the
outstanding Certificate Principal Balance thereof, plus Accrued Certificate
Interest thereon for the related Interest Accrual Period and any previously
unpaid Accrued Certificate Interest, fourth, with respect to the Class M-2
Certificates, the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest thereon for the related Interest Accrual Period and
any previously unpaid Accrued Certificate Interest, fifth, with respect to the
Class M-3 Certificates, the outstanding Certificate Principal Balance thereof,
plus Accrued Certificate Interest thereon for the related Interest Accrual
Period and any previously unpaid Accrued Certificate Interest, sixth, with
respect to the Class M-4 Certificates, the outstanding Certificate Principal
Balance thereof, plus Accrued Certificate Interest thereon for the related
Interest Accrual Period and any previously unpaid Accrued Certificate Interest,
seventh, with respect to the Class M-5 Certificates, the outstanding Certificate
Principal Balance thereof, plus Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate
Interest, eighth, with respect to the Class M-6 Certificates, the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest thereon
for the related Interest Accrual Period and any previously unpaid Accrued
Certificate Interest, ninth, with respect to the Class M-7 Certificates, the
outstanding Certificate Principal Balance thereof, plus Accrued Certificate
Interest thereon for the related Interest Accrual Period and any previously
unpaid Accrued Certificate Interest, tenth, with respect to the Class M-8
Certificates, the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest thereon for the related Interest Accrual Period and
any previously unpaid Accrued Certificate Interest, eleventh, with respect to
the Class M-9 Certificates, the outstanding Certificate Principal Balance
thereof, plus Accrued Certificate Interest thereon for the related Interest
Accrual Period and any previously unpaid Accrued Certificate Interest, twelfth,
with respect to the Class M-10 Certificates, the outstanding Certificate
Principal Balance thereof, plus Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate
Interest, thirteenth, to the Class A Certificates and Class M Certificates, the
amount of any Prepayment Interest Shortfalls allocated thereto for such
Distribution Date or remaining unpaid from prior Distribution Dates and accrued
interest thereon at the applicable Pass-Through Rate, on a pro rata basis based
on Prepayment Interest Shortfalls allocated thereto for such Distribution Date
or remaining unpaid from prior Distribution Dates, fourteenth, to the Swap
Counterparty (without duplication of amounts payable to the Swap Counterparty on
such date in accordance with Section 4.02) any Swap Termination Payment payable
to the Swap Counterparty then remaining unpaid or which is due to the exercise
of any early termination of the Trust Fund pursuant to this Section 9.01, and
fifteenth, to the Class SB Certificates.
(d) In the event that any Certificateholders shall not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Trustee shall on such date cause all funds in the
Certificate Account not distributed in final distribution to Certificateholders
to be withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate escrow account for the benefit of such
Certificateholders, and the Master Servicer (if it exercised its right to
purchase the Mortgage Loans) or the Trustee (in any other case), shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee shall take appropriate steps
as directed by the Master Servicer to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining the escrow account and of contacting Certificateholders shall be
paid out of the assets which remain in the escrow account. If within nine months
after the second notice any Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to the Master Servicer all amounts
distributable to the holders thereof and the Master Servicer shall thereafter
hold such amounts until distributed to such Holders. No interest shall accrue or
be payable to any Certificateholder on any amount held in the escrow account or
by the Master Servicer as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section 9.01 and the Certificateholders shall look only to the Master Servicer
for such payment.
(e) If any Certificateholders do not surrender their Certificates on or before
the Distribution Date on which a purchase of the outstanding Certificates is to
be made, the Trustee shall on such date cause all funds in the Eligible Account
established by the Master Servicer deposited therein by the Master Servicer
pursuant to Section 9.01(b) to be withdrawn therefrom and deposited in a
separate escrow account for the benefit of such Certificateholders, and the
Master Servicer shall give a second written notice to such Certificateholders to
surrender their Certificates for payment of the purchase price therefor. If
within six months after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee shall take appropriate steps as
directed by the Master Servicer to contact the Holders of such Certificates
concerning surrender of their Certificates. The costs and expenses of
maintaining the escrow account and of contacting Certificateholders shall be
paid out of the assets which remain in the escrow account. If within nine months
after the second notice any Certificates shall not have been surrendered for
cancellation in accordance with this Section 9.01, the Trustee shall pay to the
Master Servicer all amounts distributable to the Holders thereof and shall have
no further obligation or liability therefor and the Master Servicer shall
thereafter hold such amounts until distributed to such Holders. No interest
shall accrue or be payable to any Certificateholder on any amount held in the
escrow account or by the Master Servicer as a result of such Certificateholder's
failure to surrender its Certificate(s) for payment in accordance with this
Section 9.01. Any Certificate that is not surrendered on the Distribution Date
on which a purchase pursuant to this Section 9.01 occurs as provided above will
be deemed to have been purchased and the Holder as of such date will have no
rights with respect thereto except to receive the purchase price therefor minus
any costs and expenses associated with such escrow account and notices allocated
thereto. Any Certificates so purchased or deemed to have been purchased on such
Distribution Date shall remain outstanding hereunder. The Master Servicer shall
be for all purposes the Holder thereof as of such date.
(f) With respect to the first possible Optional Termination Date, the Holder of
the Class SB Certificates shall have the sole option to exercise the purchase
options described in Section 9.01(a) and the Master Servicer shall have no claim
thereto. If the Holder of the Class SB Certificates elects not to exercise one
of its options to purchase pursuant to Section 9.01(a) with respect to the first
possible Optional Termination Date, it shall lose such right and have no claim
to exercise any purchase options pursuant to this Section 9.01 thereafter.
Beginning with the second possible Optional Termination Date and thereafter, the
Master Servicer shall have the sole option to exercise the purchase options
described in Section 9.01(a).
Section 9.02. Additional Termination Requirements
(a) Any REMIC hereunder, as the case may be, shall be terminated in accordance
with the following additional requirements, unless (subject to Section 10.01(f))
the Trustee and the Master Servicer have received an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee) to the effect that
the failure of any REMIC created hereunder as the case may be, to comply with
the requirements of this Section 9.02 will not (i) result in the imposition on
the Trust Fund of taxes on "prohibited transactions," as described in Section
860F of the Code, or (ii) cause any REMIC created hereunder to fail to qualify
as a REMIC at any time that any Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period for REMIC I,
REMIC II or REMIC III, as applicable, and any other related terminating REMICs,
and specify the first day of such period in a statement attached to REMIC I's,
REMIC II's or REMIC III's, as applicable, and any other related terminating
REMICs', final Tax Return pursuant to Treasury Regulations Section 1.860F-1. The
Master Servicer also shall satisfy all of the requirements of a qualified
liquidation for REMIC I under Section 860F of the Code and the regulations
thereunder;
(ii) The Master Servicer shall notify the Trustee at the commencement of such
90-day liquidation period and, at or prior to the time of making of the final
payment on the Certificates, the Trustee shall sell or otherwise dispose of all
of the remaining assets of the liquidating REMICs in accordance with the terms
hereof; and
(iii) If the Master Servicer is exercising its right to purchase the assets of
the Trust Fund, the Master Servicer shall, during the 90-day liquidation period
and at or prior to the Final Distribution Date, purchase all of the assets of
the liquidating REMICs for cash.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably approves and
appoints the Master Servicer as its attorney-in-fact to adopt a plan of complete
liquidation for any REMIC hereunder at the expense of the Trust Fund in
accordance with the terms and conditions of this Agreement.
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration
(a) The REMIC Administrator shall make an election to treat all REMICs created
hereunder as a REMIC under the Code and, if necessary, under applicable state
law. Each such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The REMIC I Regular Interests shall be designated as
the "regular interests" and the Class R-I Certificates shall be designated as
the sole Class of "residual interests" in the REMIC I. The REMIC II Regular
Interests shall be designated as the "regular interests" and the Class R-II
Certificates shall be designated as the sole Class of "residual interests" in
the REMIC II. The REMIC III Regular Interests shall be designated as the
"regular interests" and the Class R-III Certificates shall be designated as the
sole Class of "residual interests" in the REMIC III. The REMIC Administrator and
the Trustee shall not permit the creation of any "interests" (within the meaning
of Section 860G of the Code) in REMIC I, REMIC II or REMIC III other than the
REMIC I Regular Interests, the REMIC II Regular Interests, REMIC III Regular
Interest IO and the Certificates.
(b) The Closing Date is hereby designated as the "startup day" of each of REMIC
created hereunder within the meaning of Section 860G(a)(9) of the Code (the
"Startup Date").
(c) The REMIC Administrator shall hold a Class R Certificate in each REMIC
representing a 0.01% Percentage Interest of the Class R Certificates in each
REMIC and shall be designated as the "tax matters person" with respect to each
of in the manner provided under Treasury regulations section 1.860F-4(d) and
Treasury regulations Section 301.6231(a)(7)-1. The REMIC Administrator, as tax
matters person, shall (i) act on behalf of each of REMIC in relation to any tax
matter or controversy involving the Trust Fund and (ii) represent the Trust Fund
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor out of amounts attributable to the Mortgage Loans on deposit in the
Custodial Account as provided by Section 3.10 unless such legal expenses and
costs are incurred by reason of the REMIC Administrator's willful misfeasance,
bad faith or gross negligence. If the REMIC Administrator is no longer the
Master Servicer hereunder, at its option the REMIC Administrator may continue
its duties as REMIC Administrator and shall be paid reasonable compensation not
to exceed $3,000 per year by any successor Master Servicer hereunder for so
acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all of the Tax
Returns that it determines are required with respect to the REMICs created
hereunder and deliver such Tax Returns in a timely manner to the Trustee and the
Trustee shall sign and file such Tax Returns in a timely manner. The expenses of
preparing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The REMIC Administrator agrees to indemnify and
hold harmless the Trustee with respect to any tax or liability arising from the
Trustee's signing of Tax Returns that contain errors or omissions. The Trustee
and Master Servicer shall promptly provide the REMIC Administrator with such
information as the REMIC Administrator may from time to time request for the
purpose of enabling the REMIC Administrator to prepare Tax Returns.
(e) The REMIC Administrator shall provide (i) to any Transferor of a Class R
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee and the Trustee shall forward to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount, if any, and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service the name, title, address
and telephone number of the person who will serve as the representative of each
REMIC created hereunder.
(f) The Master Servicer and the REMIC Administrator shall take such actions and
shall cause each REMIC created hereunder to take such actions as are reasonably
within the Master Servicer's or the REMIC Administrator's control and the scope
of its duties more specifically set forth herein as shall be necessary or
desirable to maintain the status thereof as a REMIC under the REMIC Provisions
(and the Trustee shall assist the Master Servicer and the REMIC Administrator,
to the extent reasonably requested by the Master Servicer and the REMIC
Administrator to do so). In performing their duties as more specifically set
forth herein, the Master Servicer and the REMIC Administrator shall not
knowingly or intentionally take any action, cause the Trust Fund to take any
action or fail to take (or fail to cause to be taken) any action reasonably
within their respective control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any REMIC created hereunder as a
REMIC or (ii) result in the imposition of a tax upon any REMIC created hereunder
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code (except as provided in Section 2.04) and the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, in the absence of an Opinion of Counsel or the indemnification
referred to in this sentence, an "Adverse REMIC Event") unless the Master
Servicer or the REMIC Administrator, as applicable, has received an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the Master Servicer or the REMIC
Administrator, as applicable, determines that taking such action is in the best
interest of the Trust Fund and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Master Servicer, the REMIC
Administrator or the Trustee) to the effect that the contemplated action will
not, with respect to the Trust Fund created hereunder, endanger such status or,
unless the Master Servicer or the REMIC Administrator or both, as applicable,
determine in its or their sole discretion to indemnify the Trust Fund against
the imposition of such a tax, result in the imposition of such a tax. Wherever
in this Agreement a contemplated action may not be taken because the timing of
such action might result in the imposition of a tax on the Trust Fund, or may
only be taken pursuant to an Opinion of Counsel that such action would not
impose a tax on the Trust Fund, such action may nonetheless be taken provided
that the indemnity given in the preceding sentence with respect to any taxes
that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action or inaction,
as the case may be. In addition, prior to taking any action with respect to the
Trust Fund or its assets, or causing the Trust Fund to take any action, which is
not expressly permitted under the terms of this Agreement, the Trustee shall
consult with the Master Servicer or the REMIC Administrator, as applicable, or
its designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to the Trust Fund and the Trustee
shall not take any such action or cause the Trust Fund to take any such action
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that an Adverse REMIC Event could occur. The Master
Servicer or the REMIC Administrator, as applicable, may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the expense of the Master Servicer or the REMIC Administrator. At all
times as may be required by the Code, the Master Servicer or the REMIC
Administrator, as applicable, will to the extent within its control and the
scope of its duties more specifically set forth herein, maintain substantially
all of the assets of the REMIC as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of any
REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on "net
income from foreclosure property" of any REMIC as defined in Section 860G(c) of
the Code, on any contributions to any REMIC after the Startup Date therefor
pursuant to Section 860G(d) of the Code, or any other tax imposed by the Code or
any applicable provisions of state or local tax laws, such tax shall be charged
(i) to the Master Servicer, if such tax arises out of or results from a breach
by the Master Servicer in its role as Master Servicer or REMIC Administrator of
any of its obligations under this Agreement or the Master Servicer has in its
sole discretion determined to indemnify the Trust Fund against such tax, (ii) to
the Trustee, if such tax arises out of or results from a breach by the Trustee
of any of its obligations under this Article X, or (iii) otherwise against
amounts on deposit in the Custodial Account as provided by Section 3.10 and on
the Distribution Date(s) following such reimbursement the aggregate of such
taxes shall be allocated in reduction of the Accrued Certificate Interest on
each Class entitled thereto in the same manner as if such taxes constituted a
Prepayment Interest Shortfall.
(h) The Trustee and the Master Servicer shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Date, neither the Master Servicer nor the Trustee
shall accept any contributions of assets to any REMIC unless (subject to Section
10.01(f)) the Master Servicer and the Trustee shall have received an Opinion of
Counsel (at the expense of the party seeking to make such contribution) to the
effect that the inclusion of such assets in any REMIC will not cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject any such REMIC to any tax under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(j) Neither the Master Servicer nor the Trustee shall (subject to Section
10.01(f)) enter into any arrangement by which any REMIC created hereunder will
receive a fee or other compensation for services nor permit any REMIC created
hereunder to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(k) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the principal balance
of each regular interest in each REMIC would be reduced to zero is the
Distribution Date in September, 2035, which is the Distribution Date in the
month following the last scheduled payment on any Mortgage Loan.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for the Trust Fund.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of any REMIC pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement) or
acquire any assets for any REMIC or sell or dispose of any investments in the
Custodial Account or the Certificate Account for gain, or accept any
contributions to any REMIC after the Closing Date unless it has received an
Opinion of Counsel that such sale, disposition, substitution or acquisition will
not (a) affect adversely the status of any REMIC created hereunder as a REMIC or
(b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause any REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification
(a) The Trustee agrees to indemnify the Trust Fund, the Depositor, the REMIC
Administrator and the Master Servicer for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Master Servicer, as a result of a breach of the
Trustee's covenants set forth in Article VIII or this Article X. In the event
that Residential Funding is no longer the Master Servicer, the Trustee shall
indemnify Residential Funding for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by Residential
Funding as a result of a breach of the Trustee's covenants set forth in Article
VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the Depositor,
the Master Servicer and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by the Trust
Fund, the Depositor, the Master Servicer or the Trustee, as a result of a breach
of the REMIC Administrator's covenants set forth in this Article X with respect
to compliance with the REMIC Provisions, including without limitation, any
penalties arising from the Trustee's execution of Tax Returns prepared by the
REMIC Administrator that contain errors or omissions; provided, however, that
such liability will not be imposed to the extent such breach is a result of an
error or omission in information provided to the REMIC Administrator by the
Master Servicer in which case Section 10.02(c) will apply.
(c) The Master Servicer agrees to indemnify the Trust Fund, the Depositor, the
REMIC Administrator and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by the Trust
Fund, the Depositor, the REMIC Administrator or the Trustee, as a result of a
breach of the Master Servicer's covenants set forth in this Article X or in
Article III with respect to compliance with the REMIC Provisions, including
without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the Master Servicer that contain errors or omissions.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment
(a) This Agreement or any Custodial Agreement may be amended from time to time
by the Depositor, the Master Servicer and the Trustee, without the consent of
any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be
inconsistent with any other provisions herein or therein or to correct any
error,
(iii) to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or desirable to maintain the qualification of any REMIC
created hereunder as a REMIC at all times that any Certificate is outstanding or
to avoid or minimize the risk of the imposition of any tax on the Trust Fund
pursuant to the Code that would be a claim against the Trust Fund, provided that
the Trustee has received an Opinion of Counsel to the effect that (A) such
action is necessary or desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax and (B) such action will not
adversely affect in any material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Custodial Account
or the Certificate Account or to change the name in which the Custodial Account
is maintained, provided that (A) the Certificate Account Deposit Date shall in
no event be later than the related Distribution Date, (B) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Certificateholder and (C) such change shall not result in a
reduction of the rating assigned to any Class of Certificates below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date, after notice to Moody's or as evidenced by a letter from Standard
& Poor's to such effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(f) or any
other provision hereof restricting transfer of the Class R Certificates by
virtue of their being the "residual interests" in the Trust Fund provided that
(A) such change shall not result in reduction of the rating assigned to any such
Class of Certificates below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date, as evidenced by a letter
from each Rating Agency to such effect, and (B) such change shall not (subject
to Section 10.01(f)), as evidenced by an Opinion of Counsel (at the expense of
the party seeking so to modify, eliminate or add such provisions), cause the
Trust Fund or any of the Certificateholders (other than the transferor) to be
subject to a federal tax caused by a transfer to a Person that is not a
Permitted Transferee, or
(vi) to make any other provisions with respect to matters or questions arising
under this Agreement or such Custodial Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and is authorized or
permitted under Section 11.01.
(b) This Agreement or any Custodial Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Trustee and the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Certificates with a Certificate Principal Balance
greater than zero affected thereby for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or such Custodial Agreement or of modifying in any manner the rights of the
Holders of Certificates of such Class; provided, however, that no such amendment
shall:
(i) reduce in any manner the amount of, or delay the timing of, payments which
are required to be distributed on any Certificate without the consent of the
Holder of such Certificate, or
(ii) adversely affect in any material respect the interest of the Holders of
Certificates of any Class in a manner other than as described in clause (i)
hereof without the consent of Holders of Certificates of such Class evidencing,
as to such Class, Percentage Interests aggregating not less than 66%, or
(iii) reduce the aforesaid percentage of Certificates of any Class the Holders
of which are required to consent to any such amendment, in any such case without
the consent of the Holders of all Certificates of such Class then outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (at the expense of the party seeking such
amendment) to the effect that such amendment or the exercise of any power
granted to the Master Servicer, the Depositor or the Trustee in accordance with
such amendment will not result in the imposition of a federal tax on the Trust
Fund or cause any REMIC hereunder to fail to qualify as a REMIC at any time that
any Certificate is outstanding; provided, that if the indemnity described in
Section 10.01(f) with respect to any taxes that might be imposed on the Trust
Fund has been given, the Trustee shall not require the delivery to it of the
Opinion of Counsel described in this Section 11.01(c). The Trustee may but shall
not be obligated to enter into any amendment pursuant to this Section that
affects its rights, duties and immunities and this Agreement or otherwise;
provided, however, such consent shall not be unreasonably withheld.
(d) Promptly after the execution of any such amendment the Trustee shall furnish
written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(e) The Depositor shall have the option, in its sole discretion, to obtain and
deliver to the Trustee any corporate guaranty, payment obligation, irrevocable
letter of credit, surety bond, insurance policy or similar instrument or a
reserve fund, or any combination of the foregoing, for the purpose of protecting
the Holders of the Class R Certificates against any or all Realized Losses or
other shortfalls. Any such instrument or fund shall be held by the Trustee for
the benefit of the Class R Certificateholders, but shall not be and shall not be
deemed to be under any circumstances included in any REMIC. To the extent that
any such instrument or fund constitutes a reserve fund for federal income tax
purposes, (i) any reserve fund so established shall be an outside reserve fund
and not an asset of such REMIC, (ii) any such reserve fund shall be owned by the
Depositor, and (iii) amounts transferred by such REMIC to any such reserve fund
shall be treated as amounts distributed by such REMIC to the Depositor or any
successor, all within the meaning of Treasury regulations Section 1.860G-2(h) in
effect as of the Cut-off Date. In connection with the provision of any such
instrument or fund, this Agreement and any provision hereof may be modified,
added to, deleted or otherwise amended in any manner that is related or
incidental to such instrument or fund or the establishment or administration
thereof, such amendment to be made by written instrument executed or consented
to by the Depositor and such related insurer but without the consent of any
Certificateholder and without the consent of the Master Servicer or the Trustee
being required unless any such amendment would impose any additional obligation
on, or otherwise adversely affect the interests of the Certificateholders, the
Master Servicer or the Trustee, as applicable; provided that the Depositor
obtains an Opinion of Counsel (which need not be an opinion of Independent
counsel) to the effect that any such amendment will not cause (a) any federal
tax to be imposed on the Trust Fund, including without limitation, any federal
tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or
on "contributions after the startup date" under Section 860G(d)(1) of the Code
and (b) any REMIC created hereunder to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(f) Notwithstanding anything to the contrary set forth in Sections 11.01 (b),
(c), (d), and (e), any amendment of Sections 4.02(c)(x) and 4.08 of this
Agreement shall require the consent of the Swap Counterparty as a third-party
beneficiary of Sections 4.02(c)(x) and 4.08 of this Agreement.
Section 11.02. Recordation of Agreement; Counterparts
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer and at its expense on direction by the Trustee (pursuant to the
request of the Holders of Certificates entitled to at least 25% of the Voting
Rights), but only upon direction accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 11.03. Limitation on Rights of Certificateholders
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of any of the parties
hereto.
(b) No Certificateholder shall have any right to vote (except as expressly
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
of any Class evidencing in the aggregate not less than 25% of the related
Percentage Interests of such Class, shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee shall have given its written consent and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding it being understood and intended, and being expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustee, that
no one or more Holders of Certificates of any Class shall have any right in any
manner whatever by virtue of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates of such
Class or any other Class, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
Certificateholders of such Class or all Classes, as the case may be. For the
protection and enforcement of the provisions of this Section 11.03, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 11.04. Governing Law
This agreement and the Certificates shall be governed by and construed
in accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 11.05. Notices
All demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid (except for notices to the Trustee which shall
be deemed to have been duly given only when received), to (a) in the case of the
Depositor, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President (RAMP), or such other address as may hereafter be
furnished to the Master Servicer and the Trustee in writing by the Depositor;
(b) in the case of the Master Servicer, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Bond Administration or such other address as
may be hereafter furnished to the Depositor and the Trustee by the Master
Servicer in writing; (c) in the case of the Trustee, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Residential Asset Mortgage Products, Inc.
Series 2005-RZ3, or such other address as may hereafter be furnished to the
Depositor and the Master Servicer in writing by the Trustee; (d) in the case of
Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage Surveillance or such other address as may be hereafter
furnished to the Depositor, Trustee and Master Servicer by Standard & Poor's;
(e) in the case of Moody's, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ABS Monitoring Department, or such other address as may be hereafter
furnished to the Depositor, the Trustee and the Master Servicer in writing by
Moody's; and (f) in the case of the Swap Counterparty, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other address as may be hereafter
furnished to the Depositor, the Trustee and the Master Servicer in writing by
the Swap Counterparty. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 11.06. Notices to Rating Agencies
The Depositor, the Master Servicer or the Trustee, as applicable, (a)
shall notify each Rating Agency at such time as it is otherwise required
pursuant to this Agreement to give notice of the occurrence of any of the events
described in clause (i), (ii), (iii), (iv), (vii), (viii), (ix) or (x) below,
(b) shall notify the Subservicer at such time as it is otherwise required
pursuant to this Agreement to give notice of the occurrence of any of the events
described in clause (i), (ii), (iii)(1), (vii)(1) or (ix) below, or (c) provide
a copy to each Rating Agency at such time as otherwise required to be delivered
pursuant to this Agreement of any of the statements described in clauses (v) and
(vi) below:
(i) a material change or amendment to this Agreement,
(ii) the occurrence of an Event of Default,
(iii) (1) the termination or appointment of a successor Master Servicer or (2)
the termination or appointment of a successor Trustee or a change in the
majority ownership of the Trustee,
(iv) the filing of any claim under the Master Servicer's blanket fidelity bond
and the errors and omissions insurance policy required by Section 3.12 or the
cancellation or modification of coverage under any such instrument,
(v) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(vi) the statements required to be delivered pursuant to Sections 3.18 and 3.19,
(vii) (1) a change in the location of the Custodial Account or (2) a change in
the location of the Certificate Account,
(viii) the occurrence of any monthly cash flow shortfall to the Holders of any
Class of Certificates resulting from the failure by the Master Servicer to make
an Advance pursuant to Section 4.04,
(ix) the occurrence of the Final Distribution Date, and
(x) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (iv), (vii) or (viii) above, the Master Servicer shall
provide prompt written notice to each Rating Agency and the Subservicer, if
applicable, of any such event known to the Master Servicer.
Section 11.07. Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.08. Supplemental Provisions for Resecuritization
(a) This Agreement may be supplemented by means of the addition of a separate
Article hereto (a "Supplemental Article") for the purpose of resecuritizing any
of the Certificates issued hereunder, under the following circumstances. With
respect to any Class or Classes of Certificates issued hereunder, or any portion
of any such Class, as to which the Depositor or any of its Affiliates (or any
designee thereof) is the registered Holder (the "Resecuritized Certificates"),
the Depositor may deposit such Resecuritized Certificates into a new REMIC,
grantor trust or custodial arrangement (a "Restructuring Vehicle") to be held by
the Trustee pursuant to a Supplemental Article. The instrument adopting such
Supplemental Article shall be executed by the Depositor, the Master Servicer and
the Trustee; provided, that neither the Master Servicer nor the Trustee shall
withhold their consent thereto if their respective interests would not be
materially adversely affected thereby. To the extent that the terms of the
Supplemental Article do not in any way affect any provisions of this Agreement
as to any of the Certificates initially issued hereunder, the adoption of the
Supplemental Article shall not constitute an "amendment" of this Agreement.
(b) Each Supplemental Article shall set forth all necessary provisions relating
to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions to be made
thereon, and any other provisions necessary to the purposes thereof. In
connection with each Supplemental Article, the Depositor shall deliver to the
Trustee an Opinion of Counsel to the effect that (i) the Restructuring Vehicle
will qualify as a REMIC, grantor trust or other entity not subject to taxation
for federal income tax purposes and (ii) the adoption of the Supplemental
Article will not endanger the status of any REMIC created hereunder as a REMIC
or result in the imposition of a tax upon the Trust Fund (including but not
limited to the tax on prohibited transaction as defined in Section 860F(a)(2) of
the Code and the tax on contributions to a REMIC as set forth in Section 860G(d)
of the Code.
Section 11.09. Intended Third Party Beneficiary
The Swap Counterparty is an express third-party beneficiary of Sections
4.02(c)(x) and 4.08 of this Agreement, and shall have the right to enforce the
provisions of Sections 4.02(c)(x) and 4.08 of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Depositor, the Master Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, duly attested, to be
hereunto affixed, all as of the date and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
By: __________________________
Name:
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
By: __________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Trustee
By: __________________________
Name:
Title: Vice President
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ___ day of September, 2005, before me, a notary public in and for
said State, personally appeared _______________, known to me to be a Vice
President of Residential Asset Mortgage Products, Inc., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
[Notarial Seal]
STATE OF MINNESOTA
) ss.:
COUNTY OF HENNEPIN )
On the ___ day of September, 2005, before me, a notary public in and for
said State, personally appeared ____________, known to me to be a Managing
Director of Residential Funding Corporation, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK )
On the ___ day of September, 2005, before me, a notary public in and for
said State, personally appeared ______________, known to me to be a Assistant
Vice President of JPMorgan Chase Bank, N.A., a New York banking corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said banking corporation, and acknowledged to me that
such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
[Notarial Seal]
EXHIBIT A
FORM OF CLASS A-[ ] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 COUPLED WITH THE RIGHT TO RECEIVE PAYMENTS UNDER THE SWAP
AGREEMENT.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS
IN SECTION 5.02(E) OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND
HOLD HARMLESS THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, ANY SUBSERVICER,
AND THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Certificate No. 1
CUSIP: [______]
Date of Pooling and Servicing Agreement and Adjustable Pass-Through Rate
Cut-off Date:
September 1, 2005
First Distribution Date:
October 25, 2005 Percentage Interest: 100%
Master Servicer: Aggregate Initial Certificate Principal Balance
Residential Funding Corporation of the Class A-[] Certificates: $_________
Final Scheduled Distribution Date: Initial Certificate Principal Balance of this
_________ __, ____ Class A-[ ] Certificate:
$_________
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2005-RZ3
evidencing a percentage interest in the distributions
allocable to the Class A-[ ] Certificates with respect to a
Trust Fund consisting primarily of a pool of one- to
two-family fixed and adjustable interest rate, first lien
mortgage loans sold by RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
GMAC Mortgage Group, Inc. or any of their affiliates. Neither this Certificate
nor the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Asset Mortgage Products, Inc., the
Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their
affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group,
Inc. or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class A-[ ] Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of one- to two-family fixed and
adjustable interest rate, first lien mortgage loans (the "Mortgage Loans"), sold
by Residential Asset Mortgage Products, Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement
referred to below). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as specified above (the "Agreement") among the
Depositor, the Master Servicer and JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the day prior (or if such last day is not
a Business Day, the Business Day immediately preceding such day) to such
Distribution Date (the "Record Date"), from the Available Distribution Amount in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount of interest and principal, if any, required to be
distributed to Holders of Class A-[ ] Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of, this Certificate at the office or agency
appointed by the Trustee for that purpose in the City and State of New York. The
Initial Certificate Principal Balance of this Certificate is set forth above.
The Certificate Principal Balance hereof will be reduced from time to time
pursuant to the Agreement.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Asset-Backed Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Depositor and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate or any interest therein shall be made
to any employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or any
person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition (each of the
foregoing, a "Plan Investor").
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and (ii) the purchase by the Master Servicer
or Holder of the Class SB Certificates, as described in the Agreement, thereby
effecting early retirement of the related Certificates. The Agreement permits,
but does not require, the purchase by the Master Servicer or Holder of the Class
SB Certificates, as described in the Agreement, (i) from the Trust Fund of all
remaining Mortgage Loans and all property acquired in respect of such Mortgage
Loans, at a price determined as provided in the Agreement, or (ii) in whole, but
not in part, of all of the Class A Certificates, Class M Certificates and Class
SB Certificates from the Holders thereof; provided, that any such options may
only be exercised if the Stated Principal Balance of the Mortgage Loans (before
giving effect to the distributions to be made on such Distribution Date), as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:___________________________________
Authorized Signatory
Dated: September 23, 2005
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[ ] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A.,
as Certificate Registrar
By:___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Asset-Backed Pass-Through
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to __________________________________for the account
of __________________________ account number or, if mailed by check, to
____________________________.
Applicable statements should be mailed to: ______________________.
This information is provided by _____________________, the assignee
named above, or _______________, as its agent.
EXHIBIT B
FORM OF CLASS M-[ ] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A AND
CLASS M-[_] CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE") COUPLED WITH A RIGHT TO RECEIVE PAYMENTS UNDER
THE SWAP AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS
IN SECTION 5.02(E) OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND
HOLD HARMLESS THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, ANY SUBSERVICER,
AND THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Certificate No. M-[ ]
CUSIP: [______]
Date of Pooling and Servicing Agreement and Adjustable Pass-Through Rate
Cut-off Date:
September 1, 2005
First Distribution Date:
October 25, 2005 Aggregate Initial Certificate Principal Balance
of the Class M-[ ]Certificates: $______
Master Servicer:
Residential Funding Corporation
Final Scheduled Distribution Date: Initial Certificate Principal Balance of the
_________ __, ____ Class M-[ ]
Certificates: $_________
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2005-RZ3
evidencing a percentage interest in the distributions
allocable to the Class M-[ ] Certificates with respect to a
Trust Fund consisting primarily of a pool of one- to
two-family fixed and adjustable interest rate, first lien
mortgage loans sold by RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
GMAC Mortgage Group, Inc. or any of their affiliates. Neither this Certificate
nor the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Asset Mortgage Products, Inc., the
Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their
affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group,
Inc. or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class M-_ Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of one- to two-family fixed and
adjustable rate, first lien mortgage loans (the "Mortgage Loans"), sold by
Residential Asset Mortgage Products, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement referred to below).
The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as specified above (the "Agreement") among the Depositor, the Master Servicer
and JPMorgan Chase Bank, N.A., as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the day prior (or if such last day is not
a Business Day, the Business Day immediately preceding such day) to such
Distribution Date (the "Record Date"), from the Available Distribution Amount in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount of interest and principal, if any, required to be
distributed to Holders of Class M-[ ] Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of the
distributions allocable to principal and any Realized Losses allocable hereto.
No transfer of this Certificate or any interest therein shall be made
to any employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or any
person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition (each of the
foregoing, a "Plan Investor").
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Asset-Backed Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates"). The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders. As provided in the Agreement,
withdrawals from the Custodial Account and/or the Certificate Account created
for the benefit of Certificateholders may be made by the Master Servicer from
time to time for purposes other than distributions to Certificateholders, such
purposes including without limitation reimbursement to the Depositor and the
Master Servicer of advances made, or certain expenses incurred, by either of
them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and (ii) the purchase by the Master Servicer
or Holder of the Class SB Certificates, as described in the Agreement, thereby
effecting early retirement of the related Certificates. The Agreement permits,
but does not require, the purchase by the Master Servicer or Holder of the Class
SB Certificates, as described in the Agreement, (i) from the Trust Fund of all
remaining Mortgage Loans and all property acquired in respect of such Mortgage
Loans, at a price determined as provided in the Agreement, or (ii) in whole, but
not in part, of all of the Class A Certificates, Class M Certificates and Class
SB Certificates from the Holders thereof; provided, that any such options may
only be exercised if the Stated Principal Balance of the Mortgage Loans (before
giving effect to the distributions to be made on such Distribution Date), as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:___________________________________
Authorized Signatory
Dated: September 23, 2005
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[ ] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A.,
as Certificate Registrar
By:___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Asset-Backed Pass-Through
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to __________________________________for the account
of __________________________ account number or, if mailed by check, to
____________________________.
Applicable statements should be mailed to: ______________________.
This information is provided by _____________________, the assignee
named above, or _______________, as its agent.
EXHIBIT C
FORM OF CLASS SB CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND CLASS M CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT (THE "AGREEMENT").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
Certificate No. 1
CUSIP:__________
Date of Pooling and Servicing Agreement and Percentage Interest: 100%
Cut-off Date:
September 1, 2005
First Distribution Date: Aggregate Certificate Principal Balance of the
October 25, 2005 Class SB Certificates: $______
Master Servicer:
Residential Funding Corporation
Final Scheduled Distribution Date: Initial Certificate Principal Balance of this
December 25, 2034 Certificate: $_________
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2005-RZ3
evidencing a percentage interest in the distributions
allocable to the Class SB Certificates with respect to a Trust
Fund consisting primarily of a pool of one- to two-family
fixed and adjustable interest rate, first lien mortgage loans
sold by RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
any of their affiliates. Neither this Certificate nor the underlying Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality or
by Residential Asset Mortgage Products, Inc., the Master Servicer, the Trustee
or any of their affiliates. None of the Depositor, the Master Servicer or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Certificate Principal Balance of this Certificate by the aggregate Certificate
Principal Balance of all Class SB Certificates, both as specified above) in
certain distributions with respect to the Trust Fund consisting primarily of an
interest in a pool of one- to two-family fixed and adjustable interest rate,
first lien mortgage loans (the "Mortgage Loans"), sold by Residential Asset
Mortgage Products, Inc. (hereinafter called the "Depositor," which term includes
any successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as specified above
(the "Agreement") among the Depositor, the Master Servicer and JPMorgan Chase
Bank, N.A., as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof, assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last 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 in which the related Distribution Date
occurs (the "Record Date"), from the Available Distribution Amount in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount of interest and principal, if any, required to be distributed to
Holders of Class SB Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York.
The Notional Amount of this Class SB Certificate as of any date of
determination will be calculated as described in the Agreement. This Class SB
Certificate will not accrue interest on its Certificate Principal Balance.
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, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Depositor may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee 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 of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described by the Agreement. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Master Servicer and the Certificate Registrar acting on behalf of
the Trustee 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 this Certificate or any interest therein shall be made
to any employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or any
person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition (each of the
foregoing, a "Plan Investor").
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Asset-Backed Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Depositor and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the. Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and (ii) the purchase by the Master Servicer
or Holder of the Class SB Certificates, as described in the Agreement, thereby
effecting early retirement of the related Certificates. The Agreement permits,
but does not require, the purchase by the Master Servicer or Holder of the Class
SB Certificates, as described in the Agreement, (i) from the Trust Fund of all
remaining Mortgage Loans and all property acquired in respect of such Mortgage
Loans, at a price determined as provided in the Agreement, or (ii) in whole, but
not in part, of all of the Class A Certificates, Class M Certificates and Class
SB Certificates from the Holders thereof; provided, that any such options may
only be exercised if the Stated Principal Balance of the Mortgage Loans (before
giving effect to the distributions to be made on such Distribution Date), as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:___________________________________
Authorized Signatory
Dated: September 23, 2005
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[ ] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A.,
as Certificate Registrar
By:___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Asset-Backed Pass-Through
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to __________________________________for the account
of __________________________ account number or, if mailed by check, to
____________________________.
Applicable statements should be mailed to: ______________________.
This information is provided by _____________________, the assignee
named above, or _______________, as its agent.
EXHIBIT D
FORM OF CLASS R-[__] CERTIFICATE
THE CLASS R-[_] CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS
CONSTITUTING THE AVAILABLE DISTRIBUTION AMOUNT UNTIL SUCH TIME AS DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN (THE "AGREEMENT").
THIS CLASS R-[_] CERTIFICATE IS SUBORDINATE TO THE CLASS A, CLASS M AND
CLASS SB CERTIFICATES, TO THE EXTENT DESCRIBED HEREIN AND IN THE AGREEMENT.
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").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT (THE "AGREEMENT").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER
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 ▇▇▇▇▇▇▇ MAC, 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-__ Subordinate
Date of Pooling and Servicing Agreement and Percentage Interest: 100%
Cut-off Date:
September 1, 2005
First Distribution Date: Final Scheduled Distribution Date:
October 25, 2005 _________ __, ____
Master Servicer:
Residential Funding Corporation
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2005-RZ3
evidencing a percentage interest in the distributions
allocable to the Class R-__ Certificates with respect to a
Trust Fund consisting primarily of a pool of one- to
two-family fixed and adjustable interest rate, first lien
mortgage loans sold by RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC.
This Certificate is payable solely from the assets of the Trust Fund
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
GMAC Mortgage Group, Inc. or any of their affiliates. Neither this Certificate
nor the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Asset Mortgage Products, Inc., the
Master Servicer, the Trustee or GMAC Mortgage Group, Inc or any of their
affiliates. None of the Depositor, the Master Servicer or GMAC Mortgage Group,
Inc or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in certain
distributions with respect to the Trust Fund consisting primarily of a pool of
one- to two-family fixed and adjustable interest rate, first lien mortgage loans
(the "Mortgage Loans"), sold by Residential Asset Mortgage Products, Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Agreement referred to below). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as specified above (the "Agreement) among
the Depositor, the Master Servicer and JPMorgan Chase Bank, N.A., as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last 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"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any, required to be distributed to Holders of Class R-__
Certificates on such Distribution Date.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Master Servicer will have the right,
in its sole discretion and without notice to the Holder of this Certificate, to
sell this Certificate to a purchaser selected by the Master Servicer, which
purchaser may be the Master Servicer, or any affiliate of the Master Servicer,
on such terms and conditions as the Master Servicer may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Holder of
this Certificate may have additional obligations with respect to this
Certificate, including tax liabilities.
No transfer of this Class R-_ Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Depositor may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee 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 of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described by the Agreement. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Master Servicer and the Certificate Registrar acting on behalf of
the Trustee 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 this Certificate or any interest herein shall be made to
any employee benefit plan or other plan or arrangement subject to the prohibited
transaction provisions 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
acquiring such Certificates with "plan assets" of a Plan within the meaning of
the Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101 unless
the Depositor, the Trustee and the Master Servicer are provided with an Opinion
of Counsel which establishes to the satisfaction of the Depositor, the Trustee
and the Master Servicer that the purchase or holding of this Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Master Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Master
Servicer, the Trustee or the Trust Fund. In lieu of such Opinion of Counsel, a
Person acquiring this Certificate may provide a certification in the form of
paragraph fifteen of Exhibit H-1 to the Agreement, which the Trustee may rely
upon without further inquiry or investigation.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Asset-Backed Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Depositor and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and (ii) the purchase by the Master Servicer
or Holder of the Class SB Certificates, as described in the Agreement, thereby
effecting early retirement of the related Certificates. The Agreement permits,
but does not require, the purchase by the Master Servicer or Holder of the Class
SB Certificates, as described in the Agreement, (i) from the Trust Fund of all
remaining Mortgage Loans and all property acquired in respect of such Mortgage
Loans, at a price determined as provided in the Agreement, or (ii) in whole, but
not in part, of all of the Class A Certificates, Class M Certificates and Class
SB Certificates from the Holders thereof; provided, that any such options may
only be exercised if the Stated Principal Balance of the Mortgage Loans (before
giving effect to the distributions to be made on such Distribution Date), as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:___________________________________
Authorized Signatory
Dated: September 23, 2005
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[ ] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, N.A.,
as Certificate Registrar
By:___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Asset-Backed Pass-Through
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to __________________________________for the account
of __________________________ account number or, if mailed by check, to
____________________________.
Applicable statements should be mailed to: ______________________.
This information is provided by _____________________, the assignee
named above, or _______________, as its agent.
EXHIBIT E
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of September 1, 2005, by and among JPMORGAN
CHASE BANK, N.A., as trustee (including its successors under the Pooling
Agreement defined below, the "Trustee"), RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC., as company (together with any successor in interest, the "Company"),
RESIDENTIAL FUNDING CORPORATION, as master servicer (together with any successor
in interest or successor under the Pooling Agreement referred to below, the
"Master Servicer") and ▇▇▇▇▇ FARGO BANK, N.A., as custodian (together with any
successor in interest or any successor appointed hereunder, the "Custodian").
W I T N E S S E T H T H A T:
WHEREAS, the Company, the Master Servicer, and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of September 1, 2005, relating
to the issuance of Residential Asset Mortgage Products, Inc., Mortgage
Asset-Backed Pass-Through Certificates, Series 2005-RZ3 (as in effect on the
date of this Agreement, the "Original Pooling Agreement," and as amended and
supplemented from time to time, the "Pooling Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company and the Master Servicer under the Pooling Agreement,
all upon the terms and conditions and subject to the limitations hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Original Pooling Agreement, unless otherwise
required by the context herein.
ARTICLE II
Custody of Mortgage Documents
Section 2.1 Custodian to Act as Agent: Acceptance of Mortgage Files. The
Custodian, as the duly appointed agent of the Trustee for these purposes,
acknowledges receipt of the Mortgage Files relating to the Mortgage Loans
identified on the schedule attached hereto (the "Mortgage Files") and declares
that it holds and will hold the Mortgage Files as agent for the Trustee, in
trust, for the use and benefit of all present and future Certificateholders.
Section 2.2 Recordation of Assignments. If any Mortgage File includes one or
more assignments of the related Mortgage Loans to the Trustee that have not been
recorded, each such assignment shall be delivered by the Custodian to the
Company for the purpose of recording it in the appropriate public office for
real property records, and the Company, at no expense to the Custodian, shall
promptly cause to be recorded in the appropriate public office for real property
records each such assignment and, upon receipt thereof from such public office,
shall return each such assignment to the Custodian.
Section 2.3 Review of Mortgage Files.
(a) On or prior to the Closing Date, the Custodian shall deliver to the Trustee
an Initial Certification in the form annexed hereto as Exhibit One evidencing
receipt of a Mortgage File for each Mortgage Loan listed on the Schedule
attached hereto (the "Mortgage Loan Schedule"). The parties hereto acknowledge
that certain documents referred to in Subsection 2.01(b)(i) of the Pooling
Agreement may be missing on or prior to the Closing Date and such missing
documents shall be listed as a Schedule to Exhibit One.
(b) Within 45 days after the Closing Date, the Custodian agrees, for the benefit
of Certificateholders, to review in accordance with the provisions of Section
2.02 of the Pooling Agreement each Mortgage File and to deliver to the Trustee
an Interim Certification in the form annexed hereto as Exhibit Two to the effect
that all documents required to be delivered pursuant to Section 2.01 (b) of the
Pooling Agreement have been executed and received and that such documents relate
to the Mortgage Loans identified on the Mortgage Loan Schedule, except for any
exceptions listed on Schedule A attached to such Interim Certification. For
purposes of such review, the Custodian shall compare the following information
in each Mortgage File to the corresponding information in the Mortgage Loan
Schedule: (i) the loan number, (ii) the borrower name and (iii) the original
principal balance. In the event that any Mortgage Note or Assignment of Mortgage
has been delivered to the Custodian by the Company in blank, the Custodian, upon
the direction of the Company, shall cause each such Mortgage Note to be endorsed
to the Trustee and each such Assignment of Mortgage to be completed in the name
of the Trustee prior to the date on which such Interim Certification is
delivered to the Trustee. Within 45 days of receipt of the documents required to
be delivered pursuant to Section 2.01(c) of the Pooling Agreement, the Custodian
agrees, for the benefit of the Certificateholders, to review each such document,
and upon the written request of the Trustee to deliver to the Trustee and an
updated Schedule A to the Interim Certification. The Custodian shall be under no
duty or obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable, or appropriate for the represented purpose or that they have
actually been recorded or that they are other than what they purport to be on
their face, or that the MIN is accurate. If in performing the review required by
this Section 2.3 the Custodian finds any document or documents constituting a
part of a Mortgage File to be missing or defective in respect of the items
reviewed as described in this Section 2.3(b), the Custodian shall promptly so
notify the Company, the Master Servicer and the Trustee.
(c) Upon receipt of all documents required to be in the Mortgage Files the
Custodian shall deliver to the Trustee a Final Certification in the form annexed
hereto as Exhibit Three evidencing the completeness of the Mortgage Files.
Upon receipt of written request from the Trustee, the Company or the
Master Servicer, the Custodian shall as soon as practicable supply the Trustee
with a list of all of the documents relating to the Mortgage Loans required to
be delivered pursuant to Section 2.01 (b) of the Pooling Agreement not then
contained in the Mortgage Files.
Section 2.4 Notification of Breaches of Representations and Warranties. If the
Custodian discovers, in the course of performing its custodial functions, a
breach of a representation or warranty made by the Master Servicer or the
Company as set forth in the Pooling Agreement with respect to a Mortgage Loan
relating to a Mortgage File, the Custodian shall give prompt written notice to
the Company, the Master Servicer and the Trustee.
Section 2.5 Custodian to Cooperate: Release of Mortgage Files. Upon the
repurchase or substitution of any Mortgage Loan pursuant to Article II of the
Pooling Agreement or payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer shall immediately notify
the Custodian by delivering to the Custodian a Request for Release (in the form
of Exhibit Four attached hereto or a mutually acceptable electronic form) and
shall request delivery to it of the Mortgage File. The Custodian agrees, upon
receipt of such Request for Release, promptly to release to the Master Servicer
the related Mortgage File.
Upon receipt of a Request for Release from the Master Servicer, signed
by a Servicing Officer, that (i) the Master Servicer or a Subservicer, as the
case may be, has made a deposit into the Certificate Account in payment for the
purchase of the related Mortgage Loan in an amount equal to the Purchase Price
for such Mortgage Loan or (ii) the Company has chosen to substitute a Qualified
Substitute Mortgage Loan for such Mortgage Loan, the Custodian shall release to
the Master Servicer the related Mortgage File.
Upon written notification of a substitution, the Master Servicer shall
deliver to the Custodian and the Custodian agrees to accept the Mortgage Note
and other documents constituting the Mortgage File with respect to any Qualified
Substitute Mortgage Loan, upon receiving written notification from the Master
Servicer of such substitution.
From time to time as is appropriate for the servicing or foreclosures
of any Mortgage Loan, including, for this purpose, collection under any Primary
Insurance Policy or any Mortgage Pool Insurance Policy, the Master Servicer
shall deliver to the Custodian a Request for Release certifying as to the reason
for such release. Upon receipt of the foregoing, the Custodian shall deliver the
Mortgage File or such document to the Master Servicer. The Master Servicer shall
cause each Mortgage File or any document therein so released to be returned to
the Custodian when the need therefor by the Master Servicer no longer exists,
unless (i) the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Custodial Account or
(ii) the Mortgage File or such document has been delivered to an attorney, or to
a public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially, and the Master
Servicer has delivered to the Custodian an updated Request for Release signed by
a Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. Immediately upon receipt of any Mortgage File returned to the
Custodian by the Master Servicer, the Custodian shall deliver a signed
acknowledgement to the Master Servicer, confirming receipt of such Mortgage
File.
Upon the written request of the Master Servicer, the Custodian will
send to the Master Servicer copies of any documents contained in the Mortgage
File.
Section 2.6 Assumption Agreements. In the event that any assumption agreement or
substitution of liability agreement is entered into with respect to any Mortgage
Loan subject to this Agreement in accordance with the terms and provisions of
the Pooling Agreement, the Master Servicer shall notify the Custodian that such
assumption or substitution agreement has been completed by forwarding to the
Custodian the original of such assumption or substitution agreement, which shall
be added to the related Mortgage File and, for all purposes, shall be considered
a part of such Mortgage File to the same extent as all other documents and
instruments constituting parts thereof.
ARTICLE III
Concerning the Custodian
Section 3.1 Custodian a Bailee and Agent of the Trustee. With respect to each
Mortgage Note, Mortgage and other documents constituting each Mortgage File
which are delivered to the Custodian, the Custodian is exclusively the bailee
and agent of the Trustee and has no instructions to hold any Mortgage Note or
Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Except upon compliance with the
provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage or other
document constituting a part of a Mortgage File shall be delivered by the
Custodian to the Company or the Master Servicer or otherwise released from the
possession of the Custodian.
The Master Servicer shall promptly notify the Custodian in writing if
it shall no longer be a member of MERS, or if it otherwise shall no longer be
capable of registering and recording Mortgage Loans using MERS. In addition, the
Master Servicer shall (i) promptly notify the Custodian in writing when a MERS
Mortgage Loan is no longer registered with and recorded under MERS and (ii)
concurrently with any such deregistration of a MERS Mortgage Loan, prepare,
execute and record an original assignment from MERS to the Trustee and deliver
such assignment to the Custodian.
Section 3.2 Indemnification. The Company hereby agrees to indemnify and hold the
Custodian harmless from and against all claims, liabilities, losses, actions,
suits or proceedings at law or in equity, or any other expenses, fees or charges
of any character or nature, which the Custodian may incur or with which the
Custodian may be threatened by reason of its acting as custodian under this
Agreement, including indemnification of the Custodian against any and all
expenses, including attorney's fees if counsel for the Custodian has been
approved by the Company, and the cost of defending any action, suit or
proceedings or resisting any claim. Notwithstanding the foregoing, it is
specifically understood and agreed that in the event any such claim, liability,
loss, action, suit or proceeding or other expense, fee or charge shall have been
caused by reason of any negligent act, negligent failure to act or willful
misconduct on the part of the Custodian, or which shall constitute a willful
breach of its duties hereunder, the indemnification provisions of this Agreement
shall not apply.
Section 3.3 Custodian May Own Certificates. The Custodian in its individual or
any other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not Custodian.
Section 3.4 Master Servicer to Pay Custodian's Fees and Expenses. The Master
Servicer covenants and agrees to pay to the Custodian from time to time, and the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian, and the Master Servicer will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith.
Section 3.5 Custodian May Resign; Trustee May Remove Custodian. The Custodian
may resign from the obligations and duties hereby imposed upon it as such
obligations and duties relate to its acting as Custodian of the Mortgage Loans.
Upon receiving such notice of resignation, the Trustee shall either take custody
of the Mortgage Files itself and give prompt notice thereof to the Company, the
Master Servicer and the Custodian, or promptly appoint a successor Custodian by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Custodian and one copy to the successor Custodian. If
the Trustee shall not have taken custody of the Mortgage Files and no successor
Custodian shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Custodian may
petition any court of competent jurisdiction for the appointment of a successor
Custodian.
The Trustee may remove the Custodian at any time. In such event, the
Trustee shall appoint, or petition a court of competent jurisdiction to appoint,
a successor Custodian hereunder. Any successor Custodian shall be a depository
institution subject to supervision or examination by federal or state authority
and shall be able to satisfy the other requirements contained in Section 3.7 and
shall be unaffiliated with the Master Servicer or the Company.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Company and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall be
appointed by the Trustee without the prior approval of the Company and the
Master Servicer.
Section 3.6 Merger or Consolidation of Custodian. Any Person into which the
Custodian 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
Custodian shall be a party, or any Person succeeding to the business of the
Custodian, shall be the successor of the Custodian hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 3.7 Representations of the Custodian. The Custodian hereby represents
that it is a depository institution subject to supervision or examination by a
federal or state authority, has a combined capital and surplus of at least
$15,000,000 and is qualified to do business in the jurisdictions in which it
will hold any Mortgage File.
ARTICLE IV
Miscellaneous Provisions
Section 4.1 Notices. All notices, requests, consents and demands and other
communications required under this Agreement or pursuant to any other instrument
or document delivered hereunder shall be in writing and, unless otherwise
specifically provided, may be delivered personally, by telegram or telex, or by
registered or certified mail, postage prepaid, return receipt requested, at the
addresses specified on the signature page hereof (unless changed by the
particular party whose address is stated herein by similar notice in writing).
Section 4.2 Amendments. No modification or amendment of or supplement to this
Agreement shall be valid or effective unless the same is in writing and signed
by all parties hereto, and neither the Company, the Master Servicer nor the
Trustee shall enter into any amendment hereof except as permitted by the Pooling
Agreement. The Trustee shall give prompt notice to the Custodian of any
amendment or supplement to the Pooling Agreement and furnish the Custodian with
written copies thereof.
Section 4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4 Recordation of Agreement. To the extent permitted by applicable law,
this Agreement is subject to recordation in all appropriate public offices for
real property records in all the counties or other comparable jurisdictions in
which any or all of the properties subject to the Mortgages are situated, and in
any other appropriate public recording office or elsewhere, such recordation to
be effected by the Master Servicer and at its expense on direction by the
Trustee (pursuant to the request of holders of Certificates evidencing undivided
interests in the aggregate of not less than 25% of the Trust Fund), but only
upon direction accompanied by an Opinion of Counsel reasonably satisfactory to
the Master Servicer to the effect that the failure to effect such recordation is
likely to materially and adversely affect the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 4.5 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
JPMORGAN CHASE BANK, N.A.
Address: as Trustee
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Attention: Residential Asset Mortgage By: _______________________________
Products, Inc., Series 2005-RZ3 Name:_____________________
Title: ______________________
Address: RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: _______________________________
Name:_____________________
Title: ______________________
Address: RESIDENTIAL FUNDING CORPORATION, as Master Servicer.
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By: _______________________________
Name:_____________________
Title: ______________________
Address: ▇▇▇▇▇ FARGO BANK MINNESOTA, N. A.
Mortgage Document Custody
One ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: _______________________________
Name:_____________________
Title: ______________________
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the _____ day of _______________, 2005, before me, a notary public
in and for said State, personally appeared _____________, known to me to be a
___________ of JPMorgan Chase Bank, N.A., a New York banking corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said banking corporation and acknowledged to me that
such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________
Notary Public
[SEAL]
STATE OF MINNESOTA )
)ss.:
COUNTY OF HENNEPIN )
On the _____ day of _______________, 2005, before me, a notary public
in and for said State, personally appeared ___________________, known to me to
be a _________________ of Residential Asset Mortgage Products, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________
Notary Public
[Notorial Seal]
STATE OF MINNESOTA )
)ss.:
COUNTY OF HENNEPIN )
On the _____ day of _______________, 2005, before me, a notary public
in and for said State, personally appeared ___________________, known to me to
be a _________________ of Residential Funding Corporation, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________
Notary Public
[Notorial Seal]
STATE OF MINNESOTA )
)ss.:
COUNTY OF HENNEPIN )
On the _____ day of _______________, 2005, before me, a notary public
in and for said State, personally appeared ___________________, known to me to
be a _________________ of ▇▇▇▇▇ Fargo Bank Minnesota, N.A., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
__________________________
Notary Public
EXHIBIT ONE
FORM OF CUSTODIAN
INITIAL CERTIFICATION
September 1, 2005
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Re: Custodial Agreement, dated as of September 1, 2005, by
and among JPMorgan Chase Bank, N.A., Residential Asset
Mortgage Products, Inc., Residential Funding Corporation
and ▇▇▇▇▇ Fargo Bank Minnesota, N. A., relating to
Mortgage Asset-Backed Pass-Through Certificates, Series
2005-RZ3
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, and subject to Section 2.02 of the Pooling Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage File
(which contains an original Mortgage Note or an original lost note affidavit
with a copy of the related Mortgage Note) to the extent required in Section
2.01(b) of the Pooling Agreement with respect to each Mortgage Loan listed in
the Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA,
N. A.
By: _________________________________
Name: _______________________________
Title: ______________________________
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
____________ __, 20__
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Re: Custodial Agreement, dated as of September 1, 2005, by
and among JPMorgan Chase Bank, N.A., Residential Asset
Mortgage Products, Inc., Residential Funding Corporation
and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., relating to
Mortgage Asset-Backed Pass- Through Certificates, Series
2005-RZ3
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that it has
received a Mortgage File to the extent required pursuant to Section 2.01(b) of
the Pooling Agreement with respect to each Mortgage Loan listed in the Mortgage
Loan Schedule, and it has reviewed the Mortgage File and the Mortgage Loan
Schedule and has determined that: all required documents have been executed and
received and that such documents relate to the Mortgage Loans identified on the
Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N. A.
By: __________________________________
Name: ________________________________
Title: _______________________________
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
____________ __, 20__
JPMorgan Chase Bank, N.A.
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Residential Asset Mortgage Products, Inc., Series 2005-RZ3
Re: Custodial Agreement, dated as of September 1, 2005, by
and among JPMorgan Chase Bank, N.A., Residential Asset
Mortgage Products, Inc., Residential Funding Corporation
and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., relating to
Mortgage Asset-Backed Pass- Through Certificates, Series
2005-RZ3
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that it has
received a Mortgage File with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule and it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: all required documents referred to in
Section 2.01(b) of the Pooling Agreement have been executed and received and
that such documents relate to the Mortgage Loans identified on the Mortgage Loan
Schedule.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N. A.
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT FOUR
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
______________________________
Residential Funding Corporation
Authorized Signature
****************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other: ________________________
___________________________
Name
___________________________
Title
___________________________
Date
EXHIBIT F
MORTGAGE LOAN SCHEDULE
[ON FILE WITH TRUSTEE AND CUSTODIAN]
EXHIBIT G
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
______________________________
Residential Funding Corporation
Authorized Signature
****************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other: ________________________
___________________________
Name
___________________________
Title
___________________________
Date
EXHIBIT H-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 Mortgage Asset-Backed Pass-Through Certificates, Series 2005-RZ3, 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
Section 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 an electing large
partnership 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 Code or if at any time during the taxable
year of the pass-through entity a disqualified organization is the record holder
of an interest in such entity. (For this purpose, a "pass through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee will not register the transfer of
any Class R-__ Certificates unless the transferee, or the transferee's agent,
delivers to it an affidavit and agreement, among other things, in substantially
the same form as this affidavit and agreement. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face of the
Class R -__ Certificates and the provisions of Section 5.02(f) of the Pooling
and Servicing Agreement under which the Class R-__ Certificates were issued (in
particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which authorize the
Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event the Owner holds such Certificates in
violation of Section 5.02(f)). The Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
7. 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.
8. The Owner's Taxpayer Identification Number is ____________________.
9. 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.
10. That no purpose of the Owner relating to the transfer of any of the Class
R-__ Certificates by the Owner is or will be to impede the assessment or
collection of any tax; in making this representation, the Owner warrants that
the Owner is familiar with (i) Treasury Regulation 1.860E-1(c) and recent
amendments thereto, effective as of July 19, 2002, and (ii) the preamble
describing the adoption of the amendments to such regulation, which is attached
hereto as Annex I.
11. 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.
12. That the Owner has no present knowledge or expectation that it will become
insolvent or subject to a bankruptcy proceeding for so long as any of the Class
R-__ Certificates remain outstanding.
13. The Owner is either (i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity treated as a corporation or a
partnership for U.S. federal income tax purposes and created or organized in, or
under the laws of, the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States person
under any applicable Treasury regulations), (iii) an estate that is described in
Section 7701(a)(30)(D) of the Code, or (iv) a trust that is described in Section
7701(a)(30)(E) of the Code.
14. The Owner hereby agrees that it will not cause income from the Class R-__
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of the Owner or
another United States taxpayer.
15. The Owner hereby certifies, represents and warrants to, and covenants with
the Depositor, the Trustee and the Master Servicer that the following statement
is accurate:
The Certificates are not being acquired by, and will
not be transferred to, any employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any person (including an insurance company investing its
general account, an investment manager, a named fiduciary or a trustee
of any such plan) who is using "plan assets" of any such plan to effect
such acquisition (each of the foregoing, a "Plan Investor").
In addition, the Owner hereby certifies, represents and warrants to,
and covenants with, the Depositor, the Trustee and the Master Servicer that the
Owner will not transfer such Certificates to any Plan Investor or person unless
either such Plan Investor or person meets the requirements set forth in the
statement above.
Capitalized terms used but not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this ____ day of ______________ 200__.
[NAME OF OWNER]
By: ________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of
Officer], known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to me
that he executed the same as his free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this day of , 200_.
_________________________________________
NOTARY PUBLIC
COUNTY OF ______________________________
STATE OF ________________________________
My Commission expires the ___ day of __________, 20__
ANNEX I
TO EXHIBIT H-1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and,
pending receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number
1545-1675.
The collection of information in this regulation is in Sec.
1.860E-1(c)(5)(ii). This information is required to enable the IRS to verify
that a taxpayer is complying with the conditions of this regulation. The
collection of information is mandatory and is required. Otherwise, the taxpayer
will not receive the benefit of safe harbor treatment as provided in the
regulation. The likely respondents are businesses and other for-profit
institutions.
Comments on the collection of information should be sent to the Office
of Management and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, ▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Comments on the collection of information
should be received by September 17, 2002. Comments are specifically requested
concerning:
Whether the collection of information is necessary for the
proper performance of the functions of the Internal Revenue
Service, including whether the information will have practical
utility;
The accuracy of the estimated burden associated with the
collection of information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the collection of information
may be minimized, including through the application of automated
collection techniques or other forms of information technology;
and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid control
number assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an
estimated number of respondents of 470 and an estimated average annual burden
hours per respondent of one hour.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the administration of
any internal revenue law. Generally, tax returns and tax return information are
confidential, as required by 26 U.S.C. 6103.
Background
This document contains final regulations regarding the proposed
amendments to 26 CFR part 1 under section 860E of the Internal Revenue Code
(Code). The regulations provide the circumstances under which a transferor of a
noneconomic REMIC residual interest meeting the investigation and representation
requirements may avail itself of the safe harbor by satisfying either the
formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules
governing the transfer of noneconomic REMIC residual interests. In general, a
transfer of a noneconomic residual interest is disregarded for all tax purposes
if a significant purpose of the transfer is to enable the transferor to impede
the assessment or collection of tax. A purpose to impede the assessment or
collection of tax (a wrongful purpose) exists if the transferor, at the time of
the transfer, either knew or should have known that the transferee would be
unwilling or unable to pay taxes due on its share of the REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual interest is
presumed not to have a wrongful purpose if two requirements are satisfied: (1)
the transferor conducts a reasonable investigation of the transferee's financial
condition (the investigation requirement); and (2) the transferor secures a
representation from the transferee to the effect that the transferee understands
the tax obligations associated with holding a residual interest and intends to
pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of
noneconomic residual interests claim they satisfy the safe harbor even in
situations where the economics of the transfer clearly indicate the transferee
is unwilling or unable to pay the tax associated with holding the interest. For
this reason, on February 7, 2000, the IRS published in the Federal Register (65
FR 5807) a notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed
to clarify the safe harbor by adding the "formula test," an economic test. The
proposed regulation provides that the safe harbor is unavailable unless the
present value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (1) The present value of any
consideration given to the transferee to acquire the interest; (2) the present
value of the expected future distributions on the interest; and (3) the present
value of the anticipated tax savings associated with holding the interest as the
REMIC generates losses.
The notice of proposed rulemaking also contained rules for FASITs.
Section 1.860H-6(g) of the proposed regulations provides requirements for
transfers of FASIT ownership interests and adopts a safe harbor by reference to
the safe harbor provisions of the REMIC regulations. In January 2001, the IRS
published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to set forth an alternative
safe harbor that taxpayers could use while the IRS and the Treasury considered
comments on the proposed regulations. Under the alternative safe harbor, if a
transferor meets the investigation requirement and the representation
requirement but the transfer fails to meet the formula test, the transferor may
invoke the safe harbor if the transferee meets a two-prong test (the asset
test). A transferee generally meets the first prong of this test if, at the time
of the transfer, and in each of the two years preceding the year of transfer,
the transferee's gross assets exceed $100 million and its net assets exceed $10
million. A transferee generally meets the second prong of this test if it is a
domestic, taxable corporation and agrees in writing not to transfer the interest
to any person other than another domestic, taxable corporation that also
satisfies the requirements of the asset test. A transferor cannot rely on the
asset test if the transferor knows, or has reason to know, that the transferee
will not comply with its written agreement to limit the restrictions on
subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied
in the case of a transfer or assignment of a noneconomic residual interest to a
foreign branch of an otherwise eligible transferee. If such a transfer or
assignment were permitted, a corporate taxpayer might seek to claim that the
provisions of an applicable income tax treaty would resource excess inclusion
income as foreign source income, and that, as a consequence, any U.S. tax
liability attributable to the excess inclusion income could be offset by foreign
tax credits. Such a claim would impede the assessment or collection of U.S. tax
on excess inclusion income, contrary to the congressional purpose of assuring
that such income will be taxable in all events. See, e.g., sections 860E(a)(1),
(b), (e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers
transferring noneconomic residual interests to foreign branches have attempted
to rely on the formula test to obtain safe harbor treatment in an effort to
impede the assessment or collection of U.S. tax on excess inclusion income.
Accordingly, the final regulations provide that if a noneconomic residual
interest is transferred to a foreign permanent establishment or fixed base of a
U.S. taxpayer, the transfer is not eligible for safe harbor treatment under
either the asset test or the formula test. The final regulations also require a
transferee to represent that it will not cause income from the noneconomic
residual interest to be attributable to a foreign permanent establishment or
fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer may
use to qualify for safe harbor status under the formula test. Section
1.860E-1(c)(8)(i) provides that the transferee is presumed to pay tax at a rate
equal to the highest rate of tax specified in section 11(b). Some commentators
were concerned that this presumed rate of taxation was too high because it does
not take into consideration taxpayers subject to the alternative minimum tax
rate. In light of the comments received, this provision has been amended in the
final regulations to allow certain transferees that compute their taxable income
using the alternative minimum tax rate to use the alternative minimum tax rate
applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present values
in the formula test are to be computed using a discount rate equal to the
applicable Federal short-term rate prescribed by section 1274(d). This is a
change from the proposed regulation and Rev. Proc. 2001-12. In those
publications the provision stated that "present values are computed using a
discount rate equal to the applicable Federal rate prescribed in section 1274(d)
compounded semiannually" and that "[a] lower discount rate may be used if the
transferee can demonstrate that it regularly borrows, in the course of its trade
or business, substantial funds at such lower rate from an unrelated third
party." The IRS and the Treasury Department have learned that, based on this
provision, certain taxpayers have been attempting to use unrealistically low or
zero interest rates to satisfy the formula test, frustrating the intent of the
test. Furthermore, the Treasury Department and the IRS believe that a rule
allowing for a rate other than a rate based on an objective index would add
unnecessary complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if the
transferee can demonstrate that it regularly borrows substantial funds at such
lower rate, is not included in the final regulations; and the Federal short-term
rate has been substituted for the applicable Federal rate. To simplify
taxpayers' computations, the final regulations allow use of any of the published
short-term rates, provided that the present values are computed with a
corresponding period of compounding. With the exception of the provisions
relating to transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may choose to
apply the interest rate formula set forth in the proposed regulation and Rev.
Proc. 2001-12 for transfers occurring before August 19, 2002.
It is anticipated that when final regulations are adopted with respect
to FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a
significant economic impact on a substantial number of small entities. This
certification is based on the fact that it is unlikely that a substantial number
of small entities will hold REMIC residual interests. Therefore, a Regulatory
Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6)
is not required. It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that sections
553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do
not apply to these regulations.
Drafting Information
The principal author of these regulations is ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
However, other personnel from the IRS and Treasury Department participated in
their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
________________, 200__
Residential Asset Mortgage Products, Inc.
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JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Residential Funding Corporation Series 2005-RZ3
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2005-RZ3, 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 Mortgage
Asset-Backed Pass-Through Certificates, Series 2005-RZ3, Class R-__ (the
"Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of September 1, 2005 among
Residential Asset Mortgage Products, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer (the "Master Servicer"), and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). All terms used herein and
not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Seller hereby certifies, represents and warrants to,
and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate by the
Seller to the Purchaser is or will be to impede the assessment or collection of
any tax.
2. The Seller understands that the Purchaser has delivered to the Trustee and
the Master Servicer a transfer affidavit and agreement in the form attached to
the Pooling and Servicing Agreement as Exhibit H-1. The Seller does not know or
believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(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.
4. 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: ________________________________
EXHIBIT I
FORM OF INVESTOR REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
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JPMorgan Chase Bank, N.A.
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Residential Funding Corporation
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Attention: Residential Funding Corporation Series 2005-RZ3
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2005-RZ3, Class [B] [SB] [R-[ ]]
Ladies and Gentlemen:
____________________________________ (the "Purchaser") intends to
purchase from (the "Seller") $___________ Initial Certificate Principal Balance
of Mortgage Asset-Backed Pass-Through Certificates, Series 2005-RZ3, Class [B]
[SB] [R-[ ]](the "Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of September 1, 2005
among Residential Asset Mortgage Products, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer (the "Master Servicer"), and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). All terms used herein and
not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Purchaser hereby certifies, represents and warrants to,
and covenants with, the Company, the Trustee and the Master Servicer 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 Pooling and Servicing 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) [a copy of the Private Placement Memorandum, dated ________________, 20__,
relating to the Certificates (b)] a copy of the Pooling and Servicing Agreement
and [b] [c] such other information concerning the Certificates, the Mortgage
Loans and the Company as has been requested by the Purchaser from the Company 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 Company or the Seller to the satisfaction of the Purchaser. [If
the Purchaser did not purchase the Certificates from the Seller in connection
with the initial distribution of the Certificates and was provided with a copy
of the Private Placement Memorandum (the "Memorandum") relating to the original
sale (the "Original Sale") of the Certificates by the Company, the Purchaser
acknowledges that such Memorandum was provided to it by the Seller, that the
Memorandum was prepared by the Company solely for use in connection with the
Original Sale and the Company did not participate in or facilitate in any way
the purchase of the Certificates by the Purchaser from the Seller, and the
Purchaser agrees that it will look solely to the Seller and not to the Company
with respect to any damage, liability, claim or expense arising out of,
resulting from or in connection with (a) error or omission, or alleged error or
omission, contained in the Memorandum, or (b) any information, development or
event arising after the date of the Memorandum.]
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 (e) 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 Pooling and
Servicing Agreement.
6. The Purchaser hereby certifies, represents and warrants to, and covenants
with the Depositor, the Trustee and the Master Servicer that the following
statement is correct:
The Purchaser is not an employee benefit plan or
other plan or arrangement subject to the prohibited transaction
provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or any person (including an insurance
company investing its general account, an investment manager, a named
fiduciary or a trustee of any such plan) who is using "plan assets" of
any such plan to effect such acquisition (each of the foregoing, a
"Plan Investor").
In addition, the Purchaser hereby certifies, represents and warrants
to, and covenants with, the Company, the Trustee and the Master Servicer that
the Purchaser will not transfer such Certificates to any Plan Investor or person
unless either such Plan Investor or person meets the requirements set forth in
the statement referred to in paragraph 6 above.
Very truly yours,
_______________________________________
(Purchaser)
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT J
FORM OF TRANSFEROR REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
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JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Residential Funding Corporation Series 2005-RZ3
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2005-RZ3, Class [B] [SB] [R-[ ]]
Ladies and Gentlemen:
In connection with the sale by ____________ (the "Seller") to
_______________ (the "Purchaser") of $_______ Initial Certificate Principal
Balance of Mortgage Asset-Backed Pass-Through Certificates, Series 2005-RZ3,
Class SB (the "Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of September 1, 2005
among Residential Asset Mortgage Products, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer, and JPMorgan Chase Bank,
N.A., as trustee (the "Trustee"). The Seller hereby certifies, represents and
warrants to, and covenants with, the Company and the Trustee 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 Pooling and
Servicing Agreement.
Very truly yours,
_______________________________________
(Seller)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT K
FORM OF FORM 10-K CERTIFICATION
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year [____],
and all reports on Form 8-K containing distribution or servicing reports filed
in respect of periods included in the year covered by that annual report, of the
trust (the "Trust") created pursuant to the Pooling and Servicing Agreement
dated as of September 1, 2005 (the "P&S Agreement") among Residential Asset
Mortgage Corporation, Inc. (the "Company"), Residential Funding Corporation (the
"Master Servicer") and JPMorgan Chase Bank, N.A. (the "Trustee");
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be provided to
the Trustee by the Master Servicer under the P&S Agreement for inclusion in
these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the P&S Agreement and based upon my knowledge and the annual
compliance review required under the P&S Agreement, and, except as disclosed in
the reports, the Master Servicer has fulfilled its obligations under the P&S
Agreement; and
5. The reports disclose all significant deficiencies relating to the Master
Servicer's compliance with the minimum servicing standards based upon the report
provided by an independent public accountant, after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage Bankers as
set forth in the P&S Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the Trustee].
IN WITNESS WHEREOF, I have duly executed this certificate as of
_________, 20__.
____________________________
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions
of the Master Servicer
EXHIBIT L
FORM OF BACK-UP CERTIFICATE TO FORM 10-K CERTIFICATION
The undersigned, a Responsible Officer of [______________] (the
"Trustee") certifies that:
1. The Trustee has performed all of the duties specifically required to be
performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated as of September 1, 2005 (the "Agreement") by and among
Residential Asset Mortgage Products, Inc. as depositor, Residential Funding
Corporation, as master servicer, and the Trustee in accordance with the
standards set forth therein.
2. Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is provided by the
Trustee pursuant to the Agreement is accurate as of the last day of the 20[ ]
calendar year.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of
_________, 20__.
____________________________
Name:
Title:
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
___________, 20__
Residential Asset Mortgage Products, Inc.
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JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Residential Funding Corporation Series 2005-RZ3
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2005-RZ3 Assignment of Mortgage Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the
assignment by ________________ (the "Trustee") to ______________________ (the
"Lender") of _______________ (the "Mortgage Loan") pursuant to Section 3.13(d)
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of September 1, 2005 among Residential Asset Mortgage Products, Inc.,
as seller (the "Company"), Residential Funding Corporation, as master servicer,
and the Trustee. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Lender hereby
certifies, represents and warrants to, and covenants with, the Master Servicer
and the Trustee that:
(i) the Mortgage Loan is secured by Mortgaged Property located in a
jurisdiction in which an assignment in lieu of satisfaction is required to
preserve lien priority, minimize or avoid mortgage recording taxes or otherwise
comply with, or facilitate a refinancing under, the laws of such jurisdiction;
(ii) the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and the form of the transaction is solely to
comply with, or facilitate the transaction under, such local laws;
(iii) the Mortgage Loan following the proposed assignment will be
modified to have a rate of interest at least 0.25 percent below or above the
rate of interest on such Mortgage Loan prior to such proposed assignment; and
(iv) such assignment is at the request of the borrower under the
related Mortgage Loan.
Very truly yours,
_______________________________________
(Lender)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT N
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the ▇▇▇▇ ▇▇▇.
2. The Buyer warrants and represents to, and covenants with,
the Seller, the Trustee and the Master Servicer (as defined in the Pooling and
Servicing Agreement (the "Agreement"), dated as of September 1, 2005 among
Residential Funding Corporation as Master Servicer, Residential Asset Mortgage
Products, Inc. as depositor pursuant to Section 5.02 of the Agreement and
JPMorgan Chase Bank, N.A., as 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 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 of Class SB Certificates or Class R Certificates
is not an employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or any
person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition.
4. 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.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties has executed this document
as of the date set forth below.
Print Name of Buyer ____________
Print Name of Seller _____________
By: ______________________________ By: ____________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No._______________________________ No._____________________________
Date:_____________________________ Date:___________________________
ANNEX 1 TO EXHIBIT N
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 $___________ 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.
____ Corporations, 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.
____ 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.
____ Investment Adviser. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
____ 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.
____ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act
of 1940.
____ 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, 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.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
_______________________________________
Print Name of Buyer
By: ___________________________________
Name:
Title:
Date: __________________________________
ANNEX 2 TO EXHIBIT N
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 SEC 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
By: ___________________________________
Name:
Title:
Date: ______________________________
EXHIBIT O
FORM OF ERISA REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
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JPMorgan Chase Bank, N.A.
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Residential Funding Corporation
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Attention: Residential Funding Corporation Series 2005-RZ3
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2005-RZ3, Class SB
Ladies and Gentlemen:
[____________________________________] (the "Purchaser")
intends to purchase from [______________________________] (the
"Seller") $[____________] Initial Certificate Principal Balance of
Mortgage Asset-Backed Pass-Through Certificates, Series 2005-RZ3, Class
____ (the "Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
September 1, 2005 among Residential Asset Mortgage Products, Inc., as
the company (the "Depositor"), Residential Funding Corporation, as
master servicer (the "Master Servicer") and JPMorgan Chase Bank, N.A.,
as trustee (the "Trustee"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Purchaser hereby certifies, represents and warrants to,
and covenants with, the Depositor, the Trustee and the Master Servicer
that:
(a) The Purchaser is not an employee benefit 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") (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 within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. ss.2510.3-101; or
(b) The Purchaser has provided the Trustee, the Depositor and
the Master Servicer with an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee, the Depositor and the
Master Servicer to the effect that the purchase or holding of
Certificates is permissible under applicable law, will not constitute
or result in any non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Trustee, the Depositor,
the Master Servicer or the Trust Fund to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in the Pooling and Servicing
Agreement.
In addition, the Purchaser hereby certifies, represents and
warrants to, and covenants with, the Depositor, the Trustee and the Master
Servicer that the Purchaser will not transfer such Certificates to any Plan or
person unless such Plan or person meets the requirements set forth in either (a)
or (b) above.
Very truly yours,
_____________________________________
(Purchaser)
By: _________________________________
Name: _______________________________
Title: ______________________________
EXHIBIT P
FORM OF ERISA REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
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JPMorgan Chase Bank, N.A.
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Residential Funding Corporation
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Attention: Residential Funding Corporation Series 2005-RZ3
Re: Residential Asset Mortgage Products, Inc. Mortgage Asset-Backed
Pass-Through Certificates, Series 2005-RZ3, Class [A-[ ]] [M-[ ]] [B]
Ladies and Gentlemen:
[____________________________________] (the "Purchaser")
intends to purchase from [______________________________] (the "Seller")
$[____________] Initial Certificate Principal Balance of Mortgage Asset-Backed
Pass-Through, Series 2005-RZ3 (the "Certificates"), issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of September 1, 2005, among Residential Asset Mortgage Products, Inc., as
depositor (the "Depositor"), Residential Funding Corporation, as master servicer
(the "Master Servicer"), and JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement.
The Purchaser hereby certifies, represents and warrants to,
and covenants with the Depositor, the Trustee and the Master Servicer that,
either:
(a) The Purchaser is not an employee benefit 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") (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 within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. ss.2510.3-101; or
(b) The Purchaser is an insurance company, the source of funds
used to purchase or hold the Certificates is an "insurance company
general account", as the term is defined in DOL Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the conditions in Sections I and
III of PTCE 95-60 have been satisfied.
In addition, the Purchaser hereby certifies, represents and
warrants to, and covenants with, the Seller, the Trustee and the Master Servicer
that the Purchaser will not transfer such Certificates to any Plan or person
unless that Plan or person meets the requirements in either (a) or (b) above.
The Purchaser hereby agrees to indemnify and hold harmless the
Company, the Trustee, the Master Servicer, any Subservicer and the Trust Fund
from and against all liabilities, claims, costs or expenses incurred by such
parties as a result of a breach of any representation, warranty or covenant made
by the Purchaser herein.
Very truly yours,
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT Q
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING AGENCIES
RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Term (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
EXHIBIT R
SCHEDULE OF SWAP NOTIONAL AMOUNTS
(SEE SCHEDULE A TO EXHIBIT S)
EXHIBIT S
SWAP AGREEMENT
(SEE ATTACHMENT)