RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
Depositor,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
JPMORGAN CHASE BANK
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2003
Mortgage Asset-Backed Pass-Through Certificates
Series 2003-RS10
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS............................................................................5
Accrued Certificate Interest....................................................................5
Adjusted Mortgage Rate..........................................................................5
Adjustment Date.................................................................................5
Advance.........................................................................................5
Affiliate.......................................................................................6
Agreement.......................................................................................6
Amount Held for Future Distribution.............................................................6
Appraised Value.................................................................................6
Assignment......................................................................................6
Assignment Agreement............................................................................6
Balloon Loan....................................................................................6
Balloon Payment.................................................................................6
Bankruptcy Code.................................................................................7
Book-Entry Certificate..........................................................................7
Business Day....................................................................................7
Capitalization Reimbursement Amount.............................................................7
Cash Liquidation................................................................................7
Certificate.....................................................................................7
Certificate Account.............................................................................7
Certificate Account Deposit Date................................................................7
Certificateholder or Holder.....................................................................7
Certificate Owner...............................................................................8
Certificate Principal Balance...................................................................8
Certificate Register and Certificate Registrar..................................................8
Class...........................................................................................8
Class A Certificates............................................................................8
Class A-I Certificates..........................................................................8
Class A-I Interest Distribution Amount..........................................................8
Class A-I Principal Distribution Amount.........................................................8
Class A-I-1 Certificate.........................................................................9
Class A-I-1 Margin..............................................................................9
Class A-I-2 Certificate.........................................................................9
Class A-I-3 Certificate.........................................................................9
Class A-I-4 Certificate.........................................................................9
Class A-I-5 Certificate........................................................................10
Class A-I-6A Certificate.......................................................................10
Class A-I-7 Certificate........................................................................10
Class A-I-7 Lockout Distribution Amount........................................................10
Class A-I-7 Lockout Percentage.................................................................10
Class A-I-7 Pro Rata Distribution Amount.......................................................11
Class A-II Certificate.........................................................................11
Class A-II-A Certificate.......................................................................11
Class A-II-B Certificate.......................................................................11
Class A-II Interest Distribution Amount........................................................11
Class A-II Margin..............................................................................12
Class A-II Principal Distribution Amount.......................................................12
Class A-II-A Principal Distribution Amount.....................................................12
Class A-II-B Principal Distribution Amount.....................................................12
Class M Certificate............................................................................12
Class M-I Certificates.........................................................................12
Class M-I-1 Certificate........................................................................12
Class M-I-1 Interest Distribution Amount.......................................................13
Class M-I-1 Principal Distribution Amount......................................................13
Class M-I-2 Certificate........................................................................13
Class M-I-2 Interest Distribution Amount.......................................................13
Class M-I-2 Principal Distribution Amount......................................................13
Class M-I-3 Certificate........................................................................14
Class M-I-3 Interest Distribution Amount.......................................................14
Class M-I-3 Principal Distribution Amount......................................................14
Class M-II Certificates........................................................................15
Class M-II-1 Certificate.......................................................................15
Class M-II-1 Interest Distribution Amount......................................................15
Class M-II-1 Principal Distribution Amount.....................................................15
Class M-II-2 Certificate.......................................................................16
Class M-II-2 Interest Distribution Amount......................................................16
Class M-II-2 Principal Distribution Amount.....................................................16
Class M-II-3 Certificate.......................................................................16
Class M-II-3 Interest Distribution Amount......................................................16
Class M-II-3 Principal Distribution Amount.....................................................17
Class M-II-4 Certificate.......................................................................17
Class M-II-4 Interest Distribution Amount......................................................17
Class M-II-4 Principal Distribution Amount.....................................................17
Class M-II-5 Certificate.......................................................................18
Class M-II-5 Interest Distribution Amount......................................................18
Class M-II-5 Principal Distribution Amount.....................................................18
Class M-II Basis Risk Shortfall................................................................19
Class M-II Basis Risk Shortfall Carry-Forward Amount...........................................19
Class M-II Margin..............................................................................19
Class R Certificate............................................................................20
Class R-I Certificate..........................................................................20
Class R-II Certificate.........................................................................20
Class R-III Certificate........................................................................20
Class R-IV Certificate.........................................................................20
Class SB Certificates..........................................................................20
ii
Class SB-I Certificate.........................................................................20
Class SB-II Certificate........................................................................20
Closing Date...................................................................................20
Code...........................................................................................20
Commission.....................................................................................21
Compensating Interest..........................................................................21
Corporate Trust Office.........................................................................21
Corresponding Class............................................................................21
Curtailment....................................................................................21
Custodial Account..............................................................................21
Custodial Agreement............................................................................21
Custodian......................................................................................21
Cut-off Date...................................................................................21
Cut-off Date Principal Balance.................................................................21
Debt Service Reduction.........................................................................21
Deficient Valuation............................................................................22
Definitive Certificate.........................................................................22
Deleted Mortgage Loan..........................................................................22
Delinquent.....................................................................................22
Depository.....................................................................................22
Depository Participant.........................................................................22
Derivative Contract............................................................................22
Derivative Counterparty........................................................................22
Destroyed Mortgage Note........................................................................22
Determination Date.............................................................................22
Disqualified Organization......................................................................23
Distribution Date..............................................................................23
Due Date.......................................................................................23
Due Period.....................................................................................23
Eligible Account...............................................................................23
ERISA..........................................................................................24
Event of Default...............................................................................24
Exchange Act...................................................................................24
Xxxxxx Xxx.....................................................................................24
FASIT..........................................................................................24
FDIC...........................................................................................24
FHA............................................................................................24
Final Certification............................................................................24
Final Distribution Date........................................................................24
Final Scheduled Distribution Date..............................................................24
Fitch..........................................................................................24
Foreclosure Profits............................................................................25
Xxxxxxx Mac....................................................................................25
Gross Margin...................................................................................25
Group I Available Distribution Amount..........................................................25
Group II Available Distribution Amount.........................................................25
iii
Group I Cut-off Date Balance...................................................................26
Group II Cut-off Date Balance..................................................................26
Group I Diverted Excess Spread.................................................................26
Group II Diverted Excess Spread................................................................26
Group I Excess Cash Flow.......................................................................26
Group II Excess Cash Flow......................................................................26
Group I Excess Overcollateralization Amount....................................................26
Group II Excess Overcollateralization Amount...................................................27
Group I Interest Distribution Amount...........................................................27
Group II Interest Distribution Amount..........................................................27
Group I Loan...................................................................................27
Group II Loan..................................................................................27
Group II-A Loan................................................................................27
Group II-B Loan................................................................................27
Group II Basis Risk Shortfall..................................................................27
Group II-A Basis Risk Shortfall................................................................27
Group II-A Basis Risk Shortfall Carry-Forward Amount...........................................27
Group II-B Basis Risk Shortfall................................................................27
Group II-B Basis Risk Shortfall Carry-Forward Amount...........................................28
Group II Marker Rate...........................................................................28
Group I Net WAC Cap Shortfall Carry-Forward Amount.............................................28
Group I Net WAC Cap Rate.......................................................................28
Group II Net WAC Cap Rate......................................................................29
Group I Optional Termination Date..............................................................29
Group II Optional Termination Date.............................................................29
Group I Overcollateralization Amount...........................................................29
Group II Overcollateralization Amount..........................................................29
Group I Overcollateralization Increase Amount..................................................29
Group II Overcollateralization Increase Amount.................................................30
Group I Overcollateralization Reduction Amount.................................................30
Group II Overcollateralization Reduction Amount................................................30
Group I Pool Stated Principal Balance..........................................................30
Group II Pool Stated Principal Balance.........................................................30
Group I Principal Distribution Amount..........................................................30
Group II Principal Allocation Amount...........................................................31
Group II Principal Distribution Amount.........................................................31
Group I Principal Remittance Amount............................................................32
Group II Principal Remittance Amount...........................................................32
Group I Required Overcollateralization Amount..................................................32
Group II Required Overcollateralization Amount.................................................32
Group I Senior Enhancement Percentage..........................................................32
Group II Senior Enhancement Percentage.........................................................33
Group I Sixty-Plus Delinquency Percentage......................................................33
Group II Sixty-Plus Delinquency Percentage.....................................................33
Group I Stepdown Date..........................................................................33
Group II Stepdown Date.........................................................................33
iv
Group I Trigger Event..........................................................................33
Group II Trigger Event.........................................................................34
Group I Uncertificated Regular Interests.......................................................34
Group II Uncertificated Regular Interests......................................................34
Hazardous Materials............................................................................34
Independent....................................................................................35
Index..........................................................................................35
Initial Certificate Principal Balance..........................................................35
Insurance Proceeds.............................................................................35
Interest Accrual Period........................................................................35
Interim Certification..........................................................................35
Interested Person..............................................................................35
Late Collections...............................................................................35
LIBOR..........................................................................................36
LIBOR Business Day.............................................................................36
LIBOR Rate Adjustment Date.....................................................................36
Limited Repurchase Right Holder................................................................36
Liquidation Proceeds...........................................................................36
Loan Group.....................................................................................36
Loan-to-Value Ratio............................................................................36
Maturity Date..................................................................................36
Maximum Group II Rate..........................................................................36
Maximum Mortgage Rate..........................................................................36
Maximum Net Mortgage Rate......................................................................36
MERS...........................................................................................36
MERS(R)System...................................................................................37
MIN............................................................................................37
Minimum Mortgage Rate..........................................................................37
Modified Mortgage Loan.........................................................................37
Modified Net Mortgage Rate.....................................................................37
MOM Loan.......................................................................................37
Monthly Payment................................................................................37
Xxxxx'x........................................................................................37
Mortgage.......................................................................................37
Mortgage File..................................................................................37
Mortgage Loan Schedule.........................................................................37
Mortgage Loans.................................................................................39
Mortgage Note..................................................................................39
Mortgage Rate..................................................................................39
Mortgaged Property.............................................................................39
Mortgagor......................................................................................39
Net Mortgage Rate..............................................................................39
Non-Primary Residence Loans....................................................................39
Non-United States Person.......................................................................39
Nonrecoverable Advance.........................................................................39
Nonsubserviced Mortgage Loan...................................................................40
v
Note Margin....................................................................................40
Notice.........................................................................................40
Officers' Certificate..........................................................................40
Opinion of Counsel.............................................................................40
Outstanding Mortgage Loan......................................................................40
Overcollateralization Floor....................................................................40
Ownership Interest.............................................................................40
Pass-Through Rate..............................................................................40
Paying Agent...................................................................................42
Percentage Interest............................................................................42
Periodic Cap...................................................................................42
Permitted Investments..........................................................................42
Permitted Transferee...........................................................................43
Person.........................................................................................43
Prepayment Assumption..........................................................................43
Prepayment Interest Shortfall..................................................................43
Prepayment Period..............................................................................44
Primary Insurance Policy.......................................................................44
Principal Prepayment...........................................................................44
Principal Prepayment in Full...................................................................44
Program Guide..................................................................................44
Purchase Price.................................................................................44
Qualified Insurer..............................................................................45
Qualified Substitute Mortgage Loan.............................................................45
Rating Agency..................................................................................45
Realized Loss..................................................................................45
Record Date....................................................................................46
Regular Certificates...........................................................................46
Regular Interest...............................................................................46
Relief Act.....................................................................................46
Relief Act Shortfalls..........................................................................46
REMIC..........................................................................................46
REMIC Administrator............................................................................46
REMIC I........................................................................................47
REMIC I Regular Interest.......................................................................47
REMIC I Regular Interest A.....................................................................47
REMIC II.......................................................................................47
REMIC II Regular Interest......................................................................47
REMIC II Regular Interest B....................................................................47
REMIC III......................................................................................47
REMIC III Group I Diverted Excess Spread.......................................................48
REMIC III Group II Diverted Excess Spread......................................................48
REMIC III Group I Interest Loss Allocation Amount..............................................48
REMIC III Group II Interest Loss Allocation Amount.............................................48
REMIC III Group I Overcollateralized Amount....................................................48
REMIC III Group II Overcollateralized Amount...................................................48
vi
REMIC III Group I Principal Loss Allocation Amount.............................................48
REMIC III Group II Principal Loss Allocation Amount............................................48
REMIC III Group I Regular Interests............................................................48
REMIC III Group II Regular Interests...........................................................48
REMIC III Group I Required Overcollateralization Amount........................................49
REMIC III Group II Required Overcollateralized Amount..........................................49
REMIC III Regular Interests....................................................................49
REMIC III Regular Interest I-AA................................................................49
REMIC III Regular Interest A-I-1...............................................................49
REMIC III Regular Interest A-I-2...............................................................49
REMIC III Regular Interest A-I-3...............................................................49
REMIC III Regular Interest A-I-4...............................................................49
REMIC III Regular Interest A-I-5...............................................................49
REMIC III Regular Interest A-I-6...............................................................50
REMIC III Regular Interest A-I-7...............................................................50
REMIC III Regular Interest M-I-1...............................................................50
REMIC III Regular Interest M-I-2...............................................................50
REMIC III Regular Interest M-I-3...............................................................50
REMIC III Regular Interest I-ZZ................................................................50
REMIC III Regular Interest II-AA...............................................................50
REMIC III Regular Interest A-II-A..............................................................50
REMIC III Regular Interest A-II-B..............................................................50
REMIC III Regular Interest M-II-1..............................................................51
REMIC III Regular Interest M-II-2..............................................................51
REMIC III Regular Interest M-II-3..............................................................51
REMIC III Regular Interest M-II-4..............................................................51
REMIC III Regular Interest M-II-5..............................................................51
REMIC III Regular Interest II-ZZ...............................................................51
REMIC III Regular Interest I-ZZ Maximum Interest Deferral Amount...............................51
REMIC III Regular Interest II-ZZ Maximum Interest Deferral Amount..............................51
REMIC IV.......................................................................................52
REMIC Provisions...............................................................................52
REO Acquisition................................................................................52
REO Disposition................................................................................52
REO Imputed Interest...........................................................................52
REO Proceeds...................................................................................52
REO Property...................................................................................52
Reportable Modified Mortgage Loan..............................................................52
Repurchase Event...............................................................................53
Request for Release............................................................................53
Required Insurance Policy......................................................................53
Reserve Fund...................................................................................53
Reserve Fund Deposit...........................................................................53
Reserve Fund Residual Right....................................................................53
Residential Funding............................................................................53
Responsible Officer............................................................................53
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Servicing Accounts.............................................................................53
Servicing Advances.............................................................................53
Servicing Fee..................................................................................53
Servicing Fee Rate.............................................................................54
Servicing Modification.........................................................................54
Servicing Officer..............................................................................54
Standard & Poor's..............................................................................54
Startup Date...................................................................................54
Stated Principal Balance.......................................................................54
Sub-Group......................................................................................54
Subordination..................................................................................54
Subordination Percentage.......................................................................55
Subsequent Recoveries..........................................................................55
Subserviced Mortgage Loan......................................................................55
Subservicer....................................................................................55
Subservicer Advance............................................................................55
Subservicing Account...........................................................................55
Subservicing Agreement.........................................................................55
Subservicing Fee...............................................................................55
Subservicing Fee Rate..........................................................................55
Tax Returns....................................................................................55
Transfer.......................................................................................56
Transferee.....................................................................................56
Transferor.....................................................................................56
Trust Fund.....................................................................................56
Uniform Single Attestation Program for Mortgage Bankers........................................56
Uncertificated Accrued Interest................................................................56
Uncertificated Pass-Through Rate...............................................................57
Uncertificated Principal Balance...............................................................57
Uncertificated Regular Interests...............................................................57
Uncertificated REMIC II Pass-Through Rate......................................................57
Uncertificated REMIC III Pass-Through Rate.....................................................57
Uninsured Cause................................................................................57
United States Person...........................................................................57
VA.............................................................................................57
Voting Rights..................................................................................58
Section 1.02. DETERMINATION OF LIBOR................................................................58
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. CONVEYANCE OF MORTGAGE LOANS..........................................................60
Section 2.02. ACCEPTANCE BY TRUSTEE.................................................................63
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Section 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER SERVICER AND THE
DEPOSITOR.............................................................................64
Section 2.04. REPRESENTATIONS AND WARRANTIES OF RESIDENTIAL FUNDING.................................67
Section 2.05. EXECUTION AND AUTHENTICATION OF CERTIFICATES; CONVEYANCE OF UNCERTIFICATED
REMIC REGULAR INTERESTS...............................................................68
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. MASTER SERVICER TO ACT AS SERVICER....................................................70
Section 3.02. SUBSERVICING AGREEMENTS BETWEEN MASTER SERVICER AND SUBSERVICERS;
ENFORCEMENT OF SUBSERVICERS' OBLIGATIONS..............................................71
Section 3.03. SUCCESSOR SUBSERVICERS................................................................72
Section 3.04. LIABILITY OF THE MASTER SERVICER......................................................73
Section 3.05. NO CONTRACTUAL RELATIONSHIP BETWEEN SUBSERVICER AND TRUSTEE OR
CERTIFICATEHOLDERS....................................................................73
Section 3.06. ASSUMPTION OR TERMINATION OF SUBSERVICING AGREEMENTS BY TRUSTEE.......................73
Section 3.07. COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS; DEPOSITS TO CUSTODIAL
ACCOUNT...............................................................................73
Section 3.08. SUBSERVICING ACCOUNTS; SERVICING ACCOUNTS.............................................76
Section 3.09. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE MORTGAGE
LOANS.................................................................................77
Section 3.10. PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT......................................78
Section 3.11. MAINTENANCE OF PRIMARY INSURANCE COVERAGE.............................................80
Section 3.12. MAINTENANCE OF FIRE INSURANCE AND OMISSIONS AND FIDELITY COVERAGE.....................80
Section 3.13. ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AND MODIFICATION
AGREEMENTS; CERTAIN ASSIGNMENTS.......................................................81
Section 3.14. REALIZATION UPON DEFAULTED MORTGAGE LOANS.............................................83
Section 3.15. TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.......................................86
Section 3.16. SERVICING AND OTHER COMPENSATION; COMPENSATING INTEREST...............................87
Section 3.17. REPORTS TO THE TRUSTEE AND THE DEPOSITOR..............................................88
Section 3.18. ANNUAL STATEMENT AS TO COMPLIANCE.....................................................88
Section 3.19. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT...............................89
Section 3.20. RIGHT OF THE DEPOSITOR IN RESPECT OF THE MASTER SERVICER..............................89
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. CERTIFICATE ACCOUNT...................................................................91
Section 4.02. DISTRIBUTIONS.........................................................................91
Section 4.03. STATEMENTS TO CERTIFICATEHOLDERS; STATEMENTS TO RATING AGENCIES; EXCHANGE
ACT REPORTING........................................................................104
ix
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........................................................109
Section 4.06. REPORTS OF FORECLOSURES AND ABANDONMENT OF MORTGAGED PROPERTY........................112
Section 4.07. OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS........................................113
Section 4.08. LIMITED MORTGAGE LOAN REPURCHASE RIGHT. .........................................113
Section 4.09. DISTRIBUTION OF GROUP I NET WAC CAP SHORTFALL CARRY-FORWARD AMOUNTS,
GROUP II-A BASIS RISK SHORTFALL CARRY-FORWARD AMOUNTS, GROUP II-B BASIS
RISK SHORTFALL CARRY-FORWARD AMOUNTS AND CLASS M-II BASIS RISK SHORTFALL
CARRY-FORWARD AMOUNTS; RESERVE FUND..................................................113
Section 4.10. [RESERVED]...........................................................................115
Section 4.11. DERIVATIVE CONTRACTS.................................................................115
ARTICLE V
THE CERTIFICATES
Section 5.01. THE CERTIFICATES.....................................................................117
Section 5.02. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES................................118
Section 5.03. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES....................................123
Section 5.04. PERSONS DEEMED OWNERS................................................................124
Section 5.05. APPOINTMENT OF PAYING AGENT..........................................................124
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. RESPECTIVE LIABILITIES OF THE DEPOSITOR AND THE MASTER SERVICER......................125
Section 6.02. MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE MASTER SERVICER; ASSIGNMENT
OF RIGHTS AND DELEGATION OF DUTIES BY MASTER SERVICER................................125
Section 6.03. LIMITATION ON LIABILITY OF THE DEPOSITOR, THE MASTER SERVICER AND OTHERS
....................................................................................126
Section 6.04. DEPOSITOR AND MASTER SERVICER NOT TO RESIGN..........................................127
ARTICLE VII
DEFAULT
Section 7.01. EVENTS OF DEFAULT....................................................................128
Section 7.02. TRUSTEE OR DEPOSITOR TO ACT; APPOINTMENT OF SUCCESSOR................................129
Section 7.03. NOTIFICATION TO CERTIFICATEHOLDERS...................................................131
Section 7.04. WAIVER OF EVENTS OF DEFAULT..........................................................131
x
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. DUTIES OF TRUSTEE....................................................................132
Section 8.02. CERTAIN MATTERS AFFECTING THE TRUSTEE................................................133
Section 8.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS................................135
Section 8.04. TRUSTEE MAY OWN CERTIFICATES.........................................................135
Section 8.05. MASTER SERVICER TO PAY TRUSTEE'S FEES AND EXPENSES; INDEMNIFICATION
....................................................................................135
Section 8.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.................................................136
Section 8.07. RESIGNATION AND REMOVAL OF THE TRUSTEE...............................................136
Section 8.08. SUCCESSOR TRUSTEE....................................................................137
Section 8.09. MERGER OR CONSOLIDATION OF TRUSTEE...................................................138
Section 8.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE........................................138
Section 8.11. APPOINTMENT OF CUSTODIANS............................................................139
ARTICLE IX
TERMINATION
Section 9.01. TERMINATION UPON PURCHASE BY THE MASTER SERVICER OR LIQUIDATION OF ALL
MORTGAGE LOANS.......................................................................140
Section 9.02. ADDITIONAL TERMINATION REQUIREMENTS..................................................142
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC ADMINISTRATION.................................................................144
Section 10.02. MASTER SERVICER, REMIC ADMINISTRATOR AND TRUSTEE INDEMNIFICATION
....................................................................................147
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. AMENDMENT............................................................................149
Section 11.02. RECORDATION OF AGREEMENT; COUNTERPARTS...............................................151
Section 11.03. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS...........................................152
Section 11.04. GOVERNING LAW........................................................................152
Section 11.05. NOTICES.................................................................................152
Section 11.06. NOTICES TO RATING AGENCIES...........................................................153
xi
Section 11.07. SEVERABILITY OF PROVISIONS...........................................................154
Section 11.08. SUPPLEMENTAL PROVISIONS FOR RESECURITIZATION.........................................154
Section 11.09. [RESERVED]...........................................................................155
Section 11.10. THIRD PARTY BENEFICIARY..............................................................155
xii
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-1 Group I Loan Schedule
Exhibit F-2 Group II-A Loan Schedule
Exhibit F-3 Group II-B Loan Schedule
Exhibit G Forms 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 Text of Amendment to Pooling and Servicing Agreement Pursuant to Section
11.01(e) for a Limited Guaranty
Exhibit L Form of Limited Guaranty
Exhibit M Form of Lender Certification for Assignment of Mortgage Loan
Exhibit N Form of Rule 144A Investment Representation
Exhibit O [Reserved]
Exhibit P Form of ERISA Representation Letter (Class M Certificates)
Exhibit Q [Reserved]
Exhibit R-1 Form 10-K Certification
Exhibit R-2 Form 10-K Back-up Certification
Exhibit S Information to be Provided by the Master Servicer to the Rating Agencies Relating
to Reportable Modified Mortgage Loans
xiii
This Pooling and Servicing Agreement, effective as of November 1, 2003,
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, a New York banking
corporation, 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
twenty-three classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans (as defined herein).
REMIC I
-------
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Group I Loans and certain
other related assets (exclusive of the Reserve Fund) 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 "regular interest" in REMIC I
(the "REMIC I Regular Interest"). The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii)) for the REMIC I Regular Interest shall be the 360th
Distribution Date. The REMIC I Regular Interest will not be certificated.
UNCERTIFICATED REMIC I UNCERTIFICATED REMIC I LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
----------- ----------------- ----------------- -------------
REMIC I Regular Variable(1) $400,001,669.31 November 25, 2033
Interest A
_______________
(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 Group II Loans and certain
other related assets (exclusive of the Reserve Fund) 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 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 the
"regular interest" in REMIC II (the "REMIC II Regular Interest"). The "latest
possible
1
maturity date" (determined solely for purposes of satisfying Treasury regulation
Section 1.860G- 1(a)(4)(iii)) for the REMIC II Regular Interests shall be the
360th Distribution Date. The REMIC II Regular Interest will not be certificated.
UNCERTIFICATED REMIC II UNCERTIFICATED REMIC II LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
----------- ----------------- ----------------- -------------
REMIC II Regular Variable(1) $1,000,000,095.49 November 25, 2033
Interest B
_______________
(1) Calculated as provided in the definition of Uncertificated REMIC II
Pass-Through Rate.
REMIC III
---------
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the REMIC I Regular Interest
and the REMIC II Regular Interest and certain other related assets (exclusive of
the Reserve Fund) 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 III." The Class R-III Certificates will
represent the sole class of "residual interests" in REMIC III 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 III Pass-Through Rate") and initial Uncertificated
Principal Balance for each of the "regular interests" in REMIC III (the "REMIC
III 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 III Regular Interest shall be the 360th Distribution Date. None of
the REMIC III Regular Interests will be certificated.
UNCERTIFICATED
UNCERTIFICATED REMIC III REMIC III LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
----------- ----------------- ----------------- -------------
I-AA Variable(1) $392,001,635.92 November 25, 2033
A-I-1 Variable(1) $ 1,465,000.00 November 25, 2033
A-I-2 Variable(1) $ 351,000.00 November 25, 2033
A-I-3 Variable(1) $ 423,000.00 November 25, 2033
A-I-4 Variable(1) $ 198,000.00 November 25, 2033
A-I-5 Variable(1) $ 258,000.00 November 25, 2033
A-I-6 Variable(1) $ 525,000.00 November 25, 2033
A-I-7 Variable(1) $ 400,000.00 November 25, 2033
M-I-1 Variable(1) $ 150,000.00 November 25, 2033
M-I-2 Variable(1) $ 130,000.00 November 25, 2033
M-I-3 Variable(1) $ 100,000.00 November 25, 2033
I-ZZ Variable(1) $ 4,000,033.39 November 25, 2033
II-AA Variable(1) $980,000,093.58 November 25, 2033
A-II-A Variable(1) $ 4,698,600.00 November 25, 2033
A-II-B Variable(1) $ 3,501,400.00 November 25, 2033
2
M-II-1 Variable(1) $ 725,000.00 November 25, 2033
M-II-2 Variable(1) $ 600,000.00 November 25, 2033
M-II-3 Variable(1) $ 175,000.00 November 25, 2033
M-II-4 Variable(1) $ 150,000.00 November 25, 2033
M-II-5 Variable(1) $ 150,000.00 November 25, 2033
II-ZZ Variable(1) $10,000,001.91 November 25, 2033
_______________
(1) Calculated as provided in the definition of Uncertificated REMIC III
Pass-Through Rate.
REMIC IV
--------
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC III Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as REMIC IV. The Class R-IV Certificates will represent the sole
class of "residual interests" in REMIC IV 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, Final Scheduled Distribution Date and initial ratings for each
Class of Certificates comprising the interests representing "regular interests"
in REMIC IV and the Class R Certificates. 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 IV Regular Certificates shall be
the 360th Distribution Date.
AGGREGATE INITIAL
CERTIFICATE
PASS-THROUGH PRINCIPAL FINAL SCHEDULED
DESIGNATION TYPE RATE BALANCE FEATURES DISTRIBUTION DATE INITIAL RATINGS(4)
----------- ---- ---- ------- -------- ----------------- ------------------
S&P XXXXX'X
Class A-I-1 Senior Adjustable Rate(1) $ 146,500,000.00 Senior September 25, 2022 AAA Aaa
Class A-I-2 Senior 3.120% $ 35,100,000.00 Senior May 25, 2025 AAA Aaa
Class A-I-3 Senior 3.580% $ 42,300,000.00 Senior March 25, 2028 AAA Aaa
Class A-I-4 Senior 4.260%(1) $ 19,800,000.00 Senior July 25, 2029 AAA Aaa
Class A-I-5 Senior 4.910%(1) $ 25,800,000.00 Senior January 25, 2031 AAA Aaa
Class A-I-6 Senior 5.860%(1)(2) $ 52,500,000.00 Senior November 25, 2033 AAA Aaa
Class A-I-7 Senior 4.850%(1) $ 40,000,000.00 Senior/Lockout November 25, 2033 AAA Aaa
Class A-II-A Senior Adjustable(1)(2) $ 469,860,000.00 Senior November 25, 2033 AAA Aaa
Class A-II-B Senior Adjustable(1)(2) $ 350,140,000.00 Senior November 25, 2033 AAA Aaa
Class M-I-1 Mezzanine 5.520%(1)(2) $ 15,000,000.00 Xxxxxxxxx Xxxxxxxx 00, 0000 XX Aa2
Class M-I-2 Mezzanine 6.000%(1)(2) $ 13,000,000.00 Mezzanine November 25, 2033 A A2
Class M-I-3 Mezzanine 6.000%(1)(2) $ 10,000,000.00 Mezzanine November 25, 2033 BBB Baa2
Class M-II-1 Mezzanine Adjustable(1)(2) $ 72,500,000.00 Xxxxxxxxx Xxxxxxxx 00, 0000 XX Aa2
Class M-II-2 Mezzanine Adjustable(1)(2) $ 60,000,000.00 Mezzanine November 25, 2033 A A2
Class M-II-3 Mezzanine Adjustable(1)(2) $ 17,500,000.00 Mezzanine November 25, 2033 A- A3
Class M-II-4 Mezzanine Adjustable(1)(2) $ 15,000,000.00 Mezzanine November 25, 2033 BBB+ Baa1
Class M-II-5 Mezzanine Adjustable(1)(2) $ 15,000,000.00 Mezzanine November 25, 2033 BBB Baa2
Class SB-I Subordinate Variable(3) $ 1,669.31 Subordinate November 25, 2033 N/R N/R
Class SB-II Subordinate Variable(3) $ 95.49 Subordinate November 25, 2033 N/R N/R
Class R-I Residual N/A N/A Residual N/A N/R N/R
3
Class R-II Residual N/A N/A Residual N/A N/R N/R
Class R-III Residual N/A N/A Residual N/A N/R N/R
Class R-IV Residual N/A N/A Residual N/A N/R N/R
_______________
(1) Subject to a cap as described in the definition of "Pass-Through Rate"
herein. Calculated in accordance with the definition of "Pass-Through
Rate" herein.
(2) On and after the second Distribution Date after the first possible
Group I Optional Termination Date, the Pass-Through Rates on the Class
A-I-6, Class M-I-1, Class M-I-2 and Class M-I-3 Certificates will
increase by a per annum rate equal to 0.50%. On and after the second
Distribution Date after the first possible Group II Optional
Termination Date, the margin on each of the Class A-II Certificates
will double and the margin on each of the Class M-II Certificates will
increase by 1.5 times.
(3) 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 Group I Loans have an aggregate Cut-off Date Principal Balance
equal to $400,001,669.31. The Group I Loans are fixed-rate, fully amortizing and
balloon payment, first lien mortgage loans having terms to maturity at
origination or modification of generally not more than 30 years. The Group II
Loans have an aggregate Cut-off Date Principal Balance equal to
$1,000,000,095.49. The Group II Loans are adjustable-rate, fully amortizing,
first lien mortgage loans having terms to maturity at origination or
modification of generally not more than 30 years.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
4
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 the Class A Certificates and Class M Certificates, interest accrued during
the preceding Interest Accrual Period on its Certificate Principal Balance
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 Compensating Interest pursuant to Section 3.16) and Relief Act
Shortfalls on Mortgage Loans during the related Due Period, in each case to the
extent allocated to that Class of Certificates pursuant to Section 4.02(h); and
(b) the interest portion of Realized Losses allocated to such Class through
Subordination as described in Section 4.05.
With respect to each Distribution Date and the Class SB Certificates,
interest accrued during the preceding Interest Accrual Period at the related
Pass-Through Rate for that Distribution Date on the notional amount as specified
in the definition of Pass-Through Rate, immediately prior to such Distribution
Date in each case, reduced by any interest shortfalls with respect to the
Mortgage Loans in the related Loan Group including Prepayment Interest
Shortfalls to the extent not covered by Compensating Interest pursuant to
Section 3.16 or by Group I or Group II Excess Cash Flow pursuant to clauses (xi)
through (xiv) of Section 4.02(c) and clauses (xiii) through (xvi) of Section
4.02(d). In addition, Accrued Certificate Interest with respect to each
Distribution Date, as to the Class SB Certificates, shall be reduced by an
amount equal to the interest portion of Realized Losses allocated to the Group I
Overcollateralization Amount or Group II Overcollateralization Amount, as
applicable, pursuant to Section 4.05 hereof. Accrued Certificate Interest on the
Class A-I Certificates (other than the Class A-I-1 Certificates), Class M-I
Certificates and Class SB-I Certificates shall accrue on the basis of a 360-day
year consisting of twelve 30-day months. Accrued Certificate Interest on the
Class A-I-1, Class A-II, Class M-II and Class SB-II 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
related Subservicing Fee Rate.
ADJUSTMENT DATE: As 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.
5
ADVANCE: As to any Mortgage Loan, any advance made by the Master
Servicer, pursuant to Section 4.04.
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: As 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,
Subsequent Recoveries, REO Proceeds, Insurance Proceeds, Principal Prepayments,
Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04, 4.07 or 4.08
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, Insurance Proceeds, REO Proceeds, Subsequent Recoveries 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: As to any Mortgaged Property, one of the following:
(i) the lesser of (a) the appraised value of such Mortgaged Property based upon
the appraisal 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,
(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, or (iii) with
respect to the Mortgage Loans for which a broker's price opinion was obtained,
the value contained in such opinion.
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.
BALLOON LOAN: Each of the Mortgage Loans having an original term to
maturity that is shorter than the related amortization term.
6
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.
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 States of New York, Minnesota,
Illinois, Texas or Michigan (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.
CAPITALIZATION REIMBURSEMENT AMOUNT: As to any Distribution Date and
each Loan Group, the amount of unreimbursed Advances or Servicing Advances that
were added to the Stated Principal Balance of the related 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: As 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, as
trustee, in trust for the registered holders of Residential Asset Mortgage
Products, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series
2003-RS10" and which must be an Eligible Account.
CERTIFICATE ACCOUNT DEPOSIT DATE: As 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
7
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
Sections 4.02(c) or 4.02(d) and (y) the aggregate of all reductions in
Certificate Principal Balance 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. With respect to each Class
SB-I Certificate, on any date of determination, an amount equal to the
Percentage Interest evidenced by such Certificate times an amount equal to (i)
the excess, if any, of (A) the then aggregate Stated Principal Balance of the
Group I Loans over (B) the then aggregate Certificate Principal Balance of the
Class A-I Certificates and Class M-I Certificates then outstanding, plus (ii)
any Group I Diverted Excess Spread and minus (iii) any Group II Diverted Excess
Spread. With respect to each Class SB-II Certificate, on any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate times an amount equal to (i) the excess, if any, of (A) the then
aggregate Stated Principal Balance of the Group II Loans over (B) the then
aggregate Certificate Principal Balance of the Class A-II Certificates and Class
M-II Certificates then outstanding, plus (ii) any Group II Diverted Excess
Spread and minus (iii) any Group I Diverted Excess Spread. 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 CERTIFICATES: Any one of the Class A-I or Class A-II
Certificates.
CLASS A-I CERTIFICATES: Any one of the Class A-I-1, Class A-I-2, Class
A-I-3, Class A-I-4, Class A-I-5, Class A-I-6 or Class A-I-7 Certificates.
CLASS A-I INTEREST DISTRIBUTION AMOUNT: With respect to each Class of
Class A-I Certificates and any Distribution Date, the aggregate amount of
Accrued Certificate Interest to be distributed to the holders of such Class of
Class A-I Certificates for such Distribution Date, plus any related Accrued
Certificate Interest remaining unpaid from any prior Distribution Date, less any
related Prepayment Interest Shortfalls for such Distribution Date not covered by
Compensating Interest allocated as described herein, allocated among the Class
A-I Certificates on a pro rata basis.
8
CLASS A-I PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group I Stepdown Date or on or after the
Group I Stepdown Date if a Group I Trigger Event is in effect for that
Distribution Date, the Group I Principal Distribution Amount for that
Distribution Date or (ii) on or after the Group I Stepdown Date if a Group I
Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the Group I Principal Distribution Amount for that
Distribution Date; and
(ii) the excess, if any, of (A) the aggregate Certificate
Principal Balance of the Class A-I 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 Group I Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
aggregate Stated Principal Balance of the Group I Loans after giving
effect to distributions to be made on that Distribution Date, less the
related Overcollateralization Floor.
CLASS A-I-1 CERTIFICATE: Any one of the Class A-I-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-I
Certificates, Class SB-I Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
I as set forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC IV for purposes of the REMIC Provisions and (ii) the
right to receive the Group I Net WAC Cap Shortfall Carry-Forward Amount from the
Reserve Fund.
CLASS A-I-1 MARGIN: With respect to the Class A-I-1 Certificates and
any Distribution Date, 0.19% per annum.
CLASS A-I-2 CERTIFICATE: Any one of the Class A-I-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-I
Certificates, Class SB-I Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
I as set forth in Section 4.05, and evidencing an interest designated as a
"regular interest" in REMIC IV for purposes of the REMIC Provisions.
CLASS A-I-3 CERTIFICATE: Any one of the Class A-I-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-I
Certificates, Class SB-I Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
I as set forth in Section 4.05, and evidencing an interest designated as a
"regular interest" in REMIC IV for purposes of the REMIC Provisions.
CLASS A-I-4 CERTIFICATE: Any one of the Class A-I-4 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-I
Certificates, Class SB-I Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
I as set forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC IV for
9
purposes of the REMIC Provisions and (ii) the right to receive the Group I Net
WAC Cap Shortfall Carry-Forward Amount from the Reserve Fund.
CLASS A-I-5 CERTIFICATE: Any one of the Class A-I-5 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-I
Certificates, Class SB-I Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
I as set forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC IV for purposes of the REMIC Provisions and (ii) the
right to receive the Group I Net WAC Cap Shortfall Carry-Forward Amount from the
Reserve Fund.
CLASS A-I-6 CERTIFICATE: Any one of the Class A-I-6 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-I
Certificates, Class SB-I Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
I as set forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC IV for purposes of the REMIC Provisions and (ii) the
right to receive the Group I Net WAC Cap Shortfall Carry-Forward Amount from the
Reserve Fund.
CLASS A-I-7 CERTIFICATE: Any one of the Class A-I-7 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-I
Certificates, Class SB-I Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
I as set forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC IV for purposes of the REMIC Provisions and (ii) the
right to receive the Group I Net WAC Cap Shortfall Carry-Forward Amount from the
Reserve Fund.
CLASS A-I-7 LOCKOUT DISTRIBUTION AMOUNT: For any Distribution Date, the
product of (x) the Class A-I-7 Lockout Percentage for that Distribution Date and
(y) the Class A-I-7 Pro Rata Distribution Amount for that Distribution Date. In
no event shall the Class A-I-7 Lockout Distribution Amount for a Distribution
Date exceed the Class A-I Principal Distribution Amount for that Distribution
Date or the Certificate Principal Balance of the Class A-I-7 Certificates
immediately prior to that Distribution Date.
CLASS A-I-7 LOCKOUT PERCENTAGE: For each Distribution Date, the
applicable percentage set forth below:
(i) for any Distribution Date from December 2003 through and including
November 2006, 0%,
(ii) for any Distribution Date from December 2006 through and including
November 2008, 45%,
(iii) for any Distribution Date from December 2008 through and
including November 2009, 80%,
10
(iv) for any Distribution Date from December 2009 through and including
November 2010, 100%, and
(v) for any Distribution Date on or after December 2010, 300%.
CLASS A-I-7 PRO RATA DISTRIBUTION AMOUNT: For any Distribution Date, an
amount equal to the product of (x) a fraction, the numerator of which is the
Certificate Principal Balance of the Class A-I-7 Certificates immediately prior
to that Distribution Date and the denominator of which is the aggregate
Certificate Principal Balance of the Class A-I Certificates immediately prior to
that Distribution Date and (y) the Class A-I Principal Distribution Amount for
that Distribution Date.
CLASS A-II CERTIFICATE: Any one of the Class A-II-A Certificates and
Class A-II-B Certificates.
CLASS A-II-A CERTIFICATE: Any one of the Class A-II-A 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-II
Certificates, Class SB-II Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
II-A as set forth in Section 4.05, and evidencing (i) an interest designated as
a "regular interest" in REMIC IV for purposes of the REMIC Provisions and (ii)
the right to receive the Group II-A Basis Risk Shortfall Carry-Forward Amount
from the Reserve Fund.
CLASS A-II-B CERTIFICATE: Any one of the Class A-II-B 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-II
Certificates, Class SB-II Certificates and Class R-IV Certificates with respect
to distributions and the allocation of Realized Losses in respect of Loan Group
II-B as set forth in Section 4.05, and evidencing (i) an interest designated as
a "regular interest" in REMIC IV for purposes of the REMIC Provisions and (ii)
the right to receive the Group II-B Basis Risk Shortfall Carry-Forward Amount
from the Reserve Fund.
CLASS A-II INTEREST DISTRIBUTION AMOUNT: With respect to each Class of
Class A-II Certificates and any Distribution Date, the aggregate amount of
Accrued Certificate Interest to be distributed to the holders of such Class of
Class A-II Certificates for such Distribution Date, plus any related Accrued
Certificate Interest thereon remaining unpaid from any prior Distribution Date,
less any related Prepayment Interest Shortfalls for such Distribution Date not
covered by Compensating Interest, allocated among the Class A-II Certificates in
the amounts and priority as follows:
(i) first, from the Interest Remittance Amount derived from
the related Sub- Group;
(ii) second, from the Interest Remittance Amount derived from
the non-related Sub-Group after taking into account any payments in
respect of interest on the other Class of Class A-II Certificates made
in clause (i) above;
(iii) third, from the Principal Remittance Amount derived from
the related Sub- Group; and
11
(iv) fourth, from the Principal Remittance Amount derived from
the non-related Sub-Group after taking into account any payments in
respect of interest on the other Class of Class A-II Certificates made
in clause (iii) above.
CLASS A-II MARGIN: With respect to the Class A-II-A Certificates,
initially 0.330% per annum, and on any Distribution Date on or after the second
Distribution Date after the first possible Group II Optional Termination Date,
0.660% per annum. With respect to the Class A-II-B Certificates, initially
0.340% per annum, and on any Distribution Date on or after the second
Distribution Date after the first possible Group II Optional Termination Date,
0.680% per annum.
CLASS A-II PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group II Stepdown Date or on or after the
Group II Stepdown Date if a Group II Trigger Event is in effect for that
Distribution Date, the Group II Principal Distribution Amount for that
Distribution Date or (ii) on or after the Group II Stepdown Date if a Group II
Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the Group II Principal Distribution Amount for that
Distribution Date; and
(ii) the excess, if any, of (A) the aggregate Certificate
Principal Balance of the Class A-II 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 Group II Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
aggregate Stated Principal Balance of the Group II Loans after giving
effect to distributions to be made on that Distribution Date, less the
related Overcollateralization Floor.
CLASS A-II-A PRINCIPAL DISTRIBUTION AMOUNT: On any Distribution Date,
the Class A-II Principal Distribution Amount multiplied by a fraction, the
numerator of which is the portion of the Group II Principal Allocation Amount
related to the Group II-A Loans for such Distribution Date and the denominator
of which is the Group II Principal Allocation Amount for all of the Group II
Loans for such Distribution Date.
CLASS A-II-B PRINCIPAL DISTRIBUTION AMOUNT: On any Distribution Date,
the Class A-II Principal Distribution Amount multiplied by a fraction, the
numerator of which is the portion of the Group II Principal Allocation Amount
related to the Group II-B Loans for such Distribution Date and the denominator
of which is the Group II Principal Allocation Amount for all of the Group II
Loans for such Distribution Date.
CLASS M CERTIFICATE: Any one of the Class M-I or Class M-II
Certificates.
CLASS M-I CERTIFICATES: Any one of the Class M-I-1, Class M-I-2 or
Class M-I-3 Certificates.
CLASS M-I-1 CERTIFICATE: Any one of the Class M-I-1 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class
M-I-2, Class M-I-3, Class SB-I and Class R-IV Certificates with respect to
distributions and the allocation of Realized Losses in respect of Loan Group I
as set forth in Section
12
4.05, and evidencing an interest designated as a "regular interest" in REMIC IV
for purposes of the REMIC Provisions.
CLASS M-I-1 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-I-1 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-I-1 Certificates.
CLASS M-I-1 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group I Stepdown Date or on or after the
Group I Stepdown Date if a Group I Trigger Event is in effect for that
Distribution Date, the remaining Group I Principal Distribution Amount for that
Distribution Date after distribution of the Class A-I Principal Distribution
Amount or (ii) on or after the Group I Stepdown Date if a Group I Trigger Event
is not in effect for that Distribution Date, the lesser of:
(i) the remaining Group I Principal Distribution Amount for
that Distribution Date after distribution of the Class A-I Principal
Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A-I Certificates (after
taking into account the payment of the Class A-I Principal Distribution
Amount for that Distribution Date) and (2) the Certificate Principal
Balance of the Class M-I-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 Group I Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
aggregate Stated Principal Balance of the Group I Loans after giving
effect to distributions to be made on that Distribution Date, less the
related Overcollateralization Floor.
CLASS M-I-2 CERTIFICATE: Any one of the Class M-I-2 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class
M-I-3, Class SB-I and Class R-IV Certificates with respect to distributions and
the allocation of Realized Losses in respect of Loan Group I as set forth in
Section 4.05, and evidencing an interest designated as a "regular interest" in
REMIC IV for purposes of the REMIC Provisions.
CLASS M-I-2 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-I-2 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-I-2 Certificates.
CLASS M-I-2 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group I Stepdown Date or on or after the
Group I Stepdown Date if a Group I Trigger Event
13
is in effect for that Distribution Date, the remaining Group I Principal
Distribution Amount for that Distribution Date after distribution of the Class
A-I Principal Distribution Amount and the Class M- I-1 Principal Distribution
Amount or (ii) on or after the Group I Stepdown Date if a Group I Trigger Event
is not in effect for that Distribution Date, the lesser of:
(i) the remaining Group I Principal Distribution Amount for
that Distribution Date after distribution of the Class A-I Principal
Distribution Amount and the Class M-I-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-I Certificates and Class
M-I-1 Certificates (after taking into account the payment of the Class
A-I Principal Distribution Amount and the Class M-I-1 Principal
Distribution Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-I-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 Group I Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
aggregate Stated Principal Balance of the Group I Loans after giving
effect to distributions to be made on that Distribution Date, less the
related Overcollateralization Floor.
CLASS M-I-3 CERTIFICATE: Any one of the Class M-I-3 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class SB-I
Certificates and Class R-IV Certificates with respect to distributions and the
allocation of Realized Losses in respect of Loan Group I as set forth in Section
4.05, and evidencing an interest designated as a "regular interest" in REMIC IV
for purposes of the REMIC Provisions.
CLASS M-I-3 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-I-3 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-I-3 Certificates.
CLASS M-I-3 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group I Stepdown Date or on or after the
Group I Stepdown Date if a Group I Trigger Event is in effect for that
Distribution Date, the remaining Group I Principal Distribution Amount for that
Distribution Date after distribution of the Class A-I Principal Distribution
Amount, the Class M-I-1 Principal Distribution Amount and the Class M-I-2
Principal Distribution Amount or (ii) on or after the Group I Stepdown Date if a
Group I Trigger Event is not in effect for that Distribution Date, the lesser
of:
(i) the remaining Group I Principal Distribution Amount for
that Distribution Date after distribution of the Class A-I Principal
Distribution Amount, the Class M-I-1 Principal Distribution Amount and
the Class M-I-2 Principal Distribution Amount; and
14
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A-I Certificates, Class
M-I-1 Certificates and Class M-I-2 Certificates (after taking into
account the payment of the Class A-I Principal Distribution Amount, the
Class M-I-1 Principal Distribution Amount and the Class M-I-2 Principal
Distribution Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M- I-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 Group I Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
aggregate Stated Principal Balance of the Group I Loans after giving
effect to distributions to be made on that Distribution Date, less the
related Overcollateralization Floor.
CLASS M-II CERTIFICATES: Any one of the Class M-II-1, Class M-II-2,
Class M-II-3, Class M-II- 4 or Class M-II-5 Certificates.
CLASS M-II-1 CERTIFICATE: Any one of the Class M-II-1 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class
M-II-2, Class M-II-3, Class M-II-4, Class M-II-5, Class SB-II and Class R-IV
Certificates with respect to distributions and the allocation of Realized Losses
in respect of Loan Group II as set forth in Section 4.05, and evidencing an
interest designated as a "regular interest" in REMIC IV for purposes of the
REMIC Provisions.
CLASS M-II-1 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-II-1 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-II-1 Certificates.
CLASS M-II-1 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group II Stepdown Date or on or after the
Group II Stepdown Date if a Group II Trigger Event is in effect for that
Distribution Date, the remaining Group II Principal Distribution Amount for that
Distribution Date after distribution of the Class A-II Principal Distribution
Amount or (ii) on or after the Group II Stepdown Date if a Group II Trigger
Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Group II Principal Distribution Amount for
that Distribution Date after distribution of the Class A-II Principal
Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A-II Certificates (after
taking into account the payment of the Class A-II Principal
Distribution Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-II-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 Group II Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
aggregate Stated Principal Balance of the
15
Group II Loans after giving effect to distributions to be made that
Distribution Date, less the related Overcollateralization Floor.
CLASS M-II-2 CERTIFICATE: Any one of the Class M-II-2 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class
M-II-3, Class M-II-4, Class M-II-5, Class SB-II and Class R-IV Certificates with
respect to distributions and the allocation of Realized Losses in respect of
Loan Group II as set forth in Section 4.05, and evidencing an interest
designated as a "regular interest" in REMIC IV for purposes of the REMIC
Provisions.
CLASS M-II-2 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-II-2 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-II-2 Certificates.
CLASS M-II-2 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group II Stepdown Date or on or after the
Group II Stepdown Date if a Group II Trigger Event is in effect for that
Distribution Date, the remaining Group II Principal Distribution Amount for that
Distribution Date after distribution of the Class A-II Principal Distribution
Amount and the Class M-II-1 Principal Distribution Amount or (ii) on or after
the Group II Stepdown Date if a Group II Trigger Event is not in effect for that
Distribution Date, the lesser of:
(i) the remaining Group II Principal Distribution Amount for
that Distribution Date after distribution of the Class A-II Principal
Distribution Amount and the Class M-II-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-II Certificates and Class
M-II-1 Certificates (after taking into account the payment of the Class
A-II Principal Distribution Amount and the Class M-II-1 Principal
Distribution Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-II-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 Group II Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
aggregate Stated Principal Balance of the Group II Loans after giving
effect to distributions to be made that Distribution Date, less the
related Overcollateralization Floor.
CLASS M-II-3 CERTIFICATE: Any one of the Class M-II-3 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class
M-II-4, Class M-II-5, Class SB-II and Class R-IV Certificates with respect to
distributions and the allocation of Realized Losses in respect of Loan Group II
as set forth in Section 4.05, and evidencing an interest designated as a
"regular interest" in REMIC IV for purposes of the REMIC Provisions.
16
CLASS M-II-3 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-II-3 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-II-3 Certificates.
CLASS M-II-3 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group II Stepdown Date or on or after the
Group II Stepdown Date if a Group II Trigger Event is in effect for that
Distribution Date, the remaining Group II Principal Distribution Amount for that
Distribution Date after distribution of the Class A-II Principal Distribution
Amount, the Class M-II-1 Principal Distribution Amount and the Class M-II-2
Principal Distribution Amount or (ii) on or after the Group II Stepdown Date if
a Group II Trigger Event is not in effect for that Distribution Date, the lesser
of:
(i) the remaining Group II Principal Distribution Amount for
that Distribution Date after distribution of the Class A-II Principal
Distribution Amount, the Class M-II-1 Principal Distribution Amount and
the Class M-II-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-II Certificates, Class
M-II-1 Certificates and Class M-II-2 Certificates (after taking into
account the payment of the Class A-II Principal Distribution Amount,
the Class M-II-1 Principal Distribution Amount and the Class M-II-2
Principal Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M- II-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 Group II Loans after giving
effect to distributions to be made on that Distribution Date and (y)
the aggregate Stated Principal Balance of the Group II Loans after
giving effect to distributions to be made that Distribution Date, less
the related Overcollateralization Floor.
CLASS M-II-4 CERTIFICATE: Any one of the Class M-II-4 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class
M-II-5, Class SB-II and Class R-IV Certificates with respect to distributions
and the allocation of Realized Losses in respect of Loan Group II as set forth
in Section 4.05, and evidencing an interest designated as a "regular interest"
in REMIC IV for purposes of the REMIC Provisions.
CLASS M-II-4 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-II-4 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-II-4 Certificates.
17
CLASS M-II-4 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group II Stepdown Date or on or after the
Group II Stepdown Date if a Group II Trigger Event is in effect for that
Distribution Date, the remaining Group II Principal Distribution Amount for that
Distribution Date after distribution of the Class A-II Principal Distribution
Amount, the Class M-II-1 Principal Distribution Amount, the Class M-II-2
Principal Distribution Amount and the Class M-II-3 Principal Distribution Amount
or (ii) on or after the Group II Stepdown Date if a Group II Trigger Event is
not in effect for that Distribution Date, the lesser of:
(i) the remaining Group II Principal Distribution Amount for
that Distribution Date after distribution of the Class A-II Principal
Distribution Amount, the Class M-II-1 Principal Distribution Amount,
the Class M-II-2 Principal Distribution Amount and the Class M-II-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-II Certificates, Class
M-II-1 Certificates, Class M-II-2 Certificates and Class M-II-3
Certificates (after taking into account the payment of the Class A-II
Principal Distribution Amount, the Class M-II-1 Principal Distribution
Amount, the Class M-II-2 Principal Distribution Amount and the Class
M-II-3 Principal Distribution Amount for that Distribution Date) and
(2) the Certificate Principal Balance of the Class M-II-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 Group II Loans after giving
effect to distributions to be made on that Distribution Date and (y)
the aggregate Stated Principal Balance of the Group II Loans after
giving effect to distributions to be made that Distribution Date, less
the related Overcollateralization Floor.
CLASS M-II-5 CERTIFICATE: Any one of the Class M-II-5 Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B, senior to the Class SB-II
Certificates and Class R-IV Certificates with respect to distributions and the
allocation of Realized Losses in respect of Loan Group II as set forth in
Section 4.05, and evidencing an interest designated as a "regular interest" in
REMIC IV for purposes of the REMIC Provisions.
CLASS M-II-5 INTEREST DISTRIBUTION AMOUNT: With respect to the Class
M-II-5 Certificates and any Distribution Date, the aggregate amount of Accrued
Certificate Interest to be distributed to the holders of such Class for such
Distribution Date, plus any related Accrued Certificate Interest remaining
unpaid from any prior Distribution Date, less any Prepayment Interest Shortfalls
for such Distribution Date not covered by Compensating Interest allocated as
described herein to the Class M-II-5 Certificates.
CLASS M-II-5 PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date (i) prior to the Group II Stepdown Date or on or after the
Group II Stepdown Date if a Group II Trigger Event is in effect for that
Distribution Date, the remaining Group II Principal Distribution Amount for that
Distribution Date after distribution of the Class A-II Principal Distribution
Amount, the Class M-II-1 Principal Distribution Amount, the Class M-II-2
Principal Distribution Amount, the Class M-II-3 Principal Distribution Amount
and the Class M-II-4 Principal Distribution Amount or (ii) on or after
18
the Group II Stepdown Date if a Group II Trigger Event is not in effect for that
Distribution Date, the lesser of:
(i) the remaining Group II Principal Distribution Amount for
that Distribution Date after distribution of the Class A-II Principal
Distribution Amount, the Class M-II-1 Principal Distribution Amount,
the Class M-II-2 Principal Distribution Amount, the Class M-II-3
Principal Distribution Amount and the Class M-II-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-II Certificates, Class
M-II-1 Certificates, Class M-II-2 Certificates, Class M-II-3
Certificates and Class M-II-4 Certificates (after taking into account
the payment of the Class A-II Principal Distribution Amount, the Class
M-II-1 Principal Distribution Amount, the Class M-II-2 Principal
Distribution Amount, the Class M-II-3 Principal Distribution Amount and
the Class M-II-4 Principal Distribution Amount for that Distribution
Date) and (2) the Certificate Principal Balance of the Class M-II-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 Group
II Loans after giving effect to distributions to be made on that
Distribution Date and (y) the aggregate Stated Principal Balance of the
Group II Loans after giving effect to distributions to be made that
Distribution Date, less the related Overcollateralization Floor.
CLASS M-II BASIS RISK SHORTFALL: With respect to the Class M-II-1,
Class M-II-2, Class M-II-3, Class M-II-4 and Class M-II-5 Certificates and any
Distribution Date for which the Pass-Through Rate for any such Class of
Certificates is equal to the Group II Net WAC Cap Rate, the excess, if any, of
(x) Accrued Certificate Interest on that Class of Certificates on such
Distribution Date, using the lesser of (a) LIBOR plus the related Class M-II
Margin, as calculated for such Distribution Date, and (b) the Maximum Group II
Rate, over (y) Accrued Certificate Interest on such Class of Class M- II
Certificates for such Distribution Date calculated at the Group II Net WAC Cap
Rate.
CLASS M-II BASIS RISK SHORTFALL CARRY-FORWARD AMOUNT: With respect to
the Class M-II-1, Class M-II-2, Class M-II-3, Class M-II-4 and Class M-II-5
Certificates and any Distribution Date, the sum of (a) the aggregate amount of
Class M-II Basis Risk Shortfall for each such Class on such Distribution Date
plus (b) any Class M-II Basis Risk Shortfall Carry-Forward Amount for such
Classes 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
Group I Excess Cash Flow pursuant to Section 4.02(c)(xvi) or Group II Excess
Cash Flow pursuant to Section 4.02(d)(xvii), at a rate equal to the related
Pass- Through Rate.
CLASS M-II MARGIN: With respect to the Class M-II-1 Certificates,
initially 0.650% per annum, and on any Distribution Date on or after the second
Distribution Date after the first possible Group II Optional Termination Date,
0.975% per annum. With respect to the Class M-II-2 Certificates, initially
1.700% per annum, and on any Distribution Date on or after the second
Distribution Date after the first possible Group II Optional Termination Date,
2.550% per annum. With respect to the Class M-II-3 Certificates, initially
1.800% per annum, and on any Distribution Date on or after the
19
second Distribution Date after the first possible Group II Optional Termination
Date, 2.700% per annum. With respect to the Class M-II-4 Certificates, initially
2.350% per annum, and on any Distribution Date on or after the second
Distribution Date after the first possible Group II Optional Termination Date,
3.525% per annum. With respect to the Class M-II-5 Certificates, initially
3.250% per annum, and on any Distribution Date on or after the second
Distribution Date after the first possible Group II Optional Termination Date,
4.875% per annum.
CLASS R CERTIFICATE: Any one of the Class R-I, Class R-II, Class R-III
or Class R-IV 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 R-IV CERTIFICATE: Any one of the Class R-IV 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 IV for purposes of the REMIC Provisions.
CLASS SB CERTIFICATES: Any one of the Class SB-I and Class SB-II
Certificates.
CLASS SB-I CERTIFICATE: Any one of the Class SB-I 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-I Certificates
and Class M-I Certificates with respect to distributions and the allocation of
Realized Losses in respect of Loan Group I as set forth in Section 4.05, and
evidencing an interest designated as a "regular interest" in REMIC IV for
purposes of the REMIC Provisions.
CLASS SB-II CERTIFICATE: Any one of the Class SB-II 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-II Certificates and Class M-II Certificates with respect to distributions and
the allocation of Realized Losses in respect of Loan Group II as set forth in
Section 4.05, and evidencing an interest designated as a "regular interest" in
REMIC IV for purposes of the REMIC Provisions.
20
CLOSING DATE: November 26, 2003.
CODE: The Internal Revenue Code of 1986.
COMMISSION: The Securities and Exchange Commission.
COMPENSATING INTEREST: With respect to any Distribution Date, an amount
equal to Prepayment Interest Shortfalls resulting from Principal Prepayments in
Full or Curtailments during the related Prepayment Period, but not more than 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, all income and gain on amounts held in the Custodial Account
and the Certificate Account and amounts payable to the Certificateholders with
respect to such Distribution Date and servicing compensation to which the Master
Servicer may be entitled pursuant to Section 3.10(a)(v) and (vi), in each case
with respect to the related Loan Group; provided that for purposes of this
definition the amount of the Servicing Fee will not be reduced pursuant to
Section 7.02 except as may be required pursuant to the last sentence of Section
7.02(a).
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 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Institutional Trust Services/Global Debt, RAMP, Series 2003-RS10.
CORRESPONDING CLASS: With respect to each REMIC III Regular Interest
other than REMIC III Regular Interests I-AA, I-ZZ, II-AA and II-ZZ, the
Certificate with the corresponding designation.
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: November 1, 2003.
CUT-OFF DATE PRINCIPAL BALANCE: As 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
November 2003), whether or not received.
21
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 July 1 that remained unpaid as of the close
of business on August 31 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.
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(5) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DERIVATIVE CONTRACT: Any ISDA Master Agreement, together with the
related Schedule and Confirmation, entered into by the Trustee and a Derivative
Counterparty in accordance with Section 4.11.
DERIVATIVE COUNTERPARTY: Any counterparty to a Derivative Contract as
provided in Section 4.11.
22
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, which includes 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 Xxxxxxx 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 the month
immediately following the month of the initial issuance of the Certificates or,
if such 25th day is not a Business Day, the Business Day immediately following
such 25th day.
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, either (A) a trust
23
account or accounts maintained in the corporate trust department of Bank One,
National Association, or (B) an account or accounts maintained in the corporate
asset services department of Bank One, National Association as long as its short
term debt obligations are rated P-1 (or the equivalent) or better by each Rating
Agency, and its long term debt obligations are rated A2 (or the equivalent) or
better, by each Rating Agency, or (iv) in the case of the Certificate Account
and the Reserve Fund, a trust account or accounts maintained in the corporate
trust division of JPMorgan Chase Bank, or (v) an account or accounts of a
depository institution acceptable to 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).
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
EVENT OF DEFAULT: As defined in Section 7.01.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
XXXXXX XXX: Xxxxxx Xxx, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
FASIT: A "financial asset securitization investment trust" within the
meaning of Section 860L of the Code.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHA: The Federal Housing Administration, or its successor.
FINAL CERTIFICATION: As defined in Section 2.02.
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, as follows: with respect to the Class A-I-1 Certificates,
September 25, 2022; with respect to the Class A-I-2 Certificates, May 25, 2025;
with respect to the Class A-I-3 Certificates, March 25, 2028; with respect to
the Class A-I-4 Certificates, July 25, 2029; with respect to the Class A-I-5
Certificates, January 25, 2031; with respect to the Class A-I-6 Certificates,
November 25, 2033; with respect to the Class A-I-7 Certificates, November 25,
2033; with respect to the Class A-II-A Certificates, November 25, 2033; with
respect to the Class A-II-B Certificates, November 25, 2033; with respect to the
Class M-I-1 Certificates, November 25, 2033; with respect to the Class M-I-2
Certificates, November 25, 2033; with respect to the Class M-I-3 Certificates,
November 25, 2033; with respect to the Class M-II-1 Certificates, November 25,
2033; with respect to the Class M-II-2 Certificates, November 25, 2033; with
respect to the Class M-II-3 Certificates, November 25, 2033; with respect to the
Class M-II-4 Certificates, November 25, 2033; with respect to the Class M-II-5
Certificates,
24
November 25, 2033; with respect to the Class SB-I Certificates, November 25,
2033; and with respect to the Class SB-II Certificates, November 25, 2033. 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.
FITCH: Fitch, Inc.
FORECLOSURE PROFITS: As 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.
XXXXXXX MAC: The Federal Home Loan Mortgage Corporation, 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.
GROSS MARGIN: As to each adjustable rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note and indicated in Exhibit F-2
hereto as the "NOTE MARGIN," which percentage is added to the related 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 Mortgage Loan until
the next Adjustment Date.
GROUP I AVAILABLE DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to (a) the sum of (i) the amount relating to the Group I Loans 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 that are Group I Loans, (ii) the amount of
any Advance made on the immediately preceding Certificate Account Deposit Date
with respect to the Group I Loans, (iii) any amount deposited in the Certificate
Account on the related Certificate Account Deposit Date pursuant to Section
3.12(a) in respect of the Group I Loans, (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 Group I Loans and (v) any amount deposited in
the Certificate Account pursuant to Section 4.07, 4.08 or 9.01 in respect of the
Group I Loans, reduced by (b) the sum as of the close of business on the
immediately preceding Determination Date of (w) any payments or collections
consisting of prepayment charges on the Group I Loans that were received during
the related Prepayment Period, (x) the Amount Held for Future Distribution with
respect to the Group I Loans and (y) amounts permitted to be withdrawn by the
Master Servicer from the Custodial Account in respect of the Group I Loans
pursuant to clauses (ii)-(x), inclusive, of Section 3.10(a).
25
GROUP II AVAILABLE DISTRIBUTION AMOUNT: As to any Distribution Date, an
amount equal to (a) the sum of (i) the amount relating to the Group II Loans 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 that are Group II Loans, (ii) the amount of
any Advance made on the immediately preceding Certificate Account Deposit Date
with respect to the Group II Loans, (iii) any amount deposited in the
Certificate Account on the related Certificate Account Deposit Date pursuant to
Section 3.12(a) in respect of the Group II Loans, (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 Group II Loans and (v) any amount deposited
in the Certificate Account pursuant to Section 4.07, 4.08 or 9.01 in respect of
the Group II Loans, reduced by (b) the sum as of the close of business on the
immediately preceding Determination Date of: (w) any payments or collections
consisting of prepayment charges on the Group II Loans that were received during
the related Prepayment Period, (x) the Amount Held for Future Distribution with
respect to the Group II Loans and (y) amounts permitted to be withdrawn by the
Master Servicer from the Custodial Account in respect of the Group II Loans
pursuant to clauses (ii)-(x), inclusive, of Section 3.10(a).
GROUP I CUT-OFF DATE BALANCE: $400,001,669.31.
GROUP II CUT-OFF DATE BALANCE: $1,000,000,095.49.
GROUP I DIVERTED EXCESS SPREAD: Any amount otherwise payable as Accrued
Certificate Interest on the Class SB-I Certificate that, pursuant to Section
4.02(c), is used to increase the Group II Overcollateralization Amount or is
used to offset Realized Losses on any Group II Loans. Any reduction in the Group
II Overcollateralization Amount shall first reduce the Group I Diverted Excess
Spread until it is reduced to zero. In the event of a distribution in respect of
a Group II Overcollateralization Reduction Amount to the Class SB-I
Certificates, such reduction shall be deemed to be applied to reduce any Group I
Diverted Excess Spread. No interest will accrue on the Group I Diverted Excess
Spread.
GROUP II DIVERTED EXCESS SPREAD: Any amount otherwise payable as
Accrued Certificate Interest on the Class SB-II Certificate that, pursuant to
Section 4.02(d), is used to increase the Group I Overcollateralization Amount or
is used to offset Realized Losses on any Group I Loans. Any reduction in the
Group I Overcollateralization Amount shall first reduce the Group II Diverted
Excess Spread until it is reduced to zero. In the event of a distribution in
respect of a Group I Overcollateralization Reduction Amount to the Class SB-II
Certificates such reduction shall be deemed to be applied to reduce any the
Group II Diverted Excess Spread. No interest will accrue on the Group II
Diverted Excess Spread.
GROUP I EXCESS CASH FLOW: With respect to the Group I Loans and any
Distribution Date, an amount equal to the sum of (A) the excess of (i) the Group
I Available Distribution Amount for that Distribution Date over (ii) the sum of
(a) the Group I Interest Distribution Amount for that Distribution Date and (b)
the Group I Principal Remittance Amount for that Distribution Date and (B) the
Group I Overcollateralization Reduction Amount, if any, for that Distribution
Date.
26
GROUP II EXCESS CASH FLOW: With respect to the Group II Loans and any
Distribution Date, an amount equal to the sum of (A) the excess of (i) the Group
II Available Distribution Amount for that Distribution Date over (ii) the sum of
(a) the Group II Interest Distribution Amount for that Distribution Date and (b)
the Group II Principal Remittance Amount for that Distribution Date and (B) the
Group II Overcollateralization Reduction Amount, if any, for that Distribution
Date.
GROUP I EXCESS OVERCOLLATERALIZATION AMOUNT: With respect to any
Distribution Date, the excess, if any, of (a) the Group I Overcollateralization
Amount on such Distribution Date over (b) the Group I Required
Overcollateralization Amount.
GROUP II EXCESS OVERCOLLATERALIZATION AMOUNT: With respect to any
Distribution Date, the excess, if any, of (a) the Group II Overcollateralization
Amount on such Distribution Date over (b) the Group II Required
Overcollateralization Amount.
GROUP I INTEREST DISTRIBUTION AMOUNT: The sum of the Class A-I, Class
M-I-1, Class M-I-2 and Class M-I-3 Interest Distribution Amounts.
GROUP II INTEREST DISTRIBUTION AMOUNT: The sum of the Class A-II, Class
M-II-1, Class M-II- 2, Class M-II-3, Class M-II-4 and Class M-II-5 Interest
Distribution Amounts.
GROUP I LOAN: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit F-1.
GROUP II LOAN: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit F-2 and Exhibit F-3, consisting of two
sub-groups of mortgage loans referred to as the Group II-A Loans and the Group
II-B Loans.
GROUP II-A LOAN: The Mortgage Loans designated as Group II-A Loans on
the Mortgage Loan Schedule attached hereto as Exhibit F-2.
GROUP II-B LOAN: The Mortgage Loans designated as Group II-B Loans on
the Mortgage Loan Schedule attached hereto as Exhibit F-3.
GROUP II BASIS RISK SHORTFALL: Any Class M-II Basis Risk Shortfall,
Group II-A Basis Risk Shortfall or Group II-B Basis Risk Shortfall, as
applicable.
GROUP II-A BASIS RISK SHORTFALL: With respect to the Class A-II-A
Certificates and any Distribution Date for which the Pass-Through Rate for such
Certificates is equal to the Group II Net WAC Cap Rate, the excess, if any, of
(x) Accrued Certificate Interest on that Class of Certificates on such
Distribution Date, using the lesser of (a) LIBOR plus the related Class A-II
Margin, as calculated for such Distribution Date, and (b) the Maximum Group II
Rate, over (y) Accrued Certificate Interest on the Class A-II-A Certificates for
such Distribution Date calculated at the Group II Net WAC Cap Rate.
GROUP II-A BASIS RISK SHORTFALL CARRY-FORWARD AMOUNT: With respect to
the Class A-II-A Certificates and any Distribution Date, the sum of (a) the
aggregate amount of Group II-A Basis Risk
27
Shortfall for such Class on such Distribution Date plus (b) any Group II-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 Group I Excess Cash Flow
pursuant to Section 4.02(c)(xvi) or Group II Excess Cash Flow pursuant to
Section 4.02(d)(xvii), at a rate equal to the related Pass-Through Rate.
GROUP II-B BASIS RISK SHORTFALL: With respect to the Class A-II-B
Certificates and any Distribution Date for which the Pass-Through Rate for such
Certificates is equal to the Group II Net WAC Cap Rate, the excess, if any, of
(x) Accrued Certificate Interest on that Class of Certificates on such
Distribution Date, using the lesser of (a) LIBOR plus the related Class A-II
Margin, as calculated for such Distribution Date, and (b) the Maximum Group II
Rate, over (y) Accrued Certificate Interest on the Class A-II-B Certificates for
such Distribution Date calculated at the Group II Net WAC Cap Rate.
GROUP II-B BASIS RISK SHORTFALL CARRY-FORWARD AMOUNT: With respect to
the Class A-II-B Certificates and any Distribution Date, the sum of (a) the
aggregate amount of Group II-B Basis Risk Shortfall for such Class on such
Distribution Date plus (b) any Group II-B 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 Group I Excess Cash Flow pursuant to Section 4.02(c)(xvi) or
Group II Excess Cash Flow pursuant to Section 4.02(d)(xvii), at a rate equal to
the related Pass-Through Rate.
GROUP I MARKER RATE: With respect to the Class SB-I Certificates and
any Distribution Date, a per annum rate equal to two (2) multiplied by the
weighted average of the Pass-Through Rates for each REMIC III Group I Regular
Interest (other than REMIC III Regular Interest I-AA), with the rates on each
such REMIC III Regular Interest (other than REMIC III Regular Interest I-ZZ)
subject to a cap equal to the Pass-Through Rate for the Corresponding Class for
such REMIC III Regular Interest, and the rate on REMIC III Regular Interest I-ZZ
subject to a cap of zero, in each case for purposes of this calculation.
GROUP II MARKER RATE: With respect to the Class SB-II Certificates and
any Distribution Date, a per annum rate equal to two (2) multiplied by the
weighted average of the Pass-Through Rates for each REMIC III Group II Regular
Interest (other than REMIC III Regular Interest II-AA), with the rates on each
such REMIC III Regular Interest (other than REMIC III Regular Interest II-ZZ)
subject to a cap equal to the Pass-Through Rate for the Corresponding Class for
such REMIC III Regular Interest, and the rate on REMIC III Regular Interest
II-ZZ subject to a cap of zero, in each case for purposes of this calculation.
GROUP I NET WAC CAP SHORTFALL CARRY-FORWARD AMOUNT: With respect to the
Class A-I-1, Class A-I-4, Class A-I-5, Class A-I-6, Class A-I-7, Class M-I-1,
Class M-I-2 and Class M-I-3 Certificates and each Distribution Date, the sum of
(a) the aggregate amount of Group I Net WAC Cap Shortfall for such Class on such
Distribution Date plus (b) any Group I Net WAC Cap 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
28
Interest Accrual Period), to the extent previously unreimbursed by Group I
Excess Cash Flow pursuant to Section 4.02(c)(xv) or Group II Excess Cash Flow
pursuant to Section 4.02(d)(xviii), at a rate equal to the related Pass-Through
Rate.
GROUP I NET WAC CAP RATE: With respect to any Distribution Date, a per
annum rate equal to the weighted average of the Net Mortgage Rates (or, if
applicable, the Modified Net Mortgage Rates) on the Group I 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 in the case of the
Class A-I-1 Certificates, multiplied by a fraction equal to 30 divided by the
actual number of days in the related Interest Accrual Period.
GROUP II NET WAC CAP RATE: With respect to any Distribution Date, the
product of (i) a per annum rate equal to the weighted average of the Net
Mortgage Rates (or, if applicable, the Modified Net Mortgage Rates) on the Group
II 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.
GROUP I NET WAC CAP SHORTFALL: With respect to the Class A-I-1, Class
A-I-4, Class A-I-5, Class A-I-6, Class A-I-7, Class M-I-1, Class M-I-2 or Class
M-I-3 Certificates and any Distribution Date for which the Pass-Through Rate for
such Certificates is equal to the Group I Net WAC Cap Rate, the excess, if any,
of (x) Accrued Certificate Interest on that Class of Certificates calculated at
a rate equal to the rate determined in clause (i) of the definition of
Pass-Through Rate for such Class of Class A-I Certificates or Class M-I
Certificates over (y) Accrued Certificate Interest on such Class of Class A-I
Certificates or Class M-I Certificates for such Distribution Date calculated at
the Group I Net WAC Cap Rate.
GROUP I OPTIONAL TERMINATION DATE: Any Distribution Date on or after
which the Stated Principal Balance (before giving effect to distributions to be
made on such Distribution Date) of the Group I Loans is less than 10.00% of the
Group I Cut-off Date Balance.
GROUP II OPTIONAL TERMINATION DATE: Any Distribution Date on or after
which the Stated Principal Balance (before giving effect to distributions to be
made on such Distribution Date) of the Group II Loans is less than 10.00% of the
Group II Cut-off Date Balance.
GROUP I OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution
Date, the excess, if any, of (a) the aggregate Stated Principal Balance of the
Group I 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-I Certificates and Class M-I Certificates as of such date, before
taking into account distributions of principal to be made on that Distribution
Date.
GROUP II OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution
Date, the excess, if any, of (a) the aggregate Stated Principal Balance of the
Group II Loans before giving effect to distributions of principal to be made on
such Distribution Date over (b) the Certificate Principal
29
Balance of the Class A-II Certificates and Class M-II Certificates as of such
date, before taking into account distributions of principal to be made on that
Distribution Date.
GROUP I OVERCOLLATERALIZATION INCREASE AMOUNT: With respect to any
Distribution Date, an amount equal to the lesser of (i) the Group I Excess Cash
Flow for that Distribution Date available to make payments pursuant to Section
4.02(c)(ix) plus the Group II Excess Cash Flow for such Distribution Date
available to make payments pursuant to Section 4.02(d)(x) and (xii), and (ii)
the excess, if any, of (x) the Group I Required Overcollateralization Amount for
that Distribution Date over (y) the Group I Overcollateralization Amount for
that Distribution Date.
GROUP II OVERCOLLATERALIZATION INCREASE AMOUNT: With respect to any
Distribution Date, an amount equal to the lesser of (i) the Group II Excess Cash
Flow for that Distribution Date available to make payments pursuant to Section
4.02(d)(xi) plus the Group I Excess Cash Flow for such Distribution Date
available to make payments pursuant to Section 4.02(c)(viii) and (x), and (ii)
the excess, if any, of (x) the Group II Required Overcollateralization Amount
for that Distribution Date over (y) the Group II Overcollateralization Amount
for that Distribution Date.
GROUP I OVERCOLLATERALIZATION REDUCTION AMOUNT: With respect to any
Distribution Date for which the Group I Excess Overcollateralization Amount is,
or would be, after taking into account all other distributions to be made on
that Distribution Date, greater than zero, an amount equal to the lesser of (i)
the Group I Excess Overcollateralization Amount for that Distribution Date and
(ii) the Group I Principal Remittance Amount for that Distribution Date.
GROUP II OVERCOLLATERALIZATION REDUCTION AMOUNT: With respect to any
Distribution Date for which the Group II Excess Overcollateralization Amount is,
or would be, after taking into account all other distributions to be made on
that Distribution Date, greater than zero, an amount equal to the lesser of (i)
the Group II Excess Overcollateralization Amount for that Distribution Date and
(ii) the Group II Principal Remittance Amount for that Distribution Date.
GROUP I POOL STATED PRINCIPAL BALANCE: As to any date of determination,
the aggregate of the Stated Principal Balances of each Group I Loan that was an
Outstanding Mortgage Loan on the Due Date immediately preceding the Due Period
preceding such date of determination.
GROUP II POOL STATED PRINCIPAL BALANCE: As to any date of
determination, the aggregate of the Stated Principal Balances of each Group II
Loan that was an Outstanding Mortgage Loan on the Due Date immediately preceding
the Due Period preceding such date of determination.
GROUP I PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date, the lesser of (a) the sum of (i) the excess of (x) the Group I Available
Distribution Amount over (y) the Group I Interest Distribution Amount and (ii)
any Group II Excess Cash Flow used to pay principal on the Group I Certificates
pursuant to Section 4.02(d)(ix), (x) and (xii) 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 that is
a Group I Loan;
30
(ii) the Stated Principal Balance of any Group I 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, 4.07 or
4.08 and the amount of any shortfall deposited in the Custodial Account in
connection with the substitution of a Deleted Mortgage Loan that is a Group I
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 Group I Loans (including, without limitation,
Principal Prepayments in Full, Curtailments, Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related Prepayment Period to the
extent applied by the Master Servicer as recoveries of principal of the Group I
Loans pursuant to Section 3.14;
(iv) the principal portion of any Realized Losses incurred (or deemed
to have been incurred) on any Group I Loans in the calendar month preceding such
Distribution Date to the extent covered by Group I Excess Cash Flow or Group II
Excess Cash Flow for such Distribution Date; and
(v) the amount of any Group I Overcollateralization Increase Amount for
such Distribution Date to the extent covered by Group I Excess Cash Flow or
Group II Excess Cash Flow;
MINUS
(vi) the amount of any related Group I Overcollateralization Reduction
Amount for such Distribution Date; and
(vii) the amount of any Capitalization Reimbursement Amount for such
Distribution Date relating to the Group I Loans.
GROUP II PRINCIPAL ALLOCATION AMOUNT: With respect to any distribution
date, the sum of (a) the Group II Principal Remittance Amount for such
Distribution Date on the Group II Loans and (b) the aggregate amount of Realized
Losses on the Group II Loans in the calendar month preceding such Distribution
Date, to the extent covered by Excess Cash Flow for such Distribution Date;
provided, that on any Distribution Date on which there is insufficient Excess
Cash Flow to cover all Realized Losses on the Group II Loans, in determining the
Class A-II-A Principal Distribution Amount and Class A-II-B Principal
Distribution Amount, the available Excess Cash Flow will be allocated to the
Class A-II-A Certificates and Class A-II-B Certificates, pro rata, based on the
principal portion of Realized Losses on the Group II-A Loans and the Group II-B
Loans, respectively.
GROUP II PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, the lesser of (a) the sum of (i) the excess of (x) the Group
II Available Distribution Amount over (y) the Group II Interest Distribution
Amount and (ii) any Group I Excess Cash Flow used to pay principal on the Group
II Certificates pursuant to Section 4.02(c)(vii), (viii) and (x) 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 that is
a Group II Loan;
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(ii) the Stated Principal Balance of any Group II 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, 4.07 or
4.08 and the amount of any shortfall deposited in the Custodial Account in
connection with the substitution of a Deleted Mortgage Loan that is a Group II
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 Group II Loans (including, without
limitation, Principal Prepayments in Full, Curtailments, Insurance Proceeds,
Liquidation Proceeds and REO Proceeds) received during the related Prepayment
Period to the extent applied by the Master Servicer as recoveries of principal
of the Group II Loans pursuant to Section 3.14;
(iv) the principal portion of any Realized Losses incurred (or deemed
to have been incurred) on any Group II Loans in the calendar month preceding
such Distribution Date to the extent covered by Group I Excess Cash Flow or
Group II Excess Cash Flow for such Distribution Date; and
(v) the amount of any Group II Overcollateralization Increase Amount
for such Distribution Date to the extent covered by Group I Excess Cash Flow or
Group II Excess Cash Flow;
MINUS
(vi) the amount of any related Group II Overcollateralization Reduction
Amount for such Distribution Date; and
(vii) the amount of any Capitalization Reimbursement Amount for such
Distribution Date relating to the Group II Loans.
GROUP I PRINCIPAL REMITTANCE AMOUNT: With respect to any Distribution
Date, the sum of the amounts described in clauses (i), (ii) and (iii) of the
definition of Group I Principal Distribution Amount for that Distribution Date.
GROUP II PRINCIPAL REMITTANCE AMOUNT: With respect to any Distribution
Date, the sum of the amounts described in clauses (i), (ii) and (iii) of the
definition of Group II Principal Distribution Amount for that Distribution Date.
GROUP I REQUIRED OVERCOLLATERALIZATION AMOUNT: As of any Distribution
Date, (a) if such Distribution Date is prior to the Group I Stepdown Date, 2.90%
of the Group I Cut-off Date Balance, or (b) if such Distribution Date is on or
after the Group I Stepdown Date, the greater of (i) 5.80% of the then current
aggregate Stated Principal Balance of the Group I Loans as of the end of the
related Due Period and (ii) the related Overcollateralization Floor. The Group I
Required Overcollateralization Amount may be reduced with notification to each
of the Rating Agencies and without the consent of the Certificateholders.
GROUP II REQUIRED OVERCOLLATERALIZATION AMOUNT: As of any Distribution
Date, (a) if such Distribution Date is prior to the Group II Stepdown Date,
3.90% of the Group II Cut-off Date Balance, or (b) if such Distribution Date is
on or after the Group II Stepdown Date, the greater of (i)
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7.80% of the then current aggregate Stated Principal Balance of the Group II
Loans as of the end of the related Due Period and (ii) the related
Overcollateralization Floor. The Group II Required Overcollateralization Amount
may be reduced with notification to each of the Rating Agencies and without the
consent of the Certificateholders.
GROUP I SENIOR ENHANCEMENT PERCENTAGE: For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class M-I-1, Class M-I-2 and Class M-I-3 Certificates
and (ii) the Group I Overcollateralization Amount, in each case prior to the
distribution of the Group I Principal Distribution Amount on such Distribution
Date, by (y) the aggregate Stated Principal Balance of the Group I Loans after
giving effect to distributions to be made on that Distribution Date.
GROUP II SENIOR ENHANCEMENT PERCENTAGE: For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class M-II-1, Class M-II-2, Class M-II-3, Class M-II-4
and Class M-II-5 Certificates and (ii) the Group II Overcollateralization
Amount, in each case prior to the distribution of the Group II Principal
Distribution Amount on such Distribution Date, by (y) the aggregate Stated
Principal Balance of the Group II Loans after giving effect to distributions to
be made on that Distribution Date.
GROUP I SIXTY-PLUS DELINQUENCY PERCENTAGE: With respect to any
Distribution Date, the fraction, expressed as a percentage, equal to (x) the
aggregate Stated Principal Balance of the Group I Loans that are 60 or more days
delinquent in payment of principal and interest for that Distribution Date,
including Group I Loans in foreclosure and REO Properties, over (y) the
aggregate Stated Principal Balance of all of the Group I Loans immediately
preceding that Distribution Date.
GROUP II SIXTY-PLUS DELINQUENCY PERCENTAGE: With respect to any
Distribution Date, the fraction, expressed as a percentage, equal to (x) the
aggregate Stated Principal Balance of the Group II Loans that are 60 or more
days delinquent in payment of principal and interest for that Distribution Date,
including Group II Loans in foreclosure and REO Properties, over (y) the
aggregate Stated Principal Balance of all of the Group II Loans immediately
preceding that Distribution Date.
GROUP I STEPDOWN DATE: The Distribution Date which is the later to
occur of (i) the Distribution Date occurring in December 2006 and (ii) the first
Distribution Date on which the aggregate Stated Principal Balance of the Group I
Loans as of the end of the related Due Period is less than one-half of the Group
I Cut-off Date Balance.
GROUP II STEPDOWN DATE: The Distribution Date which is the later to
occur of (i) the Distribution Date occurring in December 2006 and (ii) the first
Distribution Date on which the aggregate Stated Principal Balance of the Group
II Loans as of the end of the related Due Period is less than one-half of the
Group II Cut-off Date Balance.
GROUP I TRIGGER EVENT: A Group I Trigger Event is in effect with
respect to any Distribution Date if either (i) (A) with respect to any
Distribution Date (other than the first Distribution Date), the three-month
average (or two month-average in the case of the second Distribution Date) of
the Group I Sixty-Plus Delinquency Percentage, as determined on that
Distribution Date and the immediately preceding two Distribution Dates (or
immediately preceding Distribution Date in the
33
case of the second Distribution Date), equals or exceeds 50.00% of the Group I
Senior Enhancement Percentage or (B) with respect to the first Distribution
Date, the Group I Sixty-Plus Delinquency Percentage, as determined on that
Distribution Date, equals or exceeds 50.00% of the Group I Senior Enhancement
Percentage or (ii) the aggregate amount of Realized Losses on the Group I Loans
as a percentage of the Group I Cut-off Date Balance exceeds the applicable
amount set forth below:
December 2006 to November 1.65% with respect to December 2006, plus an
2007..................................... additional 1/12th of 1.15% for each month thereafter.
December 2007 to November 2.80% with respect to December 2007, plus an
2008..................................... additional 1/12th of 0.70% for each month thereafter.
December 2008 to November 3.50% with respect to December 2008, plus an
2009..................................... additional 1/12th of 0.50% for each month thereafter.
December 2009 to November 4.00% with respect to December 2009, plus an
2010..................................... additional 1/12th of 0.25% for each month thereafter.
December 2010 and thereafter............. 4.25%.
GROUP II TRIGGER EVENT: A Group II Trigger Event is in effect with
respect to any Distribution Date if either (i) (A) with respect to any
Distribution Date (other than the first Distribution Date), the three-month
average (or two month-average in the case of the second Distribution Date) of
the Group II Sixty-Plus Delinquency Percentage, as determined on that
Distribution Date and the immediately preceding two Distribution Dates (or
immediately preceding Distribution Date in the case of the second Distribution
Date), equals or exceeds 42.00% of the Group II Senior Enhancement Percentage or
(B) with respect to the first Distribution Date, the Group II Sixty-Plus
Delinquency Percentage, as determined on that Distribution Date, equals or
exceeds 42.00% of the Group II Senior Enhancement Percentage or (ii) the
aggregate amount of Realized Losses on the Group II Loans as a percentage of the
Group II Cut-off Date Balance exceeds the applicable amount set forth below:
December 2006 to November 4.40% with respect to December 2006, plus an
2007..................................... additional 1/12th of 2.15% for each month thereafter.
December 2007 to November 6.55% with respect to December 2007, plus an
2008..................................... additional 1/12th of 1.75% for each month thereafter.
December 2008 to November 8.30% with respect to December 2008, plus an
2009..................................... additional 1/12th of 0.45% for each month thereafter.
December 2009 and thereafter............. 8.75%.
GROUP I UNCERTIFICATED REGULAR INTERESTS: The REMIC I Regular Interest
and the REMIC III Group I Regular Interests.
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GROUP II UNCERTIFICATED REGULAR INTERESTS: The REMIC II Regular
Interest and the REMIC III Group II Regular Interests.
HAZARDOUS MATERIALS: Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum
and petroleum products, urea formaldehyde and any substances classified as being
"in inventory", "usable work in progress" or similar classification which would,
if classified unusable, be included in the foregoing definition.
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 any 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-I Certificates
(other than the Class A-I-1 Certificates), Class M-I Certificates and Class SB-I
Certificates and any Distribution Date, the prior calendar month. With respect
to the Class A-I-1, Class A-II, Class M-II and Class SB-II Certificates, (i)
with respect to the Distribution Date in December 2003, the period commencing on
the Closing Date and ending on the day preceding the Distribution Date in
December 2003, and (ii) with respect to any Distribution Date after the
Distribution Date in December 2003, 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 REMITTANCE AMOUNT: With respect to any Distribution Date and
any Sub-Group, the portion of the Available Distribution Amount for such
Distribution Date attributable to interest received or advanced with respect to
the mortgage loans.
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INTERIM CERTIFICATION: As defined in Section 2.02.
INTERESTED PERSON: As of any date of determination, the Depositor, the
Master Servicer, the Trustee, any Mortgagor, any Manager of a Mortgaged
Property, or any Person known to a Responsible Officer of the Trustee to be an
Affiliate of any of them.
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: With respect to any Distribution Date, the arithmetic mean of
the London interbank offered rate quotations for one-month U.S. Dollar deposits,
expressed on a per annum basis, determined in accordance with Section 1.02.
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 RATE ADJUSTMENT DATE: With respect to each Distribution Date, the
second LIBOR Business Day immediately preceding the commencement of the related
Interest Accrual Period.
LIMITED REPURCHASE RIGHT HOLDER: RFC Asset Holdings II, Inc., or its
successor.
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 Loan through trustee's sale,
foreclosure sale or otherwise, other than REO Proceeds and Subsequent
Recoveries.
LOAN GROUP: With respect to the Class A-I, Class M-I and Class SB-I
Certificates, the Group I Loans, and with respect to the Class A-II, Class M-II
and Class SB-II Certificates, the Group II Loans.
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.
MATURITY DATE: With respect to each Class of Certificates of regular
interest or Uncertificated Regular Interest issued by each of REMIC I, REMIC II,
REMIC III and REMIC IV, 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 November 25, 2033, which is the Distribution Date
following the last scheduled monthly payment of the Group I Loans and the Group
II Loans.
MAXIMUM GROUP II RATE: With respect to the Class A-II Certificates and
Class M-II Certificates and any Interest Accrual Period, 14.00% per annum.
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MAXIMUM MORTGAGE RATE: As to any adjustable rate Mortgage Loan, the
rate indicated in Exhibit F-2 hereto as the "NOTE CEILING," which rate is the
maximum interest rate that may be applicable to such adjustable rate Mortgage
Loan at any time during the life of such Mortgage Loan.
MAXIMUM NET MORTGAGE RATE: As to any Group II Loan and any date of
determination, the Maximum Mortgage Rate minus the sum of (i) the Subservicing
Fee Rate and (ii) 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, the
greater of (i) the Note Margin and (ii) the rate indicated in Exhibit F-2 hereto
as the "NOTE FLOOR", which rate may be applicable to such adjustable rate
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: As 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: Xxxxx'x 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 interest in real property
securing a Mortgage Note.
37
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 LOAN SCHEDULE: The lists of the Mortgage Loans attached hereto
as Exhibit F-1 and Exhibit F-2 (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) [reserved];
(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) the Mortgage Rate as of the Cut-off Date ("ORIG RATE")
(v) the Mortgage Rate as of the Cut-off Date for an adjustable rate
Mortgage Loan ("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" or "CURRENT P & I" for the
adjustable rate Mortgage Loans);
(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);
(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) the Maximum Mortgage Rate for the adjustable rate Mortgage Loans
("NOTE CEILING");
(xiii) the Maximum Net Mortgage Rate for the adjustable rate Mortgage
Loans ("NET CEILING");
(xiv) the Note Margin for the adjustable rate Mortgage Loans ("NOTE
MARGIN");
38
(xv) the first Adjustment Date after the Cut-off Date for the
adjustable rate Mortgage Loans ("NXT INT CHG DT");
(xvi) the Periodic Cap for the adjustable rate Mortgage Loans
("PERIODIC DECR" or "PERIODIC INCR"); and
(xvii) the rounding of the semi-annual or annual adjustment to the
Mortgage Rate with respect to the adjustable rate Mortgage Loans ("NOTE
METHOD").
Such schedules may consist of multiple reports that collectively set
forth all of the information required.
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, 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 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: As 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 Exhibit F-1 or Exhibit F-2 hereto, as
applicable, except in the case of the adjustable rate Mortgage Loans indicated
by an "X" on Exhibit F-1 or Exhibit F-2 hereto 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 Mortgage Rate for such Mortgage
Loan as of such date minus the sum of (i) the related Servicing Fee Rate and
(ii) the related Subservicing Fee Rate.
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)
39
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
Officer's Certificate delivered to the Depositor, the Trustee and the Master
Servicer setting forth such determination, which shall include any other
information or reports obtained by the Master Servicer such as property
operating statements, rent rolls, property inspection reports and engineering
reports, which may support such determinations. 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: As to each adjustable rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note and indicated in Exhibit F-2
hereto 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.
NOTICE: As defined in Section 4.04.
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.
OPINION OF COUNSEL: A written opinion of counsel acceptable to the
Trustee and the Master Servicer, who 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 REMIC I, REMIC II, REMIC III or REMIC IV as REMICs or compliance with the
REMIC Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
OUTSTANDING MORTGAGE LOAN: As 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, 4.07 or 4.08.
40
OVERCOLLATERALIZATION FLOOR: As to either Loan Group, an amount equal
to 0.50% of the aggregate Stated Principal Balance of the related Mortgage Loans
as of the Cut-off Date.
OWNERSHIP INTEREST: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
PASS-THROUGH RATE: With respect to the Class A-I-1 Certificates and
each Interest Accrual Period a per annum rate equal to the lesser of (i)
One-Month LIBOR plus the Class A-I-1 Margin and (ii) the Group I Net WAC Cap
Rate. With respect to the Class A-I-2 Certificates and each Interest Accrual
Period, a per annum rate equal to 3.120%. With respect to the Class A-I-3
Certificates and each Interest Accrual Period, a per annum rate equal to 3.580%.
With respect to the Class A-I-4 Certificates and each Interest Accrual Period, a
per annum rate equal to the lesser of (i) 4.260% per annum and (ii) the Group I
Net WAC Cap Rate. With respect to the Class A-I-5 Certificates and each Interest
Accrual Period, a per annum rate equal to the lesser of (i) 4.910% per annum and
(ii) the Group I Net WAC Cap Rate. With respect to the Class A-I-6 Certificates
and each Interest Accrual Period, a per annum rate equal to the lesser of (i)
5.860% per annum and (ii) the Group I Net WAC Cap Rate; provided, that, on or
after the second Distribution Date after the first possible Group I Optional
Termination Date, the applicable per annum rate shall be equal to 6.360%. With
respect to the Class A-I-7 Certificates and each Interest Accrual Period, a per
annum rate equal to the lesser of (i) 4.850% per annum and (ii) the Group I Net
WAC Cap Rate. With respect to the Class M-I-1 Certificates and each Interest
Accrual Period, a per annum rate equal to the lesser of (i) 5.520% per annum and
(ii) the Group I Net WAC Cap Rate; provided, that, on or after the second
Distribution Date after the first possible Group I Optional Termination Date,
the applicable per annum rate shall be equal to 6.020%. With respect to the
Class M-I-2 Certificates and each Interest Accrual Period, a per annum rate
equal to the lesser of (i) 6.000% per annum and (ii) the Group I Net WAC Cap
Rate; provided, that, on or after the second Distribution Date after the first
possible Group I Optional Termination Date, the applicable per annum rate shall
be equal to 6.500% per annum. With respect to the Class M-I-3 Certificates and
each Interest Accrual Period, a per annum rate equal to the lesser of (i) 6.000%
per annum and (ii) the Group I Net WAC Cap Rate; provided, that, on or after the
second Distribution Date after the first possible Group I Optional Termination
Date, the applicable per annum rate shall be equal to 6.500%. For federal income
tax purposes, however, the amount determined under each clause (ii) in this
paragraph shall be the equivalent of the Group I Net WAC Cap Rate, expressed as
the weighted average of the Uncertificated REMIC III Pass-Through Rates for the
REMIC III Group I Regular Interests, weighted on the basis of the respective
Uncertificated Principal Balances thereof for such Distribution Date, and
multiplied, in the case of the Class A-I-1 Certificates, by a fraction, the
numerator of which is 30, and the denominator of which is the actual number of
days in the related Interest Accrual Period.
With respect to the Class A-II Certificates and each Interest Accrual
Period, a per annum rate equal to the least of (i) LIBOR plus the related Class
A-II Margin, (ii) the Maximum Group II Rate and (iii) the Group II Net WAC Cap
Rate. With respect to the Class M-II Certificates and each Interest Accrual
Period, a per annum rate equal to the least of (i) LIBOR plus the related Class
M-II Margin, (ii) the Maximum Group II Rate and (iii) the Group II Net WAC Cap
Rate. For federal income tax purposes, however, the amount determined under each
clause (iii) in this paragraph shall be the equivalent of the foregoing,
expressed as the weighted average of the Uncertificated REMIC
41
III Pass-Through Rates for REMIC III Group II Regular Interests, weighted on the
basis of the Uncertificated Principal Balance thereof for such Distribution
Date, multiplied by a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Interest
Accrual Period.
With respect to the Class SB-I Certificates, a per annum rate equal to
the percentage equivalent of a fraction, (x) the numerator of which is the sum,
for each REMIC III Group I Regular Interest, of the excess of the Uncertificated
Pass-Through Rate for such REMIC III Group I Regular Interest over the Group I
Marker Rate, applied to a notional amount equal to the Uncertificated Principal
Balance of such REMIC III Group I Regular Interest and (y) the denominator of
which is the aggregate Uncertificated Principal Balance of the REMIC III Group I
Regular Interests. With respect to the Class SB-II Certificates, a per annum
rate equal to the percentage equivalent of a fraction, (x) the numerator of
which is the sum, for each REMIC III Group II Regular Interest, of the excess of
the Uncertificated Pass-Through Rate for such REMIC III Group II Regular
Interest over the Group II Marker Rate, applied to a notional amount equal to
the Uncertificated Principal Balance of such REMIC III Group II Regular Interest
and (y) the denominator of which is the aggregate Uncertificated Principal
Balance of the REMIC III Group II Regular Interests.
PAYING AGENT: JPMorgan Chase Bank 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 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
42
days or a remaining maturity of more than 30 days) denominated in
United States dollars of any U.S. depository institution or trust
company incorporated under the laws of the United States or any state
thereof or of any domestic branch of a foreign depository institution
or trust company; provided that the debt obligations of such depository
institution or trust company (or, if the only Rating Agency is Standard
& Poor's, in the case of the principal depository institution in a
depository institution holding company, debt obligations of the
depository institution holding company) at the date of acquisition
thereof have been rated by each Rating Agency in its highest short-term
rating available; and provided further that, if the only Rating Agency
is Standard & Poor's and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations
of such subsidiary are not separately rated, the applicable rating
shall be that of the bank holding company; and, provided further that,
if the original maturity of such short-term obligations of a domestic
branch of a foreign depository institution or trust company shall
exceed 30 days, the short- term rating of such institution shall be
A-1+ 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; 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 lower of the then-current rating or the rating assigned to
such Certificates as of the Closing Date by such Rating Agency, as
evidenced in writing;
PROVIDED, HOWEVER, that no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal 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 Fitch and Aaa
in the case of Moody's, and 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, P-1 in the case of Moody's and
F-1 in the case of Fitch.
PERMITTED TRANSFEREE: Any Transferee of a Class R Certificate, other
than a Disqualified Organization or Non-United States Person.
43
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 Certificates 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 assumes a prepayment rate of
20% HEP with respect to the Group I Loans, and 25% HEP with respect to the Group
II Loans.
PREPAYMENT INTEREST SHORTFALL: As 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: As to any Distribution Date, the calendar month
preceding the month of distribution.
PRIMARY INSURANCE POLICY: Each primary policy of mortgage guaranty
insurance as indicated on Exhibit F-1 and Exhibit F-2 with the exception of
either code "23" or "96" under the column "MI CO CODE".
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.
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, 4.07 or 4.08, an amount equal to the sum of (i) (a) 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
44
plus the principal portion of any related unreimbursed Advances or (b) if such
Mortgage Loan (or REO Property) is being purchased pursuant to Section 4.08 of
this Agreement, the greater of (1) 100% of the Stated Principal Balance thereof
plus the principal portion of any related unreimbursed Advances on such Mortgage
Loan (or REO Property) and (2) the fair market value 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)) in the case of a purchase made by the
Master Servicer) on the Stated Principal Balance thereof to, but not including,
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 INSURER: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a FNMA- or
FHLMC-approved mortgage insurer or having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
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 remaining term to stated maturity
not greater than (and not more than one year less than) that of the Deleted
Mortgage Loan; (v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment Agreement; and
(vi) in the case of the adjustable rate Mortgage Loans, (w) have a Mortgage Rate
that adjusts with the same frequency and based upon the same Index as that of
the Deleted Mortgage Loan, (x) have a Note Margin not less than that of the
Deleted Mortgage Loan; (y) have a Periodic Rate Cap that is equal to that of the
Deleted Mortgage Loan; and (z) have a next Adjustment Date no later than that of
the Deleted Mortgage Loan.
RATING AGENCY: 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.
45
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 (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) 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 (or Modified Net Mortgage Rate in the case
of a Modified Mortgage Loan) 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.
RECORD DATE: With respect to each Distribution Date and each Class of
Certificates (other than the Class A-I-1, Class A-II and Class M-II Certificates
which are Book-Entry Certificates), the close of business on the last Business
Day of the month next preceding the month in which the related Distribution Date
occurs. With respect to each Distribution Date and the Class A-I-1, Class A-II
and Class M-II Certificates which are Book-Entry Certificates, the close of
business on the Business Day prior to such Distribution Date.
REGULAR CERTIFICATES: The Class A, Class M and Class SB Certificates.
REGULAR INTEREST: Any one of the regular interests in the Trust Fund.
46
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
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.
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 Master Servicer shall appoint a
successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
REMIC I: The segregated pool of assets subject hereto (exclusive of the
Reserve Fund, which is not an asset of any REMIC), 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 (other than with respect to the
items in clause (v) and the proceeds thereof), consisting of: (i) the Group I
Loans and the related Mortgage Files; (ii) all payments on and collections in
respect of the Group I Loans due after the Cut-off Date (other than Monthly
Payments due in November 2003) 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 Group I 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 Policy pertaining to
the Group I Loans, if any; and (v) all proceeds of clauses (i) through (iv)
above.
REMIC I REGULAR INTEREST: REMIC I Regular Interest A.
REMIC I REGULAR INTEREST A: A regular interest in REMIC I 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 I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC II: The segregated pool of assets subject hereto (exclusive of
the Reserve Fund, which is not an asset of any REMIC), 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 (other than with respect to the
items in clause (v) and the proceeds thereof), consisting of: (i) the Group II
Loans and the related Mortgage Files; (ii) all payments on and collections in
respect of the Group II Loans due after the Cut-off Date (other than Monthly
Payments due in October 2003) 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 Group II 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 Policy pertaining to
the Group II Loans, if any; and (v) all proceeds of clauses (i) through (iv)
above.
REMIC II REGULAR INTEREST: REMIC II Regular Interest B.
47
REMIC II REGULAR INTEREST B: 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 I Regular Interest and the REMIC II Regular Interest.
REMIC III GROUP I DIVERTED EXCESS SPREAD: 1% of the Group I Diverted
Excess Spread.
REMIC III GROUP II DIVERTED EXCESS SPREAD: 1% of the Group II Diverted
Excess Spread.
REMIC III GROUP I INTEREST LOSS ALLOCATION AMOUNT: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Uncertificated Principal Balance of the REMIC III Group I Regular Interests then
outstanding and (ii) the Uncertificated Pass-Through Rate for REMIC III Regular
Interest I-AA minus the Group I Marker Rate, divided by (b) 12.
REMIC III GROUP II INTEREST LOSS ALLOCATION AMOUNT: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Uncertificated Principal Balance of the REMIC III Group II Regular Interests
then outstanding and (ii) the Uncertificated Pass-Through Rate for REMIC III
Regular Interest II-AA minus the Group II Marker Rate divided by (b) 12.
REMIC III GROUP I OVERCOLLATERALIZED AMOUNT: With respect to any date
of determination, (i) 1% of the aggregate Uncertificated Principal Balances of
the REMIC III Group I Regular Interests minus (ii) the aggregate Uncertificated
Principal Balances of the REMIC III Regular Interests (other than REMIC III
Regular Interests I-AA and I-ZZ), in each case as of such date of determination.
REMIC III GROUP II OVERCOLLATERALIZED AMOUNT: With respect to any date
of determination, (i) 1% of the aggregate Uncertificated Principal Balances of
the REMIC III Group II Regular Interests minus (ii) the aggregate Uncertificated
Principal Balances of the REMIC III Group II Regular Interests (other than REMIC
III Group II Regular Interests II-A and II-ZZ), in each case as of such date of
determination.
REMIC III GROUP I PRINCIPAL LOSS ALLOCATION AMOUNT: With respect to any
Distribution Date, an amount equal to the product of (i) the aggregate Stated
Principal Balance of the Group I Loans then outstanding and (ii) 1 minus a
fraction, the numerator of which is two times the sum of the Uncertificated
Principal Balances of REMIC III Regular Interests X-X-0, X-X-0, X-X-0, X-X-0,
X-X-0, X-X-0, X-X-0, M-I-1, M-I-2 and M-I-3 and the denominator of which is the
sum of the Uncertificated Principal Balances of REMIC III Regular Interests
X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, M-I-1, M-I-2, M-I-3 and I-ZZ.
REMIC III GROUP II PRINCIPAL LOSS ALLOCATION AMOUNT: With respect to
any Distribution Date, an amount equal to the product of (i) the aggregate
Stated Principal Balance of the Group II Loans then outstanding and (ii) 1 minus
a fraction, the numerator of which is two times the
48
Uncertificated Principal Balances of REMIC III Regular Interests A-II-A, A-II-B,
M-II-1, M-II-2, M-II-3, M-II-4 and M-II-5 and the denominator of which is the
sum of the Uncertificated Principal Balances of REMIC III Regular Interests
A-II-A, A-II-B, M-II-1, M-II-2, M-II-3, M-II-4, M-II-5 and II-ZZ.
REMIC III GROUP I REGULAR INTERESTS: REMIC III Regular Interests I-AA,
X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, M-I-1, M-I-2, M-I-3 and I-ZZ.
REMIC III GROUP II REGULAR INTERESTS: REMIC III Regular Interests
II-AA, A-II-A, A-II-B, M-II-1, M-II-2, M-II-3, M-II-4, M-II-5 and II-ZZ.
REMIC III GROUP I REQUIRED OVERCOLLATERALIZATION AMOUNT: 1% of the
Group I Required Overcollateralization Amount.
REMIC III GROUP II REQUIRED OVERCOLLATERALIZED AMOUNT: 1% of the Group
II Required Overcollateralization Amount.
REMIC III REGULAR INTERESTS: REMIC III Regular Interest I-AA, REMIC III
Regular Interest A-I-1, REMIC III Regular Interest A-I-2, REMIC III Regular
Interest A-I-3, REMIC III Regular Interest A-I-4, REMIC III Regular Interest
A-I-5, REMIC III Regular Interest A-I-6, REMIC III Regular Interest A-I-7, REMIC
III Regular Interest M-I-1, REMIC III Regular Interest M-I-2, REMIC III Regular
Interest M-I-3, REMIC III Regular Interest I-ZZ, REMIC III Regular Interest II-
AA, REMIC III Regular Interest A-II-A, REMIC III Regular Interest A-II-B, REMIC
III Regular Interest M-II-1, REMIC III Regular Interest M-II-2, REMIC III
Regular Interest M-II-3, REMIC III Regular Interest M-II-4, REMIC III Regular
Interest M-II-5 and REMIC III Regular Interest II-ZZ.
REMIC III REGULAR INTEREST I-AA: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST A-I-1: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST A-I-2: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST A-I-3: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
49
REMIC III REGULAR INTEREST A-I-4: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST A-I-5: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST A-I-6: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST A-I-7: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-I-1: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-I-2: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-I-3: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST I-ZZ: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST II-AA: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
50
REMIC III REGULAR INTEREST A-II-A: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST A-II-B: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-II-1: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-II-2: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-II-3: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-II-4: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST M-II-5: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST II-ZZ: A regular interest in REMIC III that
is held as an asset of REMIC IV, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC III Pass-Through Rate, and that has such other terms as are
described herein.
REMIC III REGULAR INTEREST I-ZZ MAXIMUM INTEREST DEFERRAL AMOUNT: With
respect to any Distribution Date, the sum of (a) the excess of (i)
Uncertificated Accrued Interest calculated with the REMIC III Regular Interest
I-ZZ Uncertificated Pass-Through Rate and an Uncertificated Principal Balance
equal to the excess of (x) the Uncertificated Principal Balance of REMIC III
Regular Interest I-ZZ over (y) the REMIC III Group I Overcollateralized Amount,
in each case for such Distribution Date, over (ii) the sum of Uncertificated
Accrued Interest on REMIC III Regular Interest A-I-1
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through REMIC III Regular Interest A-I-7 and REMIC III Regular Interest M-I-1
through REMIC III Regular Interest M-I-3, with the rate on each such REMIC III
Group I Regular Interest subject to a cap equal to the Pass-Through Rate for the
Corresponding Class for the purpose of this calculation and (b) the REMIC III
Group II Diverted Excess Spread.
REMIC III REGULAR INTEREST II-ZZ MAXIMUM INTEREST DEFERRAL AMOUNT: With
respect to any Distribution Date, the sum of (a) the excess of (i)
Uncertificated Accrued Interest calculated with the REMIC III Regular Interest
II-ZZ Uncertificated Pass-Through Rate and an Uncertificated Principal Balance
equal to the excess of (x) the Uncertificated Principal Balance of REMIC III
Regular Interest II-ZZ over (y) the REMIC III Group II Overcollateralized
Amount, in each case for such Distribution Date, over (ii) the sum of
Uncertificated Accrued Interest on REMIC III Regular Interests A-II-A, REMIC III
Regular Interest A-II-B and REMIC III Regular Interest M-II-1 through REMIC III
Regular Interest M-II-5, with the rate on each such REMIC III Group II Regular
Interest subject to a cap equal to the Pass-Through Rate for the Corresponding
Class for the purpose of this calculation and (b) the REMIC III Group I Diverted
Excess Spread.
REMIC IV: 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 III Regular Interests.
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: As 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: As to any REO Property, for any period, an amount
equivalent to interest (at a rate equal to the sum of 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.
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REO PROPERTY: A Mortgaged Property acquired by the Master Servicer, on
behalf of the Trustee for the benefit of the Certificateholders of any REO
Property pursuant to Section 3.14, 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 forms of which are
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.
RESERVE FUND: An "outside reserve fund" within the meaning of Treasury
regulation Section 1.860G-2(h), which is not an asset of any REMIC, ownership of
which is evidenced by the Class SB- I Certificates and Class SB-II Certificates,
as applicable, and which is established and maintained pursuant to Section 4.09.
RESERVE FUND DEPOSIT: With respect to the Reserve Fund, an amount equal
to $5,000, which the Trustee shall deposit into the Reserve Fund pursuant to
Section 4.09 hereof.
RESERVE FUND RESIDUAL RIGHT: The right to distributions from the
Reserve Fund as described in Section 4.09 hereof.
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 Institutional Trust Services/Structured Finance Services 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.
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
53
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 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: 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.
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 on the Closing Date by the Master Servicer, as such list may from
time to time be amended.
STANDARD & POOR'S: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, or its successor 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 plus (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 aggregate of the principal portion
of the Monthly Payments due with respect to such Mortgage Loan or REO Property
during each Due Period commencing on the first Due Period after the Cut-Off Date
and ending with the Due Period related to the most recent Distribution Date
which were received or with respect to which an Advance was made, and (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
54
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 or 4.03 on any previous Distribution Date, and (c) any
Realized Loss allocated to Certificateholders with respect thereto for any
previous Distribution Date.
SUB-GROUP: Each sub-group of Loan Group II referred to as the Group
II-A Loans and the Group II-B Loans.
SUBORDINATION: The provisions described in Section 4.05 relating to the
allocation of Realized Losses.
SUBORDINATION PERCENTAGE: With respect to the Class A-I Certificates,
75.20%; with respect to the Class M-I-1 Certificates, 82.70%; with respect to
the Class M-I-2 Certificates, 89.20%; with respect to the Class M-I-3
Certificates, 94.20%; with respect to the Class A-II Certificates, 56.20%; with
respect to the Class M-II-1 Certificates, 70.70%; with respect to the Class
M-II-2 Certificates, 82.70%; with respect to the Class M-II-3 Certificates,
86.20%; with respect to the Class M-II-4 Certificates, 89.20%; and with respect
to the Class M-II-5 Certificates, 92.20%.
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 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.
55
SUBSERVICING FEE: As 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 equal to the
Subservicing Fee Rate multiplied by the Stated Principal Balance of such
Mortgage Loan as of the related Due Date in the related Due Period.
SUBSERVICING FEE RATE: The per annum rate designated on the Mortgage
Loan Schedule as the "SUBSERV FEE".
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 REMIC I, REMIC II, REMIC III and REMIC IV due to their
classification as REMICs 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.
TRANSFER: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
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.
TRUST FUND: Collectively, the assets of REMIC I, REMIC II, REMIC III
and REMIC IV, the Reserve Fund and the Reserve Fund Deposit.
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 December 15, 1995.
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 immediately prior to such Distribution Date.
Uncertificated Accrued Interest for the REMIC I Regular Interest, the REMIC II
Regular Interest and the REMIC III 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 III
Group I Regular Interests for any Distribution Date, any Prepayment Interest
Shortfalls (to the extent not covered by Compensating Interest) relating to the
Group I Loans for any Distribution Date shall be allocated first, to
Uncertificated Accrued Interest payable to REMIC III Regular Interest I-AA and
REMIC III Regular Interest I-ZZ up to an aggregate amount equal to the REMIC III
Group I Interest Loss Allocation Amount, 98% and 2%, respectively, and
thereafter any remaining Prepayment Interest Shortfalls (to the extent not
covered by Compensating Interest) relating to the Group I Loans for any
Distribution Date shall be allocated
56
among the REMIC III Group 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 III Group II Regular Interests for any Distribution Date,
any Prepayment Interest Shortfalls (to the extent not covered by Compensating
Interest) relating to the Group II Loans for any Distribution Date shall be
allocated first, to Uncertificated Accrued Interest payable to REMIC III Regular
Interest II-AA and REMIC III Regular Interest II-ZZ up to an aggregate amount
equal to the REMIC III Group II Interest Loss Allocation Amount, 98% and 2%,
respectively, and thereafter any remaining Prepayment Interest Shortfalls (to
the extent not covered by Compensating Interest) relating to the Group II Loans
for any Distribution Date shall be allocated among the REMIC III Group II
Regular Interests, pro rata based on, and to the extent of, Uncertificated
Accrued Interest, as calculated without application of this sentence.
UNCERTIFICATED PASS-THROUGH RATE: The Uncertificated REMIC I
Pass-Through Rate, Uncertificated REMIC II Pass-Through Rate or Uncertificated
REMIC III Pass-Through Rate.
UNCERTIFICATED PRINCIPAL BALANCE: The principal amount of any
Uncertificated Regular Interest outstanding as of any date of determination. The
Uncertificated Principal Balance of each Uncertificated Regular Interest shall
be reduced by all distributions of principal made on such Uncertificated Regular
Interest, as applicable, on such Distribution Date and, if and to the extent
necessary and appropriate, shall be further reduced in such Distribution Date by
Realized Losses. The Uncertificated Principal Balance of each Uncertificated
Regular Interest shall never be less than zero.
UNCERTIFICATED REGULAR INTERESTS: The REMIC I Regular Interest, REMIC
II Regular Interest and REMIC III Regular Interests.
UNCERTIFICATED REMIC I PASS-THROUGH RATE: With respect to any
Distribution Date, a per annum rate equal to the Group I Net WAC Cap Rate.
UNCERTIFICATED REMIC II PASS-THROUGH RATE: With respect to any
Distribution Date, a per annum rate equal to the rate specified in clause (i) of
the definition of Group II Net WAC Cap Rate.
UNCERTIFICATED REMIC III PASS-THROUGH RATE: With respect to any
Distribution Date, (x) with respect to the REMIC III Group I Regular Interests,
a per annum rate equal to the weighted average of the Uncertificated REMIC I
Pass-Through Rate for REMIC I Regular Interest A and (y) with respect to the
REMIC III Group II Regular Interests, a per annum rate equal to the weighted
average of the Uncertificated REMIC II Pass-Through Rate for REMIC I Regular
Interest B.
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)
57
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.
VA: The Veterans Administration, or its successor.
VOTING RIGHTS: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. 97.00% 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% and 1% of all of the Voting Rights
shall be allocated among the Holders of the Class SB-I and Class SB-II
Certificates, respectively; 0.25%, 0.25%, 0.25% and 0.25% of all of the Voting
Rights shall be allocated among the Holders of the Class R-I, Class R-II, Class
R-III and Class R-IV Certificates, respectively; in each case to be allocated
among the Certificates of such Class in accordance with their respective
Percentage Interest.
Section 1.02. DETERMINATION OF LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rate on the
Class A-I-1, Class A-II and Class M-II Certificates for any Interest Accrual
Period will be determined on each LIBOR Rate Adjustment Date. On each LIBOR Rate
Adjustment Date, LIBOR shall be established by the Trustee and, as to any
Interest Accrual Period, will equal the rate for one month United States dollar
deposits that appears on the Telerate Screen Page 3750 as of 11:00 a.m., London
time, on such 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, LIBOR shall be so established by use of such other
service for displaying 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 Class A-I-1, Class A-II and Class M-II Certificates then outstanding. The
Trustee will 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 Class A-I-1, Class A-II and
58
Class M-II Certificates then outstanding. If no such quotations can be obtained,
the rate will be LIBOR for the prior Distribution Date; PROVIDED HOWEVER, if,
under the priorities described above, LIBOR for a Distribution Date would be
based on 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 LIBOR by the Trustee on
any LIBOR Rate Adjustment Date and the Trustee's subsequent calculation of the
Pass-Through Rate applicable to the Class A-I-1, Class A-II and Class M-II
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 LIBOR on such date. Furthermore, the Trustee will supply to
any Certificateholder so calling the Trustee at 0-000-000-0000 and requesting
the Pass-Through Rate on the Class A-I-1, Class A-II and Class M-II Certificates
for the current and the immediately preceding Interest Accrual Period.
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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 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 November 2003); (ii) the Reserve Fund Deposit;
and (iii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the
delivery of this Agreement, except as set forth in Section 2.01(c) 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
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;
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(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 is the duly appointed agent of the Trustee.
(c) 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 the mortgagee of record solely as nominee for Residential Funding
and its successors and assigns.
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)
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 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
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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 be construed as a
sale by the Depositor to the Trustee of the Mortgage Loans 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 by the Depositor to the Trustee to
secure a debt or other obligation of the Depositor. However, in the event that
the Mortgage Loans are held to be property of the Depositor or of Residential
Funding, or if for any reason this Agreement is held or deemed to create a
security interest in the Mortgage Loans, then it is intended that (a) this
Agreement shall also be deemed to be 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 and Mortgage, and any insurance policies and all other
documents in the related Mortgage File, (B) all amounts payable pursuant to the
Mortgage Loans in accordance with the terms thereof and (C) any and all general
intangibles consisting of, arising from or relating to any of the foregoing, and
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)
and (C) 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, negotiable documents 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 Uniform Commercial Code as in effect in the
States of New York and Minnesota and any other applicable jurisdiction; 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, financial
intermediaries, bailees or agents (as applicable) of 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 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
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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 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 or (3) any
transfer of any interest of Residential Funding or the Depositor in any Mortgage
Loan.
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 acknowledgment 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 45 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 (the "Final 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(c) 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, the Trustee shall promptly so notify
the Master Servicer and the Depositor; provided, that if the Mortgage Loan
related to such Mortgage File is listed on Schedule A of the Assignment
Agreement, no notification shall be necessary. 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. 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
Subservicer of such omission or defect and request that such 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 Subservicer does not
correct or cure such omission or defect within such period, that such
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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; and provided further, that no
cure, substitution or repurchase shall be required if such omission or defect is
in respect of a Mortgage Loan listed on Schedule A of the Assignment Agreement.
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 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, if the Subservicer or Residential Funding 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
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 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;
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(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 will 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; and
(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.
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
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Trust Fund at the Purchase Price and in the manner set forth in Section 2.02;
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 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-1 and Exhibit F-2 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.
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Section 2.04. REPRESENTATIONS AND WARRANTIES OF RESIDENTIAL FUNDING.
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 applicable to a Mortgage Loan. Insofar as the Assignment
Agreement relates to the representations and warranties made by Residential
Funding 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 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 Residential Funding of such breach or Repurchase Event and request that
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 (bb) 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
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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 and the Custodian. 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, and
Residential Funding shall be deemed to have made the representations and
warranties with respect to the Qualified Substitute Mortgage Loan 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 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 will
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 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 REMIC I, REMIC II, REMIC
III or REMIC IV to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
It is understood and agreed that the obligation of Residential Funding
to cure such breach or purchase (or 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 (bb) 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 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,
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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 Interest and the REMIC II Regular Interest for the
benefit of the holders of the REMIC III Regular Interests and the Class R-III
Certificates. The Trustee acknowledges receipt of the REMIC I Regular Interest
and the REMIC II Regular Interest (which are uncertificated) and declares that
it holds and will hold the same in trust for the exclusive use and benefit of
the holders of the REMIC III Regular Interests and the Class R- III
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.
(c) 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 III Regular Interests for the benefit of the holders of the
Regular Certificates and the Class R-IV Certificates. The Trustee acknowledges
receipt of the REMIC III Regular Interests (which are uncertificated) and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of the holders of the Regular Certificates and the Class R-IV
Certificates. The interests evidenced by the Class R-IV Certificates, together
with the Regular Certificates, constitute the entire beneficial ownership
interest in REMIC IV.
(d) In exchange for the REMIC III Regular Interests and, concurrently
with the assignment to the Trustee thereof, pursuant to the written request of
the Depositor executed by an officer of the Depositor, the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, the Regular
Certificates in authorized denominations evidencing (together with the Class
R-IV Certificates) the entire beneficial ownership interest in REMIC IV.
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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
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.
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 of REMIC I, REMIC II,
REMIC III or REMIC IV to fail to qualify as a REMIC under the Code. The
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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. 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.
(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
Xxxxxxx Mac, Xxxxxx Xxx or HUD approved mortgage servicer. In addition, any
Subservicer of a Mortgage Loan insured by the FHA must be an FHA-approved
servicer, and any Subservicer of a Mortgage Loan guaranteed by the VA must be a
VA-approved 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
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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.
(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, 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, 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.
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.
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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 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.
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(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. 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. For purposes of delinquency
calculations, any capitalized Mortgage Loan shall be deemed to be current as of
the date of the related Servicing Modification. No such modification shall
reduce the Mortgage Rate (i) with respect to a fixed rate Mortgage Loan, (A)
below one-half of the Mortgage Rate as in effect on the Cut-off Date or (B)
below the sum of the rates at which the Servicing Fee and the Subservicing Fee
with respect to such Mortgage Loan accrue or (ii) with respect to an adjustable
rate Mortgage Loan, (A) below the greater of (1) one-half of the Mortgage Rate
as in effect on the Cut-off Date and (2) one-half of the Mortgage Rate as in
effect on the date of the Servicing Modification or (B) below the sum of the
rates at which the Servicing Fee and the Subservicing Fee with respect to such
Mortgage Loan 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
Cut-off Date Principal Balance of the Mortgage Loans, 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
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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 purpose. 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 Stated Principal Amount 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, 4.07 or 4.08 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 consisting 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 due on or before 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
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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, 4.07 and 4.08 received in any calendar month, the Master Servicer may
elect to treat such amounts as included in the related Group I or Group II
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 written 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 consisting of late charges or assumption fees, or
payments or collections received consisting 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
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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 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.
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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 remit to the Trustee for deposit 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, 3.08, 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, 4.07 or 4.08) 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) late recoveries of the payments for
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 deposited in the
Custodial Account that it is entitled to withdraw pursuant to Section
3.07(c);
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(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, 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, 4.08 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 the preceding calendar month;
(viii) to reimburse itself or the Depositor for expenses
incurred by and reimbursable to it or the Depositor pursuant to Section
3.14(c), 6.03, 10.01 or otherwise;
(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 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).
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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 (together with the
principal balance of any mortgage loan secured by a lien that is senior to the
Mortgage Loan) or 100 percent 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
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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 Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater, with respect to the
Master Servicer if the Master Servicer were servicing and administering the
Mortgage Loans for Xxxxxx Mae or Xxxxxxx 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.
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(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.
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 of REMIC I, REMIC II, REMIC III or REMIC IV to fail to qualify as
REMICs 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 (or junior lien of the same priority in relation to any senior
mortgage loan, with respect to any Mortgage Loan secured by a junior Mortgage)
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
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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
without any right of reimbursement 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 each of REMIC I, REMIC II, REMIC III or
REMIC IV would continue to qualify as a REMIC under the Code as a result thereof
and that no tax on "prohibited transactions" or "contributions" after the
startup day would be imposed on any of REMIC I, REMIC II, REMIC III or REMIC IV
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 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 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 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
percent 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
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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
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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 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 of
REMIC I, REMIC II, REMIC III or REMIC IV 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 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 of REMIC I,
REMIC II, REMIC III or REMIC IV 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 REMIC I, REMIC II, REMIC III or
REMIC IV 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
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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) (provided that if any such Class of Certificates to which such
Realized Loss was allocated is no longer outstanding, such subsequent recovery
shall be distributed to the persons who were the Holders of such Class of
Certificates when it was retired); 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.
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
will 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 one of the forms attached hereto as Exhibit G
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 one of the forms attached as Exhibit G hereto, 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
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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.
(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 will 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 assumption fees,
late payment charges, 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, subject to clause (e) below.
(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.
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(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 an amount equal to Compensating Interest (if
any) for such Distribution Date. 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); 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; and THIRD, to any amounts
of servicing compensation to which the Master Servicer is entitled pursuant to
Section 3.10(a)(v) or (vi). 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); (ii) 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) and (iii) shall not withdraw from the Custodial Account any such amount
of servicing compensation to which it is entitled pursuant to Section 3.10(a)(v)
or (vi). With respect to any Distribution Date, Compensating Interest derived
from Loan Group I shall be used on such Distribution Date (i) to cover any
Prepayment Interest Shortfalls on the Group I Loans and (ii) to cover any
Prepayment Interest Shortfalls on the Group II Loans, but only to the extent not
covered by Compensating Interest derived from Loan Group II. With respect to any
Distribution Date, Compensating Interest derived from Loan Group II shall be
used on such Distribution Date (i) to cover any Prepayment Interest Shortfalls
on the Group II Loans and (ii) to cover any Prepayment Interest Shortfalls on
the Group I Loans, but only to the extent not covered by Compensating Interest
derived from Loan Group I.
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 will 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, the date on 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 (or, in each case, if such day is not a
Business Day, the immediately preceding Business Day), an Officers' Certificate
stating, as to each signer thereof, that (i) a review of the activities of the
Master Servicer
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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 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, the date on 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 (or, in each case,
if such day is not a Business Day, the immediately preceding Business Day), 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 and the Trustee with
its
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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, but 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. The Depositor shall
not have the responsibility or liability for any action or failure to act by the
Master Servicer and is not obligated to supervise the performance of the Master
Servicer under this Agreement or otherwise.
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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 deposit or
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), Section 4.07 or Section 4.08, (iv) any amount to be deposited in the
Reserve Fund pursuant to Section 4.09, (v) any amount required to be paid
pursuant to Section 9.01, (vi) any prepayment charges on the Mortgage Loans
received during the related Prepayment Period and (vii) all other amounts
constituting the Group I or Group II Available Distribution Amount for the
immediately succeeding Distribution Date.
(b) [reserved]
(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 Group I Principal
Distribution Amount and Group II Principal Distribution Amount to the extent on
deposit in the Certificate Account for such date to the interests issued in
respect of REMIC I, REMIC II, REMIC III and REMIC IV as specified in this
Section.
(b)(1) On each Distribution Date, the following amounts, in the
following order of priority, to the extent of the Group I Available Distribution
Amount, reduced by distributions made to the Class R-I Certificates pursuant to
Section 4.02(c), shall be deemed distributed by REMIC I to REMIC III on account
of REMIC I Regular Interest A:
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(i) Uncertificated Accrued Interest on REMIC I Regular
Interest A for such Distribution Date, plus any Uncertificated Accrued Interest
thereon remaining unpaid from any previous Distribution Date; and
(ii) to the extent of amounts remaining after the
distributions made pursuant to clause (i) above, to REMIC I Regular Interest A
until the Uncertificated Principal Balance of such REMIC I Regular Interest is
reduced to zero.
(2) On each Distribution Date, the following amounts, in the following
order of priority, to the extent of the Group II Available Distribution Amount,
reduced by distributions made to the Class R-II Certificates pursuant to Section
4.02(d), shall be deemed distributed by REMIC II to REMIC III on account of
REMIC II Regular Interest B:
(i) Uncertificated Accrued Interest on REMIC II Regular
Interest B for such Distribution Date, plus any Uncertificated Accrued Interest
thereon remaining unpaid from any previous Distribution Date; and
(ii) to the extent of amounts remaining after the
distributions made pursuant to clause (i) above, allocated as follows: to REMIC
II Regular Interest B until the Uncertificated Principal Balance of such REMIC
II Regular Interest is reduced to zero.
(3)(A) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC III
to REMIC IV on account of the REMIC III Group I Regular
Interests:
(i) to the extent of the Group I Available Distribution
Amount, reduced by distributions made to the Class R-I Certificates and Class
R-III Certificates pursuant to Section 4.02(c), to the Holders of the REMIC III
Group I Regular Interests, pro rata, in an amount equal to (A) the related
Uncertificated Accrued Interest for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates. Amounts
payable as Uncertificated Accrued Interest in respect of REMIC III Regular
Interest I-ZZ shall be reduced when the REMIC III Group I Overcollateralization
Amount is less than the REMIC III Group I Required Overcollateralization Amount,
by the lesser of (x) the amount of such difference and (y) the REMIC III Regular
Interest I-ZZ Maximum Interest Deferral Amount, and such amount will be payable
to the Holders of REMIC III Regular Interest A-I-1, REMIC III Regular Interest
A-I-2, REMIC III Regular Interest A-I-3, REMIC III Regular Interest A-I-4, REMIC
III Regular Interest A-I-5, REMIC III Regular Interest A-I-6, REMIC III Regular
Interest A-I-7, REMIC III Regular Interest M-I-1, REMIC III Regular Interest
M-I-2 and REMIC III Regular Interest M-I-3 in the same proportion as the Group I
Overcollateralization Increase Amount is allocated to the Corresponding Class
for each such REMIC III Regular Interest, respectively, and the Uncertificated
Principal Balance of REMIC III Regular Interest I-ZZ shall be increased by such
amount; and
(ii) on each Distribution Date, to the Holders of REMIC III
Group I Regular Interests in an amount equal to the remainder of the Group I
Available Distribution Amount after the distributions made pursuant to clause
(i) above, allocated as follows (except as provided below): (A) to the Holders
of the REMIC III Regular Interest I-AA, 98.00% of such remainder until the
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Uncertificated Principal Balance of such REMIC III Regular Interest is reduced
to zero; (B) to the Holders of the REMIC III Regular Interests X-X-0, X-X-0,
X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, M-I-1, M-I-2 and M-I-3, 1.00% of such
remainder, in the same proportion as principal payments are allocated to the
Corresponding Class for each such REMIC III Regular Interest, respectively,
until the Uncertificated Principal Balance of each such REMIC III Regular
Interest is reduced to zero; (C) to the Holders of the REMIC III Regular
Interest I-ZZ, 1.00% of such remainder until the Uncertificated Principal
Balance of such REMIC III Regular Interest is reduced to zero; and (D) any
remaining amounts to the Holders of the Class R-III Certificates; provided,
however, that 98.00% and 2.00% of any principal payments that are attributable
to a Group I Overcollateralization Reduction Amount shall be allocated to
Holders of REMIC III Regular Interest I-AA and REMIC III Regular Interest I-ZZ,
respectively.
(B) On each Distribution Date, the following amounts, in the following
order of priority, shall be distributed by REMIC III to REMIC IV on account of
the REMIC III Group II Regular Interests:
(i) to the extent of the Group II Available Distribution
Amount, reduced by distributions made to the Class R-II Certificates and Class
R-III Certificates pursuant to Section 4.02(d), to the Holders of the REMIC III
Group II Regular Interests, pro rata, in an amount equal to (A) the related
Uncertificated Accrued Interest for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates. Amounts
payable as Uncertificated Accrued Interest in respect of REMIC III Regular
Interest II-ZZ shall be reduced when the REMIC III Group II
Overcollateralization Amount is less than the REMIC III Group II Required
Overcollateralization Amount, by the lesser of (x) the amount of such difference
and (y) the REMIC III Regular Interest II-ZZ Maximum Interest Deferral Amount,
and such amount will be payable to the Holders of REMIC III Regular Interest
A-II-A, REMIC III Regular Interest A-II-B, REMIC III Regular Interest M-II-1,
REMIC III Regular Interest M-II-2, REMIC III Regular Interest M-II-3, REMIC III
Regular Interest M-II-4 and REMIC III Regular Interest M-II-5 in the same
proportion as the Group II Overcollateralization Increase Amount is allocated to
the Corresponding Class for each such REMIC III Regular Interest, respectively,
and the Uncertificated Principal Balance of REMIC III Regular Interest II-ZZ
shall be increased by such amount; and
(ii) on each Distribution Date, to the Holders of REMIC III
Group II Regular Interests in an amount equal to the remainder of the Group II
Available Distribution Amount after the distributions made pursuant to clause
(i) above, allocated as follows (except as provided below): (A) to the Holders
of the REMIC III Regular Interest II-AA, 98.00% of such remainder until the
Uncertificated Principal Balance of such REMIC III Regular Interest is reduced
to zero; (B) to the Holders of the REMIC III Regular Interest A-II-A, A-II-B,
M-II-1, M-II-2, M-II-3, M-II-4 and M-II- 5, 1.00% of such remainder, in the same
proportion as principal payments are allocated to the Corresponding Class for
each such REMIC III Regular Interest, respectively, until the Uncertificated
Principal Balance of each such REMIC III Regular Interest is reduced to zero;
(C) to the Holders of the REMIC III Regular Interest II-ZZ, 1.00% of such
remainder until the Uncertificated Principal Balance of such REMIC III Regular
Interest is reduced to zero; and (D) any remaining amounts to the Holders of the
Class R-III Certificates; provided, however, that 98.00% and 2.00% of any
principal payments that are attributable to a Group II Overcollateralization
Reduction Amount shall
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be allocated to Holders of the REMIC III Regular Interest II-AA and REMIC III
Regular Interest II- ZZ, respectively.
(4) Notwithstanding the distributions described in this Section
4.02(b), distribution of funds from the Certificate Account shall be made only
in accordance with Section 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, subject to
the provisions of Section 4.02(e) and (f)), in each case to the extent of the
Group I Available Distribution Amount on deposit in the Certificate Account (or,
with respect to clause (xxiii) below, to the extent of prepayment charges on
deposit in the Certificate Account):
(i) to the Class A-I Certificateholders, the Class A-I
Interest Distribution Amount, with such amount allocated among the
Class A-I Certificateholders on a pro rata basis;
(ii) to the Class M-I-1 Certificateholders from the amount, if
any, of the Group I Available Distribution Amount remaining after the
foregoing distributions, the Class M-I-1 Interest Distribution Amount;
(iii) to the Class M-I-2 Certificateholders from the amount,
if any, of the Group I Available Distribution Amount remaining after
the foregoing distributions, the Class M-I-2 Interest Distribution
Amount;
(iv) to the Class M-I-3 Certificateholders from the amount, if
any, of the Group I Available Distribution Amount remaining after the
foregoing distributions, the Class M-I-3 Interest Distribution Amount;
(v) to the Class A-I Certificateholders and Class M-I
Certificateholders, the Group I Principal Distribution Amount (other
than clauses (iv) and (v) of the definition thereof), in the order
described in Section 4.02(e), until the Certificate Principal Balances
of the Class A-I Certificates and Class M-I Certificates have been
reduced to zero;
(vi) to the Class A-I Certificateholders and Class M-I
Certificateholders, from the Group I Excess Cash Flow, an amount equal
to the principal portion of Realized Losses on the Group I Loans during
the immediately preceding Due Period, which amount shall be included in
the Group I Principal Distribution Amount and paid in accordance with
Section
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4.02(e) hereof, until the Certificate Principal Balances of the Class
A-I Certificates and Class M-I Certificates have been reduced to zero;
(vii) to the Class A-II Certificateholders and Class M-II
Certificateholders, from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, an
amount equal to the principal portion of Realized Losses on the Group
II Loans during the immediately preceding Due Period to the extent not
covered by the Group II Excess Cash Flow, which amount shall be
included in the Group II Principal Distribution Amount and paid in
accordance with Section 4.02(f) hereof, until the Certificate Principal
Balances of the Class A-II Certificates and Class M-II Certificates
have been reduced to zero;
(viii) to the Class A-II Certificateholders and Class M-II
Certificateholders, from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, the
Group II Overcollateralization Increase Amount for such Distribution
Date, which amount shall be included in the Group II Principal
Distribution Amount and paid in accordance with Section 4.02(f) hereof,
until the Certificate Principal Balances of the Class A-II Certificates
and Class M-II Certificates have been reduced to zero, but only to the
extent the aggregate Certificate Principal Balance of the Class A-II
Certificates and Class M-II Certificates immediately prior to such
Distribution Date exceeded the aggregate Stated Principal Balance of
the Group II Loans at the end of the immediately preceding Due Period
and to the extent not covered by the Group II Excess Cash Flow;
(ix) to the Class A-I Certificateholders and Class M-I
Certificateholders, from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, the
Group I Overcollateralization Increase Amount for such Distribution
Date, which amount shall be included in the Group I Principal
Distribution Amount and paid in accordance with Section 4.02(e) hereof,
until the Certificate Principal Balances of such Class A-I Certificates
and Class M-I Certificates have been reduced to zero;
(x) to the Class A-II Certificateholders and Class M-II
Certificateholders, from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, the
Group II Overcollateralization Increase Amount for such Distribution
Date to the extent not covered by the Group II Excess Cash Flow for
such Distribution Date, which amount shall be included in the Group II
Principal Distribution Amount and paid in accordance with Section
4.02(f) hereof, until the Certificate Principal Balances of such Class
A-II Certificates and Class M-II Certificates have been reduced to
zero;
(xi) to the Class A-I Certificateholders and Class M-I
Certificateholders from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto with
respect to the Group I Loans, to the extent not covered by Compensating
Interest on such Distribution Date;
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(xii) to the Class A-II Certificateholders and Class M-II
Certificateholders from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto with
respect to the Group II Loans, to the extent not covered by
Compensating Interest and any Group II Excess Cash Flow on such
Distribution Date;
(xiii) to the Class A-I Certificateholders and Class M-I
Certificateholders from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto
remaining unpaid from prior Distribution Dates together with interest
thereon;
(xiv) to the Class A-II Certificateholders and Class M-II
Certificateholders from the amount, if any, of the Group I Available
Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto
remaining unpaid from prior Distribution Dates together with interest
thereon, to the extent not covered by any Group II Excess Cash Flow on
such Distribution Date;
(xv) to make payments, from amounts otherwise payable to the
Class SB-I Certificates (but in no event more than the Accrued
Certificate Interest on such Class), (i) FIRST, to the Reserve Fund to
pay to the Class A-I-1, Class A-I-4, Class A-I-5, Class A-I-6, Class
A-I-7, Class M-I-1, Class M-I-2 and Class M-I-3 Certificates the amount
of any Group I Net WAC Cap Shortfall Carry-Forward Amount on such
Classes of Certificates in the manner and order of priority set forth
in Section 4.09(a); and (ii) SECOND, to maintain a balance in the
Reserve Fund equal to the Reserve Fund Deposit;
(xvi) to make payments, from amounts otherwise payable to the
Class SB-I Certificates (but in no event more than the Accrued
Certificate Interest on such Class), (i) FIRST, to the Reserve Fund to
pay to the Class A-II, Class M-II-1, Class M-II-2, Class M-II-3, Class
M-II-4 and Class M-II-5 Certificates the amount of any Group II-A Basis
Risk Shortfall Carry-Forward Amount, Group II-B Basis Risk Shortfall
Carry-Forward Amount or Class M-II Basis Risk Shortfall Carry-Forward
Amount, as applicable, on such Classes of Certificates in the manner
and order of priority set forth in Section 4.09(a) to the extent not
covered by payments pursuant to Section 4.02(d)(xvii) and (ii) SECOND,
to maintain a balance in the Reserve Fund equal to the Reserve Fund
Deposit;
(xvii) to the Class A-I Certificateholders and the Class M-I
Certificateholders on a pro rata basis, based on Accrued Certificate
Interest otherwise due thereon, from the amount, if any, of the Group I
Excess Cash Flow remaining after the foregoing distributions, the
amount of any Relief Act Shortfalls allocated to those Certificates
with respect to such Distribution Date;
(xviii) to the Class A-II Certificateholders and the Class
M-II Certificateholders on a pro rata basis, based on Accrued
Certificate Interest otherwise due thereon, from the amount, if any, of
the Group I Excess Cash Flow remaining after the foregoing
distributions, the amount of any Relief Act Shortfalls allocated to
those Certificates with respect to such
96
Distribution Date, to the extent not covered by distributions of the
Group II Excess Cash Flow on such Distribution Date;
(xix) to the Class A-I Certificateholders and the Class M-I
Certificateholders, from the amount, if any, of the Group I Excess Cash
Flow remaining after the foregoing distributions, the principal portion
of any Realized Losses previously allocated to those Certificates and
remaining unreimbursed, which amount shall be allocated first, to the
Class A-I Certificateholders 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-I-1 Certificateholders, Class M-I-2
Certificateholders and Class M-I-3 Certificateholders, in that order;
(xx) to the Class A-II Certificateholders and the Class M-II
Certificateholders, from the amount, if any, of the Group I Excess Cash
Flow remaining after the foregoing distributions, the principal portion
of any Realized Losses previously allocated to those Certificates and
remaining unreimbursed, to the extent not covered by distributions of
the Group II Excess Cash Flow on such Distribution Date, which amount
shall be allocated first, to the Class A-II Certificateholders 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-II-1
Certificateholders, Class M-II-2 Certificateholders, Class M-II-3
Certificateholders, Class M-II-4 Certificateholders and Class M-II-5
Certificateholders, in that order;
(xxi) to the Class SB-II Certificateholders, from the amount,
if any, of the Group I Available Distribution Amount remaining after
the foregoing distributions, the amount of any Group I
Overcollateralization Reduction Amount for such Distribution Date to
the extent of any Group II Diverted Excess Spread;
(xxii) to the Class SB-I Certificates, from the amount, if
any, of the Group I Available Distribution Amount remaining after the
foregoing distributions, the sum of (A) Accrued Certificate Interest
thereon and (B) the amount of any Group I Overcollateralization
Reduction Amount for such Distribution Date (to the extent not
distributed to the Class SB-II Certificates);
(xxiii) to the Class SB-I Certificates, the amount of any
payments or collections consisting of prepayment charges received on
the Group I Loans (which amounts shall not be included in the Group I
Available Distribution Amount) and for any Distribution Date after the
Certificate Principal Balance of each Class A-I Certificate and Class
M-I Certificate has been reduced to zero, the Group I
Overcollateralization Amount; and
(xxiv) to the Class R-IV Certificateholders, the balance, if
any, of the Group I Available Distribution Amount.
(d) 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)
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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, subject to the provisions of Section 4.02(e) and (f)), in
each case to the extent of the Group II Available Distribution Amount on deposit
in the Certificate Account (or, with respect to clause (xxv) below, to the
extent of prepayment charges on deposit in the Certificate Account):
(i) to the Class A-II Certificateholders, the Class A-II
Interest Distribution Amount, with such amount allocated among the
Class A-II Certificateholders on a pro rata basis;
(ii) to the Class M-II-1 Certificateholders from the amount,
if any, of the Group I Available Distribution Amount remaining after
the foregoing distributions, the Class M-II-1 Interest Distribution
Amount;
(iii) to the Class M-II-2 Certificateholders from the amount,
if any, of the Group I Available Distribution Amount remaining after
the foregoing distributions, the Class M-II-2 Interest Distribution
Amount;
(iv) to the Class M-II-3 Certificateholders from the amount,
if any, of the Group I Available Distribution Amount remaining after
the foregoing distributions, the Class M-II-3 Interest Distribution
Amount;
(v) to the Class M-II-4 Certificateholders from the amount, if
any, of the Group I Available Distribution Amount remaining after the
foregoing distributions, the Class M-II-4 Interest Distribution Amount;
(vi) to the Class M-II-5 Certificateholders from the amount,
if any, of the Group I Available Distribution Amount remaining after
the foregoing distributions, the Class M-II-5 Interest Distribution
Amount;
(vii) to the Class A-II Certificateholders and Class M-II
Certificateholders, the Group II Principal Distribution Amount (other
than clauses (iv) and (v) of the definition thereof), in the order
described in Section 4.02(f) hereof, until the Certificate Principal
Balances of the Class A-II Certificates and Class M-II Certificates
have been reduced to zero;
(viii) to the Class A-II Certificateholders and Class M-II
Certificateholders, from the Group II Excess Cash Flow an amount equal
to the principal portion of Realized Losses on the Group II Loans
during the immediately preceding Due Period, which amount shall be
included in the Group II Principal Distribution Amount and paid in
accordance with Section
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4.02(f) hereof, until the Certificate Principal Balances of the Class
A-II Certificates and Class M-II Certificates have been reduced to
zero;
(ix) to the Class A-I Certificateholders and Class M-I
Certificateholders, from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing distributions an
amount equal to the principal portion of Realized Losses on the Group I
Loans during the immediately preceding Due Period to the extent not
covered by the Group I Excess Cash Flow, which amount shall be included
in the Group I Principal Distribution Amount and paid in accordance
with Section 4.02(e) hereof, until the Certificate Principal Balances
of the Class A-I Certificates and Class M-I Certificates have been
reduced to zero;
(x) to the Class A-I Certificateholders and Class M-I
Certificateholders, from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing distributions, the
Group I Overcollateralization Increase Amount for such Distribution
Date, which amount shall be included in the Group I Principal
Distribution Amount and paid in accordance with Section 4.02(e) hereof,
until the Certificate Principal Balances of the Class A-I Certificates
and Class M-I Certificates have been reduced to zero, but only to the
extent the aggregate Certificate Principal Balance of such Class A-I
Certificates and Class M-I Certificates immediately prior to such
Distribution Date exceeded the aggregate Stated Principal Balance of
the Group I Loans at the end of the immediately preceding Due Period
and to the extent not covered by the Group I Excess Cash Flow, in the
order described in Section 4.02(e) with respect to the Class A-I
Certificates;
(xi) to the Class A-II Certificateholders and Class M-II
Certificateholders, from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing distributions, the
Group II Overcollateralization Increase Amount for such Distribution
Date, which amount shall be included in the Group II Principal
Distribution Amount and paid in accordance with Section 4.02(f) hereof,
until the Certificate Principal Balances of the Class A-II Certificates
and Class M-II Certificates have been reduced to zero;
(xii) to the Class A-I Certificateholders and Class M-I
Certificateholders, from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing distributions, the
Group I Overcollateralization Increase Amount for such Distribution
Date to the extent not covered by the Group I Excess Cash Flow for such
Distribution Date, which amount shall be included in the Group I
Principal Distribution Amount and paid in accordance with Section
4.02(e) hereof, until the Certificate Principal Balances of such Class
A-I Certificates and Class M-I Certificates have been reduced to zero;
(xiii) to the Class A-II Certificateholders and Class M-II
Certificateholders from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto with
respect to the Group II Loans, to the extent not covered by
Compensating Interest on such Distribution Date;
(xiv) to the Class A-I Certificateholders and Class M-I
Certificateholders from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing
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distributions, the amount of any Prepayment Interest Shortfalls
allocated thereto with respect to the Group I Loans, to the extent not
covered by Compensating Interest and any Group I Excess Cash Flow on
such Distribution Date;
(xv) to the Class A-II Certificateholders and Class M-II
Certificateholders from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto
remaining unpaid from prior Distribution Dates together with interest
thereon;
(xvi) to the Class A-I Certificateholders and Class M-I
Certificateholders from the amount, if any, of the Group II Available
Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto
remaining unpaid from prior Distribution Dates together with interest
thereon, to the extent not covered by any Group I Excess Cash Flow on
such Distribution Date;
(xvii) to make payments, from amounts otherwise payable to the
Class SB-II Certificates (but in no event more than the Accrued
Certificate Interest on such Class), (i) FIRST, to the Reserve Fund to
pay to the Class A-II, Class M-II-1, Class M-II-2, Class M-II-3, Class
M-II-4 and Class M-II-5 Certificates, the amount of any Group II-A
Basis Risk Shortfall Carry-Forward Amount, Group II-B Basis Risk
Shortfall Carry-Forward Amount and Class M-II Basis Risk Shortfall
Carry-Forward Amount, as applicable, on such Classes of Certificates in
the manner and order of priority set forth in Section 4.09(a) and (ii)
SECOND, to maintain a balance in the Reserve Fund equal to the Reserve
Fund Deposit;
(xviii) to make payments, from amounts otherwise payable to
the Class SB-II Certificates (but in no event more than the Accrued
Certificate Interest on such Class), (i) FIRST, to the Reserve Fund to
pay to the Class A-I-1, Class A-I-4, Class A-I-5, Class A-I-6, Class
A-I-7, Class M-I-1, Class M-I-2 and Class M-I-3 Certificates, the
amount of any Group I Net WAC Cap Shortfall Carry-Forward Amount on
such Classes of Certificates in the manner and order of priority set
forth in Section 4.09(a) to the extent not covered by payments pursuant
to Section 4.02(c)(xv), and (ii) SECOND, to maintain a balance in the
Reserve Fund equal to the Reserve Fund Deposit;
(xix) to the Class A-II Certificateholders and the Class M-II
Certificateholders on a pro rata basis, based on Accrued Certificate
Interest otherwise due thereon, from the amount, if any, of the Group
II Excess Cash Flow remaining after the foregoing distributions, the
amount of any Relief Act Shortfalls allocated to those Certificates
with respect to such Distribution Date;
(xx) to the Class A-I Certificateholders and the Class M-I
Certificateholders on a pro rata basis, based on Accrued Certificate
Interest otherwise due thereon, from the amount, if any, of the Group
II Excess Cash Flow remaining after the foregoing distributions, the
amount of any Relief Act Shortfalls allocated to those Certificates
with respect to such Distribution Date, to the extent not covered by
distributions of the Group I Excess Cash Flow on such Distribution
Date;
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(xxi) to the Class A-II Certificateholders and the Class M-II
Certificateholders, from the amount, if any, of the Group II Excess
Cash Flow remaining after the foregoing distributions, the principal
portion of any Realized Losses previously allocated to those
Certificates and remaining unreimbursed, which amount shall be
allocated first, to the Class A-II Certificateholders 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-II-1
Certificateholders, Class M-II-2 Certificateholders, Class M-II-3
Certificateholders, Class M-II-4 Certificateholders and Class M-II-5
Certificateholders, in that order;
(xxii) to the Class A-I Certificateholders and the Class M-I
Certificateholders, from the amount, if any, of the Group II Excess
Cash Flow remaining after the foregoing distributions, the principal
portion of any Realized Losses previously allocated to those
Certificates and remaining unreimbursed, to the extent not covered by
distributions of the Group I Excess Cash Flow on such Distribution
Date, which amount shall be allocated first, to the Class A-I
Certificateholders 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-I-1 Certificateholders, Class M-I-2 Certificateholders and
Class M-I-3 Certificateholders, in that order;
(xxiii) to the Class SB-I Certificateholders, from the amount,
if any, of the Group II Available Distribution Amount remaining after
the foregoing distributions, the amount of any Group II
Overcollateralization Reduction Amount for such Distribution Date to
the extent of any Group I Diverted Excess Spread;
(xxiv) to the Class SB-II Certificates, from the amount, if
any, of the Group II Available Distribution Amount remaining after the
foregoing distributions, the sum of (A) Accrued Certificate Interest
thereon and (B) the amount of any Group II Overcollateralization
Reduction Amount for such Distribution Date (to the extent not
distributed to the Class SB-I Certificates);
(xxv) to the Class SB-II Certificates, the amount of any
payments or collections consisting of prepayment charges received on
the Group II Loans (which amounts shall not be included in the Group II
Available Distribution Amount) and for any Distribution Date after the
Certificate Principal Balance of each Class A-II Certificate and Class
M-II Certificate has been reduced to zero, the Group II
Overcollateralization Amount; and
(xxvi) to the Class R-IV Certificateholders, the balance, if
any, of the Group II Available Distribution Amount.
(e) On each Distribution Date, the Group I Principal Distribution
Amount will be paid as follows:
(i) the Class A-I Principal Distribution Amount shall be
distributed in the following manner and order of priority:
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(1) FIRST, to the to the Class A-I-7
Certificates, an amount equal to the Class
A-I-7 Lockout Distribution Amount for that
Distribution Date, until the Certificate
Principal Balance of the Class A-I-7
Certificates has been reduced to zero;
(2) SECOND, to the Class A-I-1, Class A-I-2,
Class A-I-3, Class A-I-4, Class A-I-5, Class
A-I-6 and Class A-I-7 Certificates, in that
order, in each case until the Certificate
Principal Balance thereof has been reduced
to zero;
(ii) the Class M-I-1 Principal Distribution Amount shall be
distributed to the Class M-I-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(iii) the Class M-I-2 Principal Distribution Amount shall be
distributed to the Class M-I-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(iv) the Class M-I-3 Principal Distribution Amount shall be
distributed to the Class M-I-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero.
(f) On each Distribution Date, the Group II Principal Distribution
Amount will be distributed as follows:
(i) the Class A-II Principal Distribution Amount shall be
distributed as follows:
(A) FIRST, concurrently, the Class A-II-A Principal
Distribution Amount will be distributed to the Class A-II-A
Certificates, until the Certificate Principal Balance of the
Class A-II-A Certificates has been reduced to zero, and the
Class A-II- B Principal Distribution Amount will be
distributed to the Class A-II-B Certificates, until the
Certificate Principal Balance of the Class A-II-B Certificates
has been reduced to zero; and
(B) second, any remaining Class A-II Principal
Distribution Amount will be distributed to the remaining Class
of Class A-II Certificates, until the Certificate Principal
Balance of that Class of Class A-II Certificates has been
reduced to zero;
(ii) the Class M-II-1 Principal Distribution Amount shall be
distributed to the Class M-II-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(iii) the Class M-II-2 Principal Distribution Amount shall be
distributed to the Class M-II-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
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(iv) the Class M-II-3 Principal Distribution Amount shall be
distributed to the Class M-II-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(v) the Class M-II-4 Principal Distribution Amount shall be
distributed to the Class M-II-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(v) the Class M-II-5 Principal Distribution Amount shall be
distributed to the Class M-II-5 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero.
(g) Notwithstanding the foregoing clauses (c) and (d), upon the
reduction of the Certificate Principal Balance of a Class of Class A
Certificates or Class M Certificates to zero, such Class of Certificates will
not be entitled to further distributions pursuant to Section 4.02, including,
without limitation, the payment of current and unreimbursed Prepayment Interest
Shortfalls pursuant to clauses (c)(xi) through (c)(xiv) and (d)(xiii) through
(d)(xvi), the Group I Net WAC Cap Shortfall Carry-Forward Amount pursuant to
clauses (c)(xv) and (d)(xviii) and the Group II-A Basis Risk Shortfall
Carry-Forward Amount, Group II-B Basis Risk Shortfall Carry-Forward Amount and
Class M-II Basis Risk Shortfall Carry-Forward Amount pursuant to clauses
(c)(xvi) and (d)(xvii).
(h) Any Prepayment Interest Shortfalls on the Group I Loans which are
not covered by Compensating Interest as described in Section 3.16 and Relief Act
Shortfalls on the Group I Loans will be allocated among the Class A-I
Certificates and Class M-I Certificates pro rata in accordance with the amount
of Accrued Certificate Interest that would have accrued on those Certificates
absent these shortfalls. Any such uncovered Prepayment Interest Shortfalls will
be paid solely pursuant to Section 4.02(c)(xi) and (xiii) and (d)(xiv) and
(xvi), to the extent funds are available therefor. Any such Relief Act
Shortfalls will be paid solely pursuant to Section 4.02(c)(xvii) and (d)(xx), to
the extent funds are available therefor. Any Prepayment Interest Shortfalls on
the Group II Loans which are not covered by Compensating Interest as described
in Section 3.16 and Relief Act Shortfalls on the Group II Loans will be
allocated among the Class A-II Certificates and Class M-II Certificates pro rata
in accordance with the amount of Accrued Certificate Interest that would have
accrued on those Certificates absent these shortfalls. Any such uncovered
Prepayment Interest Shortfalls will be paid solely pursuant to Section
4.02(c)(xii) and (xiv) and (d)(xiii) and (xv), to the extent funds are available
therefor. Any such Relief Act Shortfalls will be paid solely pursuant to Section
4.02(c)(xviii) and (d)(xix), to the extent funds are available therefor.
(i) In addition to the foregoing distributions, with respect to any
Subsequent Recoveries, the Master Servicer shall deposit such funds into the
Custodial Account pursuant to Section 3.07(b)(iii).
(j) 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
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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.
(k) 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 (000) 000-0000) 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 with
respect to the Group I Loans and Group II Loans pursuant to Section
4.04;
(v) the number of Group I Loans and Group II Loans and the
Stated Principal Balance after giving effect to the distribution of
principal on such Distribution Date;
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(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
Group I Loans and Group II Loans that are Delinquent (1) one month, (2)
two months and (3) three or more months and the number and aggregate
principal balance of Group I Loans and Group II Loans that are in
foreclosure, (b) the number and aggregate principal balances of Group I
Loans and Group II Loans that are Reportable Modified Mortgage Loans
that are Delinquent (1) one month, (2) two months and (3) three or more
months and the number and aggregate principal balance of Group I Loans
and Group II Loans 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 Group I Loans and Group II Loans that are Reportable
Modified Mortgage Loans, the number and aggregate Stated Principal
Balance of Group I Loans and Group II Loans that are Reportable
Modified Mortgage Loans 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;
(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 for such
Distribution Date and the aggregate amount of Realized Losses on the
Group I Loans and Group II Loans incurred since the Cut-off Date;
(xi) the Pass-Through Rate on each Class of Certificates, the
Group I Net WAC Cap Rate and the Group II Net WAC Cap Rate;
(xii) the weighted average of the Maximum Net Mortgage Rates
on the Group I Loans and Group II Loans;
(xiii) the Group I Net WAC Cap Shortfall, Group I Net WAC Cap
Shortfall Carry- Forward Amount, Group II-A Basis Risk Shortfall, Group
II-A Basis Risk Shortfall Carry- Forward Amount, Group II-B Basis Risk
Shortfall, Group II-B Basis Risk Shortfall Carry- Forward Amount, Class
M-II Basis Risk Shortfall, Class M-II Basis Risk Shortfall Carry-
Forward Amount and Group I and Group II Prepayment Interest Shortfalls;
(xiv) the Group I and Group II Overcollateralization Amount
and the Group I and Group II Required Overcollateralization Amount
following such Distribution Date;
105
(xv) the number and aggregate principal balance of Group I
Loans and Group II Loans repurchased under Section 4.07 or Section
4.08;
(xvi) the aggregate amount of any recoveries on previously
foreclosed loans from Residential Funding due to a breach of
representation or warranty;
(xvii) the weighted average remaining term to maturity of the
Group I Loans and Group II Loans after giving effect to the amounts
distributed on such Distribution Date;
(xviii) the weighted average Mortgage Rates of the Group I
Loans and Group II Loans after giving effect to the amounts distributed
on such Distribution Date;
(xix) the aggregate of any deposits to and withdrawals from
the Reserve Fund for such Distribution Date and the remaining amount on
deposit in the Reserve Fund after such deposits and withdrawals; and
(xx) the amount if any, to be paid by a Derivative
Counterparty under a Derivative Contract.
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 S 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, 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) As soon as reasonably practicable, upon the written request of any
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.
(d) 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
106
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 (d) 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 R-1 hereto or such other
form as may be required or permitted by the Commission (the "Form 10-K
Certification"), in compliance with Rule 13a-14 and 15d-14 under the Exchange
Act and any additional directives of the Commission. In connection with the Form
10-K Certification, the Trustee shall provide the Master Servicer with a back-up
certification substantially in the form attached hereto as Exhibit R-2. This
Section 4.03(d) 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 will 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 Group I and Group II
Available Distribution Amounts, (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 amounts required to be withdrawn from and
deposited into the Reserve Fund pursuant to Section 4.09, (iv) the amount of
Prepayment Interest Shortfalls, Group I Net WAC Cap Shortfalls, Group II-A Basis
Risk Shortfalls, Group II-B Basis Risk Shortfall, Class M-II Basis Risk
Shortfall, Group I Net WAC Cap Shortfall Carry-Forward Amounts, Group II-A Basis
Risk Shortfall Carry- Forward Amounts, Group II-B Basis Risk Shortfall
Carry-Forward Amounts and Class M-II Basis Risk Shortfall Carry-Forward Amounts
and (v) the amount payable by the Derivative Counterparties to the Trustee under
the Derivative Contracts as provided in Section 4.11. 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.
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(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 reductions in
the amount of interest collectable from the Mortgagor pursuant to the Relief Act
or similar legislation or regulations then in effect, 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
excess, if any, of interest on the unpaid principal balance thereof (with each
interest portion thereof adjusted to a per annum rate equal to the Net Mortgage
Rate), over any payments of interest (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 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 (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 and
the Trustee. 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 as successor Master Servicer hereunder, including the obligation to
deposit in the Certificate Account an amount equal to the Advance for
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the immediately succeeding Distribution Date. In connection with the preceding
sentence, the Trustee shall deposit all funds it receives pursuant to this
Section 4.04 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.
(1) All Realized Losses on the Group I Loans shall be allocated as
follows:
FIRST, to Group I Excess Cash Flow as provided in
Section 4.02(c)(vi), to the extent of the Group I
Excess Cash Flow for such Distribution Date;
SECOND, to the Group II Excess Cash Flow as provided
in Section 4.02(d)(ix), to the extent of the Group II
Excess Cash Flow for such Distribution Date remaining
after distributions pursuant to Section
4.02(d)(viii);
THIRD, in reduction of the Group I
Overcollateralization Amount, until the earlier of:
(1) such amount has been reduced to zero or (2) the
aggregate Certificate Principal Balance of the Class
A Certificates and Class M Certificates equals the
aggregate Stated Principal Balance of the Group I
Loans and Group II Loans;
FOURTH, in reduction of the Group II
Overcollateralization Amount until such amount is
reduced to zero, meaning, that no additional Realized
Losses will be allocated under any subsequent clause
until the aggregate Certificate Principal Balance of
the Class A Certificates and Class M Certificates
equals the aggregate Stated Principal Balance of the
Group I Loans and Group II Loans;
FIFTH, to Class M-I-3 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero;
SIXTH, to Class M-I-2 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero;
SEVENTH, to Class M-I-1 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero; and
EIGHTH, to the Class A-I Certificates, with such
amount allocated among each Class of Class A-I
Certificates on a pro rata basis, based on the
outstanding
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Certificate Principal Balance of each such Class
prior to giving effect to distributions to be made on
that Distribution Date, until the Certificate
Principal Balance of each such Class has been reduced
to zero.
(2) All Realized Losses on the Group II Loans shall be allocated as
follows:
FIRST, to the Group II Excess Cash Flow as provided
in Section 4.02(d)(viii), to the extent of the Group
II Excess Cash Flow for such Distribution Date;
SECOND, to the Group I Excess Cash Flow as provided
in Section 4.02(c)(vii), to the extent of the Group I
Excess Cash Flow for such Distribution Date remaining
after distributions pursuant to Section 4.02(c)(vi);
THIRD, in reduction of the Group II
Overcollateralization Amount, until the earliest of:
(1) such amount has been reduced to zero or (2) the
aggregate Certificate Principal Balance of the Class
A Certificates and Class M Certificates equals the
aggregate Stated Principal Balance of the Group I
Loans and Group II Loans;
FOURTH, in reduction of the Group I
Overcollateralization Amount, meaning, that no
additional Realized Losses will be allocated to any
Class of Certificates until the aggregate Certificate
Principal Balance of the Class A Certificates and
Class M Certificates equals the aggregate Stated
Principal Balance of the Group I Loans and Group II
Loans;
FIFTH, to Class M-II-5 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero;
SIXTH, to Class M-II-4 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero;
SEVENTH, to Class M-II-3 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero;
EIGHTH, to Class M-II-2 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero;
NINTH, to Class M-II-1 Certificates, until the
aggregate Certificate Principal Balance thereof has
been reduced to zero; and
TENTH, for losses on the Group II-A Loans, to the
Class A-II-A Certificates, and for losses on the
Group II-B Loans, to the Class A-II-B Certificates,
in each case until the Certificate Principal Balance
thereof has been reduced to zero.
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(b) 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
Certificate Principal Balance of the Class A-I Certificates or Class A-II
Certificates below the aggregate Stated Principal Balance of the Group I Loans
or Group II Loans, as applicable. 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" and by operation of the provisions of Section 4.02(c) and
(d). 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 provisions of Section 4.02(c) and (d). 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.
(c)(i) All Realized Losses on the Group I Loans shall be allocated on
each Distribution Date to REMIC I Regular Interest A, until the Uncertificated
Balance of REMIC I Regular Interest A has been reduced to zero. All Realized
Losses on the Group II Loans shall be allocated on each Distribution Date to
REMIC II Regular Interest B, until the Uncertificated Balance of REMIC II
Regular Interest B has been reduced to zero.
(ii) All Realized Losses on the Group I Loans shall be allocated on
each Distribution Date to the following REMIC III Group I Regular Interests in
the specified percentages, as follows: first, to Uncertificated Accrued Interest
payable to the REMIC III Group I Regular Interests I-AA and I-ZZ up to an
aggregate amount equal to the excess of (a) the REMIC III Group I Interest Loss
Allocation Amount over (b) Prepayment Interest Shortfalls (to the extent not
covered by Compensating Interest) relating to the Group I Loans for such
Distribution Date, 98% and 2%, respectively; second, to the Uncertificated
Principal Balances of the REMIC III Group I Regular Interests I-AA and I-ZZ up
to an aggregate amount equal to the REMIC III Group I Principal Loss Allocation
Amount, 98% and 2%, respectively; third, to the Uncertificated Principal
Balances of REMIC III Group I Regular Interests I-AA, M-I-3 and I-ZZ, 98%, 1%
and 1%, respectively, until the Uncertificated Balance of REMIC III Group I
Regular Interest M-I-3 has been reduced to zero; fourth, to the Uncertificated
Principal Balances of REMIC III Group I Regular Interests I-AA, M-I-2 and I-ZZ,
98%, 1% and 1%, respectively, until the Uncertificated Balance of REMIC III
Group I Regular Interest M-I-2 has been reduced to zero; fifth, to the
Uncertificated Principal Balances of REMIC III Group I Regular Interests I-AA,
M-I-1, and I-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC III Group I Regular Interest M-I-1 has been reduced to zero; and sixth,
to the Uncertificated Principal Balances of REMIC III Group I Regular Interests
I-AA, 98%, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, X-X-0 and A-I-7, 1% pro rata, and
I-ZZ, 1%, until the Uncertificated Balance of each of REMIC III Group I Regular
Interests X-X-0, X-X-0, X-X-0, X-X-0, X-X-0, A-I-6 and A-I-7 have been reduced
to zero.
(iii) All Realized Losses on the Group II Loans shall be allocated on
each Distribution Date to the following REMIC III Group II Regular Interests in
the specified percentages, as follows: first, to Uncertificated Accrued Interest
payable to the REMIC III Group II Regular Interests II-AA and II-ZZ up to an
aggregate amount equal to the excess of (a) the REMIC III Group II Interest Loss
Allocation Amount over (b) Prepayment Interest Shortfalls (to the extent not
covered by
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Compensating Interest) relating to the Group II Loans for such Distribution
Date, 98% and 2%, respectively; second, to the Uncertificated Principal Balances
of the REMIC III Group II Regular Interests II-AA and II-ZZ up to an aggregate
amount equal to the REMIC III Group II Principal Loss Allocation Amount, 98% and
2%, respectively; third, to the Uncertificated Principal Balances of REMIC III
Group II Regular Interests II-AA, M-II-5 and II-ZZ, 98%, 1% and 1% until the
Uncertificated Balance of REMIC III Group II Regular Interest M-II-5 has been
reduced to zero; fourth, to the Uncertificated Principal Balances of REMIC III
Group II Regular Interests II-AA, M-II- 4 and II-ZZ, 98%, 1% and 1% until the
Uncertificated Balance of REMIC III Group II Regular Interest M-II-4 has been
reduced to zero; fifth, to the Uncertificated Principal Balances of REMIC III
Group II Regular Interests II-AA, M-II-3 and II-ZZ, 98%, 1% and 1% until the
Uncertificated Balance of REMIC III Group II Regular Interest M-II-3 has been
reduced to zero; sixth, to the Uncertificated Principal Balances of REMIC III
Group II Regular Interests II-AA, M-II-2 and II-ZZ, 98%, 1% and 1% until the
Uncertificated Balance of REMIC III Group II Regular Interest M-II-2 has been
reduced to zero; seventh, to the Uncertificated Principal Balances of REMIC III
Group II Regular Interests II-AA, M-II-1 and II-ZZ, 98%, 1% and 1% until the
Uncertificated Balance of REMIC III Group II Regular Interest M-II-1 has been
reduced to zero; and eighth, to the Uncertificated Principal Balances of REMIC
III Group II Regular Interests II-AA, 98%, losses on the Group II-A Loans to
REMIC III Group II Regular Interest A-II-A and losses on the Group II-B Loans to
REMIC III Group II Regular Interest A-II-B, 1%, and II-ZZ, 1%, until the
Uncertificated Balance of each of REMIC III Group II Regular Interests A-II-A
and A-II-B have been reduced to zero.
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 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.
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. 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.
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Section 4.08. LIMITED MORTGAGE LOAN REPURCHASE RIGHT.
The Limited Repurchase Right Holder will have the irrevocable option at
any time to purchase any of the Mortgage Loans from the Trustee at the Purchase
Price, up to a maximum of five Mortgage Loans. In the event that this option is
exercised as to any five Mortgage Loans in the aggregate, this option will
thereupon terminate. If at any time the Limited Repurchase Right Holder makes a
payment to the Certificate Account covering the amount of the Purchase Price for
such a Mortgage Loan, and the Limited Repurchase Right Holder 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 Limited
Repurchase Right Holder without recourse to the Limited Repurchase Right Holder
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 Limited
Repurchase Right Holder 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. Any tax on "prohibited transactions"
(as defined in Section 860F(a)(2) of the Code) imposed on any REMIC relating to
the exercise of the option provided in this Section 4.08 shall in no event be
payable by the Trustee.
Section 4.09. DISTRIBUTION OF GROUP I NET WAC CAP SHORTFALL
CARRY-FORWARD AMOUNTS, GROUP II-A BASIS RISK SHORTFALL
CARRY-FORWARD AMOUNTS, GROUP II-B BASIS RISK SHORTFALL
CARRY-FORWARD AMOUNTS AND CLASS M-II BASIS RISK SHORTFALL
CARRY-FORWARD AMOUNTS; RESERVE FUND.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of Class A Certificates and Class M
Certificates, the Reserve Fund. In addition, on the Closing Date, the Trustee
shall deposit into the Reserve Fund the Reserve Fund Deposit to the extent
received by the Trustee from the Depositor. On each Distribution Date, the
Trustee shall transfer from the Certificate Account to the Reserve Fund the
amounts specified pursuant to Sections 4.02(c)(xv) and (xvi) and 4.02(d)(xvii)
and (xviii). On each Distribution Date, to the extent required, the Trustee
shall make withdrawals from the Reserve Fund and use the amounts in the Reserve
Fund to make distributions to the Class A Certificates and Class M Certificates
as follows:
(I) Solely from amounts deposited in the Reserve Fund pursuant
to Section 4.02(c)(xvi) and 4.02(d)(xvii), as follows:
(A) FIRST, to the Class A-II-A Certificates and Class
A-II-B Certificates, in an amount equal to any Group II-A
Basis Risk Shortfall Carry-Forward Amount and Group II-B Basis
Risk Shortfall Carry-Forward Amount, as applicable,
concurrently on a pro rata basis, based on the amount of any
Group II-A Basis Risk Shortfall Carry-Forward Amount and Group
II-B Basis Risk Shortfall Carry-Forward Amount for such
Classes of Certificates;
(B) SECOND, to the Class M-II-1, Class M-II-2, Class
M-II-3, Class M-II-4 and Class M-II_5 Certificates, in that
order, in an amount equal to any Class M-II Basis Risk
Shortfall Carry-Forward Amount; and
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(C) THIRD, to the Class SB-II Certificates; and
(II) Solely from amounts deposited in the Reserve Fund
pursuant to Section 4.02(c)(xv) and 4.02(d)(xviii), as follows:
(A) FIRST, to the Class A-I-1, Class A-I-4, Class
A-I-5, Class A-I-6 and Class A-I-7 Certificates, in an amount
equal to any Group I Net WAC Cap Shortfall Carry-Forward
Amount, concurrently on a pro rata basis, based on the amount
of any Group I Net WAC Cap Shortfall Carry-Forward Amount for
such Classes of Certificates;
(B) SECOND, to the Class M-I-1, Class M-I-2 and Class
M-I-3 Certificates, in that order, in an amount equal to any
Group I Net WAC Cap Shortfall Carry- Forward Amount; and
(C) THIRD, to the Class SB-I Certificates.
Any such amounts transferred shall be treated for federal tax purposes as
amounts distributed by REMIC IV to either the Class SB-I or Class SB-II
Certificateholders as transferee thereof. On each Distribution Date, to the
extent that the balance of deposits in the Reserve Fund is in excess of $5,000
after the distributions described in the second preceding sentence, the Trustee
shall, based upon the information provided by the Master Servicer, withdraw from
the Reserve Fund (to the extent of funds available on deposit therein) such
amounts in excess of $5,000, if any, and distribute them to the holder of the
Reserve Fund Residual Right.
(b) The Reserve Fund shall be an Eligible Account. Amounts held in the
Reserve Fund from time to time shall continue to constitute assets of the Trust
Fund, but not of the REMICs, until released from the Reserve Fund pursuant to
this Section 4.09. The Reserve Fund 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-I and Class SB-II Certificateholders shall be the
owners of the Reserve Fund, and for all federal tax purposes, amounts
transferred by the REMICs to the Reserve Fund shall be treated as amounts
distributed by the REMICs to either the Class SB-I Certificateholders or the
Class SB-II Certificateholders as designated in Section 4.02(c) and (d). The
Trustee shall keep records that accurately reflect the funds on deposit in the
Reserve Fund. The Trustee shall, at the direction of the Master Servicer, invest
amounts on deposit in the Reserve Fund in Permitted Investments. In the absence
of written direction to the Trustee from the Master Servicer, all funds in the
Reserve Fund shall remain uninvested. On each Distribution Date, the Trustee
shall distribute any interest on the Reserve Fund to the holder of the Reserve
Fund Residual Right.
(c) The holder of the Reserve Fund Residual Right with respect to the
Reserve Fund shall initially be Residential Funding as holder of the Class SB-I
Certificates and Class SB-II Certificates, and such Reserve Fund Residual Right
shall at all times be owned by and allocated to Class SB-I Certificates and
Class SB-II Certificates on a pro rata basis. So long as Residential Funding is
the holder of the Class SB-I Certificates and Class SB-II Certificates, any
amounts payable to the holder of the Reserve Fund Residual Right shall be
payable to Residential Funding. In the event of a transfer of the ownership in
any of the Class SB-I Certificates and Class SB-II Certificates by
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Residential Funding, the Reserve Fund Residual Right will be transferred along
with such Class SB-I Certificates and Class SB-II Certificates.
Section 4.10. [RESERVED].
Section 4.11. DERIVATIVE CONTRACTS.
(a) The Trustee shall, at the direction of the Master Servicer, on
behalf of the Trust Fund, enter into Derivative Contracts, solely for the
benefit of the Class SB Certificates. Any such Derivative Contract shall
constitute a fully prepaid agreement. The Master Servicer shall determine, in
its sole discretion, whether any Derivative Contract conforms to the
requirements of Section 4.11(b) and (c). Any acquisition of a Derivative
Contract shall be accompanied by an appropriate amendment to this Agreement,
including an Opinion of Counsel, as provided in Section 11.01, and either (i) an
Opinion of Counsel to the effect that the existence of the Derivative Contract
will not adversely affect the availability of the exemptive relief afforded
under ERISA by U.S. Department of Labor Prohibited Transaction Exemption 94-29,
as most recently amended, 67 Fed. Reg. 54487 (August 22, 2002), or Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995), to the
Holders of the Class A Certificates or the Class M Certificates, respectively,
as of the date the Derivative Contract is entered into by the Trustee or (ii)
the consent of each Holder of a Class A Certificate or a Class M Certificate to
the acquisition of such Derivative Contract. All collections, proceeds and other
amounts in respect of the Derivative Contracts payable by the Derivative
Counterparty shall be distributed to the Class SB Certificates on the
Distribution Date following receipt thereof by the Trustee. In no event shall
such an instrument constitute a part of any REMIC created hereunder. In
addition, in the event any such instrument is deposited, the Trust Fund shall be
deemed to be divided into two separate and discrete sub-Trusts. The assets of
one such sub-Trust shall consist of all the assets of the Trust other than such
instrument and the assets of the other sub-Trust shall consist solely of such
instrument.
(b) Any Derivative Contract that provides for any payment obligation on
the part of the Trust Fund must (i) be without recourse to the assets of the
Trust Fund, (ii) contain a non-petition covenant provision from the Derivative
Counterparty, (iii) limit payment dates thereunder to Distribution Dates and
(iv) contain a provision limiting any cash payments due to the Derivative
Counterparty on any day under such Derivative Contract solely to funds available
therefor in the Certificate Account available to make payments to the Holders of
the Class SB Certificates on such Distribution Date.
(c) Each Derivative Contract must (i) provide for the direct payment of
any amounts by the Derivative Counterparty thereunder to the Certificate Account
at least one Business Day prior to the related Distribution Date, (ii) contain
an assignment of all of the Trust Fund's rights (but none of its obligations)
under such Derivative Contract to the Trustee on behalf the Class SB
Certificateholders and shall include an express consent to the Derivative
Counterparty to such assignment, (iii) provide that in the event of the
occurrence of an Event of Default, such Derivative Contract shall terminate upon
the direction of a majority Percentage Interest of the Class SB Certificates,
and (iv) prohibit the Derivative Counterparty from "setting-off' or "netting"
other obligations of the Trust Fund and its Affiliates against such Derivative
Counterparty's payment obligations thereunder.
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ARTICLE V
THE CERTIFICATES
Section 5.01. THE CERTIFICATES.
(a) The Class A, Class M, Class SB 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, Class M-I-1 and Class M-II-1
Certificates shall be issuable in minimum dollar denominations of $25,000 and
integral multiples of $1 in excess thereof. The Class M-I-2, Class M-I-3, Class
M-II-2, Class M-II-3, Class M-II-4 and Class M-II-5 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 such 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.
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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 the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of Book-
Entry Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish a reasonable record date in connection with solicitations
of consents from or voting by Certificateholders and shall give notice to the
Depository of such record date. If (i)(A) the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository and (B) the Depositor is unable to locate a
qualified successor or (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Definitive Certificates. Neither the
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 such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the 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 8.11 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 8.11 and, in the case of any Class SB or Class R Certificate, upon
satisfaction of the conditions set forth below, the Trustee shall execute
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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 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 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 addressed to
and 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 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 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 M, Class SB or Class R Certificate
presented for registration in the name of any Person, either (i) the Trustee
shall require an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee, the Depositor and the Master
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Servicer to the effect that the purchase or holding of such Class M, Class SB 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
Trust Fund, the Depositor or the Master Servicer or (ii) 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 M Certificate) (which certification shall have been deemed to
have been given by a Class M Certificateholder who acquires a Book-Entry
Certificate), paragraph six of Exhibit I or paragraph three of Exhibit N (with
respect to a Class SB 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 either (a) is not an
employee benefit plan or other plan 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 (a "Plan Investor") or (b) in the case of a
Class M Certificate, the following conditions are satisfied: (i) such Transferee
is an insurance company, (ii) the source of funds used to purchase or hold such
Certificate (or interest therein) is an "insurance company general account" (as
defined in U.S. Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60, and (iii) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied (each entity that satisfies this clause (b), a
"Complying Insurance Company").
(ii) Any Transferee of a Class M Certificate that does not deliver the
Opinion of Counsel 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 either (a) such Transferee is not a Plan Investor or (b)
such Transferee is a Complying Insurance Company.
(iii) If any Class M Certificate (or any interest therein) is acquired
or held by any Person that does not satisfy the conditions described in
paragraph (ii) above, then the last preceding Transferee that either (i) is not
a Plan Investor or (ii) is a Complying Insurance Company 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 M Certificate.
The Trustee shall be under no liability to any Person for making any payments
due on such Certificate to such preceding Transferee.
(iv) Any purported Certificate Owner whose acquisition or holding of
any 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 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
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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
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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 will register the Transfer of any Class R Certificate
only if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Holder requesting such transfer in the form attached hereto
as Exhibit 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.
(iv) 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
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(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.
(v) 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 the Class A 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 of REMIC I, REMIC II, REMIC III
or REMIC IV to cease to qualify as a REMIC and will not cause
(x) any of REMIC I, REMIC II, REMIC III or REMIC IV 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
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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.
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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 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 will each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and will each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the 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
Xxxxxx Mae or Xxxxxxx Mac; and provided further that each Rating Agency's
ratings, if any, of the Class A Certificates and 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 Xxxxxx Mae or Xxxxxxx 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
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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.
Neither the Depositor, the Master Servicer nor 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 or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The 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.
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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.
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ARTICLE VII
DEFAULT
Section 7.01. EVENTS OF DEFAULT.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the 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
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(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. 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 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
(which shall not be unreasonably withheld) a designee (which meets the standards
set forth below) of the Trustee, shall be the successor in all respects to the
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
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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(d) 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. 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. 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 Xxxxxx Xxx or Xxxxxxx 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. 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 0.50% 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 0.50% 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
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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.
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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 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 in a timely
fashion. 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 of REMIC I, REMIC II, REMIC III and REMIC IV as a REMIC under the REMIC
Provisions and to prevent the imposition of any federal, state or local income,
prohibited transaction (except as provided in Section 2.04 herein), 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;
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(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;
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(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 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
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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 it shall have obtained or been furnished with an Opinion
of Counsel to the effect that such contribution will not (i) cause any of REMIC
I, REMIC II, REMIC III or REMIC IV 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 will pay or
reimburse the Trustee and any co-trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or any
co-trustee in accordance with any of the provisions of this Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ, and the expenses incurred by the
Trustee or any co-trustee in connection with the appointment of an office or
agency pursuant to Section 8.12) except any such expense, disbursement or
advance as may arise from its negligence or bad faith.
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(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
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against any claim in connection with the exercise or
performance of any of its powers or duties under this Agreement, provided that:
(i) with respect to any such claim, the Trustee shall have
given the 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 the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
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
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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 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
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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
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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. The Trustee will maintain an office or agency in the City of New
York where Certificates may be surrendered for registration of transfer or
exchange. The Trustee initially designates its offices located at 0 Xxx Xxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the purpose of keeping the
Certificate Register. The Trustee will maintain an office at the address stated
in Section 11.05(c) hereof where notices and demands to or upon the Trustee in
respect of this Agreement may be served.
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ARTICLE IX
TERMINATION
Section 9.01. TERMINATION UPON PURCHASE BY THE MASTER SERVICER 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) the purchase by the Master Servicer of all Group I Loans
and all property acquired in respect of any Group I Loan remaining in
the Trust Fund and the purchase by the Master Servicer of all Group II
Loans and all property acquired in respect of any Group II Loan
remaining in the Trust Fund, in each case, at a price equal to 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) (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; 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 Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. Xxxxx, living
on the date hereof; provided further, that, if the amount due under any
Certificate shall not have been reduced to zero prior to the Maturity
Date, the Master Servicer shall be required to terminate this Agreement
in accordance with this clause (ii); 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 of
REMIC I, REMIC II, REMIC III or REMIC IV as a REMIC. The purchase price
paid by the Master Servicer 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 (bb) of such Section, that remain unpaid on the date of
such purchase.
The right of the Master Servicer or the Company to purchase all the
assets of the Trust Fund relating to the Group I Loans, pursuant to clause (ii)
above is conditioned upon the date of such
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purchase occurring on or after the Group I Optional Termination Date. The right
of the Master Servicer or the Company to purchase all the assets of the Trust
Fund relating to the Group II Loans, pursuant to clause (ii) above is
conditioned upon the date of such purchase occurring on or after the Group II
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 Master Servicer the Mortgage Files pertaining to the Mortgage Loans being
purchased.
In addition to the foregoing, on any Distribution Date on or after the
Group I Optional Termination Date, the Master Servicer shall have the right, at
its option, to purchase the Class A-I Certificates and Class M-I Certificates in
whole, but not in part, at a price equal to aggregate outstanding Certificate
Principal Balance of the Class A-I Certificates and Class M-I Certificates, plus
one month's Accrued Certificate Interest on the Class A-I Certificates and Class
M-I Certificates, any previously unpaid Accrued Certificate Interest, and any
unpaid Prepayment Interest Shortfall previously allocated thereto. On any
Distribution Date on or after the Group II Optional Termination Date, the Master
Servicer shall have the right, at its option, to purchase the Class A-II
Certificates and Class M-II Certificates in whole, but not in part, at a price
equal to aggregate outstanding Certificate Principal Balance of the Class A-II
Certificates and Class M-II Certificates, plus one month's Accrued Certificate
Interest on the Class A-II Certificates and Class M-II Certificates, any
previously unpaid Accrued Certificate Interest, and any unpaid Prepayment
Interest Shortfall previously allocated thereto. If the Master Servicer
exercises this right to purchase the outstanding Class A-I Certificates and
Class M-I Certificates or Class A-II Certificates and Class M- II Certificates,
the Master Servicer will promptly terminate the respective obligations and
responsibilities created hereby in respect of these Certificates pursuant to
this Article IX.
(b) The Master Servicer shall give the Trustee not less than 60 days'
prior notice of the Distribution Date on which the Master Servicer anticipates
that the final distribution will be made to Certificateholders (whether as a
result of the exercise by the Master Servicer of its right to purchase the
assets of the Trust Fund or otherwise). 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 for payment of the final
distribution and cancellation, shall be given promptly by the Master Servicer
(if it is exercising its right to purchase the assets of the Trust Fund), or by
the Trustee (in any other case) by letter to Certificateholders 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,
(ii) the amount of any such final payment, if known, and
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(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 is obligated to give notice to
Certificateholders as aforesaid, it shall give such notice to the Certificate
Registrar at the time such notice is given to Certificateholders. In the event
such notice is given by the Master Servicer, the Master Servicer shall deposit
in the Certificate Account before the Final Distribution Date in immediately
available funds an amount equal to the purchase price for the assets of the
Trust Fund computed as above provided. The Master Servicer 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 Certificates by the
Certificateholders, the Trustee shall distribute to the Certificateholders (i)
the amount otherwise distributable on such Distribution Date, if not in
connection with the Master Servicer's election to repurchase, or (ii) if the
Master Servicer elected to so repurchase, an amount equal to the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest thereon
for the related Interest Accrual Period, any previously unpaid Accrued
Certificate Interest and any unpaid Prepayment Interest Shortfall previously
allocated thereto.
(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 assets of the Trust Fund), 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.
Section 9.02. ADDITIONAL TERMINATION REQUIREMENTS.
(a) Each of REMIC I, REMIC II, REMIC III and REMIC IV, as the case may
be, shall be terminated in accordance with the following additional
requirements, unless the Trustee and the
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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 of
REMIC I, REMIC II, REMIC III and REMIC IV, 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 of REMIC I, REMIC II, REMIC III or REMIC IV
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 each of REMIC I, REMIC II, REMIC III and REMIC IV, and
specify the first day of such period in a statement attached to the
Trust Fund's final Tax Return pursuant to Treasury regulations Section
1.860F-1. The Master Servicer also shall satisfy all of the
requirements of a qualified liquidation for each of REMIC I, REMIC II,
REMIC III and REMIC IV, 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
Trust Fund 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 Trust Fund 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 each of REMIC I, REMIC II, REMIC III and REMIC
IV at the expense of the Trust Fund in accordance with the terms and conditions
of this Agreement.
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ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC ADMINISTRATION.
(a) The REMIC Administrator shall make an election to treat each of
REMIC I, REMIC II, REMIC III and REMIC IV as a REMIC under the Code and, if
necessary, under applicable state law. Such election will be made on Form 1066
or other appropriate federal tax or information return (including Form 8811) or
any appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. The REMIC I Regular Interest
shall be designated as the "regular interests" and the Class R-I Certificates
shall be designated as the sole class of "residual interests" in REMIC I. The
REMIC II Regular Interest shall be designated as the "regular interests" and the
Class R-II Certificates shall be designated as the sole class of "residual
interests" in 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 REMIC III. The Class A-I, Class A-II,
Class M-I, Class M-II, Class SB-I and Class SB-II Certificates shall be
designated as the "regular interests" in REMIC IV and the Class R-IV
Certificates shall be designated the sole class of "residual interests" in REMIC
IV. The REMIC Administrator and the Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in the REMIC other
than the Certificates.
(b) The Closing Date is hereby designated as the "startup day" of each
of REMIC I, REMIC II, REMIC III and REMIC IV within the meaning of Section
860G(a)(9) of the Code.
(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 REMIC I, REMIC II, REMIC III and REMIC IV 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 I, REMIC II, REMIC III and REMIC IV 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 each REMIC
created hereunder and deliver such Tax Returns in a timely manner to the Trustee
and the Trustee shall sign and file such Tax
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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 of REMIC I, REMIC II, REMIC
III or REMIC IV as a REMIC or (ii) with the exception of actions taken in
connection with Section 4.08 hereof, result in the imposition of a tax upon any
of REMIC I, REMIC II, REMIC III or REMIC IV (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
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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 will
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 day
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 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 day, 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 of REMIC I, REMIC II, REMIC III or REMIC IV to fail to qualify as
a REMIC at any time that any
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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 of REMIC I, REMIC II,
REMIC III or REMIC IV will receive a fee or other compensation for services nor
permit any of REMIC I, REMIC II, REMIC III or REMIC IV to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the principal
balance of each regular interest in each REMIC would be reduced to zero is
November 25, 2033.
(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 of REMIC I, REMIC II, REMIC III or
REMIC IV 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. The Trustee shall treat the Reserve Fund as an outside reserve
fund within the meaning of Treasury Regulation 1.860G-2(h). The Reserve Fund
shall be owned by the Class SB-II Certificateholders, and is not an asset of the
REMICs. The Trustee shall treat the rights of the Class A-I-1, Class A-I-4,
Class A-I-5, Class A-I-6, Class A-I-7, Class M-I, Class A-II and Class M-II
Certificateholders to receive payments from the Reserve Fund as rights in an
interest rate cap contract written by the Class SB-II Certificateholders in
favor of the Class A-I-1, Class A-I-4, Class A-I-5, Class A-I-6, Class A-I-7,
Class M-I, Class A-II and Class M-II Certificateholders. Thus, each Class A-I-1,
Class A-I-4, Class A-I-5, Class A-I-6, Class A-I-7, Class M-I, Class A-II and
Class M-II Certificate shall be treated as representing ownership of not only
REMIC IV regular interests, but also ownership of an interest in an interest
rate cap contract. For purposes of determining the issue price of the REMIC IV
regular interests, the Trustee shall assume that the interest rate cap contract
with respect to the Class A-I-1, Class A-I-4, Class A-I-5, Class A-I-6, Class
A-I-7, Class M-I, Class A-II and Class M-II Certificates has a de minimis value.
Section 10.02. MASTER SERVICER, REMIC ADMINISTRATOR AND TRUSTEE
INDEMNIFICATION.
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(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 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.
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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 REMIC I, REMIC II, REMIC III or REMIC IV as REMICs 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, as evidenced by a letter from
each Rating Agency 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, 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
149
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 11.09(d).
(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 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,
(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 is permitted under this
Agreement and 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
REMIC I, REMIC II, REMIC III or REMIC IV to fail to qualify as REMICs at any
time that any Certificate is outstanding. 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
150
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 the 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 the REMIC, (ii) any such reserve fund shall be owned by the
Depositor, and (iii) amounts transferred by the REMIC to any such reserve fund
shall be treated as amounts distributed by the REMIC to the Depositor or any
successor, all within the meaning of Treasury regulations Section 1.860G-2(h).
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 of REMIC I, REMIC II, REMIC III or
REMIC IV to fail to qualify as a REMIC at any time that any Certificate is
outstanding. In the event that the Depositor elects to provide such coverage in
the form of a limited guaranty provided by General Motors Acceptance
Corporation, the Depositor may elect that the text of such amendment to this
Agreement shall be substantially in the form attached hereto as Exhibit K (in
which case Residential Funding's Subordinate Certificate Loss Obligation as
described in such exhibit shall be established by Residential Funding's consent
to such amendment) and that the limited guaranty shall be executed in the form
attached hereto as Exhibit L, with such changes as the Depositor shall deem to
be appropriate; it being understood that the Trustee has reviewed and approved
the content of such forms and that the Trustee's consent or approval to the use
thereof is not required.
(f) In addition to the foregoing, any amendment of Section 4.08 of this
Agreement shall require the consent of the Limited Repurchase Right Holder as
third-party beneficiary.
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
151
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, 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.
152
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, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000, 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, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000-0000, 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, 0 Xxx Xxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust Services/Global
Debt, RAMP 2003-RS10 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, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Mortgage
Surveillance or such other address as may be hereafter furnished to the
Depositor, Trustee and Master Servicer by Standard & Poor's; and (e) in the case
of Xxxxx'x, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 Xxxxx'x. 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 (a), (b), (c), (d), (g), (h), (i) or (j) 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 (a), (b), (c)(1), (g)(1) or (i) 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 (e) and
(f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) (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,
(d) 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 152 any such
instrument,
(e) the statement required to be delivered to the Holders of each Class
of Certificates pursuant to Section 4.03,
153
(f) the statements required to be delivered pursuant to Sections 3.18
and 3.19,
(g) (1) a change in the location of the Custodial Account or (2) a
change in the location of the Certificate Account,
(h) 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,
(i) the occurrence of the Final Distribution Date and
(j) 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 (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer 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, FASIT 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. 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, FASIT or other
entity not subject to taxation for
154
federal income tax purposes and (ii) the adoption of the Supplemental Article
will not endanger the status of any of REMIC I, REMIC II, REMIC III or REMIC IV
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. [RESERVED].
Section 11.10. THIRD PARTY BENEFICIARY.
The Limited Repurchase Right Holder is an express third-party
beneficiary of Section 4.08 of this Agreement, and shall have the right to
enforce the related provisions of Section 4.08 of this Agreement as if it were a
party hereto.
155
IN WITNESS WHEREOF, the Company, 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 day and year first above written.
[Seal] RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC.
Attest: /s/ Xxxxx Xxx By: /s/ Xxxxxxx Xxxx
------------------------------ ---------------------------
Name: Xxxxx Xxx Name: Xxxxxxx Xxxx
Title: Vice President Title: Vice President
[Seal] RESIDENTIAL FUNDING CORPORATION
Attest: /s/ Xxxxxxx Xxxx By: /s/ Xxxxx Xxx
------------------------------ ---------------------------
Name: Xxxxxxx Xxxx Name: Xxxxx Xxx
Title: Associate Title: Director
[Seal] JPMORGAN CHASE BANK
as Trustee
Attest: By: /s/ Xxxx XxXxxxxxx
------------------------------ ---------------------------
Name: Name: Xxxx XxXxxxxxx
Title: Title: Vice President
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the 26th day of November, 2003 before me, a notary public
in and for said State, personally appeared Xxxxxxx Xxxx, 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 26th day of November, 2003 before me, a notary public
in and for said State, personally appeared Xxxxx Xxx, known to me to be a
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 26th day of November, 2003 before me, a notary public
in and for said State, personally appeared _____________________, known to me to
be a __________________ of JPMorgan Chase Bank, 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.
Class A-__ Senior Certificate No. __
[___%] [Adjustable] Pass-Through Rate
Date of Pooling and Servicing
Agreement and Cut-off Date: Percentage Interest: ___%
November 1, 2003
First Distribution Date: Aggregate Initial Certificate Principal
December 26, 2003 Balance of the Class A-__
Certificates: $___________
Master Servicer:
Residential Funding Corporation
Final Scheduled Distribution Date: Initial Certificate Principal
_________ __, 20__ Balance of this Class A-__ Certificate:
$___________
Maturity Date: CUSIP ________
_________ __, 20__
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2003-RS10
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 conventional one-
to four-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 in certain distributions with
respect to the Trust Fund consisting primarily of an interest in a pool of
conventional one- to four-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
A-2
Chase Bank, 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] [at the close of
business on the Business Day prior to such Distribution Date] (the "Record
Date"), from the related 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 to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage 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.
A-3
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 there upon 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
from the Trust Fund of all remaining [Group I] [Group II]
A-4
Loans and all property acquired in respect of such [Group I] [Group II] Loans,
thereby effecting early retirement of the related Certificates. The Agreement
permits, but does not require, the Master Servicer (i) to purchase, at a price
determined as provided in the Agreement, all remaining [Group I] [Group II]
Loans and all property acquired in respect of any [Group I] [Group II] Loan or
(ii) to purchase in whole, but not in part, all of the Class A-[_] Certificates
and Class M-[_] Certificates from the Holders thereof, provided, that any such
option may only be exercised if the aggregate Stated Principal Balance of the
[Group I] [Group II] Loans, as of the Distribution Date upon which the proceeds
of any such purchase are distributed is less than ten percent of the Cut-off
Date Principal Balance of the [Group I] [Group II] 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.
A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK,
as Trustee
By:________________________________
Authorized Signatory
Dated: November 26, 2003
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-__ Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By: _______________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) the beneficial interest evidenced by the within Trust Certificate and
hereby authorizes the transfer of registration of such interest to assignee on
the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:_____________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
for the account of _____________________________________________________________
account number__________________________________________________________________
or, if mailed by check, to______________________________________________________
Applicable statements should be mailed to:_____________________________
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or ______________________________, as its agent.
EXHIBIT B
FORM OF CLASS [M-_] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS
[A-_][M-_] CERTIFICATES, AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CLASS [M-_] CERTIFICATE WILL BE MADE UNLESS THE
TRUSTEE HAS RECEIVED EITHER (A) AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM
AND SUBSTANCE SATISFACTORY TO THE TRUSTEE, THE DEPOSITOR AND THE MASTER SERVICER
WITH RESPECT TO THE PERMISSIBILITY OF SUCH TRANSFER UNDER THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") AND SECTION 4975 OF
THE CODE AND STATING, AMONG OTHER THINGS, THAT THE TRANSFEREE'S ACQUISITION OF
THIS CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE
MASTER SERVICER TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN
IN THE AGREEMENT OR (B) A REPRESENTATION LETTER, IN THE FORM DESCRIBED IN THE
AGREEMENT, EITHER STATING THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR
OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION
4975 OF THE CODE (A "PLAN") OR ANY OTHER PERSON (INCLUDING AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY PLAN) ACTING, DIRECTLY OR
INDIRECTLY, ON BEHALF OF OR PURCHASING ANY CERTIFICATE WITH "PLAN ASSETS" OF ANY
PLAN (A "PLAN INVESTOR"), OR STATING THAT (I) THE TRANSFEREE IS AN INSURANCE
COMPANY, (II) THE SOURCE OF FUNDS TO BE USED BY IT TO PURCHASE THE CERTIFICATE
IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60), AND (III) THE
CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED
(EACH ENTITY THAT SATISFIES THIS CLAUSE (B), A "COMPLYING INSURANCE COMPANY").
NOTWITHSTANDING THE ABOVE, WITH RESPECT TO THE TRANSFER OF THIS
CERTIFICATE TO A DEPOSITORY OR ANY SUBSEQUENT TRANSFER OF ANY INTEREST IN THIS
CERTIFICATE FOR SO LONG AS THIS CERTIFICATE IS HELD BY A DEPOSITORY, (I)
NEITHER, AN OPINION OF COUNSEL NOR A CERTIFICATION, EACH AS DESCRIBED IN THE
FOREGOING PARAGRAPH, SHALL BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL
APPLY:
B-1
1. ANY TRANSFEREE OF THIS CERTIFICATE WELL BE DEEMED TO HAVE REPRESENTED
BY VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST
HEREIN) THAT EITHER (A) SUCH TRANSFEREE IS NOT A PLAN INVESTOR OR (B)
SUCH TRANSFEREE IS A COMPLYING INSURANCE COMPANY; AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE
LAST PRECEDING TRANSFEREE THAT EITHER (I) IS NOT A PLAN INVESTOR OR
(II) IS A COMPLYING INSURANCE COMPANY 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 THIS CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO
LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS
CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST HEREIN) 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.
B-2
Class M-_ Mezzanine Certificate No. 1
Date of Pooling and Servicing [____%] [Adjustable] Pass-Through Rate
Agreement and Cut-off Date
November 1, 2003
First Distribution Date: Percentage Interest: ___%
December 26, 2003
Master Servicer: Aggregate Certificate Principal Balance of the
Residential Funding Corporation Class M-_ Certificates: $________
Final Scheduled Distribution Date: Initial Certificate Principal Balance of this
_________ __, 20__ Class M-_ Certificate:
$__________
Maturity Date: CUSIP
_________ __, 20__
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2003-RS10
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 conventional one-
to four-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 in certain distributions with respect to
the Trust Fund consisting primarily of an interest in a pool of conventional
one- to four-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, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is
B-3
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] [at the close of
business on the Business Day prior to such Distribution Date] (the "Record
Date"), from the related 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.
As described above, no transfer of this Class M-_ Certificate will be
made unless (i) the Trustee has received either an opinion of counsel or a
representation letter, each as described in the Agreement, relating to the
permissibility of such transfer under ERISA and Section 4975 of the Code, or
(ii) this Certificate is held by a Depository, in which case the Transferee will
be deemed to have made representations relating to the permissibility of such
transfer under ERISA and Section 4975 of the Code, as described in Section
5.02(e) of the Agreement. In addition, any purported Certificate Owner whose
acquisition or holding of this Certificate (or interest herein) was effected in
violation of the restrictions in Section 5.02(e) of the 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.
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").
B-4
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
B-5
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
from the Trust Fund of all remaining [Group I] [Group II] Loans and all property
acquired in respect of such [Group I] [Group II] Loans, thereby effecting early
retirement of the related Certificates. The Agreement permits, but does not
require, the Master Servicer (i) to purchase, at a price determined as provided
in the Agreement, all remaining [Group I] [Group II] Loans and all property
acquired in respect of any [Group I] [Group II] Loan or (ii) to purchase in
whole, but not in part, all of the Class A-[_] Certificates and Class M-[_]
Certificates from the Holders thereof, provided, that any such option may only
be exercised if the aggregate Stated Principal Balance of the [Group I] [Group
II] Loans, as of the Distribution Date upon which the proceeds of any such
purchase are distributed is less than ten percent of the Cut-off Date Principal
Balance of the [Group I] [Group II] 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.
B-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK,
as Trustee
By:________________________________
Authorized Signatory
Dated: November 26, 2003
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-__ Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By: _______________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) the beneficial interest evidenced by the within Trust Certificate and
hereby authorizes the transfer of registration of such interest to assignee on
the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:_____________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
for the account of _____________________________________________________________
account number__________________________________________________________________
or, if mailed by check, to______________________________________________________
Applicable statements should be mailed to:_____________________________
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or ______________________________, as its agent.
EXHIBIT C
FORM OF CLASS SB CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS [A-_][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.
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 HEREIN SHALL BE MADE TO ANY PLAN
SUBJECT TO ERISA OR SECTION 4975 OF THE CODE, 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( "PLAN ASSETS") 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 OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE 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.
C-9
Certificate No. __ Variable Pass-Through Rate
Class SB-__ Subordinate
Date of Pooling and Servicing Percentage Interest: ___%
and Cut-off Date:
November 1, 2003
First Distribution Date: Aggregate Initial Certificate Principal Balance
December 26, 2003 of the Class SB-__ Certificates:
$________
Master Servicer: Initial Certificate Principal Balance
Residential Funding Corporation of this Certificate: $________
Final Scheduled Distribution Date: CUSIP: ________
_________ __, 20__
Maturity Date:
_________ __, 20__
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2003-RS10
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 conventional one-
to four-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 in certain distributions with respect to
the Trust Fund consisting primarily of an interest in a pool of conventional
one- to four-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
C-2
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, 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 related 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. The Notional Amount hereof will be
reduced by interest shortfalls on the related Loan Group including any
Prepayment Interest Shortfalls not covered by Compensating Interest or related
Excess Cash Flow, and the interest portion of any Realized Losses incurred in
respect thereof. This Class SB-__ Certificate will accrue interest at the
Pass-Through Rate on the Notional Amount as indicated in the definition of
Accrued Certificate Interest 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
C-3
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 Plan subject to ERISA or Section 4975 of the Code, 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 ("Plan Assets")
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 of this Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under ERISA or Section 4975 of the Code 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.
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
C-4
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
from the Trust Fund of all remaining [Group I] [Group II] Loans and all property
acquired in respect of such [Group I] [Group II] Loans, thereby effecting early
retirement of the related Certificates. The Agreement permits, but does not
require, the Master Servicer (i) to purchase, at a price determined as provided
in the Agreement, all remaining [Group I] [Group II] Loans and all property
acquired in respect of any [Group I] [Group II] Loan or (ii) to purchase in
whole, but not in part, all of the Class A-[_] Certificates and Class M-[_]
Certificates from the Holders thereof, provided, that any such option may only
be exercised if the aggregate Stated Principal Balance of the [Group I] [Group
II] Loans, as of the Distribution Date upon which the proceeds of any such
purchase are distributed is less than ten percent of the Cut-off Date Principal
Balance of the [Group I] [Group II] Loans.
C-5
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.
C-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK,
as Trustee
By:________________________________
Authorized Signatory
Dated: November 26, 2003
CERTIFICATE OF AUTHENTICATION
This is one of the Class SB-__ Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By: _______________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) the beneficial interest evidenced by the within Trust Certificate and
hereby authorizes the transfer of registration of such interest to assignee on
the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:_____________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
for the account of _____________________________________________________________
account number__________________________________________________________________
or, if mailed by check, to______________________________________________________
Applicable statements should be mailed to:_____________________________
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or ______________________________, as its agent.
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 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 HEREIN SHALL BE MADE TO ANY PLAN
SUBJECT TO ERISA OR SECTION 4975 OF THE CODE, 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( "PLAN ASSETS") 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 OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE 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.
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
E-1
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS. EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR
(D) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS 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.
D-2
Class R-__ Certificate No. __
Date of Pooling and Servicing Percentage Interest: __%
Agreement and Cut-off Date:
November 1, 2003
First Distribution Date: Initial Certificate Principal
December 26, 2003 Balance of this Certificate: $______
Master Servicer:
Residential Funding Corporation
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2003-RS10
evidencing a percentage interest in any distributions
allocable to the Class R-__ Certificates with respect to the
Trust Fund consisting primarily of a pool of conventional one-
to four-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 in certain distributions with
respect to the Trust Fund consisting primarily of a pool of conventional one- to
four-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, 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
D-3
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 related 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, (ii) 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 Plan subject to ERISA or Section 4975 of the Code, 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 ("Plan Assets")
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
D-4
of this Certificate is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code 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.
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
D-5
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 these
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
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
related Certificates. The Agreement permits, but does not require, the Master
Servicer (i) to purchase, at a price determined as provided in the Agreement,
all remaining Mortgage Loans and all property acquired in respect of any
Mortgage Loan or (ii) to purchase in whole, but not in part, all of the related
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the aggregate Stated Principal Balance of the related Mortgage
Loans, as of the Distribution Date upon which the proceeds of any such purchase
are distributed is less than ten percent of the Cut-off Date Principal Balance
of the related 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.
D-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
JPMORGAN CHASE BANK,
as Trustee
By:________________________________
Authorized Signatory
Dated: November 26, 2003
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-__ Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By: _______________________________
Authorized Signatory
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) the beneficial interest evidenced by the within Trust Certificate and
hereby authorizes the transfer of registration of such interest to assignee on
the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
Dated:_____________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
for the account of _____________________________________________________________
account number__________________________________________________________________
or, if mailed by check, to______________________________________________________
Applicable statements should be mailed to:_____________________________
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or ______________________________, as its agent.
-1-
EXHIBIT E
CUSTODIAL AGREEMENT
-------------------
THIS CUSTODIAL AGREEMENT (as amended and supplemented from
time to time, the "Agreement"), dated as of November 1, 2003, by and among
JPMORGAN CHASE BANK, 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 XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, 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 November 1,
2003, relating to the issuance of Residential Asset Mortgage Products, Inc.,
Mortgage Asset-Backed Pass-Through Certificates, Series 2003-RS10 (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 of the initial issuance of the
Certificates, 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. 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.
E-2
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 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.
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.
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 acknowledgment to the Master Servicer,
confirming receipt of such Mortgage File.
Upon the request of the Master Servicer, the Custodian will
send to the Master Servicer copies of any documents contained in the Mortgage
File.
E-3
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.
E-4
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, with or
without cause. 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.
E-5
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), in which case the notice will be deemed delivered when received.
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.
E-6
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.
E-7
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
Address: JPMORGAN CHASE BANK,
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 By:______________________________
Name: Xxxx XxXxxxxxx
Title: Vice President
Address: RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:______________________________
Name: Xxxxxxx Xxxx
Title: Vice President
Address: RESIDENTIAL FUNDING
CORPORATION, as Master Servicer
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:______________________________
Name: Xxxxx Xxx
Title: Director
Address: XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
Mortgage Document Custody
One Meridian Crossings - 3rd Floor
Xxxxxxxxx, Xxxxxxxxx 00000
By:______________________________
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
E-8
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the 26th day of November, 2003, before me, a notary public
in and for said State, personally appeared Xxxx XxXxxxxxx, known to me to be a
Vice President of JPMorgan Chase Bank, 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
[SEAL]
E-9
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the 26th day of November, 2003, before me, a notary public
in and for said State, personally appeared Xxxxxxx Xxxx, 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 26th day of November, 2003, before me, a notary public
in and for said State, personally appeared, Xxxxx Xxx, known to me to be a
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]
X-00
XXXXX XX XXXXXXXXX )
) ss.:
COUNTY OF HENNEPIN )
On the 26th day of November, 2003, before me, a notary public
in and for said State, personally appeared Xxxx X. Xxxxxx, known to me to be an
Assistant Vice President of Xxxxx Fargo Bank Minnesota, National Association,
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 national banking
association, and acknowledged to me that such national banking association
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
E-11
EXHIBIT ONE
FORM OF CUSTODIAN
INITIAL CERTIFICATION
November 26, 2003
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2003-RS10
Re: Custodial Agreement, dated as of November 1, 2003, by and
among JPMorgan Chase Bank, Residential Asset Mortgage
Products, Inc., Residential Funding Corporation and Xxxxx
Fargo Bank Minnesota, National Association, relating to
Mortgage Asset-Backed Pass-Through Certificates, Series
2003-RS10
-------------------------------------------------------------
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.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:__________________________
Name:________________________
Title:_______________________
E-12
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
_____________ __, 2003
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2003-RS10
Re: Custodial Agreement, dated as of November 1, 2003, by and
among JPMorgan Chase Bank, Residential Asset Mortgage
Products, Inc., Residential Funding Corporation and Xxxxx
Fargo Bank Minnesota, National Association, relating to
Mortgage Asset-Backed Pass-Through Certificates, Series
2003-RS10
-------------------------------------------------------------
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.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:________________________________
Name:______________________________
Title:_____________________________
E-13
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
_____________ __, 2003
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2003-RS10
Re: Custodial Agreement, dated as of November 1, 2003, by and
among JPMorgan Chase Bank, Residential Asset Mortgage
Products, Inc., Residential Funding Corporation and Xxxxx
Fargo Bank Minnesota, National Association, relating to
Mortgage Asset-Backed Pass-Through Certificates, Series
2003-RS10
-------------------------------------------------------------
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.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:________________________________
Name:______________________________
Title:_____________________________
E-14
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.
Series Supplement, to the Standard Terms of 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
E-15
EXHIBIT F-1
GROUP I LOAN SCHEDULE
F-1-1
EXHIBIT F-2
GROUP II-A LOAN SCHEDULE
F-2-1
EXHIBIT F-3
GROUP II-B LOAN SCHEDULE
F-2-2
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#:
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 Pass-Through Certificates, Series _______,
Class R[-__] (the "Owner")), a [savings institution] [corporation] duly
organized and existing under the laws of [the State of ] [the United States], on
behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" or an electing large partnership as of [date of transfer] within
the meaning of Sections 860E(e)(5) and 775, respectively, of the Internal
Revenue Code of 1986, as amended (the "Code") or an electing large partnership
under Section 775(a) of the Code, (ii) will endeavor to remain other than a
disqualified organization for so long as it retains its ownership interest in
the Class R[-__] Certificates, and (iii) is acquiring the Class R[-__]
Certificates for its own account or for the account of another Owner from which
it has received an affidavit and agreement in substantially the same form as
this affidavit and agreement. (For this purpose, a "disqualified organization"
means an electing large partnership under Section 775 of the Code, the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R[-__] Certificates to disqualified organizations or electing
large partnerships, under the Code, that applies to all transfers of Class
R[-__] Certificates after March 31, 1988; (ii) that such tax would be on the
transferor (or, with respect to transfers to electing large partnerships, on
each such partnership), or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a disqualified organization, on the
agent; (iii) that the person (other than with respect to transfers to electing
large partnerships) otherwise liable for the tax shall be relieved of liability
for the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Class R[-__] Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that the
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class R[-__] Certificates if either the pass-through entity is
an electing large partnership under Section 775 of the Code or if at any time
during the taxable year of the pass-through entity a disqualified organization
is the record holder of an interest in such entity. (For this purpose, a "pass
through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity treated as a corporation or a
partnership for U.S. federal income tax purposes and created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States person
under any applicable Treasury regulations), (iii) an estate that is described in
Section 7701(a)(30)(D) of the Code, or (iv) a trust that is described in Section
7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the Class
R[-__] Certificates to be attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of the Owner
of another United States taxpayer.
7. That the Owner is aware that the Trustee will not register the
transfer of any Class R[- __] Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it knows
or believes that any of the representations contained in such affidavit and
agreement are false.
8. That the Owner has reviewed the restrictions set forth on the face
of the Class R[-__] Certificates and the provisions of Section 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.
9. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R[-__] Certificates will only
be owned, directly or indirectly, by an Owner that is not a disqualified
organization.
10. The Owner's Taxpayer Identification Number is ________________.
11. This affidavit and agreement relates only to the Class R[-__]
Certificates held by the Owner and not to any other holder of the Class R[-__]
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R[-__] Certificates.
12. That no purpose of the Owner relating to the transfer of any of the
Class R[-__] Certificates by the Owner is or will be to impede the assessment or
collection of any tax; in making
H-1-2
this representation, the Owner warrants that the Owner is familiar with (i)
Treasury Regulation Section 1.860E-1(c) and recent amendments thereto, effective
as of July 19, 2002, and (ii) the preamble describing the adoption of the
amendments to such regulation, which is attached hereto as Exhibit 1.
13. That the Owner has no present knowledge or expectation that it will
be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R[-__]
Certificate that the Owner intends to pay taxes associated with holding such
Class R[- __] Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R[-__]
Certificate.
14. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of the
Class R[-__] Certificates remain outstanding.
15. (a) The Owner is not an employee benefit plan or other plan subject
to the prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or an investment manager, named
fiduciary or a trustee of any such plan, or any other Person acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of any
such plan; or
(b) The Owner has provided the Trustee, the Company and the
Master Servicer with an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee, the Company and the Master Servicer to
the effect that the purchase of Certificates is permissible under applicable
law, will not constitute or result in any non-exempt prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Trustee, the
Company 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 the Pooling and Servicing Agreement.
In addition, the Owner 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 or person unless
either such Plan or person meets the requirements set forth in either (a) or (b)
above.
Capitalized terms used but not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement.
H-1-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this day of _____,___ 200__.
[NAME OF OWNER]
By:________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
__________________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this ___ day of ________, 200 __.
_________________________________
NOTARY PUBLIC
COUNTY OF _______________________
STATE OF ________________________
My Commission expires the ____ day of
_____, 20__ .
H-1-4
EXHIBIT 1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-
(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and,
pending receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number
1545-1675.
The collection of information in this regulation is in Sec. 1.860E -
1(c)(5)(ii). This information is required to enable the IRS to verify
that a taxpayer is complying with the conditions of this regulation.
The collection of information is mandatory and is required. Otherwise,
H-1-5
the taxpayer will not receive the benefit of safe harbor treatment as provided
in the regulation. The likely respondents are businesses and other for-profit
institutions.
Comments on the collection of information should be sent to the Office of
Management and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX, 00000, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the collection of information
should be received by October 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
H-1-6
[[Page 47452]]
enable the transferor to impede the assessment or collection of tax. A purpose
to impede the assessment or collection of tax (a wrongful purpose) exists if the
transferor, at the time of the transfer, either knew or should have known that
the transferee would be unwilling or unable to pay taxes due on its share of the
REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual interest
is presumed not to have a wrongful purpose if two requirements are satisfied:
(1) the transferor conducts a reasonable investigation of the transferee's
financial condition (the investigation requirement); and (2) the transferor
secures a representation from the transferee to the effect that the transferee
understands the tax obligations associated with holding a residual interest and
intends to pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of noneconomic
residual interests claim they satisfy the safe harbor even in situations where
the economics of the transfer clearly indicate the transferee is unwilling or
unable to pay the tax associated with holding the interest. For this reason, on
February 7, 2000, the IRS published in the Federal Register (65 FR 5807) a
notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed to clarify
the safe harbor by adding the "formula test," an economic test. The proposed
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
H-1-7
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
H-1-8
equal to the applicable Federal short-term rate prescribed by section 1274(d).
This is a change from the proposed regulation and Rev. Proc. 2001-12. In those
publications the provision stated that "present values are computed using a
discount rate equal to the applicable Federal rate prescribed in section 1274(d)
compounded semiannually" and that "[a] lower discount rate may be used if the
transferee can demonstrate that it regularly borrows, in the course of its trade
or business, substantial funds at such lower rate from an unrelated third
party." The IRS and the Treasury Department have learned that, based on this
provision, certain taxpayers have been attempting to use unrealistically low or
zero interest rates to satisfy the formula test, frustrating the intent of the
test. Furthermore, the Treasury Department and the IRS believe that a rule
allowing for a rate other than a rate based on an objective index would add
unnecessary complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if the
transferee can demonstrate that it regularly borrows substantial funds at such
lower rate, is not included in the final regulations; and the Federal short-term
rate has been substituted for the applicable Federal rate. To simplify
taxpayers' computations, the final regulations allow use of any of the published
short-term rates, provided that the present values are computed with a
corresponding period of compounding. With the exception of the provisions
relating to transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may choose to
apply the interest rate formula set forth in the proposed regulation and Rev.
Proc. 2001-12 for transfers occurring before August 19, 2002.
It is anticipated that when final regulations are adopted with respect to
[[Page 47453]]
FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
H-1-9
It is hereby certified that these regulations will not have a significant
economic impact on a substantial number of small entities. This certification is
based on the fact that it is unlikely that a substantial number of small
entities will hold REMIC residual interests. Therefore, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that sections
553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do
not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However,
other personnel from the IRS and Treasury Department participated in their
development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
X-0-00
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE
__________________, 200__
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Funding Corporation Series 2003-RS10
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2003-RS10, 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 2003-RS10, Class R-[__] (the "Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of November 1, 2003 among Residential Asset Mortgage
Products, Inc., as seller (the "Company"), Residential Funding Corporation, as
master servicer, and JPMorgan Chase Bank, 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
H-2-1
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:_______________________
H-2-2
EXHIBIT I
FORM OF INVESTOR REPRESENTATION LETTER
______________, 20__
Residential Asset Mortgage Products, Inc
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Corporation Series 2003-RS10
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2003-RS10, [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 2003-RS10, Class SB-__ (the "Certificates"), issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of November 1, 2003 among Residential Asset Mortgage
Products, Inc., as seller (the "Company"), Residential Funding Corporation, as
master servicer (the "Master Servicer"), and JPMorgan Chase Bank, 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.
I-1
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
I-2
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 Company, the Trustee and the Master
Servicer that the following statements in (a) or (b) are
correct:
(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
Company and the Master Servicer with an opinion of counsel
acceptable to and in form and substance satisfactory to the
Trustee, the Company and the Master Servicer to the effect
that the purchase of Certificates is permissible under
applicable law, will not constitute or result in any
non-exempt prohibited transaction under ERISA or Section 4975
of the Code and will not subject the Trustee, the Company 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 the Pooling and
Servicing Agreement.
I-3
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 or
person unless either such Plan or person meets the requirements set forth in
either (a) or (b) above.
Very truly yours,
_______________________________
(Purchaser)
By:____________________________
Name:__________________________
Title:_________________________
I-4
EXHIBIT J
FORM OF TRANSFEROR REPRESENTATION LETTER
____________, 20__
Residential Asset Mortgage Products, Inc
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Funding Corporation Series 2003-RS10
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2003-RS10, [Class SB- ]
------------------------------------------------
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 2003-RS10, Class SB-__ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2003 among Residential Asset
Mortgage Products, Inc., as seller (the "Company"), Residential Funding
Corporation, as master servicer, and JPMorgan Chase Bank, 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
J-1
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:_________________________
J-2
EXHIBIT K
TEXT OF AMENDMENT TO POOLING AND SERVICING
AGREEMENT PURSUANT TO SECTION 11.01(E) FOR A
LIMITED GUARANTY
ARTICLE XII
Subordinate Certificate Loss Coverage; Limited Guaranty
Section 12.01. Subordinate Certificate Loss Coverage; Limited
Guaranty. (a) Subject to subsection (c) below, prior to the later of the third
Business Day prior to each Distribution Date or the related Determination Date,
the Master Servicer shall determine whether it or any Subservicer will be
entitled to any reimbursement pursuant to Section 4.02(a) on such Distribution
Date for Advances or Subservicer Advances previously made, (which will not be
Advances or Subservicer Advances that were made with respect to delinquencies
which were subsequently determined to be Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses) and, if so, the
Master Servicer shall demand payment from Residential Funding of an amount equal
to the amount of any Advances or Subservicer Advances reimbursed pursuant to
Section 4.02(a), to the extent such Advances or Subservicer Advances have not
been included in the amount of the Realized Loss in the related Mortgage Loan,
and shall distribute the same to the Class SB Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a).
(b) Subject to subsection (c) below, prior to the later of the
third Business Day prior to each Distribution Date or the related Determination
Date, the Master Servicer shall determine whether any Realized Losses (other
than Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
and Extraordinary Losses) will be allocated to the Class SB Certificates on such
Distribution Date pursuant to Section 4.05, and, if so, the Master Servicer
shall demand payment from Residential Funding of the amount of such Realized
Loss and shall distribute the same to the Class SB Certificateholders in the
same manner as if such amount were to be distributed pursuant to Section
4.02(a); provided, however, that the amount of such demand in respect of any
Distribution Date shall in no event be greater than the sum of (i) the
additional amount of Accrued Certificate Interest that would have been paid for
the Class SB Certificateholders on such Distribution Date had such Realized Loss
or Losses not occurred plus (ii) the amount of the reduction in the Certificate
Principal Balances of the Class SB Certificates on such Distribution Date due to
such Realized Loss or Losses. Notwithstanding such payment, such Realized Losses
shall be deemed to have been borne by the Certificateholders for purposes of
Section 4.05. Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses and Extraordinary Losses allocated to the Class SB
Certificates will not be covered by the Subordinate Certificate Loss Obligation.
(c) Demands for payments pursuant to this Section shall be
made prior to the later of the third Business Day prior to each Distribution
Date or the related Determination Date by the Master Servicer with written
notice thereof to the Trustee. The maximum amount that Residential Funding shall
be required to pay pursuant to this Section on any Distribution Date (the
"Amount
K-1
Available") shall be equal to the lesser of (X) minus the sum of (i) all
previous payments made under subsections (a) and (b) hereof and (ii) all draws
under the Limited Guaranty made in lieu of such payments as described below in
subsection (d) and (Y) the then outstanding Certificate Principal Balances of
the Class SB Certificates, or such lower amount as may be established pursuant
to Section 12.02. Residential Funding's obligations as described in this Section
are referred to herein as the "Subordinate Certificate Loss Obligation."
(d) The Trustee will promptly notify General Motors Acceptance
Corporation of any failure of Residential Funding to make any payments hereunder
and shall demand payment pursuant to the limited guaranty (the "Limited
Guaranty"), executed by General Motors Acceptance Corporation, of Residential
Funding's obligation to make payments pursuant to this Section, in an amount
equal to the lesser of (i) the Amount Available and (ii) such required payments,
by delivering to General Motors Acceptance Corporation a written demand for
payment by wire transfer, not later than the second Business Day prior to the
Distribution Date for such month, with a copy to the Master Servicer.
(e) All payments made by Residential Funding pursuant to this
Section or amounts paid under the Limited Guaranty shall be deposited directly
in the Certificate Account, for distribution on the Distribution Date for such
month to the Class SB Certificateholders.
(f) The Company shall have the option, in its sole discretion,
to substitute for either or both of the Limited Guaranty or the Subordinate
Certificate Loss Obligation another instrument in the form of a corporate
guaranty, an irrevocable letter of credit, a surety bond, insurance policy or
similar instrument or a reserve fund; provided that (i) the Company obtains
(subject to the provisions of Section 10.01(f) as if the Company was substituted
for the Master Servicer solely for the purposes of such provision) an Opinion of
Counsel (which need not be an opinion of Independent counsel) to the effect that
obtaining such substitute corporate guaranty, irrevocable letter of credit,
surety bond, insurance policy or similar instrument or reserve fund will not
cause either (a) any federal tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions" under
Section 860(F)(a)(1) of the Code or on "contributions after the startup date"
under Section 860(G)(d)(1) of the Code or (b) the Trust Fund to fail to qualify
as a REMIC at any time that any Certificate is outstanding, and (ii) no such
substitution shall be made unless (A) the substitute Limited Guaranty or
Subordinate Certificate Loss Obligation is for an initial amount not less than
the then current Amount Available and contains provisions that are in all
material respects equivalent to the original Limited Guaranty or Subordinate
Certificate Loss Obligation (including that no portion of the fees,
reimbursements or other obligations under any such instrument will be borne by
the Trust Fund), (B) the long term debt obligations of any obligor of any
substitute Limited Guaranty or Subordinate Certificate Loss Obligation (if not
supported by the Limited Guaranty) shall be rated at least the lesser of (a) the
rating of the long term debt obligations of General Motors Acceptance
Corporation as of the date of issuance of the Limited Guaranty and (b) the
rating of the long term debt obligations of General Motors Acceptance
Corporation at the date of such substitution and (C) the Company obtains written
confirmation from each nationally recognized credit rating agency that rated the
Class SB Certificates at the request of the Company that such substitution shall
not lower the rating on the Class SB Certificates below the lesser of (a) the
then-current rating assigned to the Class SB Certificates by such rating agency
and (b) the original rating assigned to the Class SB Certificates
K-2
by such rating agency. Any replacement of the Limited Guaranty or Subordinate
Certificate Loss Obligation pursuant to this Section shall be accompanied by a
written Opinion of Counsel to the substitute guarantor or obligor, addressed to
the Master Servicer and the Trustee, that such substitute instrument constitutes
a legal, valid and binding obligation of the substitute guarantor or obligor,
enforceable in accordance with its terms, and concerning such other matters as
the Master Servicer and the Trustee shall reasonably request. Neither the
Company, the Master Servicer nor the Trustee shall be obligated to substitute
for or replace the Limited Guaranty or Subordinate Certificate Loss Obligation
under any circumstance.
Section 12.02. Amendments Relating to the Limited Guaranty.
Notwithstanding Sections 11.01 or 12.01: (i) the provisions of this Article XII
may be amended, superseded or deleted, (ii) the Limited Guaranty or Subordinate
Certificate Loss Obligation may be amended, reduced or canceled, and (iii) any
other provision of this Agreement which is related or incidental to the matters
described in this Article XII may be amended in any manner; in each case by
written instrument executed or consented to by the Company and Residential
Funding 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 Master Servicer or the Trustee, as applicable; provided that
the Company shall also obtain a letter from each nationally recognized credit
rating agency that rated the Class SB Certificates at the request of the Company
to the effect that such amendment, reduction, deletion or cancellation will not
lower the rating on the Class SB Certificates below the lesser of (a) the
then-current rating assigned to the Class SB Certificates by such rating agency
and (b) the original rating assigned to the Class SB Certificates by such rating
agency, unless (A) the Holder of 100% of the Class SB Certificates is
Residential Funding or an Affiliate of Residential Funding, or (B) such
amendment, reduction, deletion or cancellation is made in accordance with
Section 11.01(e) and, provided further that the Company obtains (subject to the
provisions of Section 10.01(f) as if the Company was substituted for the Master
Servicer solely for the purposes of such provision), in the case of a material
amendment or supersession (but not a reduction, cancellation or deletion of the
Limited Guaranty or the Subordinate Certificate Loss Obligation), an Opinion of
Counsel (which need not be an opinion of Independent counsel) to the effect that
any such amendment or supersession will not cause either (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) the Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is outstanding. A copy of any such instrument shall be provided to
the Trustee and the Master Servicer together with an Opinion of Counsel that
such amendment complies with this Section 12.02.
K-3
EXHIBIT L
FORM OF LIMITED GUARANTY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
Mortgage Asset-Backed Pass-Through Certificates
Series 2003-RS10
_____________, 200__
JPMorgan Xxxxx Xxxx
0 Xxx Xxxx Xxxxx - 0xx Xxxxx
New York, New York 10004
Attention: Residential Funding Corporation Series 2003-RS10
Ladies and Gentlemen:
WHEREAS, Residential Funding Corporation, a Delaware
corporation ("Residential Funding"), an indirect wholly-owned subsidiary of
General Motors Acceptance Corporation, a New York corporation ("GMAC"), plans to
incur certain obligations as described under Section 12.01 of the Pooling and
Servicing Agreement dated as of November 1, 2003 (the "Servicing Agreement"),
among Residential Asset Mortgage Products, Inc. (the "Company"), Residential
Funding and JPMorgan Chase Bank (the "Trustee") as amended by Amendment No. ___
thereto, dated as of ________, with respect to the Mortgage Asset-Backed
Pass-Through Certificates, Series 2003-RS10 (the "Certificates"); and
WHEREAS, pursuant to Section 12.01 of the Servicing Agreement,
Residential Funding agrees to make payments to the Holders of the Class SB
Certificates with respect to certain losses on the Mortgage Loans as described
in the Servicing Agreement; and
WHEREAS, GMAC desires to provide certain assurances with
respect to the ability of Residential Funding to secure sufficient funds and
faithfully to perform its Subordinate Certificate Loss Obligation;
NOW THEREFORE, in consideration of the premises herein
contained and certain other good and valuable consideration, the receipt of
which is hereby acknowledged, GMAC agrees as follows:
1. Provision of Funds. (a) GMAC agrees to contribute and
deposit in the Certificate Account on behalf of Residential Funding (or
otherwise provide to Residential Funding, or to cause to be made available to
Residential Funding), either directly or through a subsidiary, in any case prior
to the related Distribution Date, such moneys as may be required by Residential
L-1
Funding to perform its Subordinate Certificate Loss Obligation when and as the
same arises from time to time upon the demand of the Trustee in accordance with
Section 12.01 of the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall
be absolute, irrevocable and unconditional and shall not be affected by the
transfer by GMAC or any other person of all or any part of its or their interest
in Residential Funding, by any insolvency, bankruptcy, dissolution or other
proceeding affecting Residential Funding or any other person, by any defense or
right of counterclaim, set-off or recoupment that GMAC may have against
Residential Funding or any other person or by any other fact or circumstance.
Notwithstanding the foregoing, GMAC's obligations under clause (a) shall
terminate upon the earlier of (x) substitution for this Limited Guaranty
pursuant to Section 12.01(f) of the Servicing Agreement, or (y) the termination
of the Trust Fund pursuant to the Servicing Agreement.
2. Waiver. GMAC hereby waives any failure or delay on the part
of Residential Funding, the Trustee or any other person in asserting or
enforcing any rights or in making any claims or demands hereunder. Any defective
or partial exercise of any such rights shall not preclude any other or further
exercise of that or any other such right. GMAC further waives demand,
presentment, notice of default, protest, notice of acceptance and any other
notices with respect to this Limited Guaranty, including, without limitation,
those of action or nonaction on the part of Residential Funding or the Trustee.
3. Modification, Amendment and Termination. This Limited
Guaranty may be modified, amended or terminated only by the written agreement of
GMAC and the Trustee and only if such modification, amendment or termination is
permitted under Section 12.02 of the Servicing Agreement. The obligations of
GMAC under this Limited Guaranty shall continue and remain in effect so long as
the Servicing Agreement is not modified or amended in any way that might affect
the obligations of GMAC under this Limited Guaranty without the prior written
consent of GMAC.
4. Successor. Except as otherwise expressly provided herein,
the guarantee herein set forth shall be binding upon GMAC and its respective
successors.
5. Governing Law. This Limited Guaranty shall be governed by
the laws of the State of New York.
6. Authorization and Reliance. GMAC understands that a copy of
this Limited Guaranty shall be delivered to the Trustee in connection with the
execution of Amendment No. 1 to the Servicing Agreement and GMAC hereby
authorizes the Company and the Trustee to rely on the covenants and agreements
set forth herein.
7. Definitions. Capitalized terms used but not otherwise
defined herein shall have the meaning given them in the Servicing Agreement.
8. Counterparts. This Limited Guaranty may be executed in any
number of counterparts, each of which shall be deemed to be an original and such
counterparts shall constitute but one and the same instrument.
L-2
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to
be executed and delivered by its respective officers thereunto duly authorized
as of the day and year first above written.
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:________________________
Name:______________________
Title:_____________________
Acknowledged by:
JPMORGAN CHASE BANK,
as Trustee
By:________________________
Name:______________________
Title:_____________________
RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC.
By:________________________
Name:______________________
Title:_____________________
L-3
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
__________________, 20____
Residential Asset Mortgage
Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Funding Corporation Series 2003-RS10
Re: Mortgage Asset-Backed Pass-Through Certificates, Series
2003-RS10 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 November 1, 2003 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
M-1
(iv) such assignment is at the request of the borrower under the
related Mortgage Loan.
Very truly yours,
___________________________
(Lender)
By:________________________
Name:______________________
Title:_____________________
M-2
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 0000 Xxx.
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 November 1, 2003 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, 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.
N-1
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
a. 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. has provided the Trustee, the Company and the
Master Servicer with an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee, the Company and the Master
Servicer to the effect that the purchase of Certificates is permissible
under applicable law, will not constitute or result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code and will
not subject the Trustee, the Company 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
the Pooling and Servicing Agreement.
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.
N-2
IN WITNESS WHEREOF, each of the parties has executed this
document as of the date set forth below.
____________________________ ___________________________
Print Name of Seller Print Name of Buyer
By:_________________________ By:________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No.________________________ No.________________________
Date:______________________ Date:______________________
N-3
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.
___ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF WHICH IS ATTACHED HERETO.
N-4
___ 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.
___ ERISA PLAN. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
___ 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.
N-5
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:_______________________________
N-6
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
N-7
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
___________________________
Print Name of Buyer
By:________________________
Name:___________________
Title:__________________
IF AN ADVISER:
___________________________
Print Name of Buyer
Date:______________________
N-8
EXHIBIT O
[RESERVED]
EXHIBIT P
FORM OF ERISA REPRESENTATION LETTER
______________, 20__
Residential Asset Mortgage Products, Inc
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
JPMorgan Chase Bank One
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Corporation Series 2003-RS10
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series 2003-RS10, Class M-[_]
------------------------------------------------
Ladies and Gentlemen:
_________________________ (the "Purchaser") intends to
purchase from ___________________________ (the "Seller") $_____________ Initial
Certificate Principal Balance of Mortgage Asset-Backed Pass-Through
Certificates, Series 2003-RS10, Class __ (the "Certificates"), issued pursuant
to the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of November 1, 2003 among Residential Asset Mortgage Products, Inc., as
seller (the "Company"), Residential Funding Corporation, as master servicer (the
"Master Servicer"), and JPMorgan Chase Bank, 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:
(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
P-1
(b) The Purchaser is an insurance company;
the source of the funds being used by the Purchaser to acquire
the Certificates is assets of the Purchaser's "insurance
company general account" (as such term is defined in
Prohibited Transaction Class Exemption ("PTCE") 95-60); the
conditions set forth in Sections I and III of PTCE 95-60
issued by the DOL have been satisfied and the purchase,
holding and transfer of Certificates by or on behalf of the
Purchaser are exempt under PTCE 95-60; or
(c) has provided the Trustee, the Company
and the Master Servicer with an opinion of counsel acceptable
to and in form and substance satisfactory to the Trustee, the
Company and the Master Servicer to the effect that the
purchase of Certificates is permissible under applicable law,
will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will
not subject the Trustee, the Company 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 the Pooling and Servicing
Agreement.
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 or person unless
such Plan or person meets the requirements set forth in either (a), (b) or (c)
above.
Very truly yours,
___________________________
(Purchaser)
By:________________________
Name:______________________
Title:_____________________
P-2
EXHIBIT Q
[RESERVED]
Q-1
EXHIBIT R-1
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 created pursuant to the Pooling and Servicing Agreement dated
____________ (the "Agreement") among Residential Asset Mortgage Products, Inc.
as Depositor, Residential Funding Corporation as Master Servicer and [Name of
Trustee] as 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 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 Agreement and based upon my knowledge and the annual
compliance review required under the Agreement, and except as disclosed in the
report, the Master Servicer has fulfilled its obligations under the 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 Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on the information
provided to me by the following unaffiliated parties: [the Trustee].
Date:____________
_________________________________*
[Signature]
Name:
Title:
* - to be signed by the senior officer in charge of the servicing functions of
the Master Servicer
X-0-0
XXXXXXX X-0
FORM 10-K BACK-UP CERTIFICATION
The undersigned, a Responsible Officer of JPMorgan Chase Bank (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 November 1, 2003 (the "Agreement") by and among Residential
Asset Mortgage Products, Inc. (the "Depositor"), Residential Funding Corporation
(the "Master Servicer") and the Trustee in accordance with the standards set
forth therein.
2. Based on my knowledge, the information that is provided by the
Trustee pursuant to Section 4.03(d)(I) of 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 THEREOF, I have duly executed this certificate as of
____________, 20___
Name:
Title:
R-2-1
EXHIBIT S
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 Terms (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
S-1
