RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
DEPOSITOR,
RESIDENTIAL FUNDING CORPORATION,
MASTER SERVICER,
AND
JPMORGAN CHASE BANK, N.A.
TRUSTEE
POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 1, 2005
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
Series 2005-RS6
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................9
Accrued Certificate Interest............................................................9
Adjusted Mortgage Rate..................................................................9
Adjustment Date.........................................................................9
Advance.................................................................................9
Affiliate..............................................................................10
Agreement..............................................................................10
Amount Held for Future Distribution....................................................10
Appraised Value........................................................................10
Assignment.............................................................................10
Assignment Agreement...................................................................10
Available Distribution Amount..........................................................10
Bankruptcy Code........................................................................11
Book-Entry Certificate.................................................................11
Business Day...........................................................................11
Call Rights............................................................................11
Capitalization Reimbursement Amount....................................................11
Cash Liquidation.......................................................................11
Certificate............................................................................11
Certificate Account....................................................................11
Certificate Account Deposit Date.......................................................12
Certificateholder or Holder............................................................12
Certificate Owner......................................................................12
Certificate Principal Balance..........................................................12
Certificate Register and Certificate Registrar.........................................12
Class..................................................................................13
Class A Certificate....................................................................13
Class A-I Principal Distribution Amount................................................13
Class A-II Principal Distribution Amount...............................................13
Class A Basis Risk Shortfall...........................................................13
Class A Basis Risk Shortfall Carry-Forward Amount......................................13
Class A Interest Distribution Amount...................................................13
Class A Margin.........................................................................14
Class A Principal Distribution Amount..................................................14
Class B Basis Risk Shortfall...........................................................14
Class B Basis Risk Shortfall Carry-Forward Amount......................................15
Class B Certificate....................................................................15
Class B Margin.........................................................................15
Class B-1 Certificate..................................................................15
Class B-1 Interest Distribution Amount.................................................15
Class B-1 Principal Distribution Amount................................................15
Class IO Distribution Amount...........................................................16
Class IO Interest......................................................................16
Class M Certificate....................................................................16
Class M-1 Certificate..................................................................16
Class M-1 Interest Distribution Amount.................................................16
Class M-1 Principal Distribution Amount................................................16
Class M-2 Certificate..................................................................17
Class M-2 Interest Distribution Amount.................................................17
Class M-2 Principal Distribution Amount................................................17
Class M-3 Certificate..................................................................18
Class M-3 Interest Distribution Amount.................................................18
Class M-3 Principal Distribution Amount................................................18
Class M-4 Certificate..................................................................19
Class M-4 Interest Distribution Amount.................................................19
Class M-4 Principal Distribution Amount................................................19
Class M-5 Certificate..................................................................19
Class M-5 Interest Distribution Amount.................................................20
Class M-5 Principal Distribution Amount................................................20
Class M-6 Certificate..................................................................20
Class M-6 Interest Distribution Amount.................................................20
Class M-6 Principal Distribution Amount................................................21
Class M-7 Certificate..................................................................21
Class M-7 Interest Distribution Amount.................................................21
Class M-7 Principal Distribution Amount................................................22
Class M-8 Certificate..................................................................22
Class M-8 Interest Distribution Amount.................................................22
Class M-8 Principal Distribution Amount................................................23
Class M-9 Certificate..................................................................23
Class M-9 Interest Distribution Amount.................................................23
Class M-9 Principal Distribution Amount................................................24
Class M-10 Certificate.................................................................24
Class M-10 Interest Distribution Amount................................................24
Class M-10 Principal Distribution Amount...............................................25
Class M Basis Risk Shortfall...........................................................25
Class M Basis Risk Shortfall Carry-Forward Amount......................................25
Class M Margin.........................................................................25
Class R Certificate....................................................................26
Class R-I Certificate..................................................................26
Class R-II Certificate.................................................................26
Class R-III Certificate................................................................26
Class R-IV Certificate.................................................................26
Class R-V Certificate..................................................................26
Class SB Certificates..................................................................27
Class SB Interest......................................................................27
Closing Date...........................................................................27
Code...................................................................................27
Commission.............................................................................27
Corporate Trust Office.................................................................27
Corresponding Class....................................................................27
Credit Repository......................................................................27
Curtailment............................................................................27
Custodial Account......................................................................27
Custodial Agreement....................................................................27
Custodian..............................................................................27
Cut-off Date...........................................................................27
Cut-off Date Balance...................................................................27
Cut-off Date Principal Balance.........................................................28
Debt Service Reduction.................................................................28
Deficient Valuation....................................................................28
Definitive Certificate.................................................................28
Deleted Mortgage Loan..................................................................28
Delinquent.............................................................................28
Depository.............................................................................28
Depository Participant.................................................................28
Derivative Contract....................................................................28
Derivative Counterparty................................................................29
Destroyed Mortgage Note................................................................29
Determination Date.....................................................................29
Disqualified Organization..............................................................29
Distribution Date......................................................................29
Due Date...............................................................................29
Due Period.............................................................................29
Eligible Account.......................................................................29
Eligible Master Servicing Compensation.................................................30
ERISA..................................................................................30
Event of Default.......................................................................30
Excess Cash Flow.......................................................................30
Excess Overcollateralization Amount....................................................30
Exchange Act...........................................................................30
Xxxxxx Xxx.............................................................................30
FDIC...................................................................................30
FHA....................................................................................31
Final Certification....................................................................31
Final Distribution Date................................................................31
Final Scheduled Distribution Date......................................................31
Fitch..................................................................................31
Fixed Swap Payment.....................................................................31
Floating Swap Payment..................................................................31
Foreclosure Profits....................................................................31
Xxxxxxx Mac............................................................................32
Gross Margin...........................................................................32
Group I Loans..........................................................................32
Group II Loans.........................................................................32
Independent............................................................................32
Index..................................................................................32
Initial Certificate Principal Balance..................................................32
Insurance Proceeds.....................................................................32
Interest Accrual Period................................................................32
Interest Distribution Amount...........................................................33
Interim Certification..................................................................33
Interested Person......................................................................33
Late Collections.......................................................................33
LIBOR..................................................................................33
LIBOR Business Day.....................................................................33
LIBOR Rate Adjustment Date.............................................................33
Limited Repurchase Right Holder........................................................33
Liquidation Proceeds...................................................................33
Loan-to-Value Ratio....................................................................33
Marker Rate............................................................................33
Maturity Date..........................................................................34
Maximum Mortgage Loan Rate.............................................................34
Maximum Mortgage Rate..................................................................34
Maximum Net Mortgage Rate..............................................................34
MERS...................................................................................34
MERS(R)System...........................................................................34
MIN....................................................................................34
Minimum Mortgage Rate..................................................................34
Modified Mortgage Loan.................................................................34
Modified Mortgage Rate.................................................................34
Modified Net Mortgage Rate.............................................................34
MOM Loan...............................................................................34
Monthly Payment........................................................................35
Xxxxx'x................................................................................35
Mortgage...............................................................................35
Mortgage File..........................................................................35
Mortgage Loan Schedule.................................................................35
Mortgage Loans.........................................................................36
Mortgage Note..........................................................................36
Mortgage Rate..........................................................................36
Mortgaged Property.....................................................................36
Mortgagor..............................................................................37
Net Mortgage Rate......................................................................37
Net WAC Cap Rate.......................................................................37
Non-Primary Residence Loans............................................................37
Non-United States Person...............................................................37
Nonrecoverable Advance.................................................................37
Nonsubserviced Mortgage Loan...........................................................38
Note Margin............................................................................38
Notice.................................................................................38
Officers' Certificate..................................................................38
Opinion of Counsel.....................................................................38
Optional Termination Date..............................................................38
Outstanding Mortgage Loan..............................................................38
Overcollateralization Amount...........................................................38
Overcollateralization Floor............................................................39
Overcollateralization Increase Amount..................................................39
Overcollateralization Reduction Amount.................................................39
Ownership Interest.....................................................................39
Pass-Through Rate......................................................................39
Paying Agent...........................................................................39
Percentage Interest....................................................................40
Periodic Cap...........................................................................40
Permitted Investments..................................................................40
Permitted Transferee...................................................................41
Person.................................................................................41
Pool Stated Principal Balance..........................................................41
Prepayment Assumption..................................................................41
Prepayment Interest Shortfall..........................................................41
Prepayment Period......................................................................42
Primary Insurance Policy...............................................................42
Principal Allocation Amount............................................................42
Principal Distribution Amount..........................................................42
Principal Prepayment...................................................................43
Principal Prepayment in Full...........................................................43
Principal Remittance Amount............................................................43
Program Guide..........................................................................43
Purchase Price.........................................................................43
Qualified Insurer......................................................................44
Qualified Substitute Mortgage Loan.....................................................44
Rating Agency..........................................................................44
Realized Loss..........................................................................45
Record Date............................................................................45
Regular Certificates...................................................................45
Regular Interest.......................................................................45
Relief Act.............................................................................46
Relief Act Shortfalls..................................................................46
REMIC..................................................................................46
REMIC Administrator....................................................................46
REMIC I................................................................................46
REMIC Regular Interests................................................................46
REMIC I Regular Interests..............................................................46
REMIC I Regular Interest A-I...........................................................46
REMIC II Interest Loss Allocation Amount...............................................46
REMIC II Overcollateralized Amount.....................................................47
REMIC II Principal Loss Allocation Amount..............................................47
REMIC II Regular Interests.............................................................47
REMIC II Required Overcollateralization Amount.........................................47
REMIC II Regular Interest I-AA.........................................................47
REMIC II Regular Interest A-I-1........................................................47
REMIC II Regular Interest A-I-2........................................................47
REMIC II Regular Interest A-I-3........................................................47
REMIC II Regular Interest A-II-1.......................................................48
REMIC II Regular Interest A-II-2.......................................................48
REMIC II Regular Interest M-1..........................................................48
REMIC II Regular Interest M-2..........................................................48
REMIC II Regular Interest M-3..........................................................48
REMIC II Regular Interest M-4..........................................................48
REMIC II Regular Interest M-5..........................................................48
REMIC II Regular Interest M-6..........................................................48
REMIC II Regular Interest M-7..........................................................48
REMIC II Regular Interest M-8..........................................................48
REMIC II Regular Interest M-9..........................................................49
REMIC II Regular Interest M-10.........................................................49
REMIC II Regular Interest B-1..........................................................49
REMIC II Regular Interest I-ZZ.........................................................49
REMIC II Regular Interest I-IO.........................................................49
REMIC II Regular Interest I-ZZ Maximum Interest Deferral Amount........................49
REMIC III..............................................................................49
REMIC III Certificate..................................................................49
REMIC III Certificateholder............................................................49
REMIC III Regular Interest.............................................................49
REMIC IV...............................................................................50
REMIC IV Certificate...................................................................50
REMIC V................................................................................50
REMIC V Interests......................................................................50
REMIC Provisions.......................................................................50
REO Acquisition........................................................................50
REO Disposition........................................................................50
REO Imputed Interest...................................................................50
REO Proceeds...........................................................................50
REO Property...........................................................................50
Reportable Modified Mortgage Loan......................................................50
Repurchase Event.......................................................................51
Request for Release....................................................................51
Required Insurance Policy..............................................................51
Required Overcollateralization Amount..................................................51
Reserve Fund...........................................................................51
Reserve Fund Deposit...................................................................51
Reserve Fund Residual Right............................................................51
Residential Funding....................................................................51
Responsible Officer....................................................................51
Senior Enhancement Percentage..........................................................51
Sequential Trigger Event...............................................................52
Servicing Accounts.....................................................................52
Servicing Advances.....................................................................52
Servicing Fee..........................................................................52
Servicing Fee Rate.....................................................................52
Servicing Modification.................................................................52
Servicing Officer......................................................................52
Sixty-Plus Delinquency Percentage......................................................52
Standard & Poor's......................................................................53
Startup Date...........................................................................53
Stated Principal Balance...............................................................53
Stepdown Date..........................................................................53
Sub-Group..............................................................................53
Subordination..........................................................................53
Subordination Percentage...............................................................53
Subsequent Recoveries..................................................................53
Subserviced Mortgage Loan..............................................................54
Subservicer............................................................................54
Subservicer Advance....................................................................54
Subservicing Account...................................................................54
Subservicing Agreement.................................................................54
Subservicing Fee.......................................................................54
Subservicing Fee Rate..................................................................54
Swap Agreement Notional Balance........................................................54
Swap Agreement Purchase Price..........................................................54
Tax Returns............................................................................55
Transfer...............................................................................55
Transferee.............................................................................55
Transferor.............................................................................55
Trigger Event..........................................................................55
Trust Fund.............................................................................56
Uniform Single Attestation Program for Mortgage Bankers................................56
Uncertificated Notional Amount.........................................................56
Uncertificated Pass-Through Rate.......................................................57
Uncertificated Principal Balance.......................................................58
Uncertificated REMIC I Pass-Through Rate...............................................58
Uncertificated REMIC II Pass-Through Rate..............................................58
Uninsured Cause........................................................................61
United States Person...................................................................61
VA.....................................................................................62
Voting Rights..........................................................................62
Section 1.02. Determination of LIBOR.....................................................62
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans...............................................64
Section 2.02. Acceptance by Trustee......................................................67
Section 2.03. Representations, Warranties and Covenants of the Master Servicer
and the Depositor..........................................................69
Section 2.04. Representations and Warranties of Residential Funding......................71
Section 2.05. Execution and Authentication of Certificates; Conveyance of REMIC
Regular Interests..........................................................73
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer.........................................75
Section 3.02. Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' Obligations...................................76
Section 3.03. Successor Subservicers.....................................................77
Section 3.04. Liability of the Master Servicer...........................................78
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders.........................................................78
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee............78
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to Custodial
Account....................................................................79
Section 3.08. Subservicing Accounts; Servicing Accounts..................................81
Section 3.09. Access to Certain Documentation and Information Regarding the
Mortgage Loans.............................................................83
Section 3.10. Permitted Withdrawals from the Custodial Account...........................83
Section 3.11. Maintenance of Primary Insurance Coverage..................................85
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity Coverage..........86
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments............................................87
Section 3.14. Realization Upon Defaulted Mortgage Loans..................................89
Section 3.15. Trustee to Cooperate; Release of Mortgage Files............................91
Section 3.16. Servicing and Other Compensation; Eligible Master Servicing
Compensation...............................................................93
Section 3.17. Reports to the Trustee and the Depositor...................................94
Section 3.18. Annual Statement as to Compliance..........................................94
Section 3.19. Annual Independent Public Accountants' Servicing Report....................94
Section 3.20. Right of the Depositor in Respect of the Master Servicer...................95
Section 3.21. Advance Facility...........................................................95
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account.......................................................100
Section 4.02. Distributions.............................................................100
Section 4.03. Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting....................................................108
Section 4.04. Distribution of Reports to the Trustee and the Depositor; Advances
by the Master Servicer....................................................111
Section 4.05. Allocation of Realized Losses.............................................113
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.............115
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.............................115
Section 4.08. Limited Mortgage Loan Repurchase Right....................................116
Section 4.09. Distribution of Class A Basis Risk Shortfall Carry-Forward Amounts
and Class M Basis Risk Shortfall Carry-Forward Amounts; Reserve
Fund; Swap Account........................................................116
Section 4.10. [Reserved]................................................................120
Section 4.11. Derivative Contracts......................................................120
Section 4.12 Tax Treatment of Swap Payments and Swap Termination Payments..............121
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates..........................................................122
Section 5.02. Registration of Transfer and Exchange of Certificates.....................124
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.........................129
Section 5.04. Persons Deemed Owners.....................................................130
Section 5.05. Appointment of Paying Agent...............................................130
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer...........131
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer..........131
Section 6.03. Limitation on Liability of the Depositor, the Master Servicer and
Others....................................................................132
Section 6.04. Depositor and Master Servicer Not to Resign...............................133
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.........................................................134
Section 7.02. Trustee or Depositor to Act; Appointment of Successor.....................135
Section 7.03. Notification to Certificateholders........................................137
Section 7.04. Waiver of Events of Default...............................................137
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.........................................................138
Section 8.02. Certain Matters Affecting the Trustee.....................................139
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.....................141
Section 8.04. Master Servicer to Pay Trustee's Fees and Expenses; Indemnification.......141
Section 8.05. Eligibility Requirements for Trustee......................................142
Section 8.06. Resignation and Removal of the Trustee....................................143
Section 8.07. Successor Trustee.........................................................144
Section 8.08. Merger or Consolidation of Trustee........................................144
Section 8.09. Appointment of Co-Trustee or Separate Trustee.............................144
Section 8.10. Appointment of Custodians.................................................145
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase by Residential Funding or Liquidation of
All Mortgage Loans........................................................147
Section 9.02. Additional Termination Requirements.......................................150
ARTICLE X
REMIC PROVISIONS
Section 10.01.REMIC Administration......................................................151
Section 10.02.Master Servicer, REMIC Administrator and Trustee Indemnification..........155
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01.Amendment.................................................................156
Section 11.02.Recordation of Agreement; Counterparts....................................158
Section 11.03.Limitation on Rights of Certificateholders................................159
Section 11.04.Governing Law.............................................................160
Section 11.05.Notices...................................................................160
Section 11.06.Notices to Rating Agencies................................................160
Section 11.07.Severability of Provisions................................................161
Section 11.08.Supplemental Provisions for Resecuritization..............................161
Section 11.09.[Reserved]................................................................162
Section 11.10.Third Party Beneficiaries.................................................162
EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B Form of Class M Certificate
Exhibit C Form of Class B Certificate
Exhibit D Form of Class SB Certificate
Exhibit E Form of Class R Certificate
Exhibit F Form of Custodial Agreement
Exhibit G-1 Group I Loan Schedule
Exhibit G-2 Group II Loan Schedule
Exhibit H Forms of Request for Release
Exhibit I-1 Form of Transfer Affidavit and Agreement
Exhibit I-2 Form of Transferor Certificate
Exhibit J Form of Investor Representation Letter
Exhibit K Form of Transferor Representation Letter
Exhibit L Text of Amendment to Pooling and Servicing Agreement Pursuant to Section
11.01(e) for a Limited Guaranty
Exhibit M Form of Limited Guaranty
Exhibit N Form of Lender Certification for Assignment of Mortgage Loan
Exhibit O Form of Rule 144A Investment Representation
Exhibit P [Reserved]
Exhibit Q Form of ERISA Representation Letter (Class M Certificates and Class B
Certificates)
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
Exhibit T Schedule of Swap Agreement Notional Balances
Exhibit U Swap Agreement
This Pooling and Servicing Agreement, effective as of June 1, 2005, among RESIDENTIAL
ASSET MORTGAGE PRODUCTS, INC., as depositor (together with its permitted successors and
assigns, the "Depositor"), RESIDENTIAL FUNDING CORPORATION, as master servicer (together
with its permitted successors and assigns, the "Master Servicer"), and JPMORGAN CHASE BANK,
N.A., a banking association organized under the laws of the United States, as trustee
(together with its permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage asset-backed pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in twenty-two 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 Mortgage Loans and certain other related assets
(exclusive of the Reserve Fund, the Swap Account and the Swap Agreement) subject to this
Agreement as a real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I." The Class R-I
Certificates will represent the sole class of "residual interests" in REMIC I for purposes
of the REMIC Provisions (as defined herein) under federal income tax law. The following
table irrevocably sets forth the designation, remittance rate (the "Uncertificated REMIC I
Pass-Through Rate") and initial Uncertificated Principal Balance for the "regular interests"
in REMIC I (the "REMIC I Regular Interests"). The "latest possible maturity date"
(determined for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) for
the REMIC I Regular Interests shall be the 360th Distribution Date. The REMIC I Regular
Interests will not be certificated.
UNCERTIFICATED REMIC
I UNCERTIFICATED PRINCIPAL LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE BALANCE MATURITY DATE
$
A-I Variable(1) 1,231.00 June 25, 2035
$
I-1-A Variable(1) 4,670,916.15 June 25, 2035
$
I-1-B Variable(1) 4,670,916.15 June 25, 2035
$
I-2-A Variable(1) 6,652,579.07 June 25, 2035
$
I-2-B Variable(1) 6,652,579.07 June 25, 2035
$
I-3-A Variable(1) 32,456,673.20 June 25, 2035
$
I-3-B Variable(1) 32,456,673.20 June 25, 2035
$
I-4-A Variable(1) 13,467,052.79 June 25, 2035
$
I-4-B Variable(1) 13,467,052.79 June 25, 2035
$
I-5-A Variable(1) 11,868,110.93 June 25, 2035
$
I-5-B Variable(1) 11,868,110.93 June 25, 2035
$
I-6-A Variable(1) 13,719,631.84 June 25, 2035
$
I-6-B Variable(1) 13,719,631.84 June 25, 2035
$
I-7-A Variable(1) 15,516,881.89 June 25, 2035
$
I-7-B Variable(1) 15,516,881.89 June 25, 2035
$
I-8-A Variable(1) 17,516,988.76 June 25, 2035
$
I-8-B Variable(1) 17,516,988.76 June 25, 2035
$
I-9-A Variable(1) 20,038,669.21 June 25, 2035
$
I-9-B Variable(1) 20,038,669.21 June 25, 2035
$
I-10-A Variable(1) 19,696,755.39 June 25, 2035
$
I-10-B Variable(1) 19,696,755.39 June 25, 2035
$
I-11-A Variable(1) 20,363,624.75 June 25, 2035
$
I-11-B Variable(1) 20,363,624.75 June 25, 2035
$
I-12-A Variable(1) 19,409,981.61 June 25, 2035
$
I-12-B Variable(1) 19,409,981.61 June 25, 2035
$
I-13-A Variable(1) 18,500,678.94 June 25, 2035
$
I-13-B Variable(1) 18,500,678.94 June 25, 2035
$
I-14-A Variable(1) 17,634,647.21 June 25, 2035
$
I-14-B Variable(1) 17,634,647.21 June 25, 2035
$
I-15-A Variable(1) 16,809,806.49 June 25, 2035
$
I-15-B Variable(1) 16,809,806.49 June 25, 2035
$
I-16-A Variable(1) 16,024,177.50 June 25, 2035
$
I-16-B Variable(1) 16,024,177.50 June 25, 2035
$
I-17-A Variable(1) 15,285,027.27 June 25, 2035
$
I-17-B Variable(1) 15,285,027.27 June 25, 2035
$
I-18-A Variable(1) 14,570,818.89 June 25, 2035
$
I-18-B Variable(1) 14,570,818.89 June 25, 2035
$
I-19-A Variable(1) 13,911,768.44 June 25, 2035
$
I-19-B Variable(1) 13,911,768.44 June 25, 2035
$
I-20-A Variable(1) 13,709,537.67 June 25, 2035
$
I-20-B Variable(1) 13,709,537.67 June 25, 2035
$
I-21-A Variable(1) 15,586,905.92 June 25, 2035
$
I-21-B Variable(1) 15,586,905.92 June 25, 2035
$
I-22-A Variable(1) 46,610,692.98 June 25, 2035
$
I-22-B Variable(1) 46,610,692.98 June 25, 2035
$
I-23-A Variable(1) 128,336,583.33 June 25, 2035
$
I-23-B Variable(1) 128,336,583.33 June 25, 2035
$
I-24-A Variable(1) 5,459,446.89 June 25, 2035
$
I-24-B Variable(1) 5,459,446.89 June 25, 2035
$
I-25-A Variable(1) 4,783,546.70 June 25, 2035
$
I-25-B Variable(1) 4,783,546.70 June 25, 2035
$
I-26-A Variable(1) 3,998,025.16 June 25, 2035
$
I-26-B Variable(1) 3,998,025.16 June 25, 2035
$
I-27-A Variable(1) 3,009,740.35 June 25, 2035
$
I-27-B Variable(1) 3,009,740.35 June 25, 2035
$
I-28-A Variable(1) 2,867,797.86 June 25, 2035
$
I-28-B Variable(1) 2,867,797.86 June 25, 2035
$
I-29-A Variable(1) 2,736,524.31 June 25, 2035
$
I-29-B Variable(1) 2,736,524.31 June 25, 2035
$
I-30-A Variable(1) 2,611,921.00 June 25, 2035
$
I-30-B Variable(1) 2,611,921.00 June 25, 2035
$
I-31-A Variable(1) 2,493,622.50 June 25, 2035
$
I-31-B Variable(1) 2,493,622.50 June 25, 2035
$
I-32-A Variable(1) 2,409,807.12 June 25, 2035
$
I-32-B Variable(1) 2,409,807.12 June 25, 2035
$
I-33-A Variable(1) 2,414,927.65 June 25, 2035
$
I-33-B Variable(1) 2,414,927.65 June 25, 2035
$
I-34-A Variable(1) 6,991,604.00 June 25, 2035
$
I-34-B Variable(1) 6,991,604.00 June 25, 2035
$
I-35-A Variable(1) 7,117,789.34 June 25, 2035
$
I-35-B Variable(1) 7,117,789.34 June 25, 2035
$
I-36-A Variable(1) 1,375,898.99 June 25, 2035
$
I-36-B Variable(1) 1,375,898.99 June 25, 2035
$
I-37-A Variable(1) 1,325,842.52 June 25, 2035
$
I-37-B Variable(1) 1,325,842.52 June 25, 2035
$
I-38-A Variable(1) 1,277,812.02 June 25, 2035
$
I-38-B Variable(1) 1,277,812.02 June 25, 2035
$
I-39-A Variable(1) 1,231,715.02 June 25, 2035
$
I-39-B Variable(1) 1,231,715.02 June 25, 2035
$
I-40-A Variable(1) 1,187,463.76 June 25, 2035
$
I-40-B Variable(1) 1,187,463.76 June 25, 2035
$
I-41-A Variable(1) 1,144,974.91 June 25, 2035
$
I-41-B Variable(1) 1,144,974.91 June 25, 2035
$
I-42-A Variable(1) 1,104,169.32 June 25, 2035
$
I-42-B Variable(1) 1,104,169.32 June 25, 2035
$
I-43-A Variable(1) 1,064,971.84 June 25, 2035
$
I-43-B Variable(1) 1,064,971.84 June 25, 2035
$
I-44-A Variable(1) 1,027,311.01 June 25, 2035
$
I-44-B Variable(1) 1,027,311.01 June 25, 2035
$
I-45-A Variable(1) 991,118.97 June 25, 2035
$
I-45-B Variable(1) 991,118.97 June 25, 2035
$
I-46-A Variable(1) 956,331.20 June 25, 2035
$
I-46-B Variable(1) 956,331.20 June 25, 2035
$
I-47-A Variable(1) 922,886.34 June 25, 2035
$
I-47-B Variable(1) 922,886.34 June 25, 2035
$
I-48-A Variable(1) 890,726.06 June 25, 2035
$
I-48-B Variable(1) 890,726.06 June 25, 2035
$
I-49-A Variable(1) 859,794.84 June 25, 2035
$
I-49-B Variable(1) 859,794.84 June 25, 2035
$
I-50-A Variable(1) 830,039.88 June 25, 2035
$
I-50-B Variable(1) 830,039.88 June 25, 2035
$
I-51-A Variable(1) 801,410.92 June 25, 2035
$
I-51-B Variable(1) 801,410.92 June 25, 2035
$
I-52-A Variable(1) 773,860.12 June 25, 2035
$
I-52-B Variable(1) 773,860.12 June 25, 2035
$
I-53-A Variable(1) 747,341.92 June 25, 2035
$
I-53-B Variable(1) 747,341.92 June 25, 2035
$
I-54-A Variable(1) 729,362.81 June 25, 2035
$
I-54-B Variable(1) 729,362.81 June 25, 2035
$
I-55-A Variable(1) 696,777.65 June 25, 2035
$
I-55-B Variable(1) 696,777.65 June 25, 2035
$
I-56-A Variable(1) 691,965.18 June 25, 2035
$
I-56-B Variable(1) 691,965.18 June 25, 2035
$
I-57-A Variable(1) 1,132,588.88 June 25, 2035
$
I-57-B Variable(1) 1,132,588.88 June 25, 2035
$
I-58-A Variable(1) 737,687.37 June 25, 2035
$
I-58-B Variable(1) 737,687.37 June 25, 2035
$
I-59-A Variable(1) 873,039.50 June 25, 2035
$
I-59-B Variable(1) 873,039.50 June 25, 2035
$
I-60-A Variable(1) 17,371,645.93 June 25, 2035
$
I-60-B Variable(1) 17,371,645.93 June 25, 2035
___________________________
(1) Calculated in accordance with the definition of "Uncertificated REMIC I Pass-Through
Rate" herein.
REMIC II
As provided herein, the REMIC Administrator will elect to treat the segregated pool
of assets consisting of the REMIC I Regular Interests 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 be the sole class of "residual interests" in REMIC II for purposes of
the REMIC Provisions. The following table irrevocably sets forth the designation, the
Uncertificated REMIC II Pass-Through Rate, the initial Uncertificated Principal Balance and,
for purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the "latest
possible maturity date" for each of the REMIC II Regular Interests (as defined herein). None
of the REMIC II Regular Interests will be certificated.
UNCERTIFICATED REMIC
II INITIAL UNCERTIFICATED LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
I-AA Variable(1) $
1,176,001,206.38 June 25, 2035
A-I-1 Variable(1) $
2,538,900.00 June 25, 2035
A-I-2 Variable(1) $
2,500,100.00 June 25, 2035
A-I-3 Variable(1) $
404,100.00 June 25, 2035
A-II-1 Variable(1) $
3,464,800.00 June 25, 2035
A-II-2 Variable(1) $
866,100.00 June 25, 2035
M-1 Variable(1) $
510,000.00 June 25, 2035
M-2 Variable(1) $
330,000.00 June 25, 2035
M-3 Variable(1) $
210,000.00 June 25, 2035
M-4 Variable(1) $
210,000.00 June 25, 2035
M-5 Variable(1) $
78,000.00 June 25, 2035
M-6 Variable(1) $
168,000.00 June 25, 2035
M-7 Variable(1) $
144,000.00 June 25, 2035
M-8 Variable(1) $
120,000.00 June 25, 2035
M-9 Variable(1) $
120,000.00 June 25, 2035
M-10 Variable(1) $
120,000.00 June 25, 2035
B-1 Variable(1) $
48,000.00 June 25, 2035
I-ZZ Variable(1) $
12,168,024.62 June 25, 2035
IO (1) (2) June 25, 2035
___________________________
----------------------------------------------------------------------------------------------
(1) Calculated in accordance with the definition of "Uncertificated REMIC II Pass-Through
Rate" herein.
(2) REMIC II Regular Interest IO will not have an Uncertificated Principal Balance but
will accrue interest on its uncertificated notional amount calculated in accordance
with the definition of "Uncertificated Notional Amount" herein.
REMIC III
As provided herein, the REMIC Administrator will elect to treat the segregated pool
of assets consisting of the REMIC II Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as REMIC III. The Class
R-III Certificates will represent the sole class of "residual interests" in REMIC III for
purposes of the REMIC Provisions under federal income tax law. The following table
irrevocably sets forth the designation, Pass-Through Rate, aggregate Initial Certificate
Principal Balance (or Uncertificated Principal Balance, in the case of the Class SB and IO
interests), certain features, Final Scheduled Distribution Date and initial ratings for each
Class of Certificates comprising the interests representing "regular interests" in REMIC III
and the Class R Certificates. The "latest possible maturity date" (determined for purposes
of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii)) for each Class of Regular
Certificates shall be the 360th Distribution Date.
Each Certificate, other than the Class SB Certificate and the Class R Certificates,
represents ownership of a regular interest in REMIC III and also represents (i) the right to
receive payments with respect to the related Basis Risk Shortfall Carry-Forward Amount and
(ii) the obligation to pay Class IO Distribution Amount. The entitlement to principal of
the REMIC III regular interest which corresponds to each such Certificate shall be equal in
amount and timing to the entitlement to principal of such Certificate.
AGGREGATE
INITIAL FINAL
CERTIFICATE SCHEDULED
PASS-THROUGH PRINCIPAL DISTRIBUTION
DESIGNATION TYPE RATE BALANCE FEATURES DATE INITIAL RATINGS
S&P XXXXX'X FITCH
Class A-I-1((6)) Senior Adjustable(1) $ 253,890,000.00Senior July 25, 2025 AAA Aaa AAA
Class Senior Adjustable(1) $ 250,010,000.00Senior April 25, 2034 AAA Aaa AAA
A-I-2((6)) ((2))
Class Senior Adjustable(1) $ 40,410,000.00Senior June 25, 2035 AAA Aaa AAA
A-I-3((6)) ((2))
Class Senior Adjustable(1) $ 346,480,000.00Senior June 25, 2035 AAA Aaa AAA
A-II-1((6)) ((2))
Class Senior Adjustable(1) $ 86,610,000.00Senior June 25, 2035 AAA Aaa AAA
A-II-2((6)) ((2))
Class M-1((6)) Mezzanine Adjustable(1) $ 51,000,000.Mezzanine June 25, 2035 AA+ Aa1 AA+
((2))
Class M-2((6)) Mezzanine Adjustable(1) $ 33,000,000.Mezzanine Xxxx 00, 0000 XX Xx0 XX
((2))
Class M-3((6)) Mezzanine Adjustable(1) $ 21,000,000.Mezzanine Xxxx 00, 0000 XX- Xx0 XX
((2))
Class M-4((6)) Mezzanine Adjustable(1) $ 21,000,000.Mezzanine June 25, 2035 A+ A1 AA-
((2))
Class M-5((6)) Mezzanine Adjustable(1) $ 7,800,000.Mezzanine June 25, 2035 A+ A2 AA-
((2))
Class M-6((6)) Mezzanine Adjustable(1) $ 16,800,000.Mezzanine June 25, 2035 A A3 A+
((2))
Class M-7((6)) Mezzanine Adjustable(1) $ 14,400,000.Mezzanine June 25, 2035 BBB+ Baa1 A
((2))
Class M-8((6)) Mezzanine Adjustable(1) $ 12,000,000.Mezzanine June 25, 2035 BBB Baa2 A-
((2))
Class M-9((6)) Mezzanine Adjustable(1) $ 12,000,000.Mezzanine June 25, 2035 BBB- Baa3 BBB+
((2))
Class M-10((6)) Mezzanine Adjustable(1) $ 12,000,000.Mezzanine June 25, 2035 BB+ Ba1 BBB-
((2))
Class B-1((6)) SubordinateAdjustable(1) $ 4,800,000.SubordinateJune 25, 2035 BB+ NR BB+
((2))
Class SB Subordinate Variable(3) $ 16,801,231.Subordinate N/A
Interest
Class R-I Residual N/A Residual N/A
N/A
Class R-II Residual N/A Residual N/A
N/A
Class R-III Residual N/A Residual N/A
N/A
Class R-IV Residual N/A Residual N/A
N/A
Class R-V Residual N/A Residual N/A
N/A
Class IO Residual (4) (5) Residual N/A
Interest
_______________
----------------------------------------------------------------------------------------------
(1) Calculated in accordance with the definition of "Pass-Through Rate" herein. Each REMIC
III Regular Interest ownership of which is represented by a Certificate will have the
same Pass-Through Rate as that Certificate, except with respect to the Net WAC Cap Rate.
The Net WAC Cap Rate for each Regular Certificate (other than the Class SB Certificates)
and each REMIC III Regular Interest the ownership of which is represented thereby is
specified in the definition of Net WAC Cap Rate.
(2) On and after the second Distribution Date after the first possible Optional Termination
Date, the margin on each of the Class A-I-2, Class A-I-3 and Class A-II Certificates will
double and the margin on each of the Class M Certificates and Class B Certificates will
increase by 1.5 times.
(3) The Class SB Interest will accrue interest at its variable Pass-Through Rate on the
Uncertificated Notional Amount of the Class SB Interest outstanding from time to time
which shall equal the Uncertificated Principal Balance of the REMIC II Regular Interests.
The Class SB Interest will not accrue interest on its Uncertificated Principal Balance.
(4) For federal income tax purposes, the Class IO Interest will not have a Pass-Through Rate,
but will be entitled to 100% of the amounts distributed on REMIC II Regular Interest IO.
(5) For federal income tax purposes, the Class IO Interest will not have an Uncertificated
Principal Balance, but will have a notional amount equal to the Uncertificated Notional
Amount of REMIC II Regular Interest IO.
(6) This Class of Certificates represents ownership of a "regular interest" in REMIC III.
Any amount distributed on this Class of Certificates on any Distribution Date in excess
of the amount distributable on the related REMIC III Regular Interest on such
Distribution Date shall be treated for federal income tax purposes as having been paid
from the Reserve Fund or the Swap Account, as applicable, and any amount distributable on
such REMIC III Regular Interest on such Distribution Date in excess of the amount
distributable on such Class of Certificates on such Distribution Date shall be treated as
having been paid to the Swap Account, all pursuant to and as further provided in Section
4.09 hereof.
REMIC IV
As provided herein, the REMIC Administrator shall elect to treat the segregated pool
of assets consisting of the Class SB Interest as a REMIC for federal income tax purposes,
and such segregated pool of assets will be designated as "REMIC IV." The Class R-IV
Certificate represents the sole class of "residual interests" in REMIC IV for purposes of
the REMIC Provisions.
The following table sets forth the Class designation, Pass-Through Rate, Initial
Certificate Principal Balance and, for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the indicated Class of
Certificates that represents a "regular interest" in REMIC IV created hereunder:
INITIAL CERTIFICATE LATEST POSSIBLE
CLASS DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
SB Variable(1) $16,801,231.22 June 25, 2035
_______________
----------------------------------------------------------------------------------------------
(1) The Class SB Certificates will receive 100% of amounts received in respect of the
Class SB Interest.
REMIC V
As provided herein, the REMIC Administrator shall elect to treat the segregated pool
of assets consisting of the Class IO Interest as a REMIC for federal income tax purposes,
and such segregated pool of assets will be designated as "REMIC V." The Class R-V
Certificate represents the sole class of "residual interests" in REMIC V for purposes of the
REMIC Provisions.
The following table sets forth the designation, Pass-Through Rate, initial
Uncertificated Principal Balance and, for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the indicated class of
interests that represents a "regular interest" in REMIC V created hereunder:
INITIAL
UNCERTIFICATED LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
IO(1) (2) (3) June 25, 2035
_______________
----------------------------------------------------------------------------------------------
(1) REMIC V Regular Interest IO will be held as an asset of the Swap Account established
by the Trustee.
(2) REMIC V Regular Interest IO will not have a Pass-Through Rate, but will receive 100%
of amounts received in respect of the Class IO Interest.
(3) REMIC V Regular Interest IO will not have an Uncertificated Principal Balance, but
will have a notional amount equal to the Uncertificated Notional Amount of the Class
IO Interest.
The Mortgage Loans have an aggregate Cut-off Date Principal Balance equal to
$1,200,001,231.22. The Mortgage Loans are fixed-rate and adjustable-rate, fully amortizing,
first and second 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:
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,
Class M and Class B 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 Eligible Master Servicing Compensation
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(k); 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 including Prepayment Interest Shortfalls to
the extent not covered by Eligible Master Servicing Compensation pursuant to Section 3.16 or
by Excess Cash Flow pursuant to clauses (xvii) and (xviii) of Section 4.02(f) or by the Swap
Agreement pursuant to clauses (C) and (D) of Section 4.09(c). 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 Overcollateralization Amount pursuant to Section 4.05 hereof. Accrued
Certificate Interest on the Class A, Class M and Class B Certificates shall accrue on the
basis of a 360-day year and the actual number of days in the related Interest Accrual
Period. Accrued Certificate Interest on the Class SB Certificates shall accrue on the basis
of a 360 day year consisting of twelve 30 day months.
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.
Advance: As to any Mortgage Loan, any advance made by the Master Servicer, pursuant
to Section 4.04.
Affected Party: As defined in the Swap Agreement.
Affiliate: With respect to any Person, any other Person controlling, controlled by or
under common control with such first Person. For the purposes of this definition, "control"
means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments hereof and
supplements hereto.
Amount Held for Future Distribution: 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.
Available Distribution Amount: As to any Distribution Date, an amount equal to (a)
the sum of (i) the amount relating to the Mortgage 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, (ii) the amount of any Advance made on
the immediately preceding Certificate Account Deposit Date, (iii) any amount deposited in
the Certificate Account on the related Certificate Account Deposit Date pursuant to Section
3.12(a), (iv) any amount that the Master Servicer is not permitted to withdraw from the
Custodial Account pursuant to Section 3.16(e) and (v) any amount deposited in the
Certificate Account pursuant to Section 4.07 or 4.08 and any amounts deposited in the
Custodial Account pursuant to Section 9.01, 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 Mortgage Loans that were received during the related
Prepayment Period, (x) the Amount Held for Future Distribution, (y) amounts permitted to be
withdrawn by the Master Servicer from the Custodial Account pursuant to clauses (ii)-(x),
inclusive, of Section 3.10(a) and (z) any Net Swap Payments and Swap Termination Payments
not due to a Swap Provider Trigger Event for such Distribution Date.
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.
Call Rights: As defined in Section 9.01(e).
Capitalization Reimbursement Amount: As to any Distribution Date, 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 B Certificate, Class
SB Certificate or Class R Certificate.
Certificate Account: The account or accounts created and maintained pursuant to
Section 4.01, which shall be entitled "JPMorgan Chase Bank, N.A., as trustee, in trust for
the registered holders of Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed
Pass-Through Certificates, Series 2005-RS6" 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 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, Class M or Class B
Certificate, on any date of determination, an amount equal to (i) the Initial Certificate
Principal Balance of such Certificate as specified on the face thereof minus (ii) the sum of
(x) the aggregate of all amounts previously distributed with respect to such Certificate (or
any predecessor Certificate) and applied to reduce the Certificate Principal Balance thereof
pursuant to Section 4.02(f) 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,
provided, that with respect to any Distribution Date, the Certificate Principal Balance of
each class of Class A, Class M and Class B Certificates to which a Realized Loss was
previously allocated and remains unreimbursed will be increased, sequentially, as follows:
first, the Class A Certificates on a pro rata basis, then the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class
B-1 Certificates, in that order, to the extent of Realized Losses previously allocated
thereto and remaining unreimbursed, but only to the extent of Subsequent Recoveries received
during the previous calendar month. With respect to each Class SB Certificate, on any date
of determination, an amount equal to the Percentage Interest evidenced by such Certificate
times an amount equal to the excess, if any, of (A) the then aggregate Stated Principal
Balance of the Mortgage Loans over (B) the then aggregate Certificate Principal Balance of
the Class A, Class M and Class B Certificates then outstanding. 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 Certificate: Any one of the Class A-I-1, Class A-I-2, Class A-I-3, Class
A-II-1 or Class A-II-2 Certificates.
Class A-I Certificate: Any one of the Class A-I-1, Class A-I-2 or Class A-I-3
Certificates.
Class A-I Principal Distribution Amount: On any Distribution Date, the Class A
Principal Distribution Amount multiplied by a fraction, the numerator of which is the
portion of the Principal Allocation Amount related to the Group I Loans for that
Distribution Date and the denominator of which is the Principal Allocation Amount for all of
the Mortgage Loans for that Distribution Date.
Class A-II Certificate: Any one of the Class A-II-1 Certificates or Class A-II-2
Certificates.
Class A-II Principal Distribution Amount: On any Distribution Date, the Class A
Principal Distribution Amount multiplied by a fraction, the numerator of which is the
portion of the Principal Allocation Amount related to the Group II Loans for that
Distribution Date and the denominator of which is the Principal Allocation Amount for all of
the Mortgage Loans for that Distribution Date.
Class A Basis Risk Shortfall: With respect to the Class A Certificates and any
Distribution Date for which the Pass-Through Rate for any such Class of Certificates is
equal to the Net WAC Cap Rate, the excess, if any, of (x) Accrued Certificate Interest on
that Class of Certificates on such Distribution Date, calculated at a rate equal to the
lesser of (a) LIBOR plus the related Class A Margin, as calculated for such Distribution
Date, and (b) the Maximum Mortgage Loan Rate, over (y) Accrued Certificate Interest on such
Class of Class A Certificates for such Distribution Date calculated at the Net WAC Cap Rate.
Class A Basis Risk Shortfall Carry-Forward Amount: With respect to each Class of
Class A Certificates and any Distribution Date, the sum of (a) the aggregate amount of Basis
Risk Shortfall for such Class on such Distribution Date plus (b) any Class A Basis Risk
Shortfall Carry-Forward Amount for such Class remaining unpaid from the preceding
Distribution Date, plus (c) one month's interest on the amount in clause (b) (based on the
number of days in the preceding Interest Accrual Period), to the extent previously
unreimbursed by Excess Cash Flow or the Swap Agreement pursuant to Section 4.02(f)(xix) or
Section 4.09(c)(E), at a rate equal to the related Pass-Through Rate.
Class A Interest Distribution Amount: With respect to each Class of Class A
Certificates and any Distribution Date, the aggregate amount of Accrued Certificate Interest
to be distributed to the holders of such Class of Class A 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 Eligible Master Servicing Compensation and any Relief Act Shortfalls for
such Distribution Date, allocated among the Class A Certificates as described herein from
the sources and in the 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 non-related
Classes of Class A Certificates made in clause (i) above;
(iii) third, from the Principal Remittance Amount derived from the related Sub-Group; and
(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 non-related
Classes of Class A Certificates made in clause (iii) above.
Class A Margin: With respect to the Class A-I-1 Certificates, 0.100% per annum. With
respect to the Class A-I-2 Certificates, initially 0.240% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible Optional Termination
Date, 0.480% per annum. With respect to the Class A-I-3 Certificates, initially 0.360% per
annum, and on any Distribution Date on or after the second Distribution Date after the first
possible Optional Termination Date, 0.720% per annum. With respect to the Class A-II-1
Certificates, initially 0.230% per annum, and on any Distribution Date on or after the
second Distribution Date after the first possible Optional Termination Date, 0.460% per
annum. With respect to the Class A-II-2 Certificates, initially 0.280% per annum, and on
any Distribution Date on or after the second Distribution Date after the first possible
Optional Termination Date, 0.560% per annum.
Class A Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the Principal Distribution Amount for that Distribution Date or
(ii) on or after the Stepdown Date if a Trigger Event is not in effect for that Distribution
Date, the lesser of:
(i) the Principal Distribution Amount for that Distribution Date; and
(ii) the excess, if any, of (A) the aggregate Certificate Principal Balance
of the Class A Certificates immediately prior to that Distribution Date over (B) the
lesser of (x) the product of (1) the applicable Subordination Percentage and (2) the
aggregate Stated Principal Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to distributions to be
made on that Distribution Date, less the Overcollateralization Floor.
Class B Basis Risk Shortfall: With respect to the Class B-1 Certificates and any
Distribution Date for which the Pass-Through Rate for any such Class of Certificates is
equal to the Net WAC Cap Rate, the excess, if any, of (x) Accrued Certificate Interest on
that Class of Certificates on such Distribution Date, using the lesser of (a) LIBOR plus the
related Class B Margin, as calculated for such Distribution Date, and (b) the Maximum
Mortgage Loan Rate, over (y) Accrued Certificate Interest on such Class of Class B
Certificates for such Distribution Date calculated at the Net WAC Cap Rate.
Class B Basis Risk Shortfall Carry-Forward Amount: With respect to the Class B-1
Certificates and any Distribution Date, the sum of (a) the aggregate amount of Class B Basis
Risk Shortfall for each such Class on such Distribution Date plus (b) any Class B 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 Excess Cash Flow or the Swap Agreement pursuant to Section 4.02(f)(xix) or
Section 4.09(c)(E), at a rate equal to the related Pass-Through Rate.
Class B Certificate: Any one of the Class B-1 Certificates.
Class B Margin: With respect to the Class B Certificates, initially 1.550% per annum,
and on any Distribution Date on or after the second Distribution Date after the first
possible Optional Termination Date, 2.325% per annum.
Class B-1 Certificate: Any one of the Class B-1 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit C, senior to the Class SB Certificates and Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section 4.05, and
evidencing (i) an interest designated as a "regular interest" in REMIC III for purposes of
the REMIC Provisions, (ii) the right to receive the Class B Basis Risk Shortfall
Carry-Forward Amount from the Reserve Fund and the Swap Account and (iii) the obligation to
pay the Class IO Distribution Amount.
Class B-1 Interest Distribution Amount: With respect to the Class B-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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class B-1 Certificates.
Class B-1 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Principal
Distribution Amounts or (ii) on or after the Stepdown Date if a Trigger Event is not in
effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Principal Distribution
Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates (after
taking into account the payment of the Class A, Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10
Principal Distribution Amounts for that Distribution Date) and (2) the Certificate
Principal Balance of the Class B-1 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on that Distribution
Date and (y) the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made that Distribution Date, less the
Overcollateralization Floor.
Class IO Distribution Amount: As defined in Section 4.09(g) hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal the amount
payable to the Swap Account on such Distribution Date in excess of the amount payable on
REMIC V Regular Interest IO on such Distribution Date, all as further provided in Section
4.09(b) hereof.
Class IO Interest: An uncertificated interest in the Trust Fund held by the Trustee
on behalf of the Holders of REMIC V Regular Interest IO and the Class R-V Certificate,
evidencing a Regular Interest in REMIC III for purposes of the REMIC Provisions.
Class M Certificate: Any one of the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class M-9 or Class M-10 Certificates.
Class M-1 Certificate: Any one of the Class M-1 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9, Class M-10, Class B-1, Class SB and Class R Certificates with respect
to distributions and the allocation of Realized Losses as set forth in Section 4.05, and
evidencing (i) an interest designated as a "regular interest" in REMIC III for purposes of
the REMIC Provisions, (ii) the right to receive the Class M Basis Risk Shortfall
Carry-Forward Amount from the Reserve Fund and the Swap Account and (iii) the obligation to
pay the Class IO Distribution Amount.
Class M-1 Interest Distribution Amount: With respect to the Class M-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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-1 Certificates.
Class M-1 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A Principal Distribution Amount or (ii) on
or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the payment
of the Class A Principal Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-1 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on that Distribution
Date and (y) the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made that Distribution Date, less the
Overcollateralization Floor.
Class M-2 Certificate: Any one of the Class M-2 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
Class M-9, Class M-10, Class B-1, Class SB and Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section 4.05, and
evidencing (i) an interest designated as a "regular interest" in REMIC III for purposes of
the REMIC Provisions, (ii) the right to receive the Class M Basis Risk Shortfall
Carry-Forward Amount from the Reserve Fund and the Swap Account and (iii) the obligation to
pay the Class IO Distribution Amount.
Class M-2 Interest Distribution Amount: With respect to the Class M-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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-2 Certificates.
Class M-2 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A Principal Distribution Amount and the
Class M-1 Principal Distribution Amount or (ii) on or after the Stepdown Date if a Trigger
Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A Principal Distribution Amount and the Class M-1
Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A Certificates and Class M-1 Certificates (after
taking into account the payment of the Class A Principal Distribution Amount and the
Class M-1 Principal Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-2 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on that Distribution
Date and (y) the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made that Distribution Date, less the
Overcollateralization Floor.
Class M-3 Certificate: Any one of the Class M-3 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class M-10, Class B-1, Class SB and Class R Certificates with respect to distributions and
the allocation of Realized Losses as set forth in Section 4.05, and evidencing (i) an
interest designated as a "regular interest" in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive the Class M Basis Risk Shortfall Carry-Forward Amount
from the Reserve Fund and the Swap Account and (iii) the obligation to pay the Class IO
Distribution Amount.
Class M-3 Interest Distribution Amount: With respect to the Class M-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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-3 Certificates.
Class M-3 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1 and Class M-2 Principal
Distribution Amounts or (ii) on or after the Stepdown Date if a Trigger Event is not in
effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1 and Class M-2 Principal Distribution
Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1 and Class M-2 Certificates (after taking
into account the payment of the Class A, Class M-1 and Class M-2 Principal
Distribution Amounts for that Distribution Date) and (2) the Certificate Principal
Balance of the Class M-3 Certificates immediately prior to that Distribution Date
over (B) the lesser of (x) the product of (1) the applicable Subordination Percentage
and (2) the aggregate Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date and (y) the aggregate
Stated Principal Balance of the Mortgage Loans after giving effect to distributions
to be made that Distribution Date, less the Overcollateralization Floor.
Class M-4 Certificate: Any one of the Class M-4 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10,
Class B-1, Class SB and Class R Certificates with respect to distributions and the
allocation of Realized Losses as set forth in Section 4.05, and evidencing (i) an interest
designated as a "regular interest" in REMIC III for purposes of the REMIC Provisions, (ii)
the right to receive the Class M Basis Risk Shortfall Carry-Forward Amount from the Reserve
Fund and the Swap Account and (iii) the obligation to pay the Class IO Distribution Amount.
Class M-4 Interest Distribution Amount: With respect to the Class M-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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-4 Certificates.
Class M-4 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2 and Class M-3
Principal Distribution Amounts or (ii) on or after the Stepdown Date if a Trigger Event is
not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2 and Class M-3 Principal
Distribution Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2 and Class M-3 Certificates
(after taking into account the payment of the Class A, Class M-1, Class M-2 and Class
M-3 Principal Distribution Amounts for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-4 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on that Distribution
Date and (y) the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made that Distribution Date, less the
Overcollateralization Floor.
Class M-5 Certificate: Any one of the Class M-5 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-6, Class M-7, Class M-8, Class M-9, Class M-10, Class B-1,
Class SB and Class R Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right to
receive the Class M Basis Risk Shortfall Carry-Forward Amount from the Reserve Fund and the
Swap Account and (iii) the obligation to pay the Class IO Distribution Amount.
Class M-5 Interest Distribution Amount: With respect to the Class M-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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-5 Certificates.
Class M-5 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2, Class M-3 and
Class M-4 Principal Distribution Amounts or (ii) on or after the Stepdown Date if a Trigger
Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2, Class M-3 and Class M-4
Principal Distribution Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3 and Class M-4
Certificates (after taking into account the payment of the Class A, Class M-1, Class
M-2, Class M-3 and Class M-4 Principal Distribution Amounts for that Distribution
Date) and (2) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to that Distribution Date over (B) the lesser of (x) the product of
(1) the applicable Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to distributions to be made on that
Distribution Date and (y) the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made that Distribution Date, less
the Overcollateralization Floor.
Class M-6 Certificate: Any one of the Class M-6 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-7, Class M-8, Class M-9, Class M-10, Class B-1, Class SB
and Class R Certificates with respect to distributions and the allocation of Realized Losses
as set forth in Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right to receive the
Class M Basis Risk Shortfall Carry-Forward Amount from the Reserve Fund and the Swap Account
and (iii) the obligation to pay the Class IO Distribution Amount.
Class M-6 Interest Distribution Amount: With respect to the Class M-6 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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-6 Certificates.
Class M-6 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class
M-4 and Class M-5 Principal Distribution Amounts or (ii) on or after the Stepdown Date if a
Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class M-4 and
Class M-5 Principal Distribution Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4 and
Class M-5 Certificates (after taking into account the payment of the Class A, Class
M-1, Class M-2, Class M-3, Class M-4 and Class M-5 Principal Distribution Amounts for
that Distribution Date) and (2) the Certificate Principal Balance of the Class M-6
Certificates immediately prior to that Distribution Date over (B) the lesser of (x)
the product of (1) the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving effect to distributions
to be made on that Distribution Date and (y) the aggregate Stated Principal Balance
of the Mortgage Loans after giving effect to distributions to be made that
Distribution Date, less the Overcollateralization Floor.
Class M-7 Certificate: Any one of the Class M-7 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-8, Class M-9, Class M-10, Class B-1, Class SB and Class R
Certificates with respect to distributions and the allocation of Realized Losses as set
forth in Section 4.05, and evidencing (i) an interest designated as a "regular interest" in
REMIC III for purposes of the REMIC Provisions, (ii) the right to receive the Class M Basis
Risk Shortfall Carry-Forward Amount from the Reserve Fund and the Swap Account and (iii) the
obligation to pay the Class IO Distribution Amount.
Class M-7 Interest Distribution Amount: With respect to the Class M-7 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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-7 Certificates.
Class M-7 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5 and Class M-6 Principal Distribution Amounts or (ii) on or after the Stepdown
Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5 and Class M-6 Principal Distribution Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5 and Class M-6 Certificates (after taking into account the payment of the Class A,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6 Principal
Distribution Amounts for that Distribution Date) and (2) the Certificate Principal
Balance of the Class M-7 Certificates immediately prior to that Distribution Date
over (B) the lesser of (x) the product of (1) the applicable Subordination Percentage
and (2) the aggregate Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date and (y) the aggregate
Stated Principal Balance of the Mortgage Loans after giving effect to distributions
to be made that Distribution Date, less the Overcollateralization Floor.
Class M-8 Certificate: Any one of the Class M-8 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-9, Class M-10, Class B-1, Class SB and Class R Certificates
with respect to distributions and the allocation of Realized Losses as set forth in Section
4.05, and evidencing (i) an interest designated as a "regular interest" in REMIC III for
purposes of the REMIC Provisions, (ii) the right to receive the Class M Basis Risk Shortfall
Carry-Forward Amount from the Reserve Fund and the Swap Account and (iii) the obligation to
pay the Class IO Distribution Amount.
Class M-8 Interest Distribution Amount: With respect to the Class M-8 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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-8 Certificates.
Class M-8 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6 and Class M-7 Principal Distribution Amounts or (ii) on or after
the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser
of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6 and Class M-7 Principal Distribution Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6 and Class M-7 Certificates (after taking into account the payment of
the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and
Class M-7 Principal Distribution Amounts for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-8 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on that Distribution
Date and (y) the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made that Distribution Date, less the
Overcollateralization Floor.
Class M-9 Certificate: Any one of the Class M-9 Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit B, senior to the Class M-10, Class B-1, Class SB Certificates and Class R
Certificates with respect to distributions and the allocation of Realized Losses as set
forth in Section 4.05, and evidencing (i) an interest designated as a "regular interest" in
REMIC III for purposes of the REMIC Provisions, (ii) the right to receive the Class M Basis
Risk Shortfall Carry-Forward Amount from the Reserve Fund and the Swap Account and (iii) the
obligation to pay the Class IO Distribution Amount.
Class M-9 Interest Distribution Amount: With respect to the Class M-9 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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-9 Certificates.
Class M-9 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Principal Distribution Amounts or (ii) on
or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
(a) the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7 and Class M-8 Principal Distribution Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7 and Class M-8 Certificates (after taking into account the
payment of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7 and Class M-8 Principal Distribution Amounts for that Distribution
Date) and (2) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to that Distribution Date over (B) the lesser of (x) the product of
(1) the applicable Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to distributions to be made on that
Distribution Date and (y) the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made that Distribution Date, less
the Overcollateralization Floor.
Class M-10 Certificate: Any one of the Class M-10 Certificates executed by the
Trustee and authenticated by the Certificate Registrar substantially in the form annexed
hereto as Exhibit B, senior to the Class B-1, Class SB Certificates and Class R Certificates
with respect to distributions and the allocation of Realized Losses as set forth in Section
4.05, and evidencing (i) an interest designated as a "regular interest" in REMIC III for
purposes of the REMIC Provisions, (ii) the right to receive the Class M Basis Risk Shortfall
Carry-Forward Amount from the Reserve Fund and the Swap Account and (iii) the obligation to
pay the Class IO Distribution Amount.
Class M-10 Interest Distribution Amount: With respect to the Class M-10 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 Eligible Master
Servicing Compensation and any Relief Act Shortfalls for such Distribution Date allocated as
described herein to the Class M-10 Certificates.
Class M-10 Principal Distribution Amount: With respect to any Distribution Date (i)
prior to the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect
for that Distribution Date, the remaining Principal Distribution Amount for that
Distribution Date after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Principal Distribution Amounts
or (ii) on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, (a) the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date
after distribution of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Principal Distribution Amounts; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate
Principal Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Certificates (after taking into
account the payment of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Principal Distribution Amounts for
that Distribution Date) and (2) the Certificate Principal Balance of the Class M-10
Certificates immediately prior to that Distribution Date over (B) the lesser of (x)
the product of (1) the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving effect to distributions
to be made on that Distribution Date and (y) the aggregate Stated Principal Balance
of the Mortgage Loans after giving effect to distributions to be made that
Distribution Date, less the Overcollateralization Floor.
Class M Basis Risk Shortfall: With respect to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates
and any Distribution Date for which the Pass-Through Rate for any such Class of Certificates
is equal to the Net WAC Cap Rate, the excess, if any, of (x) Accrued Certificate Interest on
that Class of Certificates on such Distribution Date, using the lesser of (a) LIBOR plus the
related Class M Margin, as calculated for such Distribution Date, and (b) the Maximum
Mortgage Loan Rate, over (y) Accrued Certificate Interest on such Class of Class M
Certificates for such Distribution Date calculated at the Net WAC Cap Rate.
Class M Basis Risk Shortfall Carry-Forward Amount: With respect to the Class X-0,
Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9 and
Class M-10 Certificates and any Distribution Date, the sum of (a) the aggregate amount of
Class M Basis Risk Shortfall for each such Class on such Distribution Date plus (b) any
Class M 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 Excess Cash Flow or the Swap Agreement pursuant to Section
4.02(f)(xix) or Section 4.09(c)(E), at a rate equal to the related Pass-Through Rate.
Class M Margin: With respect to the Class M-1 Certificates, initially 0.500% per
annum, and on any Distribution Date on or after the second Distribution Date after the first
possible Optional Termination Date, 0.750% per annum. With respect to the Class M-2
Certificates, initially 0.510% per annum, and on any Distribution Date on or after the
second Distribution Date after the first possible Optional Termination Date, 0.765% per
annum. With respect to the Class M-3 Certificates, initially 0.530% per annum, and on any
Distribution Date on or after the second Distribution Date after the first possible Optional
Termination Date, 0.795% per annum. With respect to the Class M-4 Certificates, initially
0.650% per annum, and on any Distribution Date on or after the second Distribution Date
after the first possible Optional Termination Date, 0.975% per annum. With respect to the
Class M-5 Certificates, initially 0.680% per annum, and on any Distribution Date on or after
the second Distribution Date after the first possible Optional Termination Date, 1.020% per
annum. With respect to the Class M-6 Certificates, initially 0.750% per annum, and on any
Distribution Date on or after the second Distribution Date after the first possible Optional
Termination Date, 1.125% per annum. With respect to the Class M-7 Certificates, initially
1.400% per annum, and on any Distribution Date on or after the second Distribution Date
after the first possible Optional Termination Date, 2.100% per annum. With respect to the
Class M-8 Certificates, initially 1.550% per annum, and on any Distribution Date on or after
the second Distribution Date after the first possible Optional Termination Date, 2.325% per
annum. With respect to the Class M-9 Certificates, initially 2.000% per annum, and on any
Distribution Date on or after the second Distribution Date after the first possible Optional
Termination Date, 3.000% per annum. With respect to the Class M-10 Certificates, initially
2.200% per annum, and on any Distribution Date on or after the second Distribution Date
after the first possible Optional Termination Date, 3.300% per annum.
Class R Certificate: Any one of the Class R-I, Class R-II, Class R-III, Class R-IV or
Class R-V 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 E 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 E 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 E 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 E and evidencing an interest designated as a "residual interest" in REMIC
IV for purposes of the REMIC Provisions.
Class R-V Certificate: Any one of the Class R-V Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit E and evidencing an interest designated as a "residual interest" in REMIC V for
purposes of the REMIC Provisions.
Class SB Certificates: Any one of the Class SB Certificates executed by the Trustee
and authenticated by the Certificate Registrar substantially in the form annexed hereto as
Exhibit D, subordinate to the Class A, Class M and Class B Certificates with respect to
distributions and the allocation of Realized Losses 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 Interest: An uncertificated interest in the Trust Fund held by the Trustee
on behalf of the Holders of the Class SB Certificates, evidencing (i) a Regular Interest in
REMIC III for purposes of the REMIC Provisions, (ii) the obligation to pay Basis Risk
Shortfall Amounts and Swap Termination Payments and (iii) the right to receive the Class IO
Distribution Amount.
Closing Date: July 1, 2005.
Code: The Internal Revenue Code of 1986.
Commission: The Securities and Exchange Commission.
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: Worldwide Securities
Services/Global Debt, RAMP, Series 2005-RS6.
Corresponding Class: With respect to each REMIC II Regular Interest (other than REMIC
II Regular Interests I-AA, I-ZZ and IO), the Certificate with the corresponding
designation. With respect to the Class SB Interest and Class IO Interest, the Class SB
Certificates and REMIC V Regular Interest IO, respectively.
Credit Repository: Equifax, Transunion and Experian, or their successors in interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a Principal
Prepayment in Full.
Custodial Account: The custodial account or accounts created and maintained pursuant
to Section 3.07 in the name of a depository institution, as custodian for the holders of the
Certificates, for the holders of certain other interests in mortgage loans serviced or sold
by the Master Servicer and for the Master Servicer, into which the amounts set forth in
Section 3.07 shall be deposited directly. Any such account or accounts shall be an Eligible
Account.
Custodial Agreement: An agreement that may be entered into among the Depositor, the
Master Servicer, the Trustee and a Custodian in substantially the form of Exhibit F hereto.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
Cut-off Date: June 1, 2005.
Cut-off Date Balance: $1,200,001,231.22.
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 June 2005), whether or not received.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent jurisdiction in a
proceeding under the Bankruptcy Code, except such a reduction constituting a Deficient
Valuation or any reduction that results in a permanent forgiveness of principal.
Defaulting Party: As defined in the Swap Agreement.
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.
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 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 account or accounts maintained in the corporate trust department
of JPMorgan Chase Bank, N.A., or (B) an account or accounts maintained in the corporate
asset services department of U.S. Bank 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, N.A., 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).
Eligible Master Servicing Compensation: 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); 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).
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 7.01.
Excess Cash Flow: With respect to the Mortgage Loans and any Distribution Date, an
amount equal to the sum of (A) the excess of (i) the Available Distribution Amount for that
Distribution Date over (ii) the sum of (a) the Interest Distribution Amount for that
Distribution Date and (b) the Principal Remittance Amount for that Distribution Date and (B)
the Overcollateralization Reduction Amount, if any, for that Distribution Date.
Excess Overcollateralization Amount: With respect to any Distribution Date, the
excess, if any, of (a) the Overcollateralization Amount on such Distribution Date over (b)
the Required Overcollateralization Amount.
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.
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, July 25, 2025; with
respect to the Class A-I-2 Certificates, April 25, 2034; with respect to the Class A-I-3
Certificates, June 25, 2035; with respect to the Class A-II-1 Certificates, June 25, 2035;
with respect to the Class A-II-2 Certificates, June 25, 2035; with respect to the Class M-1
Certificates, June 25, 2035; with respect to the Class M-2 Certificates, June 25, 2035; with
respect to the Class M-3 Certificates, June 25, 2035; with respect to the Class M-4
Certificates, June 25, 2035; with respect to the Class M-5 Certificates, June 25, 2035; with
respect to the Class M-6 Certificates, June 25, 2035; with respect to the Class M-7
Certificates, June 25, 2035; with respect to the Class M-8 Certificates, June 25, 2035; with
respect to the Class M-9 Certificates, June 25, 2035; with respect to the Class M-10
Certificates, June 25, 2035; with respect to the Class B-1 Certificates, June 25, 2035. No
event of default under this Agreement will arise or become applicable solely by reason of
the failure to retire the entire Certificate Principal Balance of any Class of Class A,
Class M or Class B Certificates on or before its Final Scheduled Distribution Date.
Fitch: Fitch, Inc.
Fixed Swap Payment: With respect to any Distribution Date on or prior to the
distribution date in June 2010, an amount equal to the product of (x) a fixed rate equal to
3.88% per annum, (y) the Swap Agreement Notional Balance for that Distribution Date and (z)
a fraction, the numerator of which is 30 and the denominator of which is 360.
Floating Swap Payment: With respect to any Distribution Date on or prior to the
Distribution Date in June 2010, an amount equal to the product of (x) Swap LIBOR, (y) the
Swap Agreement Notional Balance for that Distribution Date and (z) a fraction, the numerator
of which is equal to the number of days in the related calculation period as provided in the
Swap Agreement and the denominator of which is 360.
Foreclosure Profits: 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 G-1 and Exhibit G-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 Loans: The Mortgage Loans designated as Group I Loans on the Mortgage Loan
Schedule attached hereto as Exhibit G-1.
Group II Loans: The Mortgage Loans designated as Group II Loans on the Mortgage Loan
Schedule attached hereto as Exhibit G-2.
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, Class M and Class B
Certificates, (i) with respect to the Distribution Date in July 2005, the period commencing
on the Closing Date and ending on the day preceding the Distribution Date in July 2005, and
(ii) with respect to any Distribution Date after the Distribution Date in July 2005, the
period commencing on the Distribution Date in the month immediately preceding the month in
which such Distribution Date occurs and ending on the day preceding such Distribution Date.
With respect to the Class SB Certificates and any Distribution Date, the prior calendar
month.
Interest Distribution Amount: The sum of the Class A, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class
B-1 Interest Distribution Amounts.
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-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.
Marker Rate: With respect to the Class SB Interest 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 II Regular Interest (other than REMIC II Regular Interest I-AA), with the rates
on each such REMIC II Regular Interest (other than REMIC II Regular Interest I-ZZ) subject
to a cap equal to the Pass-Through Rate for the REMIC III Regular Interest ownership of
which is represented by the Corresponding Class for such REMIC II Regular Interest, and the
rate on REMIC II Regular Interest I-ZZ subject to a cap of zero, in each case for purposes
of this calculation.
Maturity Date: With respect to each Class of Certificates of regular interest, REMIC
I Regular Interest or REMIC II Regular Interests, issued by each of REMIC I, REMIC II, REMIC
III, REMIC IV and REMIC V the latest possible maturity date, 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, June 25, 2035, which is the
Distribution Date following the last scheduled monthly payment of the Mortgage Loans.
Maximum Mortgage Loan Rate: With respect to the Class A, Class M and Class B
Certificates and any Interest Accrual Period, 14.00% per annum.
Maximum Mortgage Rate: As to any adjustable rate Mortgage Loan, the rate indicated in
Exhibit G-1 and Exhibit G-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 adjustable rate Mortgage 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 G-1 and Exhibit G-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 Mortgage Rate: As to any Mortgage Loan that is the subject of a Servicing
Modification, the Mortgage Rate, minus the rate per annum by which the Mortgage Rate on such
Mortgage Loan was reduced.
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.
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
G-1 and Exhibit G-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;
(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");
(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 G-1 and Exhibit
G-2, except in the case of the adjustable rate Mortgage Loans indicated by an "X" on Exhibit
G-1 and Exhibit G-2 or 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.
Net Swap Payment: With respect to each Distribution Date, the net payment required
to be made pursuant to the terms of the Swap Agreement by either the Swap Counterparty or
the Trustee, on behalf of the Trust, which net payment shall not take into account any Swap
Termination Payment.
Net WAC Cap Rate: With respect to any Distribution Date and the Class A
Certificates, Class M Certificates and Class B Certificates, 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 Mortgage Loans using the Net Mortgage Rates in effect
for the Monthly Payments due on such Mortgage Loans during the related Due Period, weighted
on the basis of the respective Stated Principal Balances thereof for such Distribution Date
Period minus any Net Swap Payments or Swap Termination Payment not due to a Swap Provider
Trigger Event due to the Swap Counterparty allocable to the Mortgage Loans divided by the
aggregate Stated Principal Balance of the Mortgage Loans and (ii) a fraction equal to 30
divided by the actual number of days in the related Interest Accrual Period. With respect
to any Distribution Date and the REMIC III Regular Interests the ownership of which is
represented by the Class A Certificates, Class M Certificates and Class B Certificates, a
per annum rate equal to the weighted average (adjusted for the actual number of days elapsed
in the related Accrual Period) of the Uncertificated REMIC II Pass-Through Rate for the
REMIC II Regular interests, weighted on the basis of the Uncertificated Principal Balance of
such REMIC II Regular Interest immediately prior to 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.
Non-Primary Residence Loans: The Mortgage Loans designated as secured by second or
vacation residences, or by non-owner occupied residences, on the Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be made by the
Master Servicer or Subservicer in respect of a Mortgage Loan (other than a Deleted Mortgage
Loan) which, in the good faith judgment of the Master Servicer, will not, or, in the case of
a proposed Advance, would not, be ultimately recoverable by the Master Servicer from related
Late Collections, Insurance Proceeds, Liquidation Proceeds or REO Proceeds. To the extent
that any Mortgagor is not obligated under the related Mortgage documents to pay or reimburse
any portion of any Servicing Advances that are outstanding with respect to the related
Mortgage Loan as a result of a modification of such Mortgage Loan by the Master Servicer,
which forgives amounts which the Master Servicer or Subservicer had previously advanced, and
the Master Servicer determines that no other source of payment or reimbursement for such
advances is available to it, such Servicing Advances shall be deemed to be Nonrecoverable
Advances. The determination by the Master Servicer that it has made a Nonrecoverable Advance
shall be evidenced by an 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 G-1 and Exhibit G-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, REMIC IV or REMIC V as
REMICs or compliance with the REMIC Provisions must, unless otherwise specified, be an
opinion of Independent counsel.
Optional Termination Date: Any Distribution Date on or after which the Stated
Principal Balance (before giving effect to distributions to be made on such Distribution
Date) of the Mortgage Loans is less than 10.00% of the Cut-off Date Balance.
Outstanding Mortgage Loan: 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.
Overcollateralization Amount: With respect to any Distribution Date, the excess, if
any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans before giving
effect to distributions of principal to be made on such Distribution Date over (b) the
aggregate Certificate Principal Balance of the Class A, Class M and Class B Certificates as
of such date, before taking into account distributions of principal to be made on that
Distribution Date.
Overcollateralization Floor: An amount equal to 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Overcollateralization Increase Amount: With respect to any Distribution Date, an
amount equal to the lesser of (i) the Excess Cash Flow for that Distribution Date available
to make payments pursuant to Section 4.02(f)(xvi) and (ii) the excess, if any, of (x) the
Required Overcollateralization Amount for that Distribution Date over (y) the
Overcollateralization Amount for that Distribution Date.
Overcollateralization Reduction Amount: With respect to any Distribution Date for
which the 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 Excess Overcollateralization Amount for that Distribution Date and
(ii) the Principal Remittance Amount for that Distribution 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 Certificates and each Interest Accrual
Period, a per annum rate equal to the least of (i) LIBOR plus the related Class A Margin,
(ii) the Maximum Mortgage Loan Rate and (iii) the Net WAC Cap Rate. With respect to the
Class M Certificates and each Interest Accrual Period, a per annum rate equal to the least
of (i) LIBOR plus the related Class M Margin, (ii) the Maximum Mortgage Loan Rate and (iii)
the Net WAC Cap Rate. With respect to the Class B Certificates and each Interest Accrual
Period, a per annum rate equal to the least of (i) LIBOR plus the related Class B Margin,
(ii) the Maximum Mortgage Loan Rate and (iii) the Net WAC Cap Rate.
With respect to the Class SB Interest, a per annum rate equal to the percentage
equivalent of a fraction, (x) the numerator of which is the sum, for each REMIC II Regular
Interest (other than REMIC II Regular Interest IO), of the excess of the Uncertificated
REMIC II Pass-Through Rate for such REMIC II Regular Interest over the related Marker Rate,
applied to a notional amount equal to the Uncertificated Principal Balance of such REMIC II
Regular Interest and (y) the denominator of which is the aggregate Uncertificated Principal
Balance of the REMIC II Regular Interests.
With respect to the Class SB Certificates: the Class SB Certificates shall not have a
Pass-Through Rate, but current interest for such Certificates and each Distribution Date
shall be an amount equal to 100% of the amounts distributable to the Class SB Interest for
such Distribution Date.
With respect to REMIC V Regular Interest IO: REMIC V Regular Interest IO shall not
have a Pass-Through Rate, but current interest for such regular interest and each
Distribution Date shall be an amount equal to 100% of the amounts distributable to the Class
IO Interest for such Distribution Date.
Paying Agent: JPMorgan Chase Bank, N.A., or any successor Paying Agent appointed by
the Trustee.
Percentage Interest: With respect to any Class A, Class M or Class B Certificate, the
undivided percentage ownership interest in the related Class evidenced by such Certificate,
which percentage ownership interest shall be equal to the Initial Certificate Principal
Balance thereof divided by the aggregate Initial Certificate Principal Balance of all of the
Certificates of the same Class. The Percentage Interest with respect to a Class SB
Certificate or Class R Certificate shall be stated on the face thereof.
Periodic Cap: With respect to each adjustable rate Mortgage Loan, the periodic rate
cap that limits the increase or the decrease of the related Mortgage Rate on any Adjustment
Date pursuant to the terms of the related Mortgage Note.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the United States or any
agency or instrumentality thereof when such obligations are backed by the full faith
and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i) maturing not more than
one month from the date of acquisition thereof, provided that the unsecured
obligations of the party agreeing to repurchase such obligations are at the time
rated by each Rating Agency in its highest short-term rating available;
(iii) federal funds, certificates of deposit, demand deposits, time deposits and bankers'
acceptances (which shall each have an original maturity of not more than 90 days and,
in the case of bankers' acceptances, shall in no event have an original maturity of
more than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars of any U.S. depository institution or trust company
incorporated under the laws of the United States or any state thereof or of any
domestic branch of a foreign depository institution or trust company; provided that
the debt obligations of such depository institution or trust company at the date of
acquisition thereof have been rated by each Rating Agency in its highest short-term
rating available; and, provided further that, if the original maturity of such
short-term obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the short-term rating of such institution shall
be A-1+ in the case of Standard & Poor's if Standard & Poor's is a Rating Agency;
(iv) commercial paper and demand notes (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States or any
state thereof which on the date of acquisition has been rated by each Rating Agency
in its highest short-term rating available; provided that such commercial paper and
demand notes shall have a remaining maturity of not more than 30 days;
(v) a money market fund or a qualified investment fund rated by each Rating Agency in its
highest long-term rating available; 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 for purposes of this Agreement, any references herein to the
highest rating available on unsecured commercial paper and short-term debt obligations shall
mean the following: A-1 in the case of Standard & Poor's, P-1 in the case of Moody's and F-1
in the case of Fitch; provided, however, that any Permitted Investment that is a short-term
debt obligation rated A-1 by Standard & Poor's must satisfy the following additional
conditions: (i) the total amount of debt from A-1 issuers must be limited to the investment
of monthly principal and interest payments (assuming fully amortizing collateral); (ii) the
total amount of A-1 investments must not represent more than 20% of the aggregate
outstanding Certificate Principal Balance of the Certificates and each investment must not
mature beyond 30 days; (iii) investments in A-1 rated securities are not eligible for the
Reserve Fund; (iv) the terms of the debt must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary; and (v) if the investments may be liquidated
prior to their maturity or are being relied on to meet a certain yield, interest must be
tied to a single interest rate index plus a single fixed spread (if any) and must move
proportionately with that index.
Permitted Transferee: Any Transferee of a Class R Certificate, other than a
Disqualified Organization or Non-United States Person.
Person: Any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
Pool Stated Principal Balance: As to any date of determination, the aggregate of the
Stated Principal Balances of each Mortgage Loan that was an Outstanding Mortgage Loan on the
Due Date immediately preceding the Due Period preceding such date of determination.
Prepayment Assumption: With respect to the Class A, Class M and Class B 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 fixed-rate Mortgage Loans, and 100%
PPC with respect to the adjustable-rate Mortgage 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 G-1 and Exhibit G-2 with the exception of either code "23" or "96"
under the column "MI CO CODE".
Principal Allocation Amount: With respect to any Distribution Date, the sum of (a)
the Principal Remittance Amount for such Distribution Date on the Mortgage Loans and (b) the
aggregate amount of Realized Losses on the Mortgage 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 Mortgage Loans, in determining the Class A-I
Principal Distribution Amount and Class A-II Principal Distribution Amount, the available
Excess Cash Flow will be allocated to the Class A-I Certificates and Class A-II
Certificates, pro rata, based on the principal portion of Realized Losses on the Group I
Loans and the Group II Loans, respectively.
Principal Distribution Amount: With respect to any Distribution Date, the lesser of
(a) the excess of (x) the Available Distribution Amount over (y) the Interest Distribution
Amount and (b) the sum of:
(i) the principal portion of each Monthly Payment received or Advanced with respect to
the related Due Period on each Outstanding Mortgage Loan that is a Mortgage Loan;
(ii) the Stated Principal Balance of any Mortgage Loan repurchased during the related
Prepayment Period (or deemed to have been so repurchased in accordance with Section
3.07(b)) pursuant to Section 2.02, 2.03, 2.04, 4.07 or 4.08, the amount of any
shortfall deposited in the Custodial Account in connection with the substitution of a
Deleted Mortgage Loan that is a Mortgage Loan pursuant to Section 2.03 or 2.04 during
the related Prepayment Period and the Stated Principal Balance of Mortgage Loans
purchased pursuant to Section 9.01 in connection with such Distribution Date, if
applicable;
(iii) the principal portion of all other unscheduled collections, other than Subsequent
Recoveries, on the Mortgage Loans (including, without limitation, Principal
Prepayments in Full, Curtailments, Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) received during the related Prepayment Period to the extent applied by the
Master Servicer as recoveries of principal of the Mortgage Loans pursuant to Section
3.14;
(iv) the lesser of (a) Excess Cash Flow for that Distribution Date available for
distribution pursuant to Section 4.02(f)(xiv) and (b) the principal portion of any
Realized Losses incurred (or deemed to have been incurred) on any Mortgage Loans in
the calendar month preceding such Distribution Date to the extent covered by Excess
Cash Flow for such Distribution Date;
(v) the lesser of (a) Excess Cash Flow for that Distribution Date available for
distribution pursuant to Section 4.02(f)(xv) and (b) the principal portion of any
Realized Losses allocated to any Class of the Class A, Class M or Class B
Certificates on a prior Distribution Date and remaining unpaid, to the extent covered
by Subsequent Recoveries for that Distribution Date; and
(vi) the amount of any Overcollateralization Increase Amount for such Distribution Date to
the extent covered by Excess Cash Flow;
minus
(vii) the amount of any related Overcollateralization Reduction Amount for such
Distribution Date;
(viii) the amount of any Capitalization Reimbursement Amount for such Distribution Date; and
(viii) any Net Swap Payments or Swap Termination Payment not due to a Swap
Provider Trigger Event due to the Swap Counterparty to the extent not previously paid
from interest or principal colletions on the Mortgage Loans.
Principal Prepayment: Any payment of principal or other recovery on a Mortgage Loan,
including a recovery that takes the form of Liquidation Proceeds or Insurance Proceeds,
which is received in advance of its scheduled Due Date and is not accompanied by an amount
as to interest representing scheduled interest on such payment due on any date or dates in
any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor of the
entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date, the sum of the
amounts described in clauses (i), (ii) and (iii) of the definition of Principal Distribution
Amount for that Distribution Date.
Program Guide: The Residential Funding Seller Guide for mortgage collateral sellers
that participate in Residential Funding's standard mortgage programs, and Residential
Funding's Servicing Guide and any other subservicing arrangements which Residential Funding
has arranged to accommodate the servicing of the Mortgage Loans.
Purchase Price: With respect to any Mortgage Loan (or REO Property) required to be or
otherwise purchased on any date pursuant to Section 2.02, 2.03, 2.04, 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 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: Xxxxx'x, Fitch and Standard & Poor's. If any agency or a successor is
no longer in existence, "Rating Agency" shall be such statistical credit rating agency, or
other comparable Person, designated by the Depositor, notice of which designation shall be
given to the Trustee and the Master Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property) as to which a
Cash Liquidation or REO Disposition has occurred, an amount (not less than zero) equal to
(i) the Stated Principal Balance of the Mortgage Loan (or REO Property) as of the date of
Cash Liquidation or REO Disposition, plus (ii) interest (and REO Imputed Interest, if any)
at the Net Mortgage Rate (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 the Class A Certificates and
Class M 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, Class B and Class SB Certificates.
Regular Interest: Any one of the regular interests in the Trust Fund.
Relief Act: The Servicemembers Civil Relief Act.
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 successor 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,
the Swap Account and the Swap Agreement, each of 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 Mortgage Loans and
the related Mortgage Files; (ii) all payments on and collections in respect of the Mortgage
Loans due after the Cut-off Date (other than Monthly Payments due in June 2005) as shall be
on deposit in the Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund; (iii) property which secured a Mortgage Loan and which has been
acquired for the benefit of the Certificateholders by foreclosure or deed in lieu of
foreclosure; (iv) the hazard insurance policies and Primary Insurance Policy pertaining to
the Mortgage Loans, if any; and (v) all proceeds of clauses (i) through (iv) above.
REMIC Regular Interests: the REMIC I Regular Interests and REMIC II Regular
Interests.
REMIC I Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a "regular interest" in REMIC I.
Each REMIC I Regular Interest shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary Statement hereto.
The designations for the respective REMIC I Regular Interests are set forth in the
Preliminary Statement hereto.
REMIC I Regular Interest A-I: A regular interest in REMIC I that is held as an asset
of REMIC II, that has an initial principal balance equal to the related Uncertificated
Principal Balance, that bears interest at the related Uncertificated REMIC I Pass-Through
Rate, and that has such other terms as are described herein.
REMIC II 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 II Regular Interests then outstanding and (ii) the Uncertificated Pass-Through Rate
for REMIC II Regular Interest I-AA minus the Marker Rate, divided by (b) 12.
REMIC II Overcollateralized Amount: With respect to any date of determination, (i) 1%
of the aggregate Uncertificated Principal Balances of the REMIC II Regular Interests minus
(ii) the aggregate Uncertificated Principal Balances of the REMIC II Regular Interests
(other than REMIC II Regular Interests I-AA and I-ZZ), in each case as of such date of
determination.
REMIC 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 Mortgage
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 II Regular Interests X-X-0, X-X-0,
X-X-0, A-II-1, A-II-2, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-00, X-0 and the
denominator of which is the sum of the Uncertificated Principal Balances of X-X-0, X-X-0,
X-X-0, A-II-1, A-II-2, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-00, X-0 and I-ZZ.
REMIC II Regular Interests: REMIC II Regular Interest I-AA, REMIC II Regular
Interest A-I-1, REMIC II Regular Interest A-I-2, REMIC II Regular Interest A-I-3, REMIC II
Regular Interest A-II-1, REMIC II Regular Interest A-II-2, REMIC II Regular Interest M-1,
REMIC II Regular Interest M-2, REMIC II Regular Interest M-3, REMIC II Regular Interest M-4,
REMIC II Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest M-7,
REMIC II Regular Interest M-8, REMIC II Regular Interest M-9, REMIC II Regular Interest
M-10, REMIC II Regular Interest B-1, REMIC II Regular Interest I-ZZ and REMIC II Regular
Interest IO.
REMIC II Required Overcollateralization Amount: 1% of the Required
Overcollateralization Amount.
REMIC II Regular Interest I-AA: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest A-I-1: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest A-I-2: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest A-I-3: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest A-II-1: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest A-II-2: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-1: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-2: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-3: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-4: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-5: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-6: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-7: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-8: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-9: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest M-10: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest B-1: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest I-ZZ: A regular interest in REMIC II that is held as an
asset of REMIC III, that has an initial principal balance equal to the related
Uncertificated Principal Balance, that bears interest at the related Uncertificated REMIC II
Pass-Through Rate, and that has such other terms as are described herein.
REMIC II Regular Interest IO: A regular interest in REMIC II that is held as an asset
of REMIC III, that is not entitled to distributions of principal, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other terms as are
described herein.
REMIC II Regular Interest I-ZZ Maximum Interest Deferral Amount: With respect to any
Distribution Date, the excess of (i) Uncertificated Accrued Interest calculated with the
REMIC II 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
II Regular Interest I-ZZ over (y) the REMIC II Overcollateralized Amount, in each case for
such Distribution Date, over (ii) the sum of Uncertificated Accrued Interest on REMIC II
Regular Interest A-1 through REMIC II Regular Interest B-3, with the rate on each such REMIC
II Regular Interest subject to a cap equal to the Pass-Through Rate for the Corresponding
Class for the purpose of this calculation.
REMIC III: The segregated pool of assets described in the Preliminary Statement.
REMIC III Certificate: Any Regular Certificate (other than the Class SB
Certificates).
REMIC III Certificateholder: The Holder of any REMIC III Certificate.
REMIC III Regular Interest: Any "regular interest" issued by REMIC III the ownership
of which is evidenced by a Class A Certificate, Class M Certificate or Class B Certificates,
the Class SB Interest or the Class IO Interest.
REMIC IV: The segregated pool of assets consisting of the Class SB Interest conveyed
in trust to the Trustee, for the benefit of the Holders of the Class SB Certificates and the
Class R-IV Certificate, with respect to which a separate REMIC election is to be made.
REMIC IV Certificate: Any Class SB Certificate or Class R-IV Certificate.
REMIC V: The segregated pool of assets consisting of the Class IO Interest conveyed
in trust to the Trustee, for the benefit of the Holders of REMIC V Regular Interest IO and
the Class R-V Certificate, with respect to which a separate REMIC election is to be made.
REMIC V Interests: The REMIC V Regular Interest IO and any Class R-V Certificate.
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.
REO Property: A Mortgaged Property acquired by the Master Servicer, on behalf of the
Trustee for the benefit of the Certificateholders 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 H hereto, or an electronic request in a form acceptable to the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance policy
which is required to be maintained from time to time under this Agreement, the Program Guide
or the related Subservicing Agreement in respect of such Mortgage Loan.
Required Overcollateralization Amount: With respect to any Distribution Date, (a) if
such Distribution Date is prior to the Stepdown Date, 1.40% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, or (b) if such Distribution
Date is on or after the Stepdown Date, the greater of (i) 2.80% of the then current aggregate
Stated Principal Balance of the Mortgage Loans as of the end of the related Due Period and
(ii) the related Overcollateralization Floor; provided, however, that if a Trigger Event is
in effect, the Required Overcollateralization Amount will be an amount equal to the Required
Overcollateralization Amount for the immediately preceding Distribution Date. The Required
Overcollateralization Amount may be reduced with notification to each of the Rating Agencies.
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 Certificates, 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 not in its capacity as Master
Servicer, and any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer of the
Worldwide Securities 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.
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
Certificates and Class B Certificates and (ii) the Overcollateralization Amount, in each
case prior to the distribution of the Principal Distribution Amount on such Distribution
Date, by (y) the aggregate Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date.
Sequential Trigger Event: With respect to any Distribution Date (i) prior to the
Distribution Date in July 2008, if cumulative Realized Losses on the Mortgage Loans for such
Distribution Date as a percentage of the Cut-off Date Balance are greater than 2.75% and
(ii) in or after July 2008, if a Trigger Event is in effect.
Servicing Accounts: The account or accounts created and maintained pursuant to
Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of pocket" costs and
expenses incurred in connection with a default, delinquency or other unanticipated event by
the Master Servicer or a Subservicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) the preservation, restoration and protection
of a Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures, including any expenses incurred in relation to any such proceedings that
result from the Mortgage Loan being registered on the MERS 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.
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 Mortgage Loans that are 60 or more days delinquent in payment of principal and interest
for that Distribution Date, including Mortgage Loans in bankruptcy that are 60 or more days
delinquent, foreclosure and REO Properties, over (y) the aggregate Stated Principal Balance
of all of the Mortgage Loans immediately preceding that Distribution Date.
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 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.
Stepdown Date: The Distribution Date which is the later to occur of (i) the
Distribution Date occurring in July 2008 and (ii) the first Distribution Date on which the
Senior Enhancement Percentage is equal to or greater than 37.10%.
Sub-Group: Each sub-group of the Mortgage Loans referred to as the Group I Loans and
the Group II Loans.
Subordination: The provisions described in Section 4.05 relating to the allocation of
Realized Losses.
Subordination Percentage: With respect to the Class A Certificates, 62.90%; with
respect to the Class M-1 Certificates, 71.40%; with respect to the Class M-2 Certificates,
76.90%; with respect to the Class M-3 Certificates, 80.40%; with respect to the Class M-4
Certificates, 83.90%; with respect to the Class M-5 Certificates, 85.20%; with respect to
the Class M-6 Certificates, 88.00%; with respect to the Class M-7 Certificates, 90.40%; with
respect to the Class M-8 Certificates, 92.40%; with respect to the Class M-9 Certificates,
94.40%; with respect to the Class M-10 Certificates, 96.40%; with respect to the Class B-1
Certificates, 97.20%.
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.
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".
Swap Account: The separate trust account created and maintained by the Trustee.
Swap Agreement: The interest rate swap agreement between the Swap Counterparty and
the Trustee, on behalf of the Trust, which agreement provides for Net Swap Payments and Swap
Termination Payments to be paid, as provided therein, together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit U.
Swap Agreement Notional Balance: As to the Swap Agreement and each Floating Rate
Payer Payment Date (as defined in the Swap Agreement), the amount set forth on Exhibit T
hereto for such Floating Rate Payer Payment Date.
Swap Agreement Upfront Fee: $44,500, to be paid by the Depositor to the Swap
Counterparty for the purchase of the Swap Agreement.
Swap Counterparty: The swap counterparty under the Swap Agreement either (a)
entitled to receive payments from the Trustee from amounts payable by the Trust Fund under
this Agreement or (b) required to make payments to the Trustee for payment to the Trust
Fund, in either case pursuant to the terms of the Swap Agreement, and any successor in
interest or assign. Initially, the Swap Counterparty shall be Bank of America, N.A.
Swap LIBOR: LIBOR as determined pursuant to the Swap Agreement.
Swap Provider Trigger Event: With respect to any Distribution Date, (i) an Event of
Default under the Swap Agreement with respect to which the Swap Counterparty is a Defaulting
Party, (ii) a Termination Event under the Swap Agreement with respect to which the Swap
Counterparty is the sole Affected Party, or (iii) an Additional Termination Event under the
Swap Agreement with respect to which the Swap Counterparty is the sole Affected Party.
Swap Termination Payment: Upon the designation of an "Early Termination Date" as
defined in the Swap Agreement, the payment to be made by the Trustee on behalf of the Trust
to the Swap Counterparty from payments from the Trust Fund, or by the Swap Counterparty to
the Trustee for payment to the Trust Fund, as applicable, pursuant to the terms of the Swap
Agreement.
Tax Returns: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss
Allocation, or any successor forms, to be filed on behalf of REMIC I, REMIC II, REMIC III,
REMIC IV and REMIC V 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.
Trigger Event: A 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 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 43.10% of the Senior
Enhancement Percentage or (B) with respect to the first Distribution Date, the Sixty-Plus
Delinquency Percentage, as determined on that Distribution Date, equals or exceeds 43.10% of
the Senior Enhancement Percentage or (ii) the aggregate amount of Realized Losses on the
Mortgage Loans as a percentage of the Cut-off Date Balance exceeds the applicable amount set
forth below:
July 2008 to June 2009................ 2.75% with respect to July 2008, plus an
additional 1/12th of 1.55% for each month
thereafter.
July 2009 to June 2010................ 4.30% with respect to July 2009, plus an
additional 1/12th of 1.25% for each month
thereafter.
July 2010 to June 2011................ 5.55% with respect to July 2010, plus an
additional 1/12th of 0.70% for each month
thereafter.
July 2011 and thereafter.............. 6.25%.
Trust Fund: Collectively, the assets of REMIC I, REMIC II, REMIC III, REMIC IV and
REMIC V, the Reserve Fund, the Reserve Fund Deposit, the Swap Account and the rights under
the Swap Agreement.
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 Notional Amount: With respect to the Class SB Interest and any
Distribution Date, an amount equal to the aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests for such Distribution Date.
With respect to REMIC II Regular Interest IO and each Distribution Date listed below,
the aggregate Uncertificated Principal Balance of the REMIC I Regular Interests ending with
the designation "A" listed below:
DISTRIBUTION
DATE REMIC I REGULAR INTERESTS
1 I-1-A through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through X-00-X
0 X-0-X xxxxxxx X-00-X
0 X-0-X through I-60-A
10 I-10-A through I-60-A
11 I-11-A through I-60-A
12 I-12-A through I-60-A
13 I-13-A through I-60-A
14 I-14-A through I-60-A
15 I-15-A through I-60-A
16 I-16-A through I-60-A
17 I-17-A through I-60-A
18 I-18-A through I-60-A
19 I-19-A through I-60-A
20 I-20-A through I-60-A
21 I-21-A through I-60-A
22 I-22-A through I-60-A
23 I-23-A through I-60-A
24 I-24-A through I-60-A
25 I-25-A through I-60-A
26 I-26-A through I-60-A
27 I-27-A through I-60-A
28 I-28-A through I-60-A
29 I-29-A through I-60-A
30 I-30-A through I-60-A
31 I-31-A through I-60-A
32 I-32-A through I-60-A
33 I-33-A through I-60-A
34 I-34-A through I-60-A
35 I-35-A through I-60-A
36 I-36-A through I-60-A
37 I-37-A through I-60-A
38 I-38-A through I-60-A
39 I-39-A through I-60-A
40 I-40-A through I-60-A
41 I-41-A through I-60-A
42 I-42-A through I-60-A
43 I-43-A through I-60-A
44 I-44-A through I-60-A
45 I-45-A through I-60-A
46 I-46-A through I-60-A
47 I-47-A through I-60-A
48 I-48-A through I-60-A
49 I-49-A through I-60-A
50 I-50-A through I-60-A
51 I-51-A through I-60-A
52 I-52-A through I-60-A
53 I-53-A through I-60-A
54 I-54-A through I-60-A
55 I-55-A through I-60-A
56 I-56-A through I-60-A
57 I-57-A through I-60-A
58 I-58-A through I-60-A
59 I-59-A through I-60-A
60 I-60-A
thereafter $0.00
----------------------------------------------------------------------------------------------
With respect to the Class IO Interest and any Distribution Date, an amount equal to
the Uncertificated Notional Amount of the REMIC II Regular Interest IO. With respect to
REMIC V Regular Interest IO, an amount equal to the Uncertificated Notional Amount of the
Class IO Interest.
Uncertificated Pass-Through Rate: the Uncertificated REMIC I Pass-Through Rate and
Uncertificated REMIC II Pass-Through Rate.
Uncertificated Principal Balance: The amount of REMIC Regular Interests outstanding
as of any date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC Regular Interest shall equal the amount set forth in the Preliminary
Statement hereto as its initial Uncertificated Principal Balance. On each Distribution Date,
the Uncertificated Principal Balance of the REMIC Regular Interests shall be reduced by all
distributions of principal made on such REMIC Regular Interests on such Distribution Date
pursuant to Section 4.02 and, if and to the extent necessary and appropriate, shall be
further reduced on such Distribution Date by Realized Losses as provided in Section 4.05,
and the Uncertificated Principal Balance of REMIC II Regular Interest I-ZZ shall be
increased by the related interest deferrals as provided in Section 4.02. The Uncertificated
Principal Balance of each REMIC Regular Interest shall never be less than zero. With
respect to the Class SB Interest as of any date of determination, an amount equal to the
excess, if any, of (A) the then aggregate Uncertificated Principal Balances of the REMIC II
Regular Interests over (B) the then aggregate Certificate Principal Balances of the Class A
Certificates, the Class M Certificates and the Class B Certificates then outstanding.
Uncertificated REMIC I Pass-Through Rate: With respect to each REMIC I Regular
Interest ending with the designation "A", a per annum rate equal to the weighted average Net
Mortgage Rate of the Mortgage Loans multiplied by 2, subject to a maximum rate of 7.76%.
With respect to each REMIC I Regular Interest ending with the designation "B", the greater
of (x) a per annum rate equal to the excess, if any, of (i) 2 multiplied by the weighted
average Net Mortgage Rate of the Mortgage Loans over (ii) 7.76% and (y) 0.00000%. With
respect to REMIC I Regular Interest A-I, the weighted average Net Mortgage Rate of the
Mortgage Loans.
Uncertificated REMIC II Pass-Through Rate: With respect to REMIC II Regular Interest
I-AA, REMIC II Regular Interest A-I-1, REMIC II Regular Interest A-I-2, REMIC II Regular
Interest A-I-3, REMIC II Regular Interest A-II-1, REMIC II Regular Interest A-II-2, REMIC II
Regular Interest M-1, REMIC II Regular Interest M-2, REMIC II Regular Interest M-3, REMIC II
Regular Interest M-4, REMIC II Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II
Regular Interest M-7, REMIC II Regular Interest M-8, REMIC II Regular Interest M-9, REMIC II
Regular Interest M-10, REMIC II Regular Interest B-1 and REMIC II Regular Interest I-ZZ, a
per annum rate (but not less than zero) equal to the weighted average of (x) with respect to
REMIC I Regular Interests ending with the designation "B", the weighted average of the
Uncertificated REMIC I Pass-Through Rates for such REMIC I Regular Interests, weighted on
the basis of the Uncertificated Principal Balance of such REMIC I Regular Interests for each
such Distribution Date, (y) with respect to REMIC I Regular Interest A-I, the weighted
average of the Uncertificated REMIC I Pass-Through Rate for such REMIC I Regular Interest,
weighted on the basis of the Uncertificated Principal Balance of such REMIC I Regular
Interest for each such Distribution Date and (z) with respect to REMIC I Regular Interests
ending with the designation "A", for each Distribution Date listed below, the weighted
average of the rates listed below for each such REMIC I Regular Interest listed below,
weighted on the basis of the Uncertificated Principal Balance of each such REMIC I Regular
Interest for each such Distribution Date:
DISTRIBUTION
DATE REMIC I REGULAR INTEREST RATE
1 I-1-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
2 I-2-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A Uncertificated REMIC I Pass-Through Rate
3 I-3-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A and I-2-A Uncertificated REMIC I Pass-Through Rate
4 I-4-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-3-A Uncertificated REMIC I Pass-Through Rate
5 I-5-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-4-A Uncertificated REMIC I Pass-Through Rate
6 I-6-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-5-A Uncertificated REMIC I Pass-Through Rate
7 I-7-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-6-A Uncertificated REMIC I Pass-Through Rate
8 I-8-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-7-A Uncertificated REMIC I Pass-Through Rate
9 I-9-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-8-A Uncertificated REMIC I Pass-Through Rate
10 I-10-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-9-A Uncertificated REMIC I Pass-Through Rate
11 I-11-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-10-A Uncertificated REMIC I Pass-Through Rate
12 I-12-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-11-A Uncertificated REMIC I Pass-Through Rate
13 I-13-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-12-A Uncertificated REMIC I Pass-Through Rate
14 I-14-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-13-A Uncertificated REMIC I Pass-Through Rate
15 I-15-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-14-A Uncertificated REMIC I Pass-Through Rate
16 I-16-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-15-A Uncertificated REMIC I Pass-Through Rate
17 I-17-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-16-A Uncertificated REMIC I Pass-Through Rate
18 I-18-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-17-A Uncertificated REMIC I Pass-Through Rate
19 I-19-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-18-A Uncertificated REMIC I Pass-Through Rate
20 I-20-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-19-A Uncertificated REMIC I Pass-Through Rate
21 I-21-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-20-A Uncertificated REMIC I Pass-Through Rate
22 I-22-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-21-A Uncertificated REMIC I Pass-Through Rate
23 I-23-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-22-A Uncertificated REMIC I Pass-Through Rate
24 I-24-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-23-A Uncertificated REMIC I Pass-Through Rate
25 I-25-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-24-A Uncertificated REMIC I Pass-Through Rate
26 I-26-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-25-A Uncertificated REMIC I Pass-Through Rate
27 I-27-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-26-A Uncertificated REMIC I Pass-Through Rate
28 I-28-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-27-A Uncertificated REMIC I Pass-Through Rate
29 I-29-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-28-A Uncertificated REMIC I Pass-Through Rate
30 I-30-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-29-A Uncertificated REMIC I Pass-Through Rate
31 I-31-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-30-A Uncertificated REMIC I Pass-Through Rate
32 I-32-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-31-A Uncertificated REMIC I Pass-Through Rate
33 I-33-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-32-A Uncertificated REMIC I Pass-Through Rate
34 I-34-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-33-A Uncertificated REMIC I Pass-Through Rate
35 I-35-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-34-A Uncertificated REMIC I Pass-Through Rate
36 I-36-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-35-A Uncertificated REMIC I Pass-Through Rate
37 I-37-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-36-A Uncertificated REMIC I Pass-Through Rate
38 I-38-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-37-A Uncertificated REMIC I Pass-Through Rate
39 I-39-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-38-A Uncertificated REMIC I Pass-Through Rate
40 I-40-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-39-A Uncertificated REMIC I Pass-Through Rate
41 I-41-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-40-A Uncertificated REMIC I Pass-Through Rate
42 I-42-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-41-A Uncertificated REMIC I Pass-Through Rate
43 I-43-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-42-A Uncertificated REMIC I Pass-Through Rate
44 I-44-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-43-A Uncertificated REMIC I Pass-Through Rate
45 I-45-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-44-A Uncertificated REMIC I Pass-Through Rate
46 I-46-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-45-A Uncertificated REMIC I Pass-Through Rate
47 I-47-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-46-A Uncertificated REMIC I Pass-Through Rate
48 I-48-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-47-A Uncertificated REMIC I Pass-Through Rate
49 I-49-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-48-A Uncertificated REMIC I Pass-Through Rate
50 I-50-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-49-A Uncertificated REMIC I Pass-Through Rate
51 I-51-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-50-A Uncertificated REMIC I Pass-Through Rate
52 I-52-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-51-A Uncertificated REMIC I Pass-Through Rate
53 I-53-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-52-A Uncertificated REMIC I Pass-Through Rate
54 I-54-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-53-A Uncertificated REMIC I Pass-Through Rate
55 I-55-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-54-A Uncertificated REMIC I Pass-Through Rate
56 I-56-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-55-A Uncertificated REMIC I Pass-Through Rate
57 I-57-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-56-A Uncertificated REMIC I Pass-Through Rate
58 I-58-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-57-A Uncertificated REMIC I Pass-Through Rate
59 I-59-A through I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-58-A Uncertificated REMIC I Pass-Through Rate
60 I-60-A 2 multiplied by Swap LIBOR, subject to a maximum
rate of Uncertificated REMIC I Pass-Through Rate
I-1-A through I-59-A Uncertificated REMIC I Pass-Through Rate
Thereafter I-1-A through I-60-A Uncertificated REMIC I Pass-Through Rate
----------------------------------------------------------------------------------------------
With respect to REMIC II Regular interest IO, the excess of (i) the weighted average
of the Uncertificated REMIC I Pass-Through Rates for REMIC I Regular Interests ending with
the designation "A", over (ii) 2 multiplied by Swap LIBOR.
Uninsured Cause: Any cause of damage to property subject to a Mortgage such that the
complete restoration of such property is not fully reimbursable by the hazard insurance
policies.
United States Person: A citizen or resident of the United States, a corporation,
partnership or other entity (treated as a corporation or partnership for United States
federal income tax purposes) created or organized in, or under the laws of, the United
States, any state thereof, or the District of Columbia (except in the case of a partnership,
to the extent provided in Treasury regulations) provided that, for purposes solely of the
restrictions on the transfer of Class R Certificates, no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated as a United
States Person unless all persons that own an interest in such partnership either directly or
through any entity that is not a corporation for United States federal income tax purposes
are required by the applicable operative agreement to be United States Persons, or an estate
that is described in Section 7701(a)(30)(D) of the Code, or a trust that is described in
Section 7701(a)(30)(E) of the Code.
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. 98.00% of all of the Voting Rights shall be allocated among
Holders of the Class A, Class M and Class B Certificates, in proportion to the outstanding
Certificate Principal Balances of their respective Certificates; 1% of all of the Voting
Rights shall be allocated among the Holders of the Class SB Certificates; 0.20%, 0.20%,
0.20%, 0.20% and 0.20% of all of the Voting Rights shall be allocated among the Holders of
the Class R-I, Class R-II, Class R-III, Class R-IV and Class R-V 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, Class M
and Class B 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, Class M and Class B 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, Class M
and Class B 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, Class M and Class B 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, Class M and Class B Certificates for the current and the
immediately preceding Interest Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof, does hereby
assign to the Trustee 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 June 2005); (ii) the Swap Agreement
Upfront Fee; (iii) the Reserve Fund Deposit; and (iv) all proceeds of the foregoing. In
addition, on the Closing Date, the Trustee is hereby directed to enter into the Swap
Agreement on behalf of the Trust Fund with the Swap Counterparty.
The Depositor, the Master Servicer and the Trustee agree that it is not
intended that any mortgage loan be included in the Trust that is either (i) a "High-Cost
Home Loan" as defined in the New Jersey Home Ownership Security Act effective November 27,
2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004 or (iv) a
"High-Cost Home Loan" as defined in the Indiana Home Loan Practices Act effective as of
January 1, 2005.
(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;
(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 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 and the Swap Agreement Upfront Fee for the benefit of the
Certificateholders. It is intended that the conveyance by the Depositor to the Trustee of
the Swap Agreement Upfront Fee be construed as partial consideration for the Class A, Class
M and Class B Certificates. 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 or the Swap
Agreement 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) (i) the
Mortgage Loans, including (a) the related Mortgage Note and Mortgage, and (b) any insurance
policies and all other documents in the related Mortgage File and (ii) the Swap Agreement
Upfront Fee, (B) all amounts payable pursuant to the Mortgage Loans or the Swap Agreement 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 they 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 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
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;
(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 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 G-1 and Exhibit G-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.
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 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, REMIC IV or REMIC V 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 REMIC Regular
Interests.
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
of the Mortgage Files to it, or any Custodian on its behalf, subject to any exceptions
noted, together with the assignment to it of all other assets included in the Trust Fund,
receipt of which is hereby acknowledged. Concurrently with such delivery and in exchange
therefor, the Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed and caused to be authenticated and delivered to or
upon the order of the Depositor the Certificates in authorized denominations which evidence
ownership of the entire Trust Fund.
(b) The Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without recourse all
the right, title and interest of the Depositor in and to the REMIC I Regular Interests, and
the other assets of REMIC II for the benefit of the holders of the REMIC II Regular
Interests and the Class R-II Certificates. The Trustee acknowledges receipt of the REMIC I
Regular Interests (which are uncertificated) and the other assets of REMIC II and declares
that it holds and will hold the same in trust for the exclusive use and benefit of the
holders of the REMIC II Regular Interests and the Class R-II Certificates.
(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 II Regular Interests, and
the other assets of REMIC III 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 II
Regular Interests (which are uncertificated) and the other assets of REMIC III 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.
(d) 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 Class SB Interest for the
benefit of the holders of the REMIC IV Certificates. The Trustee acknowledges receipt of the
Class SB 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 IV Certificates.
(e) 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 Class IO Interest for the
benefit of the holders of the REMIC V Interests. The Trustee acknowledges receipt of the
Class IO 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 V Interests.
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 from the Trust Fund. 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, REMIC IV or REMIC V to fail to qualify as a REMIC
under the Code. The Trustee shall furnish the Master Servicer with any powers of attorney
and other documents necessary or appropriate to enable the Master Servicer to service and
administer the Mortgage Loans. The Trustee shall not be liable for any action taken by the
Master Servicer or any Subservicer pursuant to such powers of attorney. 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 Mae 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 context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans include actions
taken or to be taken by a Subservicer on behalf of the Master Servicer. Each Subservicing
Agreement will be upon such terms and conditions as are generally required by, permitted by
or consistent with the Program Guide and are not inconsistent with this Agreement and as the
Master Servicer and the Subservicer have agreed. With the approval of the Master Servicer, a
Subservicer may delegate its servicing obligations to third-party servicers, but such
Subservicer will remain obligated under the related Subservicing Agreement. The Master
Servicer and a Subservicer may enter into amendments thereto or a different form of
Subservicing Agreement, and the form referred to or included in the Program Guide is merely
provided for information and shall not be deemed to limit in any respect the discretion of
the Master Servicer to modify or enter into different Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with and not
violate the provisions of either this Agreement or the Program Guide in a manner which would
materially and adversely affect the interests of the Certificateholders. The Program Guide
and any other Subservicing Agreement entered into between the Master Servicer and any
Subservicer shall require the Subservicer to accurately and fully report its borrower credit
files to each of the Credit Repositories in a timely manner.
(b) As part of its servicing activities hereunder, the Master Servicer, for the benefit
of the Trustee and the Certificateholders, shall use its best reasonable efforts to enforce
the obligations of each Subservicer under the related Subservicing Agreement, 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.
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.
(a) The Master Servicer shall make reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions of any
related Primary Insurance Policy, follow such collection procedures as it would employ in
its good faith business judgment and which are normal and usual in its general mortgage
servicing activities. Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the Due Date for payments
due on a Mortgage Loan in accordance with the Program Guide, provided, however, that the
Master Servicer shall first determine that any such waiver or extension will not impair the
coverage of any related Primary Insurance Policy or materially adversely affect the lien of
the related Mortgage. Notwithstanding anything in this Section to the contrary, the Master
Servicer or any Subservicer shall not enforce any prepayment charge to the extent that such
enforcement would violate any applicable law. In the event of any such arrangement, the
Master Servicer shall make timely advances on the related Mortgage Loan during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements unless otherwise agreed to by the
Holders of the Classes of Certificates affected thereby; provided, however, that no such
extension shall be made if any advance would be a Nonrecoverable Advance. Consistent with
the terms of this Agreement, the Master Servicer may also waive, modify or vary any term of
any Mortgage Loan or consent to the postponement of strict compliance with any such term or
in any manner grant indulgence to any Mortgagor if in the Master Servicer's determination
such waiver, modification, postponement or indulgence is not materially adverse to the
interests of the Certificateholders (taking into account any estimated Realized Loss that
might result absent such action), provided, however, that the Master Servicer may not modify
materially or permit any Subservicer to modify any Mortgage Loan, including without
limitation any modification that would change the Mortgage Rate, forgive the payment of any
principal or interest (unless in connection with the liquidation of the related Mortgage
Loan or except in connection with prepayments to the extent that such reamortization is not
inconsistent with the terms of the Mortgage Loan), capitalize any amounts owing on the
Mortgage Loan by adding such amount to the outstanding principal balance of the Mortgage
Loan, or extend the final maturity date of such Mortgage Loan, unless such Mortgage Loan is
in default or, in the judgment of the Master Servicer, such default is reasonably
foreseeable. 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 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, 4.08 or 9.01 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 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 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 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.
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, 4.08 or 9.01) 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);
(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).
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 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.
(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, REMIC IV
or REMIC V 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 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, REMIC IV or REMIC V 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, REMIC IV or REMIC V 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 N, 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 sale (a payoff of the Mortgage Loan for an amount less than
the total amount contractually owed in order to facilitate a sale of the Mortgaged Property
by the Mortgagor) or permitting a short refinancing (a payoff of the Mortgage Loan for an
amount less than the total amount contractually owed in order to facilitate refinancing
transactions by the Mortgagor not involving a sale of the Mortgaged Property), (ii)
arranging for a repayment plan or (iii) agreeing to a modification in accordance with
Section 3.07. In connection with such foreclosure or other conversion or action, the Master
Servicer shall, consistent with Section 3.11, follow such practices and procedures as it
shall deem necessary or advisable, as shall be normal and usual in its general mortgage
servicing activities and as shall be required or permitted by the Program Guide; provided
that the Master Servicer shall not be liable in any respect hereunder if the Master Servicer
is acting in connection with any such foreclosure or other conversion or action in a manner
that is consistent with the provisions of this Agreement. The Master Servicer, however,
shall not be required to expend its own funds or incur other reimbursable charges in
connection with any foreclosure, or attempted foreclosure which is not completed, or towards
the correction of any default on a related senior mortgage loan, or towards the restoration
of any property unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Holders of Certificates of one
or more Classes after reimbursement to itself for such expenses or charges and (ii) that
such expenses and charges will be recoverable to it through Liquidation Proceeds, Insurance
Proceeds, or REO Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Custodial Account pursuant to Section 3.10, whether or not such
expenses and charges are actually recoverable from related Liquidation Proceeds, Insurance
Proceeds or REO Proceeds). In the event of such a determination by the Master Servicer
pursuant to this Section 3.14(a), the Master Servicer shall be entitled to reimbursement of
its funds so expended pursuant to Section 3.10. In addition, the Master Servicer may pursue
any remedies that may be available in connection with a breach of a representation and
warranty with respect to any such Mortgage Loan in accordance with Sections 2.03 and 2.04.
However, the Master Servicer is not required to continue to pursue both foreclosure (or
similar remedies) with respect to the Mortgage Loans and remedies in connection with a
breach of a representation and warranty if the Master Servicer determines in its reasonable
discretion that one such remedy is more likely to result in a greater recovery as to the
Mortgage Loan. Upon the occurrence of a Cash Liquidation or REO Disposition, following the
deposit in the Custodial Account of all Insurance Proceeds, Liquidation Proceeds and other
payments and recoveries referred to in the definition of "Cash Liquidation" or "REO
Disposition," as applicable, upon receipt by the Trustee of written notification of such
deposit signed by a Servicing Officer, the Trustee or any Custodian, as the case may be,
shall release to the Master Servicer the related Mortgage File and the Trustee shall execute
and deliver such instruments of transfer or assignment prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Master Servicer or its
designee, as the case may be, the related Mortgage Loan, and thereafter such Mortgage Loan
shall not be part of the Trust Fund. Notwithstanding the foregoing or any other provision of
this Agreement, in the Master Servicer's sole discretion with respect to any defaulted
Mortgage Loan or REO Property as to either of the following provisions, (i) a Cash
Liquidation or REO Disposition may be deemed to have occurred if substantially all amounts
expected by the Master Servicer to be received in connection with the related defaulted
Mortgage Loan or REO Property have been received, and (ii) for purposes of determining the
amount of any Liquidation Proceeds, Insurance Proceeds, REO Proceeds or other unscheduled
collections or the amount of any Realized Loss, the Master Servicer may take into account
minimal amounts of additional receipts expected to be received or any estimated additional
liquidation expenses expected to be incurred in connection with the related defaulted
Mortgage Loan or REO Property.
(b) In the event that title to any Mortgaged Property is acquired by the Trust Fund as an
REO Property by foreclosure or by deed in lieu of foreclosure, the deed or certificate of
sale shall be issued to the Trustee or to its nominee on behalf of Certificateholders.
Notwithstanding any such acquisition of title and cancellation of the related Mortgage Loan,
such REO Property shall (except as otherwise expressly provided herein) be considered to be
an Outstanding Mortgage Loan held in the Trust Fund until such time as the REO Property
shall be sold. Consistent with the foregoing for purposes of all calculations hereunder so
long as such REO Property shall be considered to be an Outstanding Mortgage Loan it shall be
assumed that, notwithstanding that the indebtedness evidenced by the related Mortgage Note
shall have been discharged, such Mortgage Note and the related amortization schedule in
effect at the time of any such acquisition of title (after giving effect to any previous
Curtailments and before any adjustment thereto by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period) remain in effect.
(c) In the event that the Trust Fund acquires any REO Property as aforesaid or otherwise
in connection with a default or imminent default on a Mortgage Loan, the Master Servicer on
behalf of the Trust Fund shall dispose of such REO Property 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, REMIC IV or REMIC V 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, REMIC IV or REMIC V 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, REMIC IV or REMIC V to the imposition of any federal income taxes on the
income earned from such REO Property, including any taxes imposed by reason of Section
860G(c) of the Code, unless the Master Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such taxes.
(d) The proceeds of any Cash Liquidation, REO Disposition or purchase or repurchase of
any Mortgage Loan pursuant to the terms of this Agreement, as well as any recovery (other
than Subsequent Recoveries) resulting from a collection of Liquidation Proceeds, Insurance
Proceeds or REO Proceeds, will be applied in the following order of priority: first, to
reimburse the Master Servicer or the related Subservicer in accordance with Section
3.10(a)(ii); second, to the Certificateholders to the extent of accrued and unpaid interest
on the Mortgage Loan, and any related REO Imputed Interest, at the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), to the Due Date in the
related Due Period prior to the Distribution Date on which such amounts are to be
distributed; third, to the Certificateholders as a recovery of principal on the Mortgage
Loan (or REO Property) (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 H 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 H
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 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; Eligible Master Servicing Compensation.
(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.
(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
Eligible Master Servicing Compensation (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).
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 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 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.
Section 3.21. Advance Facility.
(a) The Master Servicer is hereby authorized to enter into a financing or other facility
(any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells,
assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights
under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an
Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to
be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the
Trustee, the Certificateholders or any other party shall be required before the Master
Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance
Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances
on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to
this Agreement to make Advances and Servicing Advances pursuant to and as required by this
Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an
Advancing Person remains entitled to receive reimbursement for any Advances including
Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances
including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together
with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent
such type of Reimbursement Amount is included in the Advance Facility), as applicable,
pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement
Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii)
and remit such Reimbursement Amounts in accordance with Section 3.21 or otherwise in
accordance with the documentation establishing the Advance Facility to such Advancing Person
or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such
Advancing Person in an Advance Facility Notice described below in Section 3.21(b).
Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility,
the Master Servicer may direct, and if so directed in writing the Trustee is hereby
authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts
identified pursuant to the preceding sentence. An Advancing Person whose obligations
hereunder are limited to the funding of Advances and/or Servicing Advances shall not be
required to meet the qualifications of a Master Servicer or a Subservicer pursuant to
Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this
Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance
Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the
Available Distribution Amount or distributed to Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes the election set
forth in Section 3.21(a), the Master Servicer and the related Advancing Person shall deliver
to the Trustee a written notice and payment instruction (an "Advance Facility Notice"),
providing the Trustee with written payment instructions as to where to remit Advance
Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent
such type of Reimbursement Amount is included within the Advance Facility) on subsequent
Distribution Dates. The payment instruction shall require the applicable Reimbursement
Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee
designated in the Advance Facility Notice. An Advance Facility Notice may only be
terminated by the joint written direction of the Master Servicer and the related Advancing
Person (and any related Advance Facility Trustee).
(c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or
Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer
would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii)
hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s)
and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to
reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement,
no Person shall be entitled to reimbursement from funds held in the Collection Account for
future distribution to Certificateholders pursuant to this Agreement. Neither the Depositor
nor the Trustee shall have any duty or liability with respect to the calculation of any
Reimbursement Amount, nor shall the Depositor or the Trustee have any responsibility to
track or monitor the administration of the Advance Facility and the Depositor shall not have
any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the
related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and
provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to
amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person.
The Successor Master Servicer shall be entitled to rely on any such information provided by
the Master Servicer and the Successor Master Servicer shall not be liable for any errors in
such information.
(d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees
to execute such acknowledgments, certificates, and other documents provided by the Master
Servicer and reasonably satisfactory to the Trustee recognizing the interests of any
Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master
Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.21,
and such other documents in connection with such Advance Facility as may be reasonably
requested from time to time by any Advancing Person or Advance Facility Trustee and
reasonably satisfactory to the Trustee.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated
to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with
respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the
qualifications set forth below:
(i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer")
and the Advancing Person or Advance Facility Trustee shall be required to apply all
amounts available in accordance with this Section 3.21(e) to the reimbursement of
Advances and Servicing Advances in the manner provided for herein; provided, however,
that after the succession of a Successor Master Servicer, (A) to the extent that any
Advances or Servicing Advances with respect to any particular Mortgage Loan are
reimbursed from payments or recoveries, if any, from the related Mortgagor, and
Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage
Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility
Trustee in respect of Advances and/or Servicing Advances related to that Mortgage
Loan to the extent of the interest of the Advancing Person or Advance Facility
Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in
respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess
of those in which the Advancing Person or Advance Facility Trustee Person has an
interest, and third, to the Successor Master Servicer in respect of any other
Advances and/or Servicing Advances related to that Mortgage Loan, from such sources
as and when collected, and (B) reimbursements of Advances and Servicing Advances that
are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance
Facility Trustee, on the one hand, and any such Successor Master Servicer, on the
other hand, on the basis of the respective aggregate outstanding unreimbursed
Advances and Servicing Advances that are Nonrecoverable Advances owed to the
Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this
Agreement, on the one hand, and any such Successor Master Servicer, on the other
hand, and without regard to the date on which any such Advances or Servicing Advances
shall have been made. In the event that, as a result of the FIFO allocation made
pursuant to this Section 3.21(e), some or all of a Reimbursement Amount paid to the
Advancing Person or Advance Facility Trustee relates to Advances or Servicing
Advances that were made by a Person other than Residential Funding or the Advancing
Person or Advance Facility Trustee, then the Advancing Person or Advance Facility
Trustee shall be required to remit any portion of such Reimbursement Amount to the
Person entitled to such portion of such Reimbursement Amount. Without limiting the
generality of the foregoing, Residential Funding shall remain entitled to be
reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and
Servicing Advances funded by Residential Funding to the extent the related
Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or
Advance Facility Trustee. The documentation establishing any Advance Facility shall
require Residential Funding to provide to the related Advancing Person or Advance
Facility Trustee loan by loan information with respect to each Reimbursement Amount
distributed to such Advancing Person or Advance Facility Trustee on each date of
remittance thereof to such Advancing Person or Advance Facility Trustee, to enable
the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each
Reimbursement Amount with respect to each Mortgage Loan.
(ii) By way of illustration, and not by way of limiting the generality of the foregoing,
if the Master Servicer resigns or is terminated at a time when the Master Servicer is
a party to an Advance Facility, and is replaced by a Successor Master Servicer, and
the Successor Master Servicer directly funds Advances or Servicing Advances with
respect to a Mortgage Loan and does not assign or pledge the related Reimbursement
Amounts to the related Advancing Person or Advance Facility Trustee, then all
payments and recoveries received from the related Mortgagor or received in the form
of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance
Proceeds collected in connection with a liquidation of such Mortgage Loan) will be
allocated first to the Advancing Person or Advance Facility Trustee until the related
Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master
Servicer and the Advancing Person, which were made prior to any Advances or Servicing
Advances made by the Successor Master Servicer, have been reimbursed in full, at
which point the Successor Master Servicer shall be entitled to retain all related
Reimbursement Amounts subsequently collected with respect to that Mortgage Loan
pursuant to Section 3.10 of this Agreement. To the extent that the Advances or
Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis
pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner
will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one
hand, and the Successor Master Servicer, on the other hand, as described in clause
(i)(B) above.
(f) The Master Servicer shall remain entitled to be reimbursed for all Advances and
Servicing Advances funded by the Master Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing Person.
(g) Any amendment to this Section 3.21 or to any other provision of this Agreement that
may be necessary or appropriate to effect the terms of an Advance Facility as described
generally in this Section 3.21, including amendments to add provisions relating to a
successor master servicer, may be entered into by the Trustee, the Depositor and the Master
Servicer without the consent of any Certificateholder, with written confirmation from each
Rating Agency that the amendment will not result in the reduction of the ratings on any
class of the Certificates below the lesser of the then current or original ratings on such
Certificates, and an opinion of counsel as required in 11.01(c) notwithstanding anything to
the contrary in Section 11.01 of or elsewhere in this Agreement.
(h) Any rights of set-off that the Trust Fund, the Trustee, the Depositor, any Successor
Master Servicer or any other Person might otherwise have against the Master Servicer under
this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing
Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing
Person.
(i) At any time when an Advancing Person shall have ceased funding Advances and/or
Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility
Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse
all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for
which were assigned to the Advancing Person, then upon the delivery of a written notice
signed by the Advancing Person and the Master Servicer or its successor or assign) to the
Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the
Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and
retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10.
(j) After delivery of any Advance Facility Notice, and until any such Advance Facility
Notice has been terminated by a Notice of Facility Termination, this Section 3.21 may not be
amended or otherwise modified without the prior written consent of the related Advancing
Person.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account.
(a) The Master Servicer acting as agent of the Trustee shall establish and maintain a
Certificate Account in which the Master Servicer shall 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 prepayment charges on the Mortgage Loans received during the related
Prepayment Period and (vi) all other amounts constituting the Available Distribution Amount
for the immediately succeeding Distribution Date.
(b) On or prior to the Business Day immediately following each Determination Date, the
Master Servicer shall determine any amounts owed by the Swap Counterparty under the Swap
Agreement and inform the Trustee in writing of the amount so calculated.
(c) The Trustee shall, upon written request from the Master Servicer, invest or cause the
institution maintaining the Certificate Account to invest the funds in the Certificate
Account in Permitted Investments designated in the name of the Trustee for the benefit of
the Certificateholders, which shall mature not later than the Business Day next preceding
the Distribution Date next following the date of such investment (except that (i) if such
Permitted Investment is an obligation of the institution that maintains such account or a
fund for which such institution serves as custodian, then such Permitted Investment may
mature on such Distribution Date and (ii) any other investment may mature on such
Distribution Date if the Trustee shall advance funds on such Distribution Date to the
Certificate Account in the amount payable on such investment on such Distribution Date,
pending receipt thereof to the extent necessary to make distributions on the Certificates)
and shall not be sold or disposed of prior to maturity. All income and gain realized from
any such investment shall be for the benefit of the Master Servicer and shall be subject to
its withdrawal or order from time to time. The amount of any losses incurred in respect of
any such investments shall be deposited in the Certificate Account by the Master Servicer
out of its own funds immediately as realized.
Section 4.02. Distributions.
(a) The REMIC Administrator shall elect that each of REMIC I, REMIC II, REMIC III, REMIC
IV and REMIC V shall be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of this Agreement
shall be resolved in a manner that preserves the validity of such REMIC elections. The
assets of REMIC I shall include the Mortgage Loans and all interest owing in respect of and
principal due thereon, the Certificate Account, any REO Property, any proceeds of the
foregoing and any other assets subject to this Agreement (other than the Reserve Fund, the
Swap Agreement and the Swap Account). The REMIC I Regular Interests shall constitute the
assets of REMIC II. The REMIC II Regular Interests shall constitute the assets of REMIC
III. The Class SB Interest shall constitute the assets of REMIC IV. The Class IO Interest
shall constitute the assets of REMIC V.
(b) On each Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC I to REMIC II on account of REMIC I Regular Interests A-I and
REMIC I Regular Interests I-1-A through I-60-B or withdrawn from the Certificate Account and
distributed to the holders of the Class R-I Certificates, as the case may be:
(i) to Holders of each REMIC I Regular Interest A-I and REMIC I Regular Interest I-1-A
through I-60-B, pro rata, in an amount equal to (A) Uncertificated
Accrued Interest for such REMIC I Regular Interests for such
Distribution Date, plus (B) any amounts payable in respect thereof
remaining unpaid from previous Distribution Dates.
(ii) to the extent of amounts remaining after the distributions made pursuant to clause
(i) above, payments of principal shall be allocated as follows: first,
to REMIC I Regular Interests I-1-A through I-60-B starting with the
lowest numerical denomination until the Uncertificated Principal
Balance of each such REMIC I Regular Interest is reduced to zero,
provided that, for REMIC I Regular Interests with the same numerical
denomination, such payments of principal shall be allocated pro rata
between such REMIC I Regular Interests and second, to the extent of any
Overcollateralization Reduction Amount to REMIC 1 Regular Interest A-I
until the Uncertificated Principal Balance of such REMIC 1 Regular
Interest is reduced to zero.
(c) On each Distribution Date, the following amounts, in the following order of
priority, shall be distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests:
(i) to the Holders of REMIC II Regular Interest IO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC II Regular Interest for
such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates.
(ii) to the extent of the Available Distribution Amount, reduced by distributions made
pursuant to clause (i) above, to the Holders of each REMIC II Regular
Interest (other than REMIC II Regular Interest IO), pro rata, in an
amount equal to (A) Uncertificated Accrued Interest for such REMIC II
Regular Interests 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
II Regular Interest I-ZZ shall be reduced when the the REMIC II
Overcollateralized Amount is less than the REMIC II Required
Overcollateralization Amount, by the lesser of (x) the amount of such
difference and (y) the REMIC II Regular Interest I-ZZ Maximum
Uncertificated Accrued Interest Deferral Amount, and such amount will
be payable to the Holders of REMIC II Regular Interest A-I-1, REMIC II
Regular Interest A-I-2, REMIC II Regular Interest A-I-3, REMIC II
Regular Interest A-II-1, REMIC II Regular Interest A-II-2, REMIC II
Regular Interest M-1, REMIC II Regular Interest M-2, REMIC II Regular
Interest M-3, REMIC II Regular Interest M-4, REMIC II Regular Interest
M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest M-7,
REMIC II Regular Interest M-8, REMIC II Regular Interest M-9, REMIC II
Regular Interest M-10 and REMIC II Regular Interest B-1, in the same
proportion as the Overcollateralization Increase Amount is allocated to
the Corresponding Class, and the Uncertificated Principal Balance of
REMIC II Regular Interest I-ZZ shall be increased by such amount; and
(iii) on each Distribution Date, to the Holders of REMIC II Regular
Interests in an amount equal to the remainder of the Available
Distribution Amount after the distributions made pursuant to clause (i)
and (ii) above, allocated as follows (except as provided below): (A)
98.00% of such remainder to the Holders of the REMIC II Regular
Interest I-AA, until the Uncertificated Principal Balance of each such
REMIC II Regular Interest is reduced to zero; (B) 2.00% of such
remainder, first, to the Holders of the REMIC II Regular Interest
X-X-0, X-X-0, X-X-0, A-II-1, A-II-2, X-0, X-0, X-0, X-0, X-0, X-0, X-0,
X-0, X-0, X-00 and B-1, in an aggregate amount equal to 1.00% of and in
the same proportion as principal payments are allocated to the
Corresponding Class for each such REMIC II Regular Interest,
respectively, until the Uncertificated Principal Balance of each such
REMIC II Regular Interest is reduced to zero; and, second, to the
Holders of the REMIC II Regular Interest I-ZZ, until the Uncertificated
Principal Balance of such REMIC II Regular Interest is reduced to zero;
and (C) any remaining amounts to the Holders of the Class R-II
Certificates.
(d) On each Distribution Date, an amount equal to the amounts distributed pursuant to
Sections 4.02(f) on such date shall be deemed distributed by REMIC III to REMIC IV in
respect of the Class SB Interest.
(e) On each Distribution Date, 100% of the amounts deemed distributed on REMIC II Regular
Interest IO shall be deemed distributed by REMIC III to REMIC V in respect of the Class IO
Interest. Such amounts shall be deemed distributed by REMIC V in respect of REMIC V
Regular Interest IO for deposit into the Swap Account.
(f) Subject to the provisions of Section 4.09(b), 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(g)), in each case to the extent of the Available Distribution
Amount on deposit in the Certificate Account (or, with respect to clause (xxiv) below, to
the extent of prepayment charges on deposit in the Certificate Account) and to the extent
not covered by amounts on deposit in the Swap Account:
(i) to the Class A Certificateholders, the Class A Interest Distribution Amount, with
such amount allocated among the Class A Certificateholders on a pro rata basis;
(ii) to the Class M-1 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-1
Interest Distribution Amount;
(iii) to the Class M-2 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-2
Interest Distribution Amount;
(iv) to the Class M-3 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-3
Interest Distribution Amount;
(v) to the Class M-4 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-4
Interest Distribution Amount;
(vi) to the Class M-5 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-5
Interest Distribution Amount;
(vii) to the Class M-6 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-6
Interest Distribution Amount;
(viii) to the Class M-7 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-7
Interest Distribution Amount;
(ix) to the Class M-8 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-8
Interest Distribution Amount;
(x) to the Class M-9 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-9
Interest Distribution Amount;
(xi) to the Class M-10 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class M-10
Interest Distribution Amount;
(xii) to the Class B-1 Certificateholders from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Class B-1
Interest Distribution Amount;
(xiii) to the Class A, Class M and Class B Certificateholders, the Principal Distribution
Amount (other than clauses (iv), (v) and (vi) of the definition thereof), in the
order described in Section 4.02(g) hereof, until the Certificate Principal Balances
of the Class A, Class M and Class B Certificates have been reduced to zero;
(xiv) to the Class A, Class M and Class B Certificateholders, from the Excess Cash Flow, an
amount equal to the principal portion of Realized Losses on the Mortgage Loans during
the immediately preceding Due Period, such amount to be paid, first, from the portion
of Excess Cash Flow other than Subsequent Recoveries and, second, from Subsequent
Recoveries, which amount shall be included in the Principal Distribution Amount and
paid in accordance with Section 4.02(g) hereof, until the Certificate Principal
Balances of the Class A Certificates and Class M Certificates have been reduced to
zero;
(xv) to the Class A, Class M and Class B Certificateholders, from the Available
Distribution Amount remaining after the foregoing distributions, an amount equal to
the principal portion of Realized Losses previously allocated to reduce the
Certificate Principal Balance of any Class of the Class A, Class M and Class B
Certificates and remaining unreimbursed, but only to the extent of Subsequent
Recoveries for that Distribution Date remaining after the distributions described in
clause (xiv) above, which amount shall be included in the Principal Distribution
Amount and paid in accordance with Section 4.02(g) hereof, until the Certificate
Principal Balances of the Class A, Class M and Class B Certificates have been reduced
to zero;
(xvi) to the Class A, Class M and Class B Certificateholders, from the amount, if any, of
the Available Distribution Amount remaining after the foregoing distributions, the
Overcollateralization Increase Amount for such Distribution Date, which amount shall
be included in the Principal Distribution Amount and paid in accordance with Section
4.02(g) hereof, until the Certificate Principal Balances of such Class A, Class M and
Class B Certificates have been reduced to zero;
(xvii) to the Class A, Class M and Class B Certificateholders from the amount, if any, of
the Available Distribution Amount remaining after the foregoing distributions, the
amount of any Prepayment Interest Shortfalls allocated thereto with respect to the
Loans, to the extent not covered by Eligible Master Servicing Compensation on such
Distribution Date;
(xviii) to the Class A, Class M and Class B Certificateholders from the amount, if any, of
the 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;
(xix) to make payments, from amounts otherwise payable to the Class SB 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, Class M and Class B Certificates the amount of
any Class A, Class M or Class B 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 any payments under the Swap
Agreement pursuant to Section 4.09(b), and (ii) second, to maintain a balance in the
Reserve Fund equal to the Reserve Fund Deposit;
(xx) to the Class A, Class M and Class B Certificateholders on a pro rata basis, based on
the amount of Relief Act Shortfalls allocated thereto, from the amount, if any, of
the 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;
(xxi) to the Class A, Class M and Class B Certificateholders, from the amount, if any, of
the 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
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 X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class B-1
Certificateholders in that order;
(xxii) to the Swap Account for Payment to the Swap Counterparty, any Swap Termination
Payments due to a Swap Provider Trigger Event owed by the Trust Fund;
(xxiii) to the Class SB Certificates, from the amount, if any, of the Available Distribution
Amount remaining after the foregoing distributions, the amount of any
Overcollateralization Reduction Amount for such Distribution Date;
(xxiv) to the Class SB Certificates, the amount of any payments or collections consisting of
prepayment charges received on the Mortgage Loans (which amounts shall not be
included in the Available Distribution Amount) and, from the amount, if any, of the
Available Distribution Amount remaining after the foregoing distributions, for any
Distribution Date after the Certificate Principal Balance of each Class A, Class M
and Class B Certificate has been reduced to zero, an amount up to the
Overcollateralization Amount; and
(xxv) to the Class R-V Certificateholders, the balance, if any, of the Available
Distribution Amount.
(g) On each Distribution Date, the Principal Distribution Amount will be paid as follows:
(i) the Class A Principal Distribution Amount shall be distributed as follows:
(A) first, concurrently, (1) the Class A-I Principal Distribution Amount will be
distributed sequentially, to the Class A-I-1, Class A-I-2 and Class A-I-3
Certificates, in that order, in each case until the Certificate Principal
Balances thereof have been reduced to zero; and (2) the Class A-II Principal
Distribution Amount will be distributed concurrently, to the Class A-II-1
Certificates and Class A-II-2 Certificates, on a pro rata basis, until the
Certificate Principal Balance thereof has been reduced to zero; provided,
however, that if a Sequential Trigger Event is in effect, the Class A-II
Principal Distribution Amount will be distributed sequentially to the Class
A-II-1 Certificates and Class A-II-2 Certificates, in that order, in each case
until the Certificate Principal Balance thereof has been reduced to zero, and
(B) second, (1) any remaining Class A-I Principal Distribution Amount will be distributed
concurrently, to the Class A-II-1 Certificates and Class A-II-2 Certificates,
on a pro rata basis, until the Certificate Principal Balances thereof have
been reduced to zero, provided, however, that if a Sequential Trigger Event is
in effect, any remaining Class A-I Principal Distribution Amount will be
distributed sequentially to the Class A-II-1 Certificates and Class A-II-2
Certificates, in that order, in each case until the Certificate Principal
Balance thereof has been reduced to zero; and (2) any remaining Class A-II
Principal Distribution Amount will be distributed sequentially, to the Class
A-I-1, Class A-I-2 and Class A-I-3 Certificates, in that order, in each case
until the Certificate Principal Balance thereof has been reduced to zero;
(ii) the Class M-1 Principal Distribution Amount shall be distributed to the Class M-1
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(iii) the Class M-2 Principal Distribution Amount shall be distributed to the Class M-2
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(iv) the Class M-3 Principal Distribution Amount shall be distributed to the Class M-3
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(v) the Class M-4 Principal Distribution Amount shall be distributed to the Class M-4
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) the Class M-5 Principal Distribution Amount shall be distributed to the Class M-5
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(vii) the Class M-6 Principal Distribution Amount shall be distributed to the Class M-6
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(viii) the Class M-7 Principal Distribution Amount shall be distributed to the Class M-7
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(ix) the Class M-8 Principal Distribution Amount shall be distributed to the Class M-8
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(x) the Class M-9 Principal Distribution Amount shall be distributed to the Class M-9
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
(xi) the Class M-10 Principal Distribution Amount shall be distributed to the Class M-10
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero; and
(xii) the Class B-1 Principal Distribution Amount shall be distributed to the Class B-1
Certificates, until the Certificate Principal Balance thereof has been reduced to
zero;
provided however to the extent a Class IO Distribution Amount is payable from principal
collections, Principal Distribution Amounts will be deemed paid to the most subordinate
Class of Regular Certificates, until the Certificate Principal Balance thereof has been
reduced to zero and such amount will be paid pursuant to Section 4.09(h).
(h) Notwithstanding the foregoing clause (g), upon the reduction of the Certificate
Principal Balance of a Class of Class A, Class M or Class B Certificates to zero, such
Class of Certificates will not be entitled to further distributions pursuant to Section
4.02 (other than in respect of Subsequent Recoveries), including, without limitation, the
payment of current and unreimbursed Prepayment Interest Shortfalls pursuant to clauses
(f)(xvii) and (xviii) and the Class A, Class M and Class B Basis Risk Shortfall
Carry-Forward Amount pursuant to clause (f)(xix).
(i) Any Prepayment Interest Shortfalls on the Mortgage Loans which are not covered by
Eligible Master Servicing Compensation as described in Section 3.16 and Relief Act
Shortfalls on the Mortgage Loans will be allocated among the Class A, Class M and Class B
Certificates pro rata in accordance with the amount of Accrued Certificate Interest
payable on such Distribution Date absent such shortfalls. Any such uncovered Prepayment
Interest Shortfalls will be paid solely pursuant to Section 4.02(f)(xvii) and (xviii) and
Section 4.09(c)(C) and (D) to the extent funds are available therefor. Any such Relief
Act Shortfalls will be paid solely pursuant to Section 4.02(f)(xx) and Section 4.09(c)(F)
and (G), to the extent funds are available therefor.
(j) 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).
(k) Each distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for crediting the
amount of such distribution to the accounts of its Depository Participants in accordance
with its normal procedures. Each Depository Participant shall be responsible for
disbursing such distribution to the Certificate Owners that it represents and to each
indirect participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for disbursing
funds to the Certificate Owners that it represents. None of the Trustee, the Certificate
Registrar, the Depositor or the Master Servicer shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(l) 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 (877)
722-1095) 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 Mortgage Loans
pursuant to Section 4.04;
(v) the number of Mortgage Loans and the Stated Principal Balance after giving effect to
the distribution of principal on such Distribution Date;
(vi) the aggregate Certificate Principal Balance of each Class of the Certificates, after
giving effect to the amounts distributed on such Distribution Date, separately
identifying any reduction thereof due to Realized Losses other than pursuant to an
actual distribution of principal;
(vii) on the basis of the most recent reports furnished to it by Subservicers, (a) the
number and aggregate principal balances of Mortgage Loans that are Delinquent (1) one
month, (2) two months and (3) three or more months and the number and aggregate
principal balance of Mortgage Loans that are in foreclosure, (b) the number and
aggregate principal balances of Mortgage 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 Mortgage 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 Mortgage Loans that are Reportable Modified Mortgage Loans, the number
and aggregate Stated Principal Balance of Mortgage 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 Mortgage Loans incurred since the Cut-off Date;
(xi) the Pass-Through Rate on each Class of Certificates and the Net WAC Cap Rate;
(xii) the weighted average of the Maximum Net Mortgage Rates on the Mortgage Loans;
(xiii) the Class A Basis Risk Shortfall, Class A Basis Risk Shortfall Carry-Forward Amount,
Class M Basis Risk Shortfall, Class M Basis Risk Shortfall Carry-Forward Amount,
Class B Basis Risk Shortfall, Class B Basis Risk Shortfall Carry-Forward Amount and
Prepayment Interest Shortfalls;
(xiv) the Overcollateralization Amount and the Required Overcollateralization Amount
following such Distribution Date;
(xv) the number and aggregate principal balance of Mortgage 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 Mortgage Loans after giving
effect to the amounts distributed on such Distribution Date;
(xviii) the weighted average Mortgage Rates of the Mortgage 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;
(xx) the amount if any, to be paid by a Derivative Counterparty under a Derivative
Contract; and
(xxi) the amount of any Net Swap Payment payable to the Trustee on behalf of the Trust, any
Net Swap Payment payable to the Swap Counterparty, any Swap Termination Payment
payable to the Trustee on behalf of the Trust and any Swap Termination Payment
payable to the Swap Counterparty.
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 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 Available Distribution Amounts, (ii)
the amounts required to be withdrawn from the Custodial Account and deposited into the
Certificate Account and Insurance 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, Class A Basis Risk Shortfall, Class M Basis Risk
Shortfall, Class B Basis Risk Shortfall, Class A Basis Risk Shortfall Carry-Forward Amounts,
Class M Basis Risk Shortfall Carry-Forward Amounts and Class B 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.
(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 aggregate amount of Monthly 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, (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 clauses (i)
and (ii) aggregating the amount of such Advance. Any portion of the Amount Held for Future
Distribution so used shall be replaced by the Master Servicer by deposit in the Certificate
Account on or before 11:00 A.M. New York time on any future Certificate Account Deposit Date
to the extent that funds attributable to the Mortgage Loans that are available in the
Custodial Account for deposit in the Certificate Account on such Certificate Account Deposit
Date shall be less than payments to Certificateholders required to be made on the following
Distribution Date. The Master Servicer shall be entitled to use any Advance made by a
Subservicer as described in Section 3.07(b) that has been deposited in the Custodial Account
on or before such Distribution Date as part of the Advance made by the Master Servicer
pursuant to this Section 4.04. The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by a certificate of a Servicing Officer delivered
to the Depositor 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 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.
All Realized Losses on the Mortgage Loans shall be allocated as follows:
first, by any amounts available from the Swap Agreement for such Distribution
Date;
second, to Excess Cash Flow as provided in Section 4.02(f)(xiv), to the extent
of the Excess Cash Flow for such Distribution Date;
third, in reduction of the Overcollateralization Amount, until such amount has
been reduced to zero;
fourth, to the Class B-1 Certificates, until the Certificate Principal thereof
has been reduced to zero;
fifth, to the Class M-10 Certificates, until the Certificate Principal thereof
has been reduced to zero;
sixth, to the Class M-9 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
seventh, to the Class M-8 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
eighth, to the Class M-7 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
ninth, to the Class M-6 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
tenth, to the Class M-5 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
eleventh, to the Class M-4 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
twelfth, to the Class M-3 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
thirteenth, to the Class M-2 Certificates, until the Certificate Principal
thereof has been reduced to zero;
fourteenth, to the Class M-1 Certificates, until the Certificate Principal
thereof has been reduced to zero; and
fifteenth, for losses on the Group I Loans, to the Class A-I Certificates on a
pro rata basis, and for losses on the Group II Loans, to the Class A-II
Certificates on a pro rata basis, in each case until the Certificate Principal
Balances thereof have been reduced to zero.
(b) Any allocation of the principal portion of Realized Losses (other than Debt Service
Reductions) to the Class A, Class M or Class B 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 Certificates and Class M
Certificates below the aggregate Stated Principal Balance of the Mortgage 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(f). 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(f). 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 Mortgage Loans shall be allocated first, on each
Distribution Date, to REMIC I Regular Interest A-I until such REMIC I Regular Interest has
been reduced to zero. Second, Realized Losses shall be allocated to REMIC I Regular
Interest I-1-A through REMIC I Regular Interest I-60-B, starting with the lowest numerical
denomination until such REMIC I Regular Interest has been reduced to zero, provided that,
for REMIC I Regular Interests with the same numerical denomination, such Realized Losses
shall be allocated pro rata between such REMIC I Regular Interests.
(ii) All Realized Losses on the Mortgage Loans shall be allocated on each Distribution
Date to the following REMIC II Regular Interests in the specified percentages, as follows:
first, to Uncertificated Accrued Interest payable to the REMIC II Regular Interests I-AA and
I-ZZ up to an aggregate amount equal to the excess of (a) the REMIC II Interest Loss
Allocation Amount over (b) Prepayment Interest Shortfalls (to the extent not covered by
Eligible Master Servicing Compensation) relating to the Mortgage Loans for such Distribution
Date, 98% and 2%, respectively; second, to the Uncertificated Principal Balances of the
REMIC II Regular Interests I-AA and I-ZZ up to an aggregate amount equal to the REMIC II
Principal Loss Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC II Regular Interests I-AA, B-1 and I-ZZ, 98%, 1% and 1% until
the Uncertificated Principal Balance of REMIC II Regular Interest B-1 has been reduced to
zero; fourth, to the Uncertificated Principal Balances of REMIC II Regular Interests I-AA,
M-10 and I-ZZ, 98%, 1% and 1% until the Uncertificated Principal Balance of REMIC II Regular
Interest M-10 has been reduced to zero; fifth, to the Uncertificated Principal Balances of
REMIC II Regular Interests I-AA, M-9 and I-ZZ, 98%, 1% and 1% until the Uncertificated
Principal Balance of REMIC II Regular Interest M-9 has been reduced to zero; sixth, to the
Uncertificated Principal Balances of REMIC II Regular Interests I-AA, M-8 and I-ZZ, 98%, 1%
and 1% until the Uncertificated Principal Balance of REMIC II Regular Interest M-8 has been
reduced to zero; seventh, to the Uncertificated Principal Balances of REMIC II Regular
Interests I-AA, M-7 and I-ZZ, 98%, 1% and 1% until the Uncertificated Principal Balance of
REMIC II Regular Interest M-7 has been reduced to zero; eighth, to the Uncertificated
Principal Balances of REMIC II Regular Interests I-AA, M-6 and I-ZZ, 98%, 1% and 1% until
the Uncertificated Principal Balance of REMIC II Regular Interest M-6 has been reduced to
zero; ninth, to the Uncertificated Principal Balances of REMIC II Regular Interests I-AA,
M-5 and I-ZZ, 98%, 1% and 1% until the Uncertificated Principal Balance of REMIC II Regular
Interest M-5 has been reduced to zero; tenth, to the Uncertificated Principal Balances of
REMIC II Regular Interests I-AA, M-4 and I-ZZ, 98%, 1% and 1% until the Uncertificated
Principal Balance of REMIC II Regular Interest M-4 has been reduced to zero; eleventh, to
the Uncertificated Principal Balances of REMIC II Regular Interests I-AA, M-3 and I-ZZ, 98%,
1% and 1% until the Uncertificated Principal Balance of REMIC II Regular Interest M-3 has
been reduced to zero; twelfth, to the Uncertificated Principal Balances of REMIC II Regular
Interests I-AA, M-2 and I-ZZ, 98%, 1% and 1% until the Uncertificated Principal Balance of
REMIC II Regular Interest M-2 has been reduced to zero; thirteenth, to the Uncertificated
Principal Balances of REMIC II Regular Interests I-AA, M-1 and I-ZZ, 98%, 1% and 1% until
the Uncertificated Principal Balance of REMIC II Regular Interest M-1 has been reduced to
zero; and fourteenth, to the Uncertificated Principal Balances of REMIC II Regular Interests
I-AA, 98%, X-X-0, X-X-0, X-X-0, A-II-1, A-II-2, 1% pro rata, and I-ZZ, 1%, until the
Uncertificated Principal Balance of each of REMIC II Regular Interests X-X-0, X-X-0, X-X-0,
A-II-1 and A-II-2 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.
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 Class A Basis Risk Shortfall Carry-Forward Amounts and Class M
Basis Risk Shortfall Carry-Forward Amounts; Reserve Fund; Swap
Account.
(a) On the Closing Date, the Trustee shall (i) establish and maintain in its name, in
trust for the benefit of Class A, Class M and Class B Certificates, the Reserve Fund and the
Swap Account and (ii) for the benefit of the Class A, Class M and Class B Certificates,
purchase the Swap Agreement for the Swap Agreement Upfront Fee, to the extent the Swap
Agreement Purchase Price has been received by the Trustee from the Depositor. 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 Section 4.02(f)(xix). On each Distribution Date, the Trustee
shall make withdrawals from the Reserve Fund and use the amounts in the Reserve Fund on
deposit therein to make distributions to the Class A, Class M and Class B Certificates, to
pay any Class A Basis Risk Shortfall Carry-Forward Amounts, Class M Basis Risk Carry-Forward
Amounts and Class B Basis Risk Carry-Forward Amounts as set forth in Section 4.02(f)(xix).
Any such amounts transferred shall be treated for federal tax purposes as amounts
distributed by REMIC III to the Class SB Certificateholders as transferee thereof. On each
Distribution Date, to the extent that the amount remaining 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. 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,
Class M and Class B Certificates. On each Distribution Date, with respect to any amounts
received from Excess Cash Flow on that Distribution Date pursuant to Section 4.02(f)(xix),
the Trustee shall make payments to the Class A, Class M and Class B Certificateholders in an
amount equal to the amount of any Basis Risk Shortfall Carry-Forward Amount on the Class A,
Class M and Class B Certificates, and any remainder shall be distributed to the holder of
the Reserve Fund Residual Right.
(b) The Trustee shall deposit in the Swap Account all payments that are payable to the
Trust Fund under the Swap Agreement. Net Swap Payments and Swap Termination Payments (other
than Swap Termination Payments resulting from a Swap Provider Trigger Event) payable by the
Trustee to the Swap Counterparty pursuant to the Swap Agreement shall be excluded from the
Available Distribution Amount and payable to the Swap Counterparty prior to any
distributions to the Certificateholders. On each Distribution Date, such amounts will be
remitted by the Trustee to the Swap Account for payment to the Swap Counterparty, first to
make any Net Swap Payment owed to the Swap Counterparty pursuant to the Swap Agreement for
such Distribution Date, and second to make any Swap Termination Payment (not due to a Swap
Provider Trigger Event) owed to the Swap Counterparty pursuant to the Swap Agreement for
such Distribution Date. For federal income tax purposes, such amounts paid to the Swap
Account on each Distribution Date shall first be deemed paid to the Swap Account in respect
of REMIC V Regular Interest IO to the extent of the amount distributable on such REMIC V
Regular Interest IO on such Distribution Date, and any remaining amount shall be deemed paid
to the Swap Account in respect of a Class IO Distribution Amount. Any Swap Termination
Payment triggered by a Swap Provider Trigger Event owed to the Swap Counterparty pursuant to
the Swap Agreement will be subordinated to distributions to the Holders of the Class A,
Class M and Class B Certificates and shall be paid as set forth under Section 4.02(f)(xxii).
(c) Net Swap Payments payable by the Swap Counterparty to the Trustee on behalf of the
Trust pursuant to the Swap Agreement will be deposited by the Trustee into the Swap
Account. On each Distribution Date, to the extent required, the Trustee shall withdraw such
amounts from the Swap Account to distribute to the Certificates in the following order of
priority:
(A) first, to the Class A Certificates, pro rata, then to the Class M Certificates and
Class B Certificates, in order of priority, the principal portion of any
Realized Losses incurred on the Mortgage Loans for the preceding calendar
month;
(B) second, to pay any Overcollateralization Increase Amount to the Class A, Class M and
Class B Certificates;
(C) third, to the Class A, Class M and Class B Certificates to pay accrued and unpaid
interest resulting from Prepayment Interest Shortfalls on the Mortgage Loans
as set forth in Section 4.02(f) to the extent not covered by Eligible Master
Servicing Compensation on such Distribution Date, as follows: first, to the
Class A Certificates, on a pro rata basis, and second, sequentially to the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9, Class M-10 and Class B-1 Certificates, in that order;
(D) fourth, to the Class A, Class M and Class B Certificates to pay accrued and unpaid
interest resulting from Prepayment Interest Shortfalls on the Mortgage Loans
as set forth in Section 4.02(f) allocated thereto remaining unpaid from prior
Distribution Dates, together with interest thereon, as follows: first, to the
Class A Certificates, on a pro rata basis, and second, sequentially to the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9, Class M-10 and Class B-1 Certificates, in that order;
(E) fifth, to the Class A Certificates, to pay any Class A Basis Risk Shortfall
Carry-Forward Amounts, pro rata, then to the Class M Certificates and Class B
Certificates, to pay any Class M Basis Risk Shortfall Carry-Forward Amounts or
Class B Basis Risk Shortfall Carry-Forward Amounts, as applicable, in their
order of payment priority;
(F) sixth, to each class of Class A Certificates, to pay accrued and unpaid interest
resulting from Relief Act Shortfalls on the Mortgage Loans as set forth in
Section 4.02(f), on a pro rata basis;
(G) seventh, sequentially to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class M-10, and Class B-1
Certificates, in that order, to pay accrued and unpaid interest resulting from
Relief Act Shortfalls on the Mortgage Loans as set forth in Section 4.02(f);
(H) eighth, to pay to the holders of the Class A Certificates, pro rata, then to the
Class M Certificates and Class B Certificates, in order of priority, the
principal portion of any Realized Losses previously allocated thereto that
remain unreimbursed; and
(I) ninth, to the Class SB Certificates.
(d) 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 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 the
Class SB Certificateholders as designated in Section 4.02(f). 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.
(e) 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 Certificates, and such Reserve
Fund Residual Right shall at all times be owned by and allocated to Class SB Certificates.
So long as Residential Funding is the holder of the Class SB 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 Certificates by
Residential Funding, the Reserve Fund Residual Right will be transferred along with such
Class SB Certificates.
(f) Subject to Sections 8.01 and 8.02 hereof, the Trustee agrees to comply with the terms
of the Swap Agreement and to enforce the terms and provisions thereof against the Swap
Counterparty at the written direction of the Holders of Class A, Class M and Class B
Certificates entitled to at least 51% of the Voting Rights of such Classes of Certificates,
or if the Trustee does not receive such direction from such Certificateholders, then at the
written direction of Residential Funding.
(g) The Swap Account shall be an Eligible Account. Amounts held in the Swap Account from
time to time shall continue to constitute assets of the Trust Fund, but not of the REMICs,
until released from the Swap Account pursuant to this Section 4.09. The Swap Account
constitutes an "outside reserve fund" within the meaning of Treasury Regulation Section
1.860G-2(h) and is not an asset of the REMICs. The Class SB Certificateholders shall be the
owners of the Swap Account. The Trustee shall keep records that accurately reflect the funds
on deposit in the Swap Account. The Trustee shall, at the direction of the Master Servicer,
invest amounts on deposit in the Swap Account in Permitted Investments. In the absence of
written direction to the Trustee from the Master Servicer, all funds in the Swap Account
shall remain uninvested.
The Trustee shall treat the holders of each Class of Certificates (other than the
Class SB Certificates and Class R Certificates) as having entered into a notional principal
contract with the holders of the Class SB Certificates. Pursuant to each such notional
principal contract, all holders of Certificates (other than the Class SB Certificates and
Class R Certificates) shall be treated as having agreed to pay, on each Distribution Date,
to the holder of the Class SB Certificates an aggregate amount equal to the excess, if any,
of (i) the amount payable on such Distribution Date on the REMIC III Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on such Class of
Certificates on such Distribution Date (such excess, a "Class IO Distribution Amount"). A
Class IO Distribution Amount payable from interest collections shall be allocated pro rata
among such Certificates based on the excess of (i) the amount of interest otherwise payable
to such Certificates over (ii) the amount of interest payable to such Certificates at a per
annum rate equal to the Net WAC Cap Rate, and a Class IO Distribution Amount payable from
principal collections shall be allocated to the most subordinate Class of Certificates with
an outstanding principal balance to the extent of such balance. In addition, pursuant to
such notional principal contract, the holder of the Class SB Certificates shall be treated
as having agreed to pay the related Basis Risk Shortfall Carry Forward-Amounts to the
holders of the Certificates (other than the Class SB Certificates and Class R Certificates)
in accordance with the terms of this Agreement. Any payments to the Certificates from
amounts deemed received in respect of this notional principal contract shall not be payments
with respect to a "regular interest" in a REMIC within the meaning of Code Section
860G(a)(1). However, any payment from the Certificates (other than the Class SB
Certificates and Class R Certificates) of a Class IO Distribution Amount shall be treated
for tax purposes as having been received by the holders of such Certificates in respect of
the REMIC III Regular Interest corresponding to such Class of Certificates and as having
been paid by such holders to the Swap Account pursuant to the notional principal contract.
Thus, each Certificate (other than the Class SB Certificates and Class R Certificates) shall
be treated as representing not only ownership of regular interests in REMIC III, but also
ownership of an interest in, and obligations with respect to, a notional principal
contract.
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). 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.
Section 4.12 Tax Treatment of Swap Payments and Swap Termination Payments.
(a) For federal income tax purposes, each holder of a Class A, Class M or Class B
Certificate is deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Reserve Fund or the Swap Account
in respect of the Class A Basis Risk Shortfall Carry-Forward Amount, the Class M Basis Risk
Shortfall Carry-Forward Amount and the Class B Basis Risk Shortfall Carry-Forward Amount,
respectively, or the obligation to make payments to the Swap Account. For federal income
tax purposes, the Trustee will account for payments to each Class A, Class M and Class Class
B Certificates as follows: each Class A, Class M and Class B Certificate will be treated as
receiving their entire payment from REMIC III (regardless of any Swap Termination Payment or
obligation under the Swap Agreement) and subsequently paying their portion of any Swap
Termination Payment in respect of each such Class' obligation under the Swap Agreement. In
the event that any such Class is resecuritized in a REMIC, the obligation under the Swap
Agreement to pay any such Swap Termination Payment (or any Net Swap Payment), will be made
by one or more of the REMIC Regular Interests issued by the resecuritization REMIC
subsequent to such REMIC Regular Interest receiving its full payment from any such Class A,
Class M or Class B Certificate. Resecuritization of any Class A, Class M or Class B
Certificate in a REMIC will be permissible only if the Trustee hereunder is the trustee in
such resecuritization.
(b) The REMIC regular interest corresponding to a Class A, Class M or Class B Certificate
will be entitled to receive interest and principal payments at the times and in the amounts
equal to those made on the certificate to which it corresponds, except that (i) the maximum
interest rate of that REMIC regular interest will equal the Net WAC Cap Rate computed for
this purpose by limiting the base calculation amount of the Swap Agreement to the aggregate
principal balance of the Mortgage Loans and (ii) any Swap Termination Payment will be
treated as being payable solely from Excess Cash Flow. As a result of the foregoing, the
amount of distributions and taxable income on the REMIC regular interest corresponding to a
Class A, Class M or Class B Certificate may exceed the actual amount of distributions on the
Class A, Class M or Class B Certificate.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Class A, Class M, Class B, Class SB and Class R Certificates shall be
substantially in the forms set forth in Exhibits A, B, C, D and E, 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-1, Class M-2 and Class M-3 Certificates shall be issuable in minimum dollar
denominations of $25,000 and integral multiples of $1 in excess thereof. The Class X-0,
Xxxxx X-0, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class B-1 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, Class M and Class B 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, Class M and Class B Certificate
through the book-entry facilities of the Depository and, except as provided below, shall not
be entitled to Definitive Certificates in respect of such Ownership Interests. All transfers
by Certificate Owners of their respective Ownership Interests in the Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant shall
transfer the Ownership Interests only in the Book-Entry Certificates of Certificate Owners
it represents or of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures.
The Trustee, the Master Servicer and the Depositor may for all purposes (including
the making of payments due on the respective Classes of Book-Entry Certificates) deal with
the Depository as the authorized representative of the Certificate Owners with respect to
the respective Classes of Book-Entry Certificates for 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, with the consent
of a majority of the Certificateholders, 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.
In addition, if an Event of Default has occurred and is continuing, each Certificate
Owner materially adversely affected thereby may at its option request a Definitive
Certificate evidencing such Certificate Owner's Percentage Interest in the related Class of
Certificates. In order to make such request, such Certificate Owner shall, subject to the
rules and procedures of the Depository, provide the Depository or the related Depository
Participant with directions for the Trustee to exchange or cause the exchange of the
Certificate Owner's interest in such Class of Certificates for an equivalent Percentage
Interest in fully registered definitive form. Upon receipt by the Trustee of instruction
from the Depository directing the Trustee to effect such exchange (such instructions to
contain information regarding the Class of Certificates and the Certificate Principal
Balance being exchanged, the Depository Participant account to be debited with the decrease,
the registered holder of and delivery instructions for the Definitive Certificates and any
other information reasonable required by the Trustee), (i) the Trustee shall instruct the
Depository to reduce the related Depository Participant's account by the aggregate
Certificate Principal Balance of the Definitive Certificates, (ii) the Trustee shall
execute, authenticate and deliver, in accordance with the registration and delivery
instructions provided by the Depository, a Definitive Certificate evidencing such
Certificate Owner's Percentage Interest in such Class of Certificates and (iii) the Trustee
shall execute and authenticate a new Book-Entry Certificate reflecting the reduction in the
aggregate Certificate Principal Balance of such Class of Certificates by the amount of the
Definitive Certificates.
Neither the Depositor, the Master Servicer nor the Trustee shall be liable for any
actions taken by the Depository or its nominee, including, without limitation, any delay in
delivery of any instruction required under this section 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
Depository 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 8.10, 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 8.10 and, in the case
of any Class B, Class SB or Class R Certificate, upon satisfaction of the conditions set
forth below, the Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more new
Certificates of a like Class and aggregate Percentage Interest.
(c) At the option of the Certificateholders, Certificates may be exchanged for other
Certificates of authorized denominations of a like Class and aggregate Percentage Interest,
upon surrender of the Certificates to be exchanged at any such office or agency. Whenever
any Certificates are so surrendered for exchange the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver the Certificates of such Class which
the Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by the Trustee or
the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by,
the Holder thereof or his attorney duly authorized in writing.
(d) No transfer, sale, pledge or other disposition of a Class B, 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 B, 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 J hereto, and the
Trustee shall require the transferor to execute a representation letter, substantially in
the form of Exhibit K 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 B, 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 O 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. If any transfer of a Class B Certificate that is a
Book-Entry Certificate is to be made to a transferee in book-entry form, the transferor and
the transferee will be deemed to have made each of the respective certifications set forth
in Exhibit O as of the transfer date, in each case as if such Class B Certificate were in
physical form. The Holder of a Class B, 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 A, Class M, Class B, 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 Servicer to the effect that the purchase or holding of such
Class A, Class M, Class B, 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 Q (with respect
to a Class A, Class M or Class B Certificate) (which certification shall have been deemed to
have been given by a Class A Certificateholder or Class M Certificateholder who acquires a
Book-Entry Certificate), paragraph six of Exhibit J or paragraph three of Exhibit O (with
respect to a Class SB Certificate) or in paragraph fifteen of Exhibit I-1 (with respect to a
Class R Certificate), which the Trustee may rely upon without further inquiry or
investigation, or such other certifications as the Trustee may deem desirable or necessary
in order to establish that such transferee or the Person in whose name such registration is
requested is not an employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a "Plan"), or any
Person (including an insurance company investing its general accounts, an investment
manager, a named fiduciary or a trustee of any Plan) who is using "plan assets" of any Plan,
within the meaning of the U.S. Department of Labor regulation promulgated at 29 X.X.X.xx.
2510.3-101, to effect such acquisition (a "Plan Investor").
(ii) Any Transferee of a Class A, Class M or Class B Certificate that does not deliver the
Opinion of Counsel or certification referred to in clause (i) above will be deemed to
have represented by virtue of its purchase or holding of such Certificate (or
interest therein) that such Transferee is not a Plan Investor.
(iii) If any Class A, Class M or Class B Certificate (or any interest therein) is acquired
or held by any Person that is not described in paragraph (ii) above, then the last
preceding Transferee that is not a Plan Investor shall be restored, to the extent
permitted by law, to all rights and obligations as Certificate Owner thereof
retroactive to the date of such Transfer of such Class A, Class M or Class B
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 A, Class M
or Class B 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 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 I-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
I-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
I-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by
purchasing an Ownership Interest in such Certificate, agrees to give the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Class R Certificate, if
it is, or is holding an Ownership Interest in a Class R Certificate on behalf
of, a "pass-through interest holder."
(ii) The Trustee 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 I-2 and all of such
other documents as shall have been reasonably required by the Trustee as a condition
to such registration. Transfers of the Class R Certificates to Non-United States
Persons and Disqualified Organizations (as defined in Section 860E(e)(5) of the Code)
are prohibited.
(A) If any Disqualified Organization shall become a holder of a Class R Certificate, then
the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof retroactive
to the date of registration of such Transfer of such Class R Certificate. If a
Non-United States Person shall become a holder of a Class R Certificate, then
the last preceding United States Person shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof retroactive
to the date of registration of such Transfer of such Class R Certificate. If a
transfer of a Class R Certificate is disregarded pursuant to the provisions of
Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights and obligations as Holder thereof retroactive to the date
of registration of such Transfer of such Class R Certificate. The Trustee
shall be under no liability to any Person for any registration of Transfer of
a Class R Certificate that is in fact not permitted by this Section 5.02(f) or
for making any payments due on such Certificate to the holder thereof or for
taking any other action with respect to such holder under the provisions of
this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R Certificate in
violation of the restrictions in this Section 5.02(f) and to the extent that
the retroactive restoration of the rights of the Holder of such Class R
Certificate as described in clause (iii)(A) above shall be invalid, illegal or
unenforceable, then the Master Servicer shall have the right, without notice
to the holder or any prior holder of such Class R Certificate, to sell such
Class R Certificate to a purchaser selected by the Master Servicer on such
terms as the Master Servicer may choose. Such purported Transferee shall
promptly endorse and deliver each Class R Certificate in accordance with the
instructions of the Master Servicer. Such purchaser may be the Master Servicer
itself or any Affiliate of the Master Servicer. The proceeds of such sale, net
of the commissions (which may include commissions payable to the Master
Servicer or its Affiliates), expenses and taxes due, if any, will be remitted
by the Master Servicer to such purported Transferee. The terms and conditions
of any sale under this clause (iii)(B) shall be determined in the sole
discretion of the Master Servicer, and the Master Servicer shall not be liable
to any Person having an Ownership Interest in a Class R Certificate as a
result of its exercise of such discretion.
(iii) The Master Servicer, on behalf of the Trustee, shall make available, upon written
request from the Trustee, all information necessary to compute any tax imposed
(A) as a result of the Transfer of an Ownership Interest in a Class R Certificate to any
Person who is a Disqualified Organization, including the information regarding
"excess inclusions" of such Class R Certificates required to be provided to
the Internal Revenue Service and certain Persons as described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and
(B) as a result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section
1381 of the Code that holds an Ownership Interest in a Class R Certificate
having as among its record holders at any time any Person who is a
Disqualified Organization. Reasonable compensation for providing such
information may be required by the Master Servicer from such Person.
(iv) The provisions of this Section 5.02(f) set forth prior to this clause (v) may be
modified, added to or eliminated, provided that there shall have been delivered to
the Trustee the following:
(A) Written notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating
Agency to downgrade its then-current ratings, if any, of the Class A
Certificates and Class M Certificates below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date by
such Rating Agency; and
(B) a certificate of the Master Servicer stating that the Master Servicer has received an
Opinion of Counsel, in form and substance satisfactory to the Master Servicer,
to the effect that such modification, addition to or absence of such
provisions will not cause any of REMIC I, REMIC II, REMIC III, REMIC IV or
REMIC V to cease to qualify as a REMIC and will not cause (x) any of REMIC I,
REMIC II, REMIC III, REMIC IV or REMIC V to be subject to an entity-level tax
caused by the Transfer of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder or another Person to be
subject to a REMIC-related tax caused by the Transfer of a Class R Certificate
to a Person that is not a Permitted Transferee.
(g) No service charge shall be made for any transfer or exchange of Certificates of any
Class, but the Trustee may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or exchange of
Certificates.
(h) All Certificates surrendered for transfer and exchange shall be destroyed by the
Certificate Registrar.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate Registrar, or the
Trustee and the Certificate Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to the Trustee
and the Certificate Registrar such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor, Class and Percentage Interest but bearing a number not contemporaneously
outstanding. Upon the issuance of any new Certificate under this Section, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee and the Certificate Registrar) connected therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.04. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer, the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Trustee or the Certificate Registrar may treat the
Person in whose name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.02 and for all other purposes
whatsoever, except as and to the extent provided in the definition of "Certificateholder"
and in Section 4.09, and neither the Depositor, the Master Servicer, the Trustee, the
Certificate Registrar nor any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar shall be affected by notice to the contrary except as provided in
Section 5.02(f).
Section 5.05. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making distributions to
Certificateholders pursuant to Section 4.02. In the event of any such appointment, on or
prior to each Distribution Date the Master Servicer on behalf of the Trustee shall deposit
or cause to be deposited with the Paying Agent a sum sufficient to make the payments to
Certificateholders in the amounts and in the manner provided for in Section 4.02, such sum
to be held in trust for the benefit of Certificateholders. The Trustee shall cause each
Paying Agent to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums held by it for the
payment to Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Any sums so held by such
Paying Agent shall be held only in Eligible Accounts to the extent such sums are not
distributed to the Certificateholders on the date of receipt by such Paying Agent.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer.
The Depositor and the Master Servicer shall each be liable in accordance herewith
only to the extent of the obligations specifically and respectively imposed upon and
undertaken by the Depositor and the Master Servicer herein. By way of illustration and not
limitation, the Depositor is not liable for the servicing and administration of the Mortgage
Loans, nor is it obligated by Section 7.01 or 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 Xxx 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 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. This
Section 6.02 shall not apply to any sale, transfer, pledge or assignment by Residential
Funding of the Call Rights.
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.
Section 6.04. Depositor and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Depositor nor the Master
Servicer shall resign from its respective obligations and duties hereby imposed on it except
upon determination that its duties hereunder are no longer permissible under applicable law.
Any such determination permitting the resignation of the Depositor or the Master Servicer
shall be evidenced by an Opinion of Counsel (at the expense of the resigning party) to such
effect delivered to the Trustee. No such resignation by the Master Servicer shall become
effective until the Trustee or a successor servicer shall have assumed the Master Servicer's
responsibilities and obligations in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
Event of Default, wherever used herein, means any one of the following events
(whatever reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be distributed to Holders of
Certificates of any Class any distribution required to be made under the terms of the
Certificates of such Class and this Agreement and, in either case, such failure shall
continue unremedied for a period of 5 days after the date upon which written notice
of such failure, requiring such failure to be remedied, shall have been given to the
Master Servicer by the Trustee or the Depositor or to the Master Servicer, the
Depositor and the Trustee by the Holders of Certificates of such Class evidencing
Percentage Interests aggregating not less than 25%; or
(ii) the Master Servicer shall fail to observe or perform in any material respect any
other of the covenants or agreements on the part of the Master Servicer contained in
the Certificates of any Class or in this Agreement and such failure shall continue
unremedied for a period of 30 days (except that such number of days shall be 15 in
the case of a failure to pay the premium for any Required Insurance Policy) after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Trustee or the Depositor, or to
the Master Servicer, the Depositor and the Trustee by the Holders of Certificates of
any Class evidencing, as to such Class, Percentage Interests aggregating not less
than 25%; or
(iii) a decree or order of a court or agency or supervisory authority having jurisdiction
in the premises in an involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law or appointing a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60 days; or
(iv) the Master Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of, or relating to, the Master Servicer or of, or
relating to, all or substantially all of the property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of, or commence a voluntary
case under, any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its obligations;
or
(vi) the Master Servicer shall notify the Trustee pursuant to Section 4.04(b) that it is
unable to deposit in the Certificate Account an amount equal to the Advance.
If an Event of Default described in clauses (i)-(v) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall not have been
remedied, either the Depositor or the Trustee shall at the direction of Holders of
Certificates entitled to at least 51% of the Voting Rights, by notice in writing to the
Master Servicer (and to the Depositor if given by the Trustee or to the Trustee if given by
the Depositor), terminate all of the rights and obligations of the Master Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof, other than its
rights as a Certificateholder hereunder. 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 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 MERS, costs of preparing any assignments of Mortgage, and fees and costs
of filing any assignments of Mortgage that may be required under this subsection (b). The
successor Master Servicer shall cause such assignment to be delivered to the Trustee or the
Custodian promptly upon receipt of the original with evidence of recording thereon or a copy
certified by the public recording office in which such assignment was recorded.
Section 7.03. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the Master Servicer, the
Trustee shall give prompt written notice thereof to the Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Within 60 days after the occurrence of any Event of Default, the Trustee shall
transmit by mail to all Holders of Certificates notice of each such Event of Default
hereunder known to the Trustee, unless such Event of Default shall have been cured or waived
as provided in Section 7.04 hereof.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of Certificates affected
by a default or Event of Default hereunder may waive any default or Event of Default;
provided, however, that (a) a default or Event of Default under clause (i) of Section 7.01
may be waived only by all of the Holders of Certificates affected by such default or Event
of Default and (b) no waiver pursuant to this Section 7.04 shall affect the Holders of
Certificates in the manner set forth in Section 11.01(b)(i), (ii) or (iii). Upon any such
waiver of a default or Event of Default by the Holders representing the requisite percentage
of Voting Rights of Certificates affected by such default or Event of Default, such default
or Event of Default shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon except to the extent expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after the curing of
all Events of ` 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, REMIC IV and REMIC V 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;
(ii) The Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action taken, suffered
or omitted to be taken by it in good faith in accordance with the direction of the
Certificateholders holding Certificates which evidence, Percentage Interests
aggregating not less than 25% of the affected classes as to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any default (other than a default
in payment to the Trustee) specified in clauses (i) and (ii) of Section 7.01 or an
Event of Default under clauses (iii), (iv) and (v) of Section 7.01 unless a
Responsible Officer of the Trustee assigned to and working in the Corporate Trust
Office obtains actual knowledge of such failure or event or the Trustee receives
written notice of such failure or event at its Corporate Trust Office from the Master
Servicer, the Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 7.02, no provision in this Agreement shall
require the Trustee to expend or risk its own funds (including, without limitation,
the making of any Advance) or otherwise incur any personal financial liability in the
performance of any of its duties as Trustee hereunder, or in the exercise of any of
its rights or powers, if the Trustee shall have reasonable grounds for believing that
repayment of funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal,
state and local taxes imposed on the Trust Fund or its assets or transactions including,
without limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of
the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to
a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach
constitutes negligence or willful misconduct of the Trustee.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement or the Swap
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 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, REMIC IV or REMIC V 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.
(a) 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 8.04. 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 8.10) except any such expense,
disbursement or advance as may arise from its negligence or bad faith.
(b) The Master Servicer agrees to indemnify the Trustee for, and to hold the Trustee
harmless against, any loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of, or in connection with, the acceptance and
administration of the Trust Fund, including 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 or the Swap
Agreement, and the Master Servicer further agrees to indemnify the Trustee for, and to hold
the Trustee harmless against, any loss, liability or expense arising out of, or in
connection with, the provisions set forth in the second paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including reasonable
legal fees and expenses) of investigating and defending itself against any claim, action or
proceeding, pending or threatened, relating to the provisions of such paragraph, provided
that:
(i) with respect to any such claim, the Trustee shall have given the Master Servicer
written notice thereof promptly after the Trustee shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Master Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master Servicer shall
not be liable for settlement of any claim by the Trustee entered into without the
prior consent of the Master Servicer which consent shall not be unreasonably
withheld. No termination of this Agreement shall affect the obligations created by
this Section 8.05(b) of the Master Servicer to indemnify the Trustee under the
conditions and to the extent set forth herein. Notwithstanding the foregoing, the
indemnification provided by the Master Servicer in this Section 8.05(b) shall not
pertain to any loss, liability or expense of the Trustee, including the costs and
expenses of defending itself against any claim, incurred in connection with any
actions taken by the Trustee at the direction of Certificateholders pursuant to the
terms of this Agreement.
Section 8.05. 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 8.06. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor and the Master Servicer. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days after the giving of such
notice of resignation then the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 and shall fail to resign after written request therefor by the
Depositor, or if at any time the Trustee shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee. In addition, in the event that the Depositor determines that
the Trustee has failed (i) to distribute or cause to be distributed to Certificateholders
any amount required to be distributed hereunder, if such amount is held by the Trustee or
its Paying Agent (other than the Master Servicer or the Depositor) for distribution or (ii)
to otherwise observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period of 5 days (in
respect of clause (i) above) or 30 days (in respect of clause (ii) above) after the date on
which written notice of such failure, requiring that the same be remedied, shall have been
given to the Trustee by the Depositor, then the Depositor 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 8.07. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee shall become effective
and such successor trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as trustee herein. The predecessor trustee shall
deliver to the successor trustee all Mortgage Files and related documents and statements
held by it hereunder (other than any Mortgage Files at the time held by a Custodian, which
shall become the agent of any successor trustee hereunder), and the Depositor, the Master
Servicer and the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this Section unless at
the time of such acceptance such successor trustee shall be eligible under the provisions of
Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in this Section,
the Depositor shall mail notice of the succession of such trustee hereunder to all Holders
of Certificates at their addresses as shown in the Certificate Register. If the Depositor
fails to mail such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
Section 8.08. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee may be merged
or converted or with which it may be consolidated or any corporation or national banking
association resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or national banking association succeeding to 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 8.09. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund or property
securing the same may at the time be located, the Master Servicer and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust Fund, or any
part thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee may consider
necessary or desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, or in case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section 8.06 hereunder and no notice to Holders
of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be required
under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee pursuant to this
Section 8.10 all rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the Trustee, and
such separate trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such separate trustee
or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively as if given
to each of them. Every instrument appointing any separate trustee or co-trustee shall refer
to this Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
Section 8.10. 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 8.10. 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.
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase by Residential Funding 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 Residential Funding of all Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining in the Trust Fund, 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) on the day of
repurchase, plus unpaid accrued interest thereon at the Mortgage Rate (or Modified
Mortgage Rate in the case of any Modified Mortgage Loan) from the Due Date to which
interest was last paid by the Mortgagor to, but not including, the first day of the
month in which such repurchase price is distributed plus any Swap Termination Payment
payable to the Swap Counterparty then remaining unpaid or which is due to the
exercise of such option; provided, however, that in no event shall the trust created
hereby continue beyond the earlier of (i) the Maturity Date or (ii) 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; 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, REMIC IV or REMIC V as a
REMIC. The purchase price paid by Residential Funding 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 Residential Funding to purchase all the assets of the Trust Fund
relating to the Mortgage Loans, pursuant to clause (ii) above is conditioned upon the date
of such purchase occurring on or after the Optional Termination Date. If such right is
exercised by Residential Funding, the Master Servicer shall be entitled to reimbursement for
the full amount of any unreimbursed Advances theretofore made by it with respect to the
Mortgage Loans being purchased, pursuant to Section 3.10. 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
Residential Funding the Mortgage Files pertaining to the Mortgage Loans being purchased.
In addition, on any Distribution Date on or after the Optional Termination Date,
Residential Funding shall have the right, at its option, to purchase all of the Certificates
in whole, but not in part, at a price equal to the aggregate outstanding Certificate
Principal Balance of the Certificates, plus one month's Accrued Certificate Interest on the
Certificates, any previously unpaid Accrued Certificate Interest, and any unpaid Prepayment
Interest Shortfall previously allocated thereto.
(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 Residential Funding 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 Residential Funding 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
(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,
Residential Funding shall deposit in the Custodial 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 (i) distribute to the Certificateholders on the Final Distribution Date the
respective amounts determined in accordance with Section 4.02 and (ii) pay to the Swap
Counterparty (without the duplication of amounts payable to the Swap Counterparty on such
date under Section 4.02) any Swap Termination Payment payable to the Swap Counterparty then
remaining unpaid or which is due to the exercise of an early termination of the Trust Fund
pursuant to this Section 9.01.
(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 Residential Funding 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.
(e) All rights of Residential Funding to purchase the assets of the Trust Fund, or to
purchase specified classes of Certificates, as set forth in Section 9.01(a) are referred to
in this Agreement as the "Call Rights". Notwithstanding any other provision of this
Agreement, Residential Funding shall have the right to sell, transfer, pledge or otherwise
assign the Call Rights at any time to any Person. Upon written notice by Residential
Funding to the Trustee and the Master Servicer of any such assignment of the Call Rights to
any assignee, the Trustee and the Master Servicer shall be obligated to recognize such
assignee as the holder of the Call Rights. Such entity, if not Residential Funding or an
affiliate, shall be deemed to represent, at the time of such sale, transfer, pledge or other
assignment, that one of the following will be, and at the time the Call Right is exercised
is, true and correct: (i) the exercise of such Call Right shall not result in a non-exempt
prohibited transaction under section 406 of ERISA or section 4975 of the Code (including by
reason of U.S. Department of Labor ("DOL") Prohibited Transaction Class Exemption ("PTCE")
75-1 (Part I), 84-14, 90-1, 91-38, 95-60 or 96-23 or other applicable exemption) or (ii)
such entity is (A) not a party in interest under section 3(14) of ERISA or a disqualified
person under section 4975(e)(2) of the Code with respect to any employee benefit plan
subject to section 3(3) of ERISA or any plan subject to section 4975 of the Code (other than
an employee benefit plan or plan sponsored or maintained by the entity, provided that no
assets of such employee benefit plan or plan are invested or deemed to be invested in the
Certificates) and (B) not a "benefit plan investor" as described in DOL regulation section
2510.3-101(f)(2). If any such assignee of the Call Right is unable to exercise such Call
Right by reason of the preceding sentence, then the Call Right shall revert to the
immediately preceding assignor of such Call Right subject to the rights of any secured party
therein.
Section 9.02. Additional Termination Requirements.
(a) Each of REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V as the case may be, shall
be terminated in accordance with the following additional requirements, unless the Trustee
and the Master Servicer have received an Opinion of Counsel (which Opinion of Counsel shall
not be an expense of the Trustee) to the effect that the failure of any of REMIC I, REMIC
II, REMIC III, REMIC IV and REMIC V, 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, REMIC IV or REMIC V 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, REMIC IV and REMIC V, 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,
REMIC IV and REMIC V 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 Residential Funding is exercising its right to purchase the assets of the Trust
Fund, Residential Funding 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, REMIC IV and REMIC V at the expense of the Trust Fund in
accordance with the terms and conditions of this Agreement.
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The REMIC Administrator shall make an election to treat each of REMIC I, REMIC II,
REMIC III, REMIC IV and REMIC V 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 Interests shall be designated as the "regular interests" and the
Class R-I Certificates shall be designated as the sole class of "residual interests" in
REMIC I. The REMIC II Regular Interests shall be designated as the "regular interests" and
the Class R-II Certificates shall be designated as the sole class of "residual interests" in
REMIC II. The Class A, Class M and Class B Certificates and Class IO Interest and Class SB
Interests shall be designated as the "regular interests" in REMIC III. The Class SB
Certificate shall be designated as the "regular interest" and the Class R-IV Certificates
shall be designated as the sole class of "residual interests" in REMIC IV. The REMIC V
Regular Interest IO shall be designated as the "regular interest" and the Class R-V
Certificates shall be designated as the sole class of "residual interests" in REMIC V. 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, REMIC IV and REMIC V 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, REMIC IV
and REMIC V 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, REMIC IV and REMIC
V 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 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, REMIC IV or REMIC V 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, REMIC IV or REMIC V (including but not limited to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code (except as
provided in Section 2.04) and the tax on contributions to a REMIC set forth in Section
860G(d) of the Code) (either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless the Master
Servicer or the REMIC Administrator, as applicable, has received an Opinion of Counsel (at
the expense of the party seeking to take such action or, if such party fails to pay such
expense, and the Master Servicer or the REMIC Administrator, as applicable, determines that
taking such action is in the best interest of the Trust Fund and the Certificateholders, at
the expense of the Trust Fund, but in no event at the expense of the Master Servicer, the
REMIC Administrator or the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund created hereunder, endanger such status or, unless the Master
Servicer or the REMIC Administrator or both, as applicable, determine in its or their sole
discretion to indemnify the Trust Fund against the imposition of such a tax, result in the
imposition of such a tax. Wherever in this Agreement a contemplated action may not be taken
because the timing of such action might result in the imposition of a tax on the Trust Fund,
or may only be taken pursuant to an Opinion of Counsel that such action would not impose a
tax on the Trust Fund, such action may nonetheless be taken provided that the indemnity
given in the preceding sentence with respect to any taxes that might be imposed on the Trust
Fund has been given and that all other preconditions to the taking of such action have been
satisfied. The Trustee shall not take or fail to take any action (whether or not authorized
hereunder) as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action or inaction, as the case may be.
In addition, prior to taking any action with respect to the Trust Fund or its assets, or
causing the Trust Fund to take any action, which is not expressly permitted under the terms
of this Agreement, the Trustee 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, REMIC IV or REMIC V to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject any such
REMIC to any tax under the REMIC Provisions or other applicable provisions of federal, state
and local law or ordinances.
(j) Neither the Master Servicer nor the Trustee shall (subject to Section 10.01(f)) enter
into any arrangement by which any of REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V will
receive a fee or other compensation for services nor permit any of REMIC I, REMIC II, REMIC
III, REMIC IV or REMIC V 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 June 25, 2035.
(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, REMIC IV or REMIC V 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
Certificateholders, and is not an asset of the REMICs. The Trustee shall treat the rights of
the Class A, Class M and Class B Certificateholders to receive payments from the Reserve
Fund as rights in an interest rate cap contract written by the Class SB Certificateholders
in favor of the Class A, Class M and Class B Certificateholders. Thus, each Class A, Class M
and Class B Certificate shall be treated as representing ownership of not only REMIC III
regular interests, but also ownership of an interest in an interest rate cap contract. For
purposes of determining the issue price of the REMIC III regular interests, the Trustee
shall assume that the interest rate cap contract with respect to the Class A, Class M and
Class B Certificates has a de minimis value.
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Depositor, the REMIC
Administrator and the Master Servicer for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the Depositor or
the Master Servicer, as a result of a breach of the Trustee's covenants set forth in Article
VIII or this Article X. In the event that Residential Funding is no longer the Master
Servicer, the Trustee shall indemnify Residential Funding for any taxes and costs including,
without limitation, any reasonable attorneys' fees imposed on or incurred by Residential
Funding as a result of a breach of the Trustee's covenants set forth in Article VIII or this
Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the Depositor, the Master
Servicer and the Trustee for any taxes and costs (including, without limitation, any
reasonable attorneys' fees) imposed on or incurred by the Trust Fund, the Depositor, the
Master Servicer or the Trustee, as a result of a breach of the REMIC Administrator's
covenants set forth in this Article X with respect to compliance with the REMIC Provisions,
including without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the REMIC Administrator that contain errors or omissions; provided,
however, that such liability will not be imposed to the extent such breach is a result of an
error or omission in information provided to the REMIC Administrator by the Master Servicer
in which case Section 10.02(c) will apply.
(c) The Master Servicer agrees to indemnify the Trust Fund, the Depositor, the REMIC
Administrator and the Trustee for any taxes and costs (including, without limitation, any
reasonable attorneys' fees) imposed on or incurred by the Trust Fund, the Depositor or the
Trustee, as a result of a breach of the Master Servicer's covenants set forth in this
Article X or in Article III with respect to compliance with the REMIC Provisions, including
without limitation, any penalties arising from the Trustee's execution of Tax Returns
prepared by the Master Servicer that contain errors or omissions.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to time by the
Depositor, the Master Servicer and the Trustee, without the consent of any of the
Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be inconsistent
with any other provisions herein or therein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to such extent as shall be
necessary or desirable to maintain the qualification of REMIC I, REMIC II, REMIC III,
REMIC IV or REMIC V 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 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, REMIC IV or REMIC V 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. Notwithstanding any of the other provisions of this Section 11.01, none of the
Depositor, the Master Servicer or the Trustee shall enter into any amendment to Section 4.09
or Section 4.02(f)(xxii) of this Agreement without the prior written consent of the Swap
Counterparty.
(d) Promptly after the execution of any such amendment the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder. It shall not be
necessary for the consent of Certificateholders under this Section 11.01 to approve the
particular form of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to such
reasonable regulations as the Trustee may prescribe.
(e) The Depositor shall have the option, in its sole discretion, to obtain and deliver to
the Trustee any corporate guaranty, payment obligation, irrevocable letter of credit, surety
bond, insurance policy or similar instrument or a reserve fund, or any combination of the
foregoing, for the purpose of protecting the Holders of the Class R Certificates against any
or all Realized Losses or other shortfalls. Any such instrument or fund shall be held by the
Trustee for the benefit of the Class R Certificateholders, but shall not be and shall not be
deemed to be under any circumstances included in 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, REMIC IV or REMIC V 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 L (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 M, 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
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.
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:
Worldwide Securities Services/Global Debt, RAMP 2005-RS6 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 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 by Xxxxx'x; (e) in the case of Fitch, Xxx Xxxxx Xxxxxx
Xxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: RMBS and (f) in the case of
Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address as may
be hereafter furnished to the Depositor, the Trustee and the Master Servicer in writing by
Fitch. 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,
(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 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 or other entity not subject to taxation for federal income tax
purposes and (ii) the adoption of the Supplemental Article will not endanger the status of
any of REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V 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 Beneficiaries.
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. The Swap Counterparty is an
express third-party beneficiary of this Agreement, and shall have the right to enforce the
provisions of this Agreement.
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.
By: /s/ Xxx Xxxxxx
Attest: /s/ Xxxxxx XxxXxx Name: Xxx Xxxxxx
Title: Vice President
Name: Xxxxxx XxxXxx
Title: Vice President
[Seal] RESIDENTIAL FUNDING CORPORATION
Attest: /s/ Xxx Xxxxxx By: /s/ Xxxxxx XxxXxx
Name: Xxx Xxxxxx Name: Xxxxxx XxxXxx
Title: Associate Title: Associate
[Seal] JPMORGAN CHASE BANK, N.A.
as Trustee
Attest: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
Name: Xxxxx Xxxxxxx Name: Xxxxxx Xxxxxx
Title: Vice President Title: Assistant Vice President
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the 1st day of July, 2005 before me, a notary public in and for said State,
personally appeared Xxx Xxxxxx, 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 1st day of July, 2005 before me, a notary public in and for said State,
personally appeared Xxxxxx XxxXxx, known to me to be an Associate 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 1st day of July, 2005 before me, a notary public in and for said State,
personally appeared Xxxxxx Xxxxxx, known to me to be a Assistant Vice President of JPMorgan
Chase Bank, N.A., a New York banking corporation that executed the within instrument, and
also known to me to be the person who executed it on behalf of said banking corporation and
acknowledged to me that such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
Notary Public
___________________________
[Notarial Seal]
