RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
Depositor,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
JPMORGAN CHASE BANK
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2004
Mortgage Loan Backed Certificates
Series 2004-SP2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................................................3
Accrued Certificate Interest....................................................................3
Adjusted Mortgage Rate..........................................................................4
Advance.........................................................................................4
Affiliate.......................................................................................4
Agreement.......................................................................................4
Amount Held for Future Distribution.............................................................4
Appraised Value.................................................................................4
Assignment......................................................................................4
Assignment Agreement............................................................................5
Available Distribution Amount...................................................................5
Bankruptcy Amount...............................................................................5
Bankruptcy Code.................................................................................5
Bankruptcy Loss.................................................................................5
Book-Entry Certificate..........................................................................6
Business Day....................................................................................6
Calendar Quarter................................................................................6
Capitalization Reimbursement Amount.............................................................6
Capitalization Reimbursement Shortfall Amount...................................................6
Cash Liquidation................................................................................6
Certificate.....................................................................................6
Certificate Account.............................................................................6
Certificate Account Deposit Date................................................................6
Certificateholder or Holder.....................................................................6
Certificate Owner...............................................................................7
Certificate Principal Balance...................................................................7
Certificate Register and Certificate Registrar..................................................7
Class...........................................................................................7
Class A Certificates............................................................................7
Class A-I Certificates..........................................................................8
Class A-II Certificates.........................................................................8
Class A-II-PO Collection Shortfall..............................................................8
Class A-II-PO Principal Distribution Amount.....................................................8
Class B Certificates............................................................................8
Class B-1 Certificate...........................................................................8
Class B-2 Certificate...........................................................................8
Class B-3 Certificate...........................................................................8
Class M Certificates............................................................................8
Class M-1 Certificate...........................................................................8
Class M-2 Certificate...........................................................................8
Class M-3 Certificate...........................................................................9
i
Class R Certificate.............................................................................9
Class R-I Certificate...........................................................................9
Class R-II Certificate..........................................................................9
Closing Date....................................................................................9
Code............................................................................................9
Commission......................................................................................9
Compensating Interest...........................................................................9
Corporate Trust Office..........................................................................9
Credit Repository...............................................................................9
Credit Support Depletion Date...................................................................9
Curtailment....................................................................................10
Custodial Account..............................................................................10
Custodial Agreement............................................................................10
Custodian......................................................................................10
Cut-off Date...................................................................................10
Cut-off Date Balance...........................................................................10
Cut-off Date Principal Balance.................................................................10
Debt Service Reduction.........................................................................10
Deficient Valuation............................................................................10
Definitive Certificate.........................................................................10
Deleted Mortgage Loan..........................................................................10
Delinquent.....................................................................................10
Depository.....................................................................................11
Depository Participant.........................................................................11
Destroyed Mortgage Note........................................................................11
Determination Date.............................................................................11
Discount Fraction..............................................................................11
Discount Mortgage Loan.........................................................................11
Discount Net Mortgage Rate.....................................................................11
Disqualified Organization......................................................................11
Distribution Date..............................................................................12
Due Date.......................................................................................12
Due Period.....................................................................................12
Eligible Account...............................................................................12
Eligible Funds.................................................................................12
Eligible Master Servicing Compensation.........................................................13
ERISA..........................................................................................13
Event of Default...............................................................................13
Excess Bankruptcy Loss.........................................................................13
Excess Loss....................................................................................13
Excess Special Hazard Loss.....................................................................13
Excess Subordinate Principal Amount............................................................13
Exchange Act...................................................................................13
Extraordinary Events...........................................................................13
Extraordinary Losses...........................................................................14
Xxxxxx Xxx.....................................................................................14
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FASIT..........................................................................................14
FDIC...........................................................................................14
FHA............................................................................................14
Final Certification............................................................................14
Final Distribution Date........................................................................14
Fitch..........................................................................................14
Foreclosure Profits............................................................................14
Xxxxxxx Mac....................................................................................15
Group I Cut-off Date Balance...................................................................15
Group II Cut-off Date Balance..................................................................15
Group I Loan...................................................................................15
Group II Loan..................................................................................15
Group I Pool Stated Principal Balance..........................................................15
Group II Pool Stated Principal Balance.........................................................15
Group I Senior Certificates....................................................................15
Group II Senior Certificates...................................................................15
Hazardous Materials............................................................................15
Highest Priority...............................................................................15
Independent....................................................................................15
Index..........................................................................................16
Initial Certificate Principal Balance..........................................................16
Initial Notional Amount........................................................................16
Initial Subordinate Class Percentage...........................................................16
Insurance Proceeds.............................................................................16
Interest Accrual Period........................................................................16
Interest Only Certificate......................................................................16
Interim Certification..........................................................................16
Interested Person..............................................................................16
Late Collections...............................................................................16
Liquidation Proceeds...........................................................................17
Loan Group.....................................................................................17
Loan-to-Value Ratio............................................................................17
Lower Priority.................................................................................17
Lowest Priority................................................................................17
Maturity Date..................................................................................17
MERS...........................................................................................17
MERS(R)System..................................................................................17
MIN............................................................................................17
Modified Mortgage Loan.........................................................................18
Modified Net Mortgage Rate.....................................................................18
MOM Loan.......................................................................................18
Monthly Payment................................................................................18
Xxxxx'x........................................................................................18
Mortgage.......................................................................................18
Mortgage File..................................................................................18
Mortgage Loan Schedule.........................................................................18
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Mortgage Loans.................................................................................19
Mortgage Note..................................................................................19
Mortgage Rate..................................................................................19
Mortgaged Property.............................................................................19
Mortgagor......................................................................................19
Net Mortgage Rate..............................................................................19
Non-Discount Mortgage Loan.....................................................................19
Non-Primary Residence Loans....................................................................19
Non-United States Person.......................................................................20
Nonrecoverable Advance.........................................................................20
Nonsubserviced Mortgage Loan...................................................................20
Notice.........................................................................................20
Notional Amount................................................................................20
Officers' Certificate..........................................................................20
Opinion of Counsel.............................................................................20
Optional Termination Date......................................................................21
Outstanding Mortgage Loan......................................................................21
Ownership Interest.............................................................................21
Pass-Through Rate..............................................................................21
Paying Agent...................................................................................21
Percentage Interest............................................................................21
Permitted Investments..........................................................................21
Permitted Transferee...........................................................................23
Person.........................................................................................23
Pool Strip Rate................................................................................23
Prepayment Assumption..........................................................................23
Prepayment Distribution Percentage.............................................................23
Prepayment Distribution Trigger................................................................24
Prepayment Interest Shortfall..................................................................24
Prepayment Period..............................................................................24
Primary Insurance Policy.......................................................................24
Principal Prepayment...........................................................................24
Principal Prepayment in Full...................................................................25
Program Guide..................................................................................25
Purchase Price.................................................................................25
Qualified Insurer..............................................................................25
Qualified Substitute Mortgage Loan.............................................................25
Rating Agency..................................................................................26
Realized Loss..................................................................................26
Record Date....................................................................................27
Regular Certificates...........................................................................27
Regular Interest...............................................................................27
Related Classes................................................................................27
Relief Act.....................................................................................27
Relief Act Shortfalls..........................................................................27
REMIC..........................................................................................27
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REMIC Administrator............................................................................27
REMIC I........................................................................................27
REMIC I Accrued Interest.......................................................................27
REMIC I Regular Interests......................................................................28
REMIC I Subordinated Balance Ratio.............................................................28
REMIC II.......................................................................................28
REMIC Provisions...............................................................................29
REO Acquisition................................................................................29
REO Disposition................................................................................29
REO Imputed Interest...........................................................................29
REO Proceeds...................................................................................29
REO Property...................................................................................29
Reportable Modified Mortgage Loan..............................................................29
Repurchase Event...............................................................................29
Repurchase Price...............................................................................29
Request for Release............................................................................30
Required Insurance Policy......................................................................30
Residential Funding............................................................................30
Responsible Officer............................................................................30
Schedule of Discount Fractions.................................................................30
Senior Accelerated Distribution Percentage.....................................................30
Senior Certificates............................................................................31
Senior Percentage..............................................................................32
Senior Principal Distribution Amount...........................................................32
Servicing Accounts.............................................................................32
Servicing Advances.............................................................................32
Servicing Fee..................................................................................32
Servicing Fee Rate.............................................................................32
Senior Interest Distribution Amount............................................................32
Servicing Modification.........................................................................32
Servicing Officer..............................................................................33
Special Hazard Amount..........................................................................33
Special Hazard Loss............................................................................33
Standard & Poor's..............................................................................33
Startup Date...................................................................................34
Stated Principal Balance.......................................................................34
Subclass.......................................................................................34
Subordination..................................................................................34
Subordinate Certificate........................................................................34
Subordinate Class Percentage...................................................................34
Subordinate Percentage.........................................................................34
Subordinate Principal Distribution Amount......................................................34
Subsequent Recoveries..........................................................................35
Subserviced Mortgage Loan......................................................................35
Subservicer....................................................................................35
Subservicer Advance............................................................................35
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Subservicing Account...........................................................................35
Subservicing Agreement.........................................................................35
Subservicing Fee...............................................................................36
Subservicing Fee Rate..........................................................................36
Tax Returns....................................................................................36
Transfer.......................................................................................36
Transferee.....................................................................................36
Transferor.....................................................................................36
Trust Fund.....................................................................................36
Uniform Single Attestation Program for Mortgage Bankers........................................36
Uncertificated Class A-II-IO REMIC II Regular Interests........................................37
Uncertificated Notional Amount.................................................................37
Uncertificated Pass-Through Rate...............................................................37
Uncertificated Principal Balance...............................................................37
Uncertificated REMIC Regular Interest Distribution Amount......................................37
Uncertificated REMIC Regular Interests.........................................................37
Uninsured Cause................................................................................37
United States Person...........................................................................37
VA.............................................................................................37
Voting Rights..................................................................................38
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans..........................................................39
Section 2.02. Acceptance by Trustee.................................................................44
Section 2.03. Representations, Warranties and Covenants of the Master Servicer and the
Depositor.............................................................................45
Section 2.04. Representations and Warranties of Residential Funding.................................48
Section 2.05. Execution and Authentication of Certificates; Conveyance of Uncertificated
REMIC Regular Interests...............................................................49
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer....................................................51
Section 3.02. Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' Obligations..............................................52
Section 3.03. Successor Subservicers................................................................53
Section 3.04. Liability of the Master Servicer......................................................54
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders....................................................................54
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee.......................54
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to Custodial
Account...............................................................................54
vi
Section 3.08. Subservicing Accounts; Servicing Accounts.............................................57
Section 3.09. Access to Certain Documentation and Information Regarding the Mortgage
Loans.................................................................................58
Section 3.10. Permitted Withdrawals from the Custodial Account......................................59
Section 3.11. Maintenance of Primary Insurance Coverage.............................................60
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity Coverage.....................61
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments.......................................................62
Section 3.14. Realization Upon Defaulted Mortgage Loans.............................................64
Section 3.15. Trustee to Cooperate; Release of Mortgage Files.......................................66
Section 3.16. Servicing and Other Compensation; Eligible Master Servicing Compensation
.....................................................................................68
Section 3.17. Reports to the Trustee and the Depositor..............................................69
Section 3.18. Annual Statement as to Compliance.....................................................69
Section 3.19. Annual Independent Public Accountants' Servicing Report...............................70
Section 3.20. Right of the Depositor in Respect of the Master Servicer..............................70
Section 3.21. Advance Facility......................................................................70
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account...................................................................75
Section 4.02. Distributions.........................................................................75
Section 4.03. Statements to Certificateholders; Statements to Rating Agencies; Exchange
Act Reporting.........................................................................85
Section 4.04. Distribution of Reports to the Trustee and the Depositor; Advances by the
Master Servicer.......................................................................87
Section 4.05. Allocation of Realized Losses.........................................................89
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.........................90
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.........................................90
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates......................................................................92
Section 5.02. Registration of Transfer and Exchange of Certificates.................................94
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.....................................99
Section 5.04. Persons Deemed Owners.................................................................99
Section 5.05. Appointment of Paying Agent..........................................................100
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer......................101
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer; Assignment
of Rights and Delegation of Duties by Master Servicer................................101
vii
Section 6.03. Limitation on Liability of the Depositor, the Master Servicer
and Others...........................................................................102
Section 6.04. Depositor and Master Servicer Not to Resign..........................................102
ARTICLE VII
DEFAULT
Section 7.01. Events of Default....................................................................104
Section 7.02. Trustee or Depositor to Act; Appointment of Successor................................105
Section 7.03. Notification to Certificateholders...................................................107
Section 7.04. Waiver of Events of Default..........................................................107
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee....................................................................108
Section 8.02. Certain Matters Affecting the Trustee................................................109
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans................................111
Section 8.04. Trustee May Own Certificates.........................................................111
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses; Indemnification..................111
Section 8.06. Eligibility Requirements for Trustee.................................................112
Section 8.07. Resignation and Removal of the Trustee...............................................112
Section 8.08. Successor Trustee....................................................................113
Section 8.09. Merger or Consolidation of Trustee...................................................114
Section 8.10. Appointment of Co-Trustee or Separate Trustee........................................114
Section 8.11. Appointment of Custodians............................................................115
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase by the Master Servicer or Liquidation of All
Mortgage Loans.......................................................................115
Section 9.02. Additional Termination Requirements..................................................118
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.................................................................120
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification.....................123
Section 10.03 Distributions on the REMIC I Regular Interests.......................................124
Section 10.04. Distributions on the Uncertificated REMIC Regular Interests..........................124
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment............................................................................126
Section 11.02. Recordation of Agreement; Counterparts...............................................128
Section 11.03. Limitation on Rights of Certificateholders...........................................128
Section 11.04. Governing Law........................................................................129
Section 11.05. Notices..............................................................................129
Section 11.06. Notices to Rating Agencies...........................................................130
Section 11.07. Severability of Provisions...........................................................131
Section 11.08. Supplemental Provisions for Resecuritization.........................................131
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 R Certificate
Exhibit E Form of Custodial Agreement
Exhibit F-1 Group I Loan Schedule
Exhibit F-2 Group II Loan Schedule
Exhibit G Forms of Request for Release
Exhibit H-1 Form of Transfer Affidavit and Agreement
Exhibit H-2 Form of Transferor Certificate
Exhibit I Form of Investor Representation Letter
Exhibit J Form of Transferor Representation Letter
Exhibit K Text of Amendment to Pooling and Servicing Agreement Pursuant to Section
11.01(e) for a Limited Guaranty
Exhibit L Form of Limited Guaranty
Exhibit M Form of Lender Certification for Assignment of Mortgage Loan
Exhibit N Form of Rule 144A Investment Representation
Exhibit O [Reserved]
Exhibit P Schedule of Discount Fractions
Exhibit Q Form of Request for Exchange
Exhibit R-1: Form of Form 10-K Certification
Exhibit R-2: Form of Back-Up Certification to Form 10-K Certificate
Exhibit S: Information to be Provided by the Master Servicer to the Rating Agencies Relating
to Reportable Modified Mortgage Loans
ix
This Pooling and Servicing Agreement, effective as of July 1, 2004,
among RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as the depositor (together with
its permitted successors and assigns, the "Depositor"), RESIDENTIAL FUNDING
CORPORATION, as master servicer (together with its permitted successors and
assigns, the "Master Servicer"), and JPMORGAN CHASE BANK, a New York banking
corporation, as trustee (together with its permitted successors and assigns, the
"Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage loan backed certificates
(collectively, the "Certificates"), to be issued hereunder in thirteen classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Mortgage Loans (as defined herein).
REMIC I
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Group I Loans and Group II
Loans and certain other related assets 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 "REMIC I Pass-Through Rate") and initial Uncertificated Principal
Balance for each of the "regular interests" in REMIC I (the "REMIC I Regular
Interests"). The "latest possible maturity date" (determined solely for purposes
of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) for each REMIC I
Regular Interest shall be the date set forth below. None of the REMIC I Regular
Interests will be certificated.
UNCERTIFICATED REMIC I LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE
A-II-PO 0.00% $33,469.00 January 2032
I-SUB 6.50% $70.26 January 2032
I-ZZZ 6.50% $36,019,670.40 January 2032
II-SUB 6.50% $212.79 January 2032
II-ZZZ 6.50% $109,074,718.75 January 2032
REMIC I IO-II (1) (2) January 2032
Regular Interests
---------------
(1) Calculated as provided in the definition of REMIC I Pass-Through Rate. (2)
The REMIC I IO-II Regular Interests will not have an Uncertificated Principal
Balance.
1
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 represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, Pass-Through Rate, aggregate Initial Certificate Principal Balance,
certain features, Maturity Date and initial ratings for each Class of
Certificates comprising the interests representing "regular interests" in REMIC
II and the Class R Certificates. The "latest possible maturity date" (determined
solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii)) for each Class of REMIC II Regular Certificates shall be
the date set forth below.
AGGREGATE
INITIAL
CERTIFICATE
PASS-THROUGH- PRINCIPAL
DESIGNATION TYPE RATE BALANCE FEATURES MATURITY DATE INITIAL RATINGS(7)
----------- ---- ---- ------- -------- ------------- ---------------
S&P XXXXX'X
Class A-I Senior Variable Rate $35,317,000.00 Senior January 25, 2032 AAA Aaa
Class A-II-1 Senior 6.00% $ 96,252,000.00 Senior January 25, 2032 AAA Aaa
Senior/Prepayment
Class A-II-2 Senior 6.00% $10,695,000.00 Lockout January 25, 2032 AAA Aaa
Senior/Interest
Class A-II-IO Senior Variable Rate $ 0.00 Only January 25, 2032 AAA Aaa
Senior/Principal
Class A-II-PO Senior 0.00% $33,469.00 Only January 25, 2032 AAA Aaa
Class M-1 Mezzanine Variable Rate(1) $ 943,000.00 Xxxxxxxxx Xxxxxxx 00, 0000 XX Aa2
Class M-2 Mezzanine Variable Rate(1) $ 725,000.00 Mezzanine January 25, 2032 A A2
Class M-3 Mezzanine Variable Rate(1) $ 580,000.00 Mezzanine January 25, 2032 BBB Baa2
Class B-1 Subordinate Variable Rate(1) $ 217,000.00 Subordinate January 25, 2032 BB Ba2
Class B-2 Subordinate Variable Rate(1) $ 145,000.00 Subordinate January 25, 2032 B B2
Class B-3 Subordinate Variable Rate(1) $ 220,572.20 Subordinate January 25, 2032 N/R N/R
Class R-I Residual Variable Rate $100.00 Residual January 25, 2032 AAA Aaa
Class R-II Residual Variable Rate $100.00 Residual January 25, 2032 AAA Aaa
---------------
(1) Calculated in accordance with the definition of "Pass-Through Rate" herein.
The Group I Loans have an aggregate Cut-off Date Principal Balance
equal to $36,019,840.66. The Group I Loans are fixed-rate, fully amortizing,
first lien mortgage loans having terms to maturity at origination or
modification of generally not more than 15 years. The Group II Loans have an
aggregate Cut-off Date Principal Balance equal to $109,108,400.54. The Group II
Loans are fixed-rate, fully amortizing, first lien mortgage loans having terms
to maturity at origination or modification of generally not more than 30 years.
The Mortgage Loans have an aggregate Cut-off Date Principal Balance equal to
$145,128,241.20.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as follows:
2
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,
as to any Class of Certificates (other than the Principal Only Certificates), an
amount equal to interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class of
Certificates will be reduced by interest shortfalls from the Mortgage Loans in
the related Loan Group, if any, allocated to such Class of Certificates for such
Distribution Date, to the extent not covered with respect to the Senior
Certificates by the Subordination provided by the Class B Certificates and Class
M Certificates and, with respect to each Class of Subordinate Certificates to
the extent not covered by the Subordination provided by each Subordinate
Certificate with a Lower Priority, including in each case:
(i) Prepayment Interest Shortfalls on the Mortgage Loans in the
related Loan Group (to the extent not offset by the Master
Servicer with a payment of Compensating Interest as provided
in Section 4.01), allocated among the Certificates on a pro
rata basis in accordance with the amount of Accrued
Certificate Interest payable from the related Loan Group for
such Distribution Date absent such shortfalls,
(ii) the interest portion (adjusted to the Net Mortgage Rate (or
the Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan)) of Realized Losses on the Mortgage Loans in
the related Loan Group (including Excess Losses from the
related Loan Group) not allocated solely to one or more
specific Classes of Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on the
Mortgage Loans in the related Loan Group, which remained
unreimbursed following the Cash Liquidation or REO Disposition
of such Mortgage Loan or REO Property or (B) made with respect
to delinquencies that were ultimately determined to be Excess
Losses from the related Loan Group, and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Relief Act or similar legislation or
regulations as in effect from time to time,
with all such reductions allocated among all of the related Certificates in
proportion to their respective amounts of Accrued Certificate Interest payable
on such Distribution Date absent such
3
reductions. In addition to that portion of the reductions described in the
preceding sentence that are allocated to any Class of Class B Certificates or
any Class of Class M Certificates, Accrued Certificate Interest on such Class of
Class B Certificates or such Class of Class M Certificates will be reduced by
the interest portion (adjusted to the Net Mortgage Rate) of Realized Losses that
are allocated solely to such Class of Class B Certificates or such Class of
Class M Certificates pursuant to Section 4.05.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date
of determination, the Mortgage Rate borne by the related Mortgage Note, less the
rate at which the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master
Servicer, pursuant to Section 4.04.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution Date, the
total of the amounts held in the Custodial Account at the close of business on
the preceding Determination Date on account of (i) Liquidation Proceeds,
Subsequent Recoveries, REO Proceeds, Insurance Proceeds, Principal Prepayments,
Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04 or 4.07 and
Mortgage Loan substitutions made pursuant to Section 2.03 or 2.04 received or
made in the month of such Distribution Date (other than such Liquidation
Proceeds, Subsequent Recoveries, REO Proceeds, Insurance Proceeds and purchases
of Mortgage Loans that the Master Servicer has deemed to have been received in
the preceding month in accordance with Section 3.07(b)) and (ii) payments which
represent early receipt of scheduled payments of principal and interest due on a
date or dates subsequent to the Due Date in the related Due Period.
Appraised Value: 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 or
(ii) in the case of a Mortgaged Property securing a refinanced or modified
Mortgage Loan, one of (1) the appraised value based upon the appraisal made at
the time of origination of the loan which was refinanced or modified, (2) the
appraised value determined in an appraisal made at the time of refinancing or
modification or (3) the sales price of the Mortgaged Property.
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the Trustee for the benefit of
Certificateholders, which assignment, notice of transfer or equivalent
instrument may be in the form
4
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 and each
Loan Group, an amount equal to (a) the sum of (i) the amount relating to the
related Mortgage Loans on deposit in the Custodial Account as of the close of
business on the immediately preceding Determination Date and amounts deposited
in the Custodial Account in connection with the substitution of Qualified
Substitute Mortgage Loans that are related Mortgage Loans, (ii) the amount of
any Advance made on the immediately preceding Certificate Account Deposit Date
with respect to the related Mortgage Loans, (iii) any amount deposited in the
Certificate Account on the related Certificate Account Deposit Date pursuant to
Section 3.12(a) in respect of the related Mortgage Loans, (iv) any amount that
the Master Servicer is not permitted to withdraw from the Custodial Account
pursuant to Section 3.16(e) in respect of the related Mortgage Loans and (v) any
amount deposited in the Certificate Account pursuant to Section 4.07 or 9.01 in
respect of the related Mortgage Loans, reduced by (b) the sum as of the close of
business on the immediately preceding Determination Date of (x) the Amount Held
for Future Distribution with respect to the related Mortgage Loans and (y)
amounts permitted to be withdrawn by the Master Servicer from the Custodial
Account in respect of the related Mortgage Loans pursuant to clauses (ii)-(x),
inclusive, of Section 3.10(a).
Bankruptcy Amount: As of any date of determination, an amount equal to
$100,000, less the sum of any amounts allocated through Section 4.05 for
Bankruptcy Losses on the Mortgage Loans up to such date of determination. The
Bankruptcy Amount may be further reduced by the Master Servicer (including
accelerating the manner in which such coverage is reduced) provided that prior
to any such reduction, the Master Servicer shall (i) obtain written confirmation
from each Rating Agency that such reduction shall not reduce the rating assigned
to the Class A, Class M and Class B 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 and (ii) provide a copy of such
written confirmation to the Trustee.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that neither a Deficient
Valuation nor a Debt Service Reduction shall be deemed a Bankruptcy 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.
5
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.
Calendar Quarter: A Calendar Quarter shall consist of one of the
following time periods in any given year: January 1 through March 31, April 1
through June 30, July 1 though September 30, and October 1 through December 31.
Capitalization Reimbursement Amount: As to any Distribution Date, the
amount of Advances or Servicing Advances that were added to the Stated Principal
Balance of the related Mortgage Loans during the prior calendar month and
reimbursed to the Master Servicer or Subservicer on or prior to such
Distribution Date pursuant to Section 3.10(a)(vii), plus the Capitalization
Reimbursement Shortfall Amount remaining unreimbursed from any prior
Distribution Date and reimbursed to the Master Servicer or Subservicer on or
prior to such Distribution Date.
Capitalization Reimbursement Shortfall Amount: As to any Distribution
Date, the amount, if any, by which the amount of Advances or Servicing Advances
that were added to the Stated Principal Balance of the Mortgage Loans during the
preceding calendar month exceeds the amount of principal payments on the
Mortgage Loans included in the Available Distribution Amount for that
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 or Class R Certificate.
Certificate Account: The account or accounts created and maintained
pursuant to Section 4.01, which shall be entitled "JPMorgan Chase Bank, as
trustee, in trust for the registered holders of Residential Asset Mortgage
Products, Inc., Mortgage Loan Backed Certificates, Series 2004-SP2" 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
6
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 each Certificate (other
than any Interest Only 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, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02, 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(a) 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 the Certificate Principal Balance of the Class of Subordinate
Certificates with the Lowest Priority at any given time shall be further reduced
by an amount equal to the Percentage Interest evidenced by such Certificate
multiplied by the excess, if any, of (A) the then aggregate Certificate
Principal Balance of all Classes of Certificates then outstanding over (B) the
then aggregate Stated Principal Balance of the Mortgage Loans.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates or uncertificated interests
bearing the same designation.
Class A Certificates: Any one of the Class A-I, Class A-II-1, Class
A-II-2, Class A-II-IO or Class A-II-PO Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed
hereto as Exhibit A, senior to the Class M Certificates and Class B Certificates
with respect to distributions and the allocation of Realized Losses in respect
of the
7
Mortgage Loans as set forth in Section 4.05, and evidencing an interest
designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
Class A-I Certificates: The Class A-I Certificates.
Class A-II Certificates: Any one of the Class A-II-1, Class A-II-2,
Class A-II-IO and Class A-II-PO Certificates.
Class A-II-PO Collection Shortfall: With respect to the Cash
Liquidation or REO Disposition of a Discount Mortgage Loan and any Distribution
Date, the excess of the amount described in Section 4.02(b)(i)(C)(1) in respect
of the Class A-II-PO Certificates over the amount described in Section
4.02(b)(i)(C)(2) in respect of the Class A-II-PO Certificates.
Class A-II-PO Principal Distribution Amount: As defined in Section
4.02(b)(i).
Class B Certificates: Any one of the Class B-1, Class B-2 or Class B-3
Certificates.
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 B-2 and Class B-3
Certificates with respect to distributions and the allocation of Realized Losses
in respect of the Mortgage Loans as set forth in Section 4.05, and evidencing an
interest designated as a "regular interest" in REMIC II for purposes of the
REMIC Provisions.
Class B-2 Certificate: Any one of the Class B-2 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit C, senior to the Class B-3 Certificates with
respect to distributions and the allocation of Realized Losses in respect of the
Mortgage Loans as set forth in Section 4.05, and evidencing an interest
designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
Class B-3 Certificate: Any one of the Class B-3 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit C, and evidencing an interest designated as a
"regular interest" in REMIC II for purposes of the REMIC Provisions.
Class M Certificates: Any one of the Class M-1, Class M-2 or Class M-3
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 and
Class B Certificates with respect to distributions and the allocation of
Realized Losses in respect of the Mortgage Loans as set forth in Section 4.05,
and evidencing an interest designated as a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
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 and Class B
Certificates with respect to distributions and the allocation of
8
Realized Losses in respect of the Mortgage Loans as set forth in Section 4.05,
and evidencing an interest designated as a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
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 B Certificates with
respect to distributions and the allocation of Realized Losses in respect of the
Mortgage Loans as set forth in Section 4.05, and evidencing an interest
designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
Class R Certificate: Any one of the Class R-I Certificates or Class
R-II Certificates.
Class R-I Certificate: Any one of the Class R-I Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit D and evidencing an interest designated as a
"residual interest" in REMIC I for purposes of the REMIC Provisions.
Class R-II Certificate: Any one of the Class R-II Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit D and evidencing an interest designated as a
"residual interest" in REMIC II for purposes of the REMIC Provisions.
Closing Date: August 6, 2004.
Code: The Internal Revenue Code of 1986.
Commission: The Securities and Exchange Commission.
----------
Compensating Interest: As determined with respect to each Loan Group,
with respect to any Distribution Date, an amount equal to Prepayment Interest
Shortfalls resulting from Principal Prepayments during the related Prepayment
Period and included in the related Available Distribution Amount for such
Distribution Date, but not more than the lesser of (a) one-twelfth of 0.125% of
the Stated Principal Balance of the Mortgage Loans in the related Loan Group
immediately preceding such Distribution Date and (b) the sum of the Servicing
Fee and all income and gain on amounts held in the Custodial Account and the
Certificate Account and payable to the Certificateholders with respect to such
Distribution Date; provided that for purposes of this definition the amount of
the Servicing Fee will not be reduced pursuant to Section 7.02 except as may be
required pursuant to the last sentence of Section 7.02(a).
Corporate Trust Office: The principal office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Institutional Trust Services/Global Debt, RAMP, Series 2004-SP2.
Credit Repository: Equifax, Transunion and Experian, or their successors
in interest.
Credit Support Depletion Date: The first Distribution Date on which the
Certificate Principal Balances of the Subordinate Certificates have been reduced
to zero.
9
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.07 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
Custodial Agreement: An agreement that may be entered into among the
Depositor, the Master Servicer, the Trustee and a Custodian in substantially the
form of Exhibit E hereto.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
Cut-off Date: July 1, 2004.
Cut-off Date Balance: The Group I Cut-off Date Balance or Group II
Cut-off Date Balance, as the case may be.
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
July 2004), whether or not received.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificate: Any definitive, fully registered Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Delinquent: As used herein, a Mortgage Loan is considered to be: "30 to
59 days" or "30 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the next following monthly
scheduled due date; "60 to 89 days" or "60 or more days" delinquent when a
payment due on any scheduled due date remains unpaid as of the close of business
on the second following monthly scheduled due date; and so on. The determination
as to whether a Mortgage Loan falls into these categories is made as of the
close of business on the last business day of each month. For example, a
Mortgage Loan with a payment due on July 1 that remained unpaid as of the close
of business on August 31 would then be considered to be 30 to 59 days
10
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.
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.
Discount Fraction: With respect to each Discount Mortgage Loan, the
fraction expressed as a percentage, the numerator of which is the related
Discount Net Mortgage Rate minus the Net Mortgage Rate (or the initial Net
Mortgage Rate with respect to any Discount Mortgage Loans as to which the
Mortgage Rate is modified pursuant to 3.07(a)) for such Mortgage Loan and the
denominator of which is the related Discount Net Mortgage Rate. The Discount
Fraction with respect to each Discount Mortgage Loan is set forth as Exhibit P
hereto.
Discount Mortgage Loan: Any Group II Loan having a Net Mortgage Rate
(or the initial Net Mortgage Rate) of less than the related Discount Net
Mortgage Rate per annum and any Group II Loan deemed to be a Discount Mortgage
Loan pursuant to the definition of Qualified Substitute Mortgage Loan.
Discount Net Mortgage Rate: With respect to a Discount Mortgage Loan,
6.00% per annum.
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
11
may cause any REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Class R Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
Distribution Date: The 25th day of any month beginning in the month
immediately following the month of the initial issuance of the Certificates or,
if such 25th day is not a Business Day, the Business Day immediately following
such 25th day.
Due Date: With respect to any Distribution Date and any Mortgage Loan,
the day during the related Due Period on which the Monthly Payment is due.
Due Period: With respect to any Distribution Date, the calendar month
of such Distribution Date.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Certificates have a
claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, or (iii) in the case of the Custodial Account, either (A) a trust
account or accounts maintained in the corporate trust department of JPMorgan
Chase Bank, or (B) an account or accounts maintained in the corporate asset
services department of Bank One, National Association as long as its short term
debt obligations are rated P-1 (or the equivalent) or better by each Rating
Agency, and its long term debt obligations are rated A2 (or the equivalent) or
better, by each Rating Agency, or (iv) in the case of the Certificate Account, a
trust account or accounts maintained in the corporate trust division of JPMorgan
Chase Bank, or (v) an account or accounts of a depository institution acceptable
to each Rating Agency (as evidenced in writing by each Rating Agency that use of
any such account as the Custodial Account or the Certificate Account will not
reduce the rating assigned to any Class of Certificates by such Rating Agency
below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency).
Eligible Funds: With respect to each Loan Group, on any Distribution
Date, the portion, if any, of the related Available Distribution Amount
remaining after reduction by the sum of (i) the aggregate amount of Accrued
Certificate Interest on the related Senior Certificates, (ii) the applicable
Senior Principal Distribution Amount (determined without regard to Section
4.02(a)(ii)(Y)(D) hereof), (iii) the Class A-II-PO Principal Distribution Amount
(determined without regard to Section 4.02(b)(i)(E) hereof) and (iv) the
aggregate amount of Accrued Certificate Interest on the Class M, Class B-1 and
Class B-2 Certificates payable from the related Available Distribution Amount.
12
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), in each case with respect to the related Loan Group;
provided that for purposes of this definition the amount of the Servicing Fee
will not be reduced pursuant to Section 7.02 except as may be required pursuant
to the last sentence of Section 7.02(a).
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 7.01.
Excess Bankruptcy Loss: Any Bankruptcy Loss on the Mortgage Loans, or
portion thereof, which exceeds the then-applicable Bankruptcy Amount.
Excess Loss: Any Excess Special Hazard Loss, Excess Bankruptcy Loss or
Extraordinary Loss.
Excess Special Hazard Loss: Any Special Hazard Loss on the Mortgage
Loans, or portion thereof, that exceeds the then-applicable Special Hazard
Amount.
Excess Subordinate Principal Amount: With respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the Lowest Priority is to be
reduced to zero and on which Realized Losses are to be allocated to such class
or classes, the excess, if any, of (i) the amount that would otherwise be
distributable in respect of principal on such Class or Classes of Certificates
on such Distribution Date over (ii) the excess, if any, of the aggregate
Certificate Principal Balance of such class or classes of Certificates
immediately prior to such Distribution Date over the aggregate amount of
Realized Losses to be allocated to such classes of Certificates on such
Distribution Date as reduced by any amount calculated pursuant to Section
4.02(b)(i)(E).
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extraordinary Events: Any of the following conditions with respect to a
Mortgaged Property or Mortgage Loan causing or resulting in a loss which causes
the liquidation of such Mortgage Loan:
(a) losses that are of the type that would be covered by the
fidelity bond and the errors and omissions insurance policy required to
be maintained pursuant to Section 3.12(b) but are in excess of the
coverage maintained thereunder;
(b) nuclear reaction or nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, and whether such
loss be direct or indirect, proximate or remote or be in whole or in
part caused by, contributed to or aggravated by a peril covered by the
definition of the term "Special Hazard Loss";
13
(c) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an
actual, impending or expected attack;
1. by any government or sovereign power, de jure or
defacto, or by any authority maintaining or using military,
naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power,
authority or forces; or
4. any weapon of war employing atomic fission or
radioactive force whether in time of peace or war; or
5. insurrection, rebellion, revolution, civil war,
usurped power or action taken by governmental authority in
hindering, combating or defending against such an occurrence,
seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public
authority; or risks of contraband or illegal transportation or
trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by or
resulting from an Extraordinary Event.
Xxxxxx Xxx: Xxxxxx Xxx, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
FASIT: A "financial asset securitization investment trust" within the
meaning of Section 860L of the Code.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHA: The Federal Housing Administration, or its successor.
Final Certification: As defined in Section 2.02.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
9.01, which Final Distribution Date shall in no event be later than the end of
the 90-day liquidation period described in Section 9.02.
Fitch: Fitch, Inc., or its successor in interest.
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
14
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.
Group I Cut-off Date Balance: $36,019,840.66.
Group II Cut-off Date Balance: $109,108,400.54.
Group I Loan: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit F-1.
Group II Loan: The Mortgage Loans designated on the Mortgage Loan
Schedule attached hereto as Exhibit F-2.
Group I Pool Stated Principal Balance: As to any date of determination,
the aggregate of the Stated Principal Balances of each Group I Loan that was an
Outstanding Mortgage Loan on the Due Date immediately preceding the Due Period
preceding such date of determination.
Group II Pool Stated Principal Balance: As to any date of
determination, the aggregate of the Stated Principal Balances of each Group II
Loan that was an Outstanding Mortgage Loan on the Due Date immediately preceding
the Due Period preceding such date of determination.
Group I Senior Certificates: Any of the Class A-I, Class R-I and Class
R-II Certificates.
Group II Senior Certificates: Any of the Class A-II Certificates.
Hazardous Materials: Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum
and petroleum products, urea formaldehyde and any substances classified as being
"in inventory", "usable work in progress" or similar classification which would,
if classified unusable, be included in the foregoing definition.
Highest Priority: As of any date of determination and any Loan Group,
the Class of Subordinate Certificates then outstanding with the earliest
priority for payments pursuant to Section 4.02(a), in the following order: Class
M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates.
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
15
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 Interest Only Certificates), the Certificate
Principal Balance of such Class of Certificates as of the Cut-off Date as set
forth in the Preliminary Statement hereto.
Initial Notional Amount: With respect to any Class A-II-IO Certificates
or Subclass thereof issued pursuant to Section 5.01(c), the aggregate Cut-off
Date Principal Balance of the Group II Loans corresponding to the Uncertificated
Class A-II-IO REMIC II Regular Interests represented by such Class or Subclass
on such date.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Certificate Principal Balance of such Class of Subordinate Certificates divided
by the aggregate Stated Principal Balance of all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 0.65% Class B-1: 0.15%
Class M-2: 0.50% Class B-2: 0.10%
Class M-3: 0.40% Class B-3: 0.15%
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 any Certificates and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs.
Interest Only Certificate: The Class A-II-IO Certificates.
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 actually 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.
16
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received
by the Master Servicer in connection with the taking of an entire Mortgaged
Property by exercise of the power of eminent domain or condemnation or in
connection with the liquidation of a defaulted Loan through trustee's sale,
foreclosure sale or otherwise, other than REO Proceeds and Subsequent
Recoveries.
Loan Group: With respect to the Class A-I Certificates, Class R
Certificates and REMIC I Regular Interests I-SUB and I-ZZZ, the Group I Loans;
with respect to the Class A-II-1, Class A-II-2, Class A-II-PO and Class A-II-IO
Certificates and REMIC I Regular Interests II-SUB, II-ZZZ, REMIC I Regular
Interest A-II-PO and REMIC I IO-II Regular Interest, the Group II Loans; and
with respect to the Class M Certificates and Class B Certificates, the Group I
Loans and Group II Loans.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of which
is the Appraised Value of the related Mortgaged Property.
Lockout Prepayment Percentage: For any Distribution Date occurring
prior to the Distribution Date in August 2009, 0%. For any Distribution Date
occurring after the first five years following the Closing Date, a percentage
determined as follows: (i) for any Distribution Date during the sixth year after
the Closing Date, 30%; (ii) for any Distribution Date during the seventh year
after the Closing Date, 40%; (iii) for any Distribution Date during the eighth
year after the Closing Date, 60%; (iv) for any Distribution Date during the
ninth year after the Closing Date, 80%; and (v) for any Distribution Date
thereafter, 100%.
Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of Subordinate Certificates then
outstanding with a later priority for payments pursuant to Section 4.02(a).
Lowest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the latest priority for payments
pursuant to Section 4.02(a), in the following order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1 Certificates.
Maturity Date: With respect to each Class of Certificates of regular
interest or Uncertificated Regular Interest issued by each of REMIC I and REMIC
II, the latest possible maturity date, solely for purposes of Section
1.860G-1(a)(4)(iii) of the Treasury Regulations, by which the Certificate
Principal Balance of each such Class of Certificates representing a regular
interest in the Trust Fund would be reduced to zero, which is the date set forth
in the Preliminary Statement.
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.
17
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a
Servicing Modification.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the subject
of a Servicing Modification, the Net Mortgage Rate, minus the rate per annum by
which the Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and the Due Date in any Due Period, the payment of principal and
interest due thereon in accordance with the amortization schedule at the time
applicable thereto (after adjustment, if any, for Curtailments and for Deficient
Valuations occurring prior to such Due Date but before any adjustment to such
amortization schedule by reason of any bankruptcy, other than a Deficient
Valuation, or similar proceeding or any moratorium or similar waiver or grace
period and before any Servicing Modification that constitutes a reduction of the
interest rate on such Mortgage Loan).
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note, 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 F-1 and Exhibit F-2 (as amended from time to time to reflect the
addition of Qualified Substitute Mortgage Loans), which lists shall set forth at
a minimum the following information as to each Mortgage Loan:
(i) the Mortgage Loan identifying number ("RFC LOAN #");
(ii) [reserved];
(iii) the maturity of the Mortgage Note ("MATURITY DATE" or "MATURITY
DT");
(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");
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(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); and
(xi) a code "N" under the column "OCCP CODE", indicating that the
Mortgage Loan is secured by a non-owner occupied residence (the absence
of any such code means the Mortgage Loan is secured by an owner
occupied residence).
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, with respect to each Mortgage Loan, 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 Exhibits F-1 and F-2 hereto.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: With respect to any Mortgage Loan as of any date of
determination, a per annum rate equal to the Adjusted Mortgage Rate for such
Mortgage Loan as of such date minus the Servicing Fee Rate.
Non-Discount Mortgage Loan: With respect to Loan Group II, a Mortgage
Loan that is not a Discount Mortgage Loan from such Loan Group.
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.
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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 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 unpaid Monthly Payments or other amounts which
the Master Servicer had previously advanced, and the Master Servicer determines
that no other source of payment or reimbursement for such advances is available
to it, such Advances shall be deemed to be nonrecoverable; provided, however,
that in connection with the foregoing, the Master Servicer shall provide an
Officers' Certificate as described below. The determination by the Master
Servicer that it has made a Nonrecoverable Advance shall be evidenced by a
certificate of a Servicing Officer, Responsible Officer or Vice President or its
equivalent or senior officer of the Master Servicer, 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.
Notice: As defined in Section 4.04.
Notional Amount: As of any Distribution Date, with respect to any Class
A-II-IO Certificates or Subclass thereof issued pursuant to Section 5.01(d), the
aggregate Stated Principal Balance of the Group II Loans corresponding to the
Uncertificated Class A-II-IO REMIC II Regular Interests represented by such
Class or Subclass as of the day immediately preceding such Distribution Date
(or, with respect to the initial Distribution Date, at the close of business on
the Cut-off Date).
Officers' Certificate: A certificate signed by the Chairman of the
Board, the President, a Vice President, Assistant Vice President, Director,
Managing Director, the Treasurer, the Secretary, an Assistant Treasurer or an
Assistant Secretary of the Depositor or the Master Servicer, as the case may be,
and delivered to the Trustee, as required by this Agreement.
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 or REMIC II as REMICs or compliance with the REMIC Provisions must,
unless otherwise specified, be an opinion of Independent counsel.
20
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 5.00% of the Cut-off
Date Principal 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 or 4.07.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to the Class A-I Certificates and Class
R Certificates and any Distribution Date, the weighted average of the Net
Mortgage Rates of the Group I Loans. With respect to the Class A-II-1
Certificates and Class A-II-2 Certificates and any Distribution Date, the per
annum rates set forth in the Preliminary Statement hereto. With respect to the
Class A-II-IO Certificates and any Distribution Date, the weighted average of
the excess of (x) the Net Mortgage Rate for each Group II Loan, over (y) 6.00%.
The Class A-II-PO Certificates have no Pass-Through Rate and are not entitled to
Accrued Certificate Interest. With respect to the Class M Certificates and Class
B Certificates and any Distribution Date, the weighted average of the
Pass-Through Rates of the Class A-I, Class A-II-1 and Class A-II-2 Certificates,
weighted in proportion to the results of subtracting from each Loan Group (other
than the portion attributable to the Class A-II-PO Certificates) (to an amount
not less than zero), the aggregate Certificate Principal Balance of the related
Senior Certificates (other than the Class A-II-PO Certificates).
Paying Agent: JPMorgan Chase Bank or any successor Paying Agent
appointed by the Trustee.
Percentage Interest: With respect to any Certificate (other than a
Class R Certificate), the undivided percentage ownership interest in the related
Class evidenced by such Certificate, which percentage ownership interest shall
be equal to the Initial Certificate Principal Balance thereof or Initial
Notional Amount (in the case of any Interest Only Certificate) thereof divided
by the aggregate Initial Certificate Principal Balance or the aggregate of the
Initial Notional Amounts, as applicable, of all the Certificates of the same
Class. With respect to a Class R Certificate, the interest in distributions to
be made with respect to such Class evidenced thereby, expressed as a percentage,
as stated on the face of each such Certificate.
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
21
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 (or, if the only Rating Agency is Standard
& Poor's, in the case of the principal depository institution in a
depository institution holding company, debt obligations of the
depository institution holding company) at the date of acquisition
thereof have been rated by each Rating Agency in its highest short-term
rating available; and provided further that, if the only Rating Agency
is Standard & Poor's and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations
of such subsidiary are not separately rated, the applicable rating
shall be that of the bank holding company; and, provided further that,
if the original maturity of such short-term obligations of a domestic
branch of a foreign depository institution or trust company shall
exceed 30 days, the short- term rating of such institution shall be
A-1+ in the case of Standard & Poor's if Standard & Poor's is a Rating
Agency;
(iv) commercial paper and demand notes (having original maturities of
not more than 365 days) of any corporation incorporated under the laws
of the United States or any state thereof which on the date of
acquisition has been rated by each Rating Agency in its highest short-
term rating available; provided that such commercial paper and demand
notes shall have a remaining maturity of not more than 30 days;
(v) a money market fund or a qualified investment fund rated by each
Rating Agency in its highest long-term rating available; and
(vi) other obligations or securities that are acceptable to each Rating
Agency as a Permitted Investment hereunder and will not reduce the
rating assigned to any Class of Certificates by such Rating Agency
below the lower of the then-current rating or the rating assigned to
such Certificates as of the Closing Date by such Rating Agency, as
evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's and Fitch and Aaa
in the case of Moody's, and references herein to the highest rating available on
unsecured commercial paper and short-term debt obligations shall mean the
following: A-1 in the case of Standard & Poor's, P-1 in the case of Moody's and
F-1 in the case of Fitch.
22
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 Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b)
the related Discount Net Mortgage Rate (but not less than 0.00%) per annum.
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 constant prepayment rate of 45%
CPR.
Prepayment Distribution Percentage: With respect to any Distribution
Date and each Class of Subordinate Certificates, under the applicable
circumstances set forth below, the respective percentages set forth below:
(i) For any Distribution Date for which the related Senior
Accelerated Distribution Percentage is equal to 100%, 0%.
(ii) For any Distribution Date for which clause (i) above does
not apply, and on which any Class of Subordinate Certificates are
outstanding:
(a) in the case of the Class of Subordinate
Certificates then outstanding with the Highest Priority and
each other Class of Subordinate Certificates for which the
related Prepayment Distribution Trigger has been satisfied, a
fraction, expressed as a percentage, the numerator of which is
the Certificate Principal Balance of such Class immediately
prior to such date and the denominator of which is the sum of
the Certificate Principal Balances immediately prior to such
date of (1) the Class of Subordinate Certificates then
outstanding with the Highest Priority and (2) all other
Classes of Subordinate Certificates for which the respective
Prepayment Distribution Triggers have been satisfied; and
(b) in the case of each other Class of Subordinate
Certificates for which the Prepayment Distribution Triggers
have not been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in Section
4.02 of this Agreement (determined without regard to the proviso to the
definition of "Subordinate Principal Distribution Amount") would result
in a distribution in respect of principal of any Class or Classes of
Subordinate Certificates in an amount greater than the remaining
Certificate Principal Balance thereof (any such class, a "Maturing
Class"), then: (a) the Prepayment Distribution Percentage of each
Maturing Class shall be reduced to a level that, when applied as
described above, would exactly reduce the Certificate Principal Balance
of such Class to zero; (b) the Prepayment
23
Distribution Percentage of each other Class of Subordinate Certificates
(any such Class, a "Non-Maturing Class") shall be recalculated in
accordance with the provisions in paragraph (ii) above, as if the
Certificate Principal Balance of each Maturing Class had been reduced
to zero (such percentage as recalculated, the "Recalculated
Percentage"); (c) the total amount of the reductions in the Prepayment
Distribution Percentages of the related Maturing Class or Classes
pursuant to clause (a) of this sentence, expressed as an aggregate
percentage, shall be allocated among the related Non-Maturing Classes
in proportion to their respective Recalculated Percentages (the portion
of such aggregate reduction so allocated to any Non- Maturing Class,
the "Adjustment Percentage"); and (d) for purposes of such Distribution
Date, the Prepayment Distribution Percentage of each related
Non-Maturing Class shall be equal to the sum of (1) the Prepayment
Distribution Percentage thereof, calculated in accordance with the
provisions in paragraph (ii) above as if the Certificate Principal
Balance of each related Maturing Class had not been reduced to zero,
plus (2) the related Adjustment Percentage.
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such Class
and each Class of Subordinate Certificates with a Lower Priority than such Class
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the related Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date is greater than or equal
to the sum of the related Initial Subordinate Class Percentages of such Classes
of Subordinate Certificates.
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 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 Net Mortgage Rate (or Modified Net Mortgage Rate in
the case of a Modified Mortgage Loan)) paid by the Mortgagor for such month to
the date of such Principal Prepayment in Full or (b) a Curtailment during the
related Prepayment Period, an amount equal to one month's interest at the 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 and Principal
Prepayment, the calendar month preceding the month of such Distribution Date.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance as indicated on Exhibit F-1 or Exhibit F-2 with the exception of
either code "23" or "96" under the column "MI CO CODE".
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is received in advance of its scheduled Due Date
and is not accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or months
subsequent to the month of prepayment.
24
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan that is made by the Mortgagor.
Program Guide: The Residential Funding Seller Guide for mortgage
collateral sellers that participate in Residential Funding's standard mortgage
programs, and Residential Funding's Servicing Guide and any other subservicing
arrangements which Residential Funding has arranged to accommodate the servicing
of the Mortgage Loans.
Purchase Price: With respect to any Mortgage Loan (or REO Property)
required to be or otherwise purchased on any date pursuant to Section 2.02,
2.03, 2.04 or 4.07, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof plus the principal portion of any related unreimbursed
Advances and (ii) unpaid accrued interest at the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate plus the rate per annum at which the Servicing Fee is
calculated in the case of a Modified Mortgage Loan) (or at the Net Mortgage Rate
(or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan)), 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; and (v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment Agreement.
Notwithstanding any other provisions herein, (x) with respect to any
Qualified Substitute Mortgage Loan substituted for a Deleted Mortgage Loan which
was a Discount Mortgage Loan, such Qualified Substitute Mortgage Loan shall be
deemed to be a Discount Mortgage Loan and to have
25
a Discount Fraction equal to the Discount Fraction of the Deleted Mortgage Loan
and (y) in the event that the "Pool Strip Rate" of any Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of "Pool Strip Rate" is
greater than the Pool Strip Rate of the related Deleted Mortgage Loan
(i) the Pool Strip Rate of such Qualified Substitute Mortgage Loan
shall be equal to the Pool Strip Rate of the related Deleted
Mortgage Loan and
(ii) the excess of the Pool Strip Rate on such Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of
"Pool Strip Rate" over the Pool Strip Rate on the related
Deleted Mortgage Loan shall be payable to the Class R
Certificates pursuant to Section 4.02 hereof.
Rating Agency: Standard & Poor's and Xxxxx'x. If any agency or a
successor is no longer in existence, "Rating Agency" shall be such statistical
credit rating agency, or other comparable Person, designated by the Depositor,
notice of which designation shall be given to the Trustee and the Master
Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property) as
to which a Cash Liquidation or REO Disposition has occurred, an amount (not less
than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan (or
REO Property) as of the date of Cash Liquidation or REO Disposition, plus (ii)
interest (and REO Imputed Interest, if any) at the Net Mortgage Rate, from the
Due Date as to which interest was last paid or advanced to Certificateholders up
to the last day of the month in which the Cash Liquidation (or REO Disposition)
occurred on the Stated Principal Balance of such Mortgage Loan (or REO Property)
outstanding during each Due Period that such interest was not paid or advanced,
minus (iii) the proceeds, if any, received during the month in which such Cash
Liquidation (or REO Disposition) occurred, to the extent applied as recoveries
of interest at the Net Mortgage Rate, and to principal of the Mortgage Loan, net
of the portion thereof reimbursable to the Master Servicer or any Subservicer
with respect to related Advances or 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) the amount by which the interest portion of a
Monthly Payment or the principal balance of such Mortgage Loan was reduced, 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
26
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.
To the extent the Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of the Realized Loss with respect to
that Mortgage Loan will be reduced to the extent such recoveries are applied to
reduce the Certificate Principal Balance of any Class of Certificates on any
Distribution Date.
Record Date: With respect to each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month next
preceding the month in which the related Distribution Date occurs (or in the
case of the first Distribution Date, the Closing Date).
Regular Certificates: The Class A Certificates, Class M Certificates and
Class B Certificates.
Regular Interest: Any one of the regular interests in the Trust Fund.
Related Classes: As to any Uncertificated REMIC Regular Interest, those
classes of Certificates identified as Related Classes of Certificates to such
Uncertificated REMIC Regular Interest in the definition of Uncertificated REMIC
Regular Interest.
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 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, 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 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 Loans 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 I Accrued Interest: With respect to each Distribution Date, as to
any REMIC I Regular Interest, interest accrued during the related Interest
Accrual Period at the related REMIC I
27
Pass-Through Rate on the Uncertificated Principal Balance or Uncertificated
Notional Amount thereof immediately prior to such Distribution Date. REMIC I
Accrued Interest will be calculated on the basis of a 360-day year, consisting
of twelve 30-day months. In each case REMIC I Accrued Interest on any REMIC I
Regular Interest will be reduced by the amount of: (i) Prepayment Interest
Shortfalls on all Mortgage Loans (to the extent not offset by the Master
Servicer with a payment of Compensating Interest as provided in Section 4.02),
(ii) the interest portion (adjusted to the Net Mortgage Rate) of Realized Losses
on all Mortgage Loans (including Excess Special Hazard Losses, Excess Bankruptcy
Losses and Extraordinary Losses), (iii) the interest portion of Advances that
were (A) previously made with respect to a Mortgage Loan or REO Property on all
Mortgage Loans which remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property or (B) made with respect to
delinquencies that were ultimately determined to be Excess Special Hazard
Losses, Excess Bankruptcy Losses or Extraordinary Losses, and (iv) any other
interest shortfalls, including interest that is not collectible from the
Mortgagor pursuant to the Relief Act or similar legislation or regulations as in
effect from time to time, with all such reductions allocated among all of the
REMIC I Regular Interests in proportion to their respective amounts of REMIC I
Accrued Interest payable on such Distribution Date absent such reductions.
REMIC I Pass-Through Rate: With respect to REMIC I Regular Interests
I-SUB, I-ZZZ, the weighted average of the Net Mortgage Rates of the Group I
Loans; with respect to REMIC I Regular Interest II-SUB and II-ZZZ, 6.00%; with
respect to REMIC I Regular Interest A-II-PO, 0.00%; and with respect to each
REMIC I IO-II Regular Interest, the Pool Strip Rate for the related Non-
Discount Mortgage Loan in Loan Group II.
REMIC I Regular Interests: Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each such REMIC I Regular Interest shall accrue
interest at the related 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
following is a list of the REMIC I Regular Interests: REMIC I Regular Interest
A-II-PO, REMIC I Regular Interest I-SUB, REMIC I Regular Interest I- ZZZ, REMIC
I Regular Interest II-SUB, REMIC I Regular Interest II-ZZZ and REMIC I IO-II
Regular Interests.
REMIC I Subordinated Balance Ratio: The ratio among the Uncertificated
Principal Balances of each of the REMIC I Regular Interests ending with the
designation "SUB" equal to the ratio among:
(1) the excess of (x) the aggregate of the Group I Pool Stated Principal Balance
over (y) the aggregate Certificate Principal Balance of the Class A-I, Class R-I
and Class R-II Certificates;
(2) the excess of (x) the aggregate of the Group II Pool Stated Principal
Balance over (y) the aggregate of the Certificate Principal Balance of the Class
A-II-1, Class A-II-2 and Class A-II-PO Certificates;
REMIC II: The segregated pool of assets subject hereto, constituting a
portion of the primary trust created hereby and to be administered hereunder,
with respect to which a separate REMIC election is to be made, consisting of the
REMIC I Regular Interests.
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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
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 (a) 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 or (b) if such Mortgage Loan is subject to a
Deficient Valuation or Debt Service Reduction.
Repurchase Event: As defined in the Assignment Agreement.
----------------
Repurchase Price: With respect to any Deleted Mortgage Loan to be
replaced by the substitution of one or more Qualified Substitute Mortgage Loans
pursuant to Section 2.03, an amount, calculated by the Master Servicer equal
to:(a) the unpaid principal balance of such Mortgage Loan (or, in the case of
any REO Property, the related Mortgage Loan) (after application of all principal
payments (including prepayments) collected and other principal amounts recovered
on such Mortgage Loan) as of the date of receipt of the Repurchase Price or the
date of substitution, as the case may be, hereunder; plus(b) unpaid interest
accrued on such Mortgage Loan or Mortgage Loan related to an REO Property, as
applicable, at the related Mortgage Rate (after application of all
29
interest payments collected and other amounts recovered (and applied to accrued
interest) on such Mortgage Loan) to, but not including, the Due Date in the Due
Period during which the applicable purchase or substitution occurs; plus(c) any
unreimbursed Servicing Advances, all accrued and unpaid interest on Advances,
any unpaid servicing compensation (other than Master Servicer fees), and any
unpaid or unreimbursed expenses of the Trust Fund allocable to such Mortgage
Loan or Mortgage Loan related to an REO Property, as applicable, as of the date
of receipt of such Repurchase Price or the date of substitution, as the case may
be, hereunder; plus(d) in the event that such Mortgage Loan or Mortgage Loan
related to an REO Property, as applicable, is required to be repurchased or
replaced pursuant to Section 2.03, expenses reasonably incurred or to be
incurred by the Master Servicer or the Trustee in respect of the breach or
defect giving rise to the repurchase or replacement obligation, including any
expenses arising out of the enforcement of the repurchase or replacement
obligation.
Request for Release: A request for release, the forms of which are
attached as Exhibit G hereto, or an electronic request in a form acceptable to
the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement, the Program Guide or the related Subservicing Agreement in respect of
such Mortgage Loan.
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Depositor
and any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Institutional Services/Structured Finance Services 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
with direct responsibility for the administration of this Agreement, or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers to whom, with respect to a
particular matter, such matter is referred.
Schedule of Discount Fractions: The schedule setting forth the Discount
Fractions with respect to the Discount Mortgage Loans, attached as Exhibit P
hereof.
Senior Accelerated Distribution Percentage: With respect to each Loan
Group and any Distribution Date occurring during the first five years after the
Closing Date, 100%. With respect to any Distribution Date thereafter and each
Loan Group, as follows:
(i) for any Distribution Date during the sixth year after the
Closing Date, the related Senior Percentage for such
Distribution Date plus 70% of the related Subordinate
Percentage for such Distribution Date;
(ii) for any Distribution Date during the seventh year after the
Closing Date, the related Senior Percentage for such
Distribution Date plus 60% of the related Subordinate
Percentage for such Distribution Date;
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(iii) for any Distribution Date during the eighth year after the
Closing Date, the related Senior Percentage for such
Distribution Date plus 40% of the related Subordinate
Percentage for such Distribution Date;
(iv) for any Distribution Date during the ninth year after the
Closing Date, the related Senior Percentage for such
Distribution Date plus 20% of the related Subordinate
Percentage for such Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage
for such Distribution Date;
provided, however,
(i) that any scheduled reduction to the related Senior Accelerated
Distribution Percentage described above shall not occur as of
any Distribution Date unless either
(a)(1)(X) the outstanding principal balance of the Mortgage
Loans delinquent 60 days or more averaged over the last six months, as
a percentage of the aggregate outstanding Certificate Principal Balance
of the Subordinate Certificates, is less than 50% or (Y) the
outstanding principal balance of the Mortgage Loans delinquent 60 days
or more averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged
over the last six months, does not exceed 2% and (2) Realized Losses on
the Mortgage Loans to date for such Distribution Date if occurring
during the sixth, seventh, eighth, ninth or tenth year (or any year
thereafter) after the Closing Date are less than 30%, 35%, 40%, 45% or
50%, respectively, of the sum of the Initial Certificate Principal
Balances of the Subordinate Certificates or
(b)(1) the outstanding principal balance of the Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all
Mortgage Loans averaged over the last six months, does not exceed 4%
and (2) Realized Losses on the Mortgage Loans to date for such
Distribution Date, if occurring during the sixth, seventh, eighth,
ninth or tenth year (or any year thereafter) after the Closing Date are
less than 10%, 15%, 20%, 25% or 30%, respectively, of the sum of the
Initial Certificate Principal Balances of the Subordinate Certificates,
and
(ii) that for any Distribution Date on which the weighted average
of the Senior Percentages for each Loan Group, weighted on the
basis of the Stated Principal Balances of the Mortgage Loans
in the related Loan Group, exceeds the weighted average of the
initial Senior Percentages (calculated on such basis) for each
Loan Group, each of the Senior Accelerated Distribution
Percentages for such Distribution Date will equal 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the Principal Only
Certificates, if any) to zero, the related Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificates: Any of the Group I Senior Certificates or the Group
II Senior Certificates.
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Senior Percentage: As of any Distribution Date, the lesser of 100% and
a fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of (a) the Group I Senior Certificates or (b) the
Group II Senior Certificates (other than the Class A-II-PO Certificates), in
each case immediately prior to such Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of all of the Mortgage Loans (or
related REO Properties) (other than the Discount Fraction of the Stated
Principal Balance of each Discount Mortgage Loan) in the related Loan Group
immediately prior to such Distribution Date.
Senior Principal Distribution Amount: As to any Distribution Date, the
lesser of (a) the balance of the related Available Distribution Amount remaining
after the distribution of all amounts required to be distributed pursuant to
Section 4.02(a)(i) and Section 4.02(a)(ii)(X) of this Agreement, and (b) the sum
of the amounts required to be distributed to the related Senior
Certificateholders on such Distribution Date pursuant to Section 4.02(a)(ii)(Y)
of this Agreement.
Servicing Accounts: The account or accounts created and maintained
pursuant to Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency or
other unanticipated event by the Master Servicer 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 sum of the per annum rates 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.
Senior Interest Distribution Amount: With respect to each group of
Senior Certificates (other than the Class A-II-PO Certificates) as defined in
Section 4.02(a)(i).
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
32
case pursuant to a modification of a Mortgage Loan that is in default or, in the
judgment of the Master Servicer, default is reasonably foreseeable in accordance
with Section 3.07(a).
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may from time to time be
amended.
Special Hazard Amount: As of any Distribution Date, an amount equal to
$1,762,013 minus the sum of (i) the aggregate amount of Special Hazard Losses
allocated to the Mortgage Loans through Subordination in accordance with Section
4.05 and (ii) the Adjustment Amount (as defined below) as most recently
calculated. For each anniversary of the Cut-off Date, the "Adjustment Amount"
shall be equal to the amount, if any, by which the amount calculated in
accordance with the preceding sentence (without giving effect to the deduction
of the Adjustment Amount for such anniversary) exceeds the greater of (A) the
greatest of (i) twice the outstanding principal balance of the Mortgage Loan
that has the largest outstanding principal balance on the Distribution Date
immediately preceding such anniversary, (ii) the product of 1.00% multiplied by
the outstanding principal balance of all Mortgage Loans on the Distribution Date
immediately preceding such anniversary and (iii) the aggregate outstanding
principal balance (as of the immediately preceding Distribution Date) of the
Mortgage Loans in any single five-digit California zip code area with the
largest amount of Mortgage Loans by aggregate principal balance as of such
anniversary and (B) the greater of (i) the product of 0.50% multiplied by the
outstanding principal balance of all Mortgage Loans on the Distribution Date
immediately preceding such anniversary multiplied by a fraction, the numerator
of which is equal to the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of all of the Mortgage Loans secured by
Mortgaged Properties located in the State of California divided by the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of all of the Mortgage Loans, expressed as a percentage, and the
denominator of which is equal to 23.63% (which percentage is equal to the
percentage of Mortgage Loans initially secured by Mortgaged Properties located
in the State of California) and (ii) the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of the largest Mortgage Loan
secured by a Mortgaged Property located in the State of California. The Special
Hazard Amount may be further reduced by the Master Servicer (including
accelerating the manner in which coverage is reduced) provided that prior to any
such reduction, the Master Servicer shall obtain the written confirmation from
each Rating Agency that such reduction shall not reduce the rating assigned to
the Class A, Class M and Class B 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.
Special Hazard Loss: Any Realized Loss not in excess of the lesser of
the cost of repair or the cost of replacement of a Mortgaged Property suffered
by such Mortgaged Property on account of direct physical loss, exclusive of (i)
any loss of a type covered by a hazard policy or a flood insurance policy
required to be maintained in respect of such Mortgaged Property pursuant to
Section 3.12(a), except to the extent of the portion of such loss not covered as
a result of any coinsurance provision and (ii) any Extraordinary Loss.
Standard & Poor's: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
33
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) 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 (x) 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, (y) 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 (z) any
Realized Loss allocated to Certificateholders with respect thereto for any
previous Distribution Date.
Subclass: With respect to the Class A-II-IO Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent the
Uncertificated Class A-II-IO REMIC II Regular Interest or Interests specified by
the initial Holder of the Class A-II-IO Certificates pursuant to Section
5.01(c).
Subordination: The provisions described in Section 4.05 relating to the
allocation of Realized Losses.
Subordinate Certificate: Any one of the Class M Certificates or Class B
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed hereto as Exhibit B and Exhibit C,
respectively.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, a fraction, expressed as a percentage,
the numerator of which is the aggregate Certificate Principal Balance of such
Class of Subordinate Certificates immediately prior to such Distribution Date
and the denominator of which is the aggregate Stated Principal Balance of all of
the Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of the Stated Principal Balance of each Discount Mortgage Loan)
immediately prior to such Distribution Date.
Subordinate Percentage: As of any Distribution Date, 100% minus the
related Senior Percentage as of such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and each Class of Subordinate Certificates, (a) the sum of (i)
the product of (x) the related Subordinate Class Percentage for such Class and
(y) the aggregate of the amounts calculated for such Distribution Date under
clauses (1), (2) and (3) of Section 4.02(a)(ii)(Y)(A) of this Agreement (without
giving effect to the related Senior Percentage), to the extent not payable to
the related Senior Certificates; (ii) such Class's pro rata share, based on the
Certificate Principal Balance of each Class of Subordinate Certificates then
outstanding, of the principal collections described in Section
4.02(a)(ii)(Y)(B)(b) of this Agreement (without giving effect to the related
Senior Accelerated Distribution Percentage)
34
to the extent such collections are not otherwise distributed to the related
Senior Certificates; (iii) the product of (x) the related Prepayment
Distribution Percentage and (y) the aggregate of all Principal Prepayments in
Full received in the related Prepayment Period and Curtailments received in the
preceding calendar month (other than the related Discount Fraction of such
Principal Prepayments in Full and Curtailments with respect to a Discount
Mortgage Loan) to the extent not payable to the related Senior Certificates;
(iv) if such Class is the Class of Subordinate Certificates with the Highest
Priority, any Excess Subordinate Principal Amount for such Distribution Date;
and (v) any amounts described in clauses (i), (ii) and (iii) as determined for
any previous Distribution Date, that remain undistributed to the extent that
such amounts are not attributable to Realized Losses which have been allocated
to a Class of Subordinate Certificates minus (b) the sum of (i) with respect to
the Class of Subordinate Certificates with the Lowest Priority, any Excess
Subordinate Principal Amount for such Distribution Date; provided, however, that
the Subordinate Principal Distribution Amount for any Class of Subordinate
Certificates on any Distribution Date shall in no event exceed the outstanding
Certificate Principal Balance of such Class of Certificates immediately prior to
such date; and (ii) the Capitalization Reimbursement Amount for such
Distribution Date, other than the related Discount Fraction of any portion of
that amount related to each Discount Mortgage Loan, multiplied by a fraction,
the numerator of which is the Subordinate Principal Distribution Amount for such
Class of Subordinate Certificates, without giving effect to this clause (b)(ii),
and the denominator of which is the sum of the principal distribution amounts
for all Classes of Certificates other than the Class A-II-PO Certificates,
without giving effect to any reductions for the Capitalization Reimbursement
Amount.
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
35
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".
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 and REMIC II due to their classification as REMICs under
the REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the Internal Revenue Service or any other governmental taxing authority
under any applicable provisions of federal, state or local tax laws.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
Trust Fund: Collectively, the assets of REMIC I and REMIC II.
Uniform Single Attestation Program for Mortgage Bankers: The Uniform
Single Attestation Program for Mortgage Bankers, as published by the Mortgage
Bankers Association of America and effective with respect to fiscal periods
ending on or after December 15, 1995.
Uncertificated Accrued Interest: With respect to each Distribution
Date, as to each Uncertificated Class A-II-IO REMIC II Regular Interest, an
amount equal to the aggregate amount of Accrued Certificate Interest that would
result under the terms of the definition thereof with respect to the Class
A-II-IO Certificates, or any Subclass thereof, if the Pass-Through Rate on such
Certificate or Subclass were equal to the Uncertificated Pass-Through Rate and
the notional amount of such Certificate or Subclass were equal to the
Uncertificated Notional Amount, and any reduction in the amount of Accrued
Certificate Interest resulting from the allocation of Prepayment Interest
Shortfalls, Realized Losses or other amounts to the Class A-II-IO Certificates,
as the case may be, pursuant to Section 4.05 hereof shall be allocated to the
Uncertificated Class A-II-IO REMIC II Regular Interests, pro rata in accordance
with the amount of interest accrued with respect to each Uncertificated Class
A-II-IO REMIC II Regular Interest and such Distribution Date.
36
Uncertificated Class A-II-IO REMIC II Regular Interests: The 291
uncertificated partial undivided beneficial ownership interests in the Trust
Fund, relating to each Non-Discount Mortgage Loan in Loan Group II having a Net
Mortgage Rate greater than 6.00%, identified on the related Mortgage Loan
Schedule, each having no principal balance, and each bearing interest at a per
annum rate equal to the related Pool Strip Rate on a notional balance equal to
the Stated Principal Balance of the related Non-Discount Mortgage Loan.
Uncertificated Notional Amount: With respect to each REMIC I IO-II
Regular Interest, an amount equal to the aggregate Stated Principal Balance of
the related Non-Discount Mortgage Loan in Loan Group II. With respect to each
Uncertificated Class A-II-IO REMIC II Regular Interest, the Uncertificated
Notional Amount of the related REMIC I IO-II Regular Interest.
Uncertificated Pass-Through Rate: Each Uncertificated Class A-II-IO
REMIC II Regular Interest will not have a Uncertificated Pass-Through Rate but
shall be entitled to receive 100% of the amounts distributed to the related
REMIC I Regular Interest.
Uncertificated Principal Balance: With respect to each REMIC I Regular
Interest on any date of determination, the amount set forth in the Preliminary
Statement hereto minus the sum of (x) the aggregate of all amounts previously
deemed distributed with respect to such interest and applied to reduce the
Uncertificated Principal Balance thereof pursuant to Section 10.04 and (y) the
aggregate of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses that were previously deemed
allocated to the Uncertificated Principal Balance of such REMIC I Regular
Interest pursuant to Section 10.04.
Uncertificated REMIC Regular Interest Distribution Amount: With respect
to any Distribution Date, the sum of the amounts deemed to be distributed on the
Uncertificated REMIC Regular Interests for such Distribution Date pursuant to
Section 10.05(a).
Uncertificated REMIC Regular Interests: The Uncertificated Class A-II-IO
REMIC II Regular Interests.
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.
37
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. 98.00% of all of the Voting
Rights shall be allocated among Holders of the Class A Certificates (other than
the Interest Only Certificates and Residual Certificates), the Class M
Certificates and the 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 Holders of the Class A-II-IO
Certificates; and 0.5% and 0.5% of all of the Voting Rights shall be allocated
among the Holders of the Class R-I Certificates and Class R-II Certificates,
respectively, in each case to be allocated among the Certificates of such Class
in accordance with their respective Percentage Interest.
38
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; and (ii) all proceeds of the foregoing.
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 Act effective
November 27, 2003 or (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004.
(b) In connection with such assignment, and contemporaneously with the
delivery of this Agreement, and 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):
(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
39
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 or Custodians,
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 or Custodians that are the duly appointed agent or
agents 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 any Assignment is lost or returned unrecorded
to the Depositor because of any defect therein, the Depositor shall prepare a
substitute Assignment or cure such defect, as the case may be, and cause such
Assignment to be recorded in accordance with this paragraph. The Depositor shall
promptly deliver or cause to be delivered to the Trustee or the respective
Custodian such Mortgage or Assignment (or copy thereof as permitted by Section
2.01(b)), with evidence of recording indicated thereon upon receipt thereof from
the public recording office or from the related Subservicer.
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.
42
Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and
that may be delivered as a copy rather than the original may be delivered to the
Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on
the MERS(R) System, the Depositor further agrees that it will cause, at the
Depositor's own expense, within 30 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) [Reserved]
(e) It is intended that the conveyances by the Depositor to the Trustee
of the Mortgage Loans as provided for in this Section 2.01 be construed as a
sale by the Depositor to the Trustee of the Mortgage Loans for the benefit of
the Certificateholders. Further, it is not intended that any such conveyance be
deemed to be a pledge of the Mortgage Loans by the Depositor to the Trustee to
secure a debt or other obligation of the Depositor. However, in the event that
the Mortgage Loans are held to be property of the Depositor or of Residential
Funding, or if for any reason this Agreement is held or deemed to create a
security interest in the Mortgage Loans, then it is intended that (a) this
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; (b) the conveyances
provided for in this Section 2.01 shall be deemed to be (1) a grant by the
Depositor to the Trustee of a security interest in all of the Depositor's right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to (A) the Mortgage Loans, including (i) the
related Mortgage Note and Mortgage, and (ii) any insurance policies and all
other documents in the related Mortgage File, (B) all amounts payable pursuant
to the Mortgage Loans in accordance with the terms thereof and (C) any and all
general intangibles consisting of, arising from or relating to any of the
foregoing, and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Certificate Account or the Custodial Account, whether in the form of cash,
instruments, securities or other property and (2) an assignment by the Depositor
to the Trustee of any security interest in any and all of Residential Funding's
right (including the power to convey title thereto), title and interest, whether
now owned or hereafter acquired, in and to the property described in the
foregoing clauses (1)(A), (B) and (C) granted by Residential Funding to the
Depositor pursuant to the Assignment Agreement; (c) the possession by the
Trustee, the Custodian or any other agent of the Trustee of Mortgage Notes or
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party," or possession by a purchaser or a person designated by such secured
party, for purposes of perfecting the security interest pursuant to the Uniform
Commercial Code as in effect in the States of New York and Minnesota and any
other applicable jurisdiction; and (d) notifications to persons holding such
43
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, after receiving notice
from the Custodian
44
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;
45
(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.
46
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
Exhibits F-1 and F-2 hereto with respect to each Mortgage Loan or the Mortgage
Loans, as the case may be, is true and correct in all material respects at the
respective date or dates which such information is furnished; (ii) Immediately
prior to the conveyance of the Mortgage Loans to the Trustee, the Depositor had
good title to, and was the sole owner of, each Mortgage Loan free and clear of
any pledge, lien, encumbrance or security interest (other than rights to
servicing and related compensation) and such conveyance validly transfers
ownership of the Mortgage Loans to the Trustee free and clear of any pledge,
lien, encumbrance or security interest; and (iii) Each Mortgage Loan constitutes
a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury
Regulations Section 1.860G-2(a)(1). It is understood and agreed that the
representations and warranties set forth in this Section 2.03(b) shall survive
delivery of the respective Mortgage Files to the Trustee or any Custodian. Upon
discovery by any of the Depositor, the Master Servicer, the Trustee or any
Custodian of a breach of any of the representations and warranties set forth in
this Section 2.03(b) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties (any Custodian being so
obligated under a Custodial Agreement); provided, however, that in the event of
a breach of the representation and warranty set forth in Section 2.03(b)(iii),
the party discovering such breach shall give such notice within five days of
discovery. Within 90 days of its discovery or its receipt of notice of breach,
the Depositor shall either (i) cure such breach in all material respects or (ii)
purchase such Mortgage Loan from the Trust Fund at the Purchase Price and in the
manner set forth in Section 2.02; provided that the Depositor shall have the
option to substitute a Qualified Substitute Mortgage Loan or Loans for such
Mortgage Loan if such substitution occurs within two years following the Closing
Date; provided that if the omission or defect would cause the Mortgage Loan to
be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure, substitution or repurchase must occur within 90 days from
the date such breach was discovered. Any such substitution shall be effected by
the Depositor under the same terms and conditions as provided in Section 2.04
for substitutions by Residential Funding. It is understood and agreed that the
obligation of the Depositor to cure such breach or to so purchase or substitute
for any Mortgage Loan as to which such a breach has occurred and is continuing
shall constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of the Certificateholders.
Notwithstanding the foregoing, the Depositor shall
47
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 Section 4(x) 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
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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 or REMIC II to fail
to qualify as a REMIC at any time that any Certificate is outstanding.
It is understood and agreed that the obligation of the 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
Section 5(B) thereof shall constitute the sole remedy respecting such breach
available to the Certificateholders or the Trustee on behalf of the
Certificateholders. If the Master Servicer is Residential Funding, then the
Trustee shall also have the right to give the notification and require the
purchase or substitution provided for in the second preceding paragraph in the
event of such a breach of a representation or warranty made by Residential
Funding in the Assignment Agreement. In connection with the purchase of or
substitution for any such Mortgage Loan by Residential Funding, the Trustee
shall assign to Residential Funding all of the right, title and interest in
respect of the Assignment Agreement applicable to such Mortgage Loan.
Section 2.05. Execution and Authentication of Certificates; Conveyance
of Uncertificated REMIC Regular Interests.
49
(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) In exchange for the REMIC I Regular Interests and, concurrently
with the assignment to the Trustee thereof, pursuant to the written request of
the Depositor executed by an officer of the Depositor, the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, the Regular
Certificates in authorized denominations evidencing (together with the Class
R-II Certificates) the entire beneficial ownership interest in REMIC II.
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ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans
in accordance with the terms of this Agreement and the respective Mortgage
Loans, following such procedures as it would employ in its good faith business
judgment and which are normal and usual in its general mortgage servicing
activities, and shall have full power and authority, acting alone or through
Subservicers as provided in Section 3.02, to do any and all things which it may
deem necessary or desirable in connection with such servicing and
administration. Without limiting the generality of the foregoing, the Master
Servicer in its own name or in the name of a Subservicer is hereby authorized
and empowered by the Trustee when the Master Servicer or the Subservicer, as the
case may be, believes it appropriate in its best judgment, to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, or of consent to assumption or modification in connection
with a proposed conveyance, or of assignment of any Mortgage and Mortgage Note
in connection with the repurchase of a Mortgage Loan and all other comparable
instruments, or with respect to the modification or re-recording of a Mortgage
for the purpose of correcting the Mortgage, the subordination of the lien of the
Mortgage in favor of a public utility company or government agency or unit with
powers of eminent domain, the taking of a deed in lieu of foreclosure, the
completion of judicial or non-judicial foreclosure, the conveyance of a
Mortgaged Property to the related insurer, the acquisition of any property
acquired by foreclosure or deed in lieu of foreclosure, or the management,
marketing and conveyance of any property acquired by foreclosure or deed in lieu
of foreclosure with respect to the Mortgage Loans and with respect to the
Mortgaged Properties.
The Master Servicer further is authorized and empowered by the Trustee,
on behalf of the Certificateholders and the Trustee, in its own name or in the
name of the Subservicer, when the Master Servicer or the Subservicer, as the
case may be, believes it is appropriate in its best judgment to register any
Mortgage Loan on the MERS(R) System, or cause the removal from the registration
of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and all instruments
of assignment and other comparable instruments with respect to such assignment
or re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. Any expenses incurred in connection with
the actions described in the preceding sentence shall be borne by the Master
Servicer in accordance with Section 3.16(c), with no right of reimbursement;
provided, that if, as a result of MERS discontinuing or becoming unable to
continue operations in connection with the MERS(R) System, it becomes necessary
to remove any Mortgage Loan from registration on the MERS(R) System and to
arrange for the assignment of the related Mortgages to the Trustee, then any
related expenses shall be reimbursable to the Master Servicer. Notwithstanding
the foregoing, subject to Section 3.07(a), the Master Servicer shall not permit
any modification with respect to any Mortgage Loan that would both constitute a
sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the
Code and any proposed, temporary or final regulations promulgated thereunder
(other than in connection with a proposed conveyance or assumption of such
Mortgage Loan that is treated as a Principal Prepayment in Full pursuant to
Section 3.13(d) hereof) and cause any of REMIC I or REMIC II to fail to qualify
as a REMIC under the Code.
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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 Xxx or HUD approved mortgage servicer. In addition, any
Subservicer of a Mortgage Loan insured by the FHA must be an FHA-approved
servicer, and any Subservicer of a Mortgage Loan guaranteed by the VA must be a
VA-approved servicer. Each Subservicer of a Mortgage Loan shall be entitled to
receive and retain, as provided in the related Subservicing Agreement and in
Section 3.07, the related Subservicing Fee from payments of interest received on
such Mortgage Loan after payment of all amounts required to be remitted to the
Master Servicer in respect of such Mortgage Loan. For any Mortgage Loan that is
a Nonsubserviced Mortgage Loan, the Master Servicer shall be entitled to receive
and retain an amount equal to the Subservicing Fee from payments of interest.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master
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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
53
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.
54
(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 (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, 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
55
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 Balance thereof by the original Maturity Date based on the original
Mortgage Rate; provided, that such reamortization shall not be permitted if it
would constitute a reissuance of the Mortgage Loan for federal income tax
purposes.
(b) The Master Servicer shall establish and maintain a Custodial
Account in which the Master Servicer shall deposit or cause to be deposited on a
daily basis, except as otherwise specifically provided herein, the following
payments and collections remitted by Subservicers or received by it in respect
of the Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due on or before the Cut-off Date):
(i) All payments on account of principal, including Principal
Prepayments made by Mortgagors on the Mortgage Loans and the principal component
of any Subservicer Advance or of any REO Proceeds received in connection with an
REO Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate
on the Mortgage Loans, including the interest component of any Subservicer
Advance or of any REO Proceeds received in connection with an REO Property for
which an REO Disposition has occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds (net of any related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section
2.02, 2.03, 2.04 or 4.07 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) or
3.21.
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 prepayment charges or late payment charges or
assumption fees may but need not be deposited by the Master Servicer in the
Custodial Account. In the event any amount not required to be deposited in the
Custodial Account is so deposited, the Master Servicer may at any time withdraw
such amount from the Custodial Account, any provision herein to the contrary
notwithstanding. The Custodial Account may contain funds that belong to one or
more trust funds created for mortgage pass-through certificates of other series
and may contain other funds respecting payments on mortgage loans belonging to
the Master Servicer or serviced or master serviced by it on behalf of others.
Notwithstanding such commingling of funds, the Master Servicer shall keep
records that accurately reflect the funds on deposit in the Custodial Account
that have been identified by it as being attributable to the Mortgage Loans.
With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds,
Subsequent Recoveries and the proceeds of the purchase of any Mortgage Loan
pursuant to Sections 2.02, 2.03, 2.04 and 4.07 received in any calendar month,
the Master Servicer may elect to treat such amounts as included in the related
Available Distribution Amount for the
56
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 prepayment charges or 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.
57
(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
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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 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 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 particular Mortgage Loans
(including, for this purpose, REO Proceeds, Insurance Proceeds,
Liquidation Proceeds and proceeds from the purchase of a Mortgage Loan
pursuant to Section 2.02, 2.03, 2.04 or 4.07) which represent (A) Late
Collections of Monthly Payments for which any such advance was made in
the case of Subservicer Advances or Advances pursuant to Section 4.04
and (B) 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, 3.23, 4.07 or 9.01, all amounts received thereon and
not required
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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, any Advance or Servicing Advance made
in connection with a modification of a 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%,
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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
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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 or REMIC II 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
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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 or REMIC II
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 or REMIC II as a result thereof. Any fee
collected by the Master Servicer or the related Subservicer for processing such
a request will be retained by the Master Servicer or such Subservicer as
additional servicing compensation.
(d) Subject to any other applicable terms and conditions of this
Agreement, the Trustee and Master Servicer shall be entitled to approve an
assignment in lieu of satisfaction with respect to any Mortgage Loan, provided
the obligee with respect to such Mortgage Loan following such proposed
assignment provides the Trustee and Master Servicer with a "Lender Certification
for Assignment of Mortgage Loan" in the form attached hereto as Exhibit M, in
form and substance satisfactory to the Trustee and Master Servicer, providing
the following: (i) that the Mortgage Loan is secured by Mortgaged Property
located in a jurisdiction in which an assignment in lieu of satisfaction is
required to preserve lien priority, minimize or avoid mortgage recording taxes
or otherwise comply with, or facilitate a refinancing under, the laws of such
jurisdiction; (ii) that the substance of the assignment is, and is intended to
be, a refinancing of such Mortgage Loan and that the form of the transaction is
solely to comply with, or facilitate the transaction under, such local laws;
(iii) that the Mortgage Loan following the proposed assignment will have a rate
of interest at least 0.25 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
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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
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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 or REMIC II 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 or
REMIC II 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 or REMIC II 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.
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(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
upon the receipt by the Master Servicer of a notification that payment in full
will be escrowed in a manner customary for such purposes, the Master Servicer
will immediately notify the Trustee (if it holds the related Mortgage File) or
the Custodian by a certification of a Servicing Officer (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Custodial Account pursuant to Section 3.07 have been or will be so
deposited), substantially in one of the forms attached hereto as Exhibit G
requesting delivery to it of the Mortgage File. Upon receipt of such
certification and request, the Trustee shall promptly release, or cause the
Custodian to release, the related Mortgage File to the Master Servicer. The
Master Servicer is authorized to execute and deliver to the Mortgagor the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage, together with
the Mortgage Note with, as appropriate, written evidence of cancellation thereon
and to cause the removal from the registration on the MERS(R) System of such
Mortgage and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation or of partial or full release, including any applicable UCC
termination statements. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account or the Certificate Account.
(b) From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, the Master Servicer shall deliver to the
Custodian, with a copy to the Trustee, a certificate of a Servicing Officer
substantially in one of the forms attached as Exhibit G hereto, requesting that
possession of all, or any document constituting part of, the Mortgage File be
released to the Master Servicer and certifying as to the reason for such release
and that such release will not invalidate any insurance coverage provided in
respect of the Mortgage Loan under any Required Insurance Policy. Upon receipt
of the foregoing, the Trustee shall deliver, or cause the Custodian to deliver,
the Mortgage File or any document therein to the Master Servicer. The Master
Servicer shall cause each Mortgage File or any document therein so released to
be returned to the Trustee, or the Custodian as agent for the Trustee when the
need therefor by the Master Servicer no longer exists, unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Custodial Account or (ii) the Mortgage File or
such document has been delivered directly or through a Subservicer to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
the Master Servicer has delivered directly or through a Subservicer to the
Trustee a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. In the event of the liquidation of
a Mortgage Loan, the Trustee shall deliver the Request for Release with respect
thereto to the Master Servicer upon deposit of the related Liquidation Proceeds
in the Custodial Account.
(c) The Trustee or the Master Servicer on the Trustee's behalf shall
execute and deliver to the Master Servicer, if necessary, any court pleadings,
requests for trustee's sale or other documents necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity. Together with such documents or pleadings (if signed by the Trustee),
the Master Servicer shall deliver to the Trustee
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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 prepayment
charges, 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, which amount shall be
deposited by the Master Servicer into the Certificate Account to be included in
the Available Distribution Amount 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
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representing all or a portion of the Servicing Fee to which it is entitled
pursuant to Section 3.10(a)(iii); (ii) shall not withdraw from the Custodial
Account or Certificate Account any such amount to which it is entitled pursuant
to Section 3.07(c) or 4.01(b) and (iii) shall not withdraw from the Custodial
Account any such amount of servicing compensation to which it is entitled
pursuant to Section 3.10(a)(v) or (vi). With respect to any Distribution Date,
Eligible Master Servicing Compensation derived from a Loan Group shall be used
on such Distribution Date (i) to cover any Prepayment Interest Shortfalls on the
Mortgage Loans in such Loan Group and (ii) to cover any Prepayment Interest
Shortfalls on the Mortgage Loans in the other Loan Group, but only to the extent
not covered by Eligible Master Servicing Compensation derived from the related
Loan Group, on a pro rata basis in accordance with the amount of Accrued
Certificate Interest payable from the related Loan Group for such Distribution
Date absent such Prepayment Interest Shortfalls.
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
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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
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or pledges to another Person (an "Advancing Person") the Master Servicer's
rights under this Agreement to be reimbursed for any Advances or Servicing
Advances and/or (2) an Advancing Person agrees to fund some or all Advances
and/or Servicing Advances required to be made by the Master Servicer pursuant to
this Agreement. No consent of the Depositor, the Trustee, the Certificateholders
or any other party shall be required before the Master Servicer may enter into
an Advance Facility. Notwithstanding the existence of any Advance Facility under
which an Advancing Person agrees to fund Advances and/or Servicing Advances on
the Master Servicer's behalf, the Master Servicer shall remain obligated
pursuant to this Agreement to make Advances and Servicing Advances pursuant to
and as required by this Agreement. If the Master Servicer enters into an Advance
Facility, and for so long as an Advancing Person remains entitled to receive
reimbursement for any Advances including Nonrecoverable Advances ("Advance
Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable
Advances ("Servicing Advance Reimbursement Amounts" and together with Advance
Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such
type of Reimbursement Amount is included in the Advance Facility), as
applicable, pursuant to this Agreement, then the Master Servicer shall identify
such Reimbursement Amounts consistent with the reimbursement rights set forth in
Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance
with this Section 3.21 or otherwise in accordance with the documentation
establishing the Advance Facility to such Advancing Person or to a trustee,
agent or custodian (an "Advance Facility Trustee") designated by such Advancing
Person in an Advance Facility Notice described below in Section 3.21(b).
Notwithstanding the foregoing, if so required pursuant to the terms of the
Advance Facility, the Master Servicer may direct, and if so directed in writing
the Trustee is hereby authorized to and shall pay to the Advance Facility
Trustee the Reimbursement Amounts identified pursuant to the preceding sentence.
An Advancing Person whose obligations hereunder are limited to the funding of
Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a)
or 6.02(c) hereof and shall not be deemed to be a Subservicer under this
Agreement. Notwithstanding anything to the contrary herein, in no event shall
Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be
included in the Available Distribution Amount or distributed to
Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes
the election set forth in Section 3.21(a), the Master Servicer and the related
Advancing Person shall deliver to the Trustee a written notice and payment
instruction (an "Advance Facility Notice"), providing the Trustee with written
payment instructions as to where to remit Advance Reimbursement Amounts and/or
Servicing Advance Reimbursement Amounts (each to the extent such type of
Reimbursement Amount is included within the Advance Facility) on subsequent
Distribution Dates. The payment instruction shall require the applicable
Reimbursement Amounts to be distributed to the Advancing Person or to an Advance
Facility Trustee designated in the Advance Facility Notice. An Advance Facility
Notice may only be terminated by the joint written direction of the Master
Servicer and the related Advancing Person (and any related Advance Facility
Trustee).
(c) Reimbursement Amounts shall consist solely of amounts in respect of
Advances and/or Servicing Advances made with respect to the Mortgage Loans for
which the Master Servicer would be permitted to reimburse itself in accordance
with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the
Advancing Person had made the related Advance(s) and/or Servicing Advance(s).
Notwithstanding the foregoing, except with respect to reimbursement of
Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no
Person shall be
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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
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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.
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(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.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account.
(a) The Master Servicer acting as agent of the Trustee shall establish
and maintain a Certificate Account in which the Master Servicer shall deposit or
cause to be deposited on behalf of the Trustee on or before 2:00 P.M. New York
time on each Certificate Account Deposit Date by wire transfer of immediately
available funds an amount equal to the sum of (i) any Advance for the
immediately succeeding Distribution Date, (ii) any amount required to be
deposited in the Certificate Account pursuant to Section 3.12(a), (iii) any
amount required to be deposited in the Certificate Account pursuant to Section
3.16(e) or Section 4.07, (iv) any amount required to be paid pursuant to Section
9.01, and all other amounts constituting the Available Distribution Amounts for
the immediately succeeding Distribution Date.
(b) [reserved]
(c) The Trustee shall, upon written request from the Master Servicer,
invest or cause the institution maintaining the Certificate Account to invest
the funds in the Certificate Account in Permitted Investments designated in the
name of the Trustee for the benefit of the Certificateholders, which shall
mature not later than the Business Day next preceding the Distribution Date next
following the date of such investment (except that (i) if such Permitted
Investment is an obligation of the institution that maintains such account or a
fund for which such institution serves as investment advisor, administrator,
shareholder, servicing agent, custodian or sub-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. The Trustee
or its Affiliates are permitted to receive compensation that could be deemed to
be in the Trustee's economic self-interest for (i) serving as investment adviser
(with respect to investments made through its Affiliates), administrator,
shareholder servicing agent, custodian or sub-custodian with respect to certain
of the Permitted Investments, (ii) using Affiliates to effect transactions in
certain Permitted Investments and (iii) effecting transactions in certain
Permitted Investments.
Section 4.02. Distributions.
(a) On each Distribution Date (x) the Master Servicer on behalf of the
Trustee or (y) the Paying Agent appointed by the Trustee, based solely on
information provided by the Master Servicer, shall distribute the amount
required to be distributed to the Master Servicer or a Sub-Servicer pursuant to
Section 4.02(a)(iii) below, and 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
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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 (A) with respect to each
Class of Certificates (other than any Subclass of the Interest Only
Certificates), shall be based on the aggregate of the Percentage Interests
represented by Certificates of the applicable Class held by such Holder or (B)
with respect to any Subclass of the Interest Only Certificates, shall be equal
to the amount (if any) distributed pursuant to Section 4.02(a)(i) below to each
Holder of a Subclass thereof) of the following amounts, in the following order
of priority (subject to the provisions of Section 4.02(b) below), in each case
to the extent of the related Available Distribution Amount:
(i) to the related Senior Certificates (other than
the Principal Only Certificates) on a pro rata basis based on
Accrued Certificate Interest payable on such Certificates with
respect to such Distribution Date, Accrued Certificate
Interest on such Classes of Certificates (or Subclasses, if
any, with respect to the Interest Only Certificates) for such
Distribution Date, plus any Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date
except as provided in the last paragraph of this Section
4.02(a) (the related "Senior Interest Distribution Amount");
and
(ii) (X) to the Class A-II-PO Certificates, the Class
A-II-PO Principal Distribution Amount (as defined in Section
4.02(b)(i) herein); and
(Y) to the related Senior Certificates
(other than the Principal Only Certificates), in the
priorities and amounts set forth in Section 4.02(b)(ii)
through (f), the sum of the following (applied to reduce the
Certificate Principal Balances of such Senior Certificates, as
applicable):
(A) the related Senior Percentage for such
Distribution Date times the sum of the following:
(1) the principal portion of each
Monthly Payment due during the related Due
Period on each related Outstanding Mortgage
Loan (other than the Discount Fraction of
the principal portion of such payment with
respect to a Discount Mortgage Loan),
whether or not received on or prior to the
related Determination Date, minus the
principal portion of any Debt Service
Reduction (other than the Discount Fraction
of the principal portion of such Debt
Service Reductions with respect to each
Discount Mortgage Loan) which together with
other Bankruptcy Losses exceeds the
Bankruptcy Amount;
(2) the Stated Principal Balance of
any related Mortgage Loan repurchased during
the preceding calendar month (or deemed to
have been so repurchased in accordance with
Section 3.07(b) of this Agreement) pursuant
to Sections 2.02, 2.04 or 4.07 of this
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Agreement and Section 2.03 of this
Agreement, and the amount of any shortfall
deposited in the Custodial Account in
respect of such Loan Group in connection
with the substitution of a Deleted Mortgage
Loan pursuant to Section 2.03 or Section
2.04 of this Agreement, during the preceding
calendar month (other than the Discount
Fraction of such Stated Principal Balance or
shortfall with respect to each Discount
Mortgage Loan); and
(3) the principal portion of all
other unscheduled collections (other than
Principal Prepayments in Full and
Curtailments and amounts received in
connection with a Cash Liquidation or REO
Disposition of a related Mortgage Loan
described in Section 4.02(a)(ii)(Y)(B) of
this Agreement, including without limitation
Insurance Proceeds, Liquidation Proceeds and
REO Proceeds) including Subsequent
Recoveries, received during the preceding
calendar month (or deemed to have been so
received in accordance with Section 3.07(b)
of this Agreement) to the extent applied by
the Master Servicer as recoveries of
principal of the related Mortgage Loan
pursuant to Section 3.14 of this Agreement
(other than the related Discount Fraction of
the principal portion of such unscheduled
collections, with respect to each Discount
Mortgage Loan);
(B) with respect to each related Mortgage
Loan for which a Cash Liquidation or a REO
Disposition occurred during the preceding calendar
month (or was deemed to have occurred during such
period in accordance with Section 3.07(b)) and did
not result in any Excess Losses, an amount equal to
the lesser of (a) the related Senior Percentage for
such Distribution Date times the Stated Principal
Balance of such Mortgage Loan (other than the
Discount Fraction of such Stated Principal Balance,
with respect to each Discount Mortgage Loan) and (b)
the related Senior Accelerated Distribution
Percentage for such Distribution Date times the
related unscheduled collections (including without
limitation Insurance Proceeds, Liquidation Proceeds
and REO Proceeds) to the extent applied by the Master
Servicer as recoveries of principal of the related
Mortgage Loan pursuant to Section 3.14 (in each case
other than the portion of such unscheduled
collections, with respect to a Discount Mortgage
Loan, included in Section 4.02(b)(i)(C));
(C) the related Senior Accelerated
Distribution Percentage for such Distribution Date
times the aggregate of all related Principal
Prepayments in Full received in the related
Prepayment Period and Curtailments received in the
preceding calendar month (other than the related
Discount Fraction of such Principal Prepayments in
Full and Curtailments, with respect to each Discount
Mortgage Loan);
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(D) any Excess Subordinate Principal Amount
for such Distribution Date to the extent of Eligible
Funds for the related Loan Group; and
(E) any amounts described in subsection
(ii)(Y), clauses (A), (B) and (C) of this Section
4.02(a), as determined for any previous Distribution
Date, which remain unpaid after application of
amounts previously distributed pursuant to this
clause (E) to the extent that such amounts are not
attributable to Realized Losses which have been
allocated to the Subordinate Certificates; minus
(F) the related Capitalization Reimbursement
Amount for such Distribution Date, other than the
related Discount Fraction of any portion of that
amount related to each Discount Mortgage Loan,
multiplied by a fraction, the numerator of which is
the related Senior Principal Distribution Amount,
without giving effect to this clause (F), and the
denominator of which is the sum of the principal
distribution amounts for all related Classes of
Certificates (other than the Class A-II-PO
Certificates), without giving effect to any
reductions for the Capitalization Reimbursement
Amount;
(iii) if the Certificate Principal Balances of the
Subordinate Certificates have not been reduced to zero, to the
Master Servicer or a Sub-Servicer, by remitting for deposit to
the Custodial Account, to the extent of and in reimbursement
for any Advances or Sub-Servicer Advances previously made with
respect to any Mortgage Loan or REO Property which remain
unreimbursed in whole or in part following the Cash
Liquidation or REO Disposition of such Mortgage Loan or REO
Property, minus any such Advances that were made with respect
to delinquencies that ultimately constituted Excess Losses;
(iv) to the Holders of the Class M-1 Certificates,
the Accrued Certificate Interest thereon for such Distribution
Date, plus any Accrued Certificate Interest thereon remaining
unpaid from any previous Distribution Date, except as provided
below;
(v) to the Holders of the Class M-1 Certificates, an
amount equal to (x) the related Subordinate Principal
Distribution Amount for such Class of Certificates for such
Distribution Date, minus (y) the amount of any Class A-II-PO
Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections
4.02(a)(vii), (ix), (xi), (xiii), (xiv) and (xv) of this
Agreement are insufficient therefor, applied in reduction of
the Certificate Principal Balance of the Class M-1
Certificates;
(vi) to the Holders of the Class M-2 Certificates,
the Accrued Certificate Interest thereon for such Distribution
Date, plus any Accrued Certificate Interest thereon remaining
unpaid from any previous Distribution Date, except as provided
below;
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(vii) to the Holders of the Class M-2 Certificates,
an amount equal to (x) the related Subordinate Principal
Distribution Amount for such Class of Certificates for such
Distribution Date, minus (y) the amount of any Class A-II-PO
Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections
4.02(a)(ix), (xi), (xiii), (xiv) and (xv) of this Agreement
are insufficient therefor, applied in reduction of the
Certificate Principal Balance of the Class M-2 Certificates;
(viii) to the Holders of the Class M-3 Certificates,
the Accrued Certificate Interest thereon for such Distribution
Date, plus any Accrued Certificate Interest thereon remaining
unpaid from any previous Distribution Date, except as provided
below;
(ix) to the Holders of the Class M-3 Certificates, an
amount equal to (x) the related Subordinate Principal
Distribution Amount for such Class of Certificates for such
Distribution Date minus (y) the amount of any Class A-II-PO
Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections
4.02(a)(xi), (xiii), (xiv) and (xv) of this Agreement are
insufficient therefor, applied in reduction of the Certificate
Principal Balance of the Class M-3 Certificates;
(x) to the Holders of the Class B-1 Certificates, the
Accrued Certificate Interest thereon for such Distribution
Date, plus any Accrued Certificate Interest thereon remaining
unpaid from any previous Distribution Date, except as provided
below;
(xi) to the Holders of the Class B-1 Certificates, an
amount equal to (x) the related Subordinate Principal
Distribution Amount for such Class of Certificates for such
Distribution Date minus (y) the amount of any Class A-II-PO
Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections
4.02(a)(xiii), (xiv) and (xv) of this Agreement are
insufficient therefor, applied in reduction of the Certificate
Principal Balance of the Class B-1 Certificates;
(xii) to the Holders of the Class B-2 Certificates,
the Accrued Certificate Interest thereon for such Distribution
Date, plus any Accrued Certificate Interest thereon remaining
unpaid from any previous Distribution Date, except as provided
below;
(xiii) to the Holders of the Class B-2 Certificates,
an amount equal to (x) the related Subordinate Principal
Distribution Amount for such Class of Certificates for such
Distribution Date minus (y) the amount of any Class A-II-PO
Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of
78
Sections 4.02(a)(xiv) and (xv) of this Agreement are
insufficient therefor, applied in reduction of the Certificate
Principal Balance of the Class B-2 Certificates;
(xiv) to the Holders of the Class B-3 Certificates,
an amount equal to (x) the Accrued Certificate Interest
thereon for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below, minus
(y) the amount of any Class A-II-PO Collection Shortfalls for
such Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available
pursuant to clause (x) of Section 4.02(a)(xv) of this
Agreement are insufficient therefor;
(xv) to the Holders of the Class B-3 Certificates, an
amount equal to (x) the related Subordinate Principal
Distribution Amount for such Class of Certificates for such
Distribution Date minus (y) the amount of any Class A-II-PO
Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates applied in
reduction of the Certificate Principal Balance of the Class
B-3 Certificates;
(xvi) to the related Senior Certificates, in the
priority set forth in Section 4.02(b) of this Agreement, the
portion, if any, of the related Available Distribution Amount
remaining after the foregoing distributions, applied to reduce
the Certificate Principal Balances of such Senior
Certificates, but in no event more than the aggregate of the
outstanding Certificate Principal Balances of each such Class
of Senior Certificates, and thereafter, to each Class of
Subordinate Certificates then outstanding beginning with such
Class with the Highest Priority, any portion of the related
Available Distribution Amount remaining after the related
Senior Certificates have been retired, applied to reduce the
Certificate Principal Balance of each such Class of
Subordinate Certificates, but in no event more than the
outstanding Certificate Principal Balance of each such Class
of Subordinate Certificates; and
(xvii) to the Class R-II Certificates, the balance,
if any, of the related Available Distribution Amount.
Notwithstanding the foregoing, on any Distribution Date, with respect
to the Class of Subordinate Certificates outstanding on such Distribution Date
with the Lowest Priority, or in the event the Subordinate Certificates are no
longer outstanding, the related Senior Certificates, Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date will be
distributable only to the extent that such unpaid Accrued Certificate Interest
was attributable to interest shortfalls relating to the failure of the Master
Servicer to make any required Advance, or the determination by the Master
Servicer that any proposed Advance would be a Nonrecoverable Advance with
respect to the related Mortgage Loan where such Mortgage Loan has not yet been
the subject of a Cash Liquidation or REO Disposition or the related Liquidation
Proceeds, Insurance Proceeds and REO Proceeds have not yet been distributed to
the Certificateholders.
(b) Distributions of principal on the Senior Certificates on
each Distribution Date occurring prior to the Credit Support Depletion
Date will be made as follows:
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(i) to the Class A-II-PO Certificates from the
related Available Distribution Amount, until the Certificate
Principal Balance thereof is reduced to zero, an amount (the
"Class A-II-PO Principal Distribution Amount") equal to the
aggregate of:
(A) the Discount Fraction of the principal
portion of each Monthly Payment on each Discount
Mortgage Loan due during the related Due Period,
whether or not received on or prior to the related
Determination Date, minus the Discount Fraction of
the principal portion of any related Debt Service
Reduction which together with other Bankruptcy Losses
exceeds the Bankruptcy Amount;
(B) the Discount Fraction of the principal
portion of all unscheduled collections on each
Discount Mortgage Loan received during the preceding
calendar month or, in the case of Principal
Prepayments in Full, during the related Prepayment
Period (other than amounts received in connection
with a Cash Liquidation or REO Disposition of a
Discount Mortgage Loan described in clause (C)
below), including Principal Prepayments in Full,
Curtailments and repurchases (including deemed
repurchases under Section 3.07(b)) of such Discount
Mortgage Loans (or, in the case of a substitution of
a Deleted Mortgage Loan, the related Discount
Fraction of the amount of any shortfall deposited in
the Custodial Account in connection with such
substitution);
(C) in connection with the Cash Liquidation
or REO Disposition of a Discount Mortgage Loan that
did not result in any Excess Losses, an amount equal
to the lesser of (1) the applicable Discount Fraction
of the Stated Principal Balance of such Discount
Mortgage Loan immediately prior to such Distribution
Date and (2) the aggregate amount of the collections
on such Discount Mortgage Loan to the extent applied
as recoveries of principal;
(D) any amounts allocable to principal for
any previous Distribution Date (calculated pursuant
to clauses (A) through (C) above) that remain
undistributed; and
(E) the amount of any Class A-II-PO
Collection Shortfalls for such Distribution Date and
the amount of any Class A-II-PO Collection Shortfalls
remaining unpaid for all previous Distribution Dates,
but only to the extent of the Eligible Funds for such
Distribution Date; minus
(F) the Discount Fraction of the portion of
the Capitalization Reimbursement Amount for such
Distribution Date, if any, related to each Discount
Mortgage Loan; and
(ii) (A) the Senior Principal Distribution Amount
related to Loan Group I will be distributed in the following
order of priority:
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(1) first, to the Class R-I
Certificates and Class R-II Certificates,
concurrently on a pro rata basis, until the
Certificate Principal Balances thereof have
been reduced to zero; and
(2) second, to the A-I Certificates,
until the Certificate Principal Balance
thereof has been reduced to zero;
(B) the Senior Principal Distribution Amount
related to Loan Group II will be distributed to the
Class A-II Certificatesin the following order of
priority:
(1) first, to the Class A-II-2
Certificates, in reduction of the
Certificate Principal Balance thereof, in an
amount equal to the sum of the following:
(A) the Class A-II-2 Certificates' pro rata
share (based on the Certificate Principal
Balance thereof and the aggregate Stated
Principal Balance of the Group II Loans
(other than the Discount Fraction of the
Discount Mortgage Loans)) of the aggregate
of the collections described in Section
4.02(a)(ii)(Y)(A), (B) and (E) (net of
amounts set forth in Section
4.02(a)(ii)(Y)(F)) without application of
the related Senior Percentage; and
(B) the Lockout Prepayment Percentage of the
Class A-II-2 Certificates' pro rata share
(based on the Certificate Principal Balance
thereof and the aggregate Stated Principal
Balance of the Group II Loans (other than
the Discount Fraction of the Discount
Mortgage Loans)) of the aggregate of the
collections described in Section
4.02(a)(ii)(Y)(C) without application of the
related Senior Accelerated Distribution
Percentage;
provided, that, if the aggregate of the
amounts set forth in Section
4.02(a)(ii)(Y)(A), (B), (C) and (E) (net of
amounts set forth in Section
4.02(a)(ii)(Y)(F)) is more than the balance
of the related Available Distribution Amount
remaining after the related Senior Interest
Distribution Amount and the Class A-II-PO
Distribution Amount have been distributed,
the amount paid to the Class A-II-2
Certificates pursuant to this clause (B)(1)
shall be reduced by an amount equal to the
Class A-II-2 Certificates' pro rata share
(based on the Certificate Principal Balance
thereof relative to the aggregate Stated
Principal Balance of the Group II Loans
(other than the Discount Fraction of the
Discount Mortgage Loans) of such difference;
(2) second, to the Class A-II-1
Certificates, until the Certificate
Principal Balance thereof has been reduced
to zero; and
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(3) third, to the Class A-II-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero.
(a) On any Distribution Date prior to the Credit Support
Depletion Date on which the aggregate Certificate Principal Balance of
the Group I or Group II Certificates, as applicable, is greater than
the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group in each case after giving effect to distributions to
be made on such Distribution Date, (1) 100% of the Principal
Prepayments in Full and Curtailments allocable to the Class M
Certificates and Class B Certificates on the Mortgage Loans in the
other Loan Group will be distributed to such Class or Classes of Group
I or Group II Certificates, as applicable, and in accordance with the
priorities set forth in clause 4.02(b) above, and in reduction of the
Certificate Principal Balances thereof, until the aggregate Certificate
Principal Balance of such Class or Classes of Certificates equals the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group, and (2) an amount equal to one month's interest at the
applicable Pass-Through Rate for such Class or Classes of Certificates
on the amount of such difference will be distributed from the Available
Distribution Amount for the other Loan Group allocable on a pro rata
basis to the Class M Certificates and Class B Certificates first to pay
any unpaid interest on such Class or Classes of Certificates and then
to pay principal on such Classes in the manner described in (1) above.
In addition, prior to the occurrence of the Credit Support Depletion
Date but after the reduction of the Certificate Principal Balances of
any of the Group I or Group II Senior Certificates to zero, the
remaining Group I or Group II Senior Certificates, as applicable, will
be entitled to receive, in addition to any Principal Prepayments in
Full and Curtailments related to such Certificates' respective Loan
Group, 100% of the Principal Prepayments in Full and Curtailments on
the Mortgage Loans in the other Loan Group exclusive of the related
Discount Fraction, on a pro rata basis, and in accordance with the
priorities set forth in clause 4.02(b) above, in reduction of the
Certificate Principal Balances thereof, on any Distribution Date unless
(i) the weighted average of the initial Subordinate Percentages,
weighted on the basis of the Stated Principal Balances of the Mortgage
Loans in the related Loan Group, is at least two times the weighted
average of the initial Subordinate Percentages for each Loan Group
(calculated on such basis) and (ii) the outstanding principal balance
of the Mortgage Loans in each Loan Group delinquent 60 days or more
averaged over the last six months, as a percentage of the aggregate
outstanding Certificate Principal Balance of the Class M Certificates
and Class B Certificates, is less than 50%.
(b) On or after the related Credit Support Depletion Date, all
priorities relating to distributions as described in Section 4.02(b)
above in respect of principal among the various classes of Senior
Certificates (other than the Principal Only Certificates) will be
disregarded, and (i) an amount equal to the Discount Fraction of the
principal portion of scheduled payments and unscheduled collections
received or advanced in respect of the Discount Mortgage Loans in each
Loan Group will be distributed to the related Class of Principal Only
Certificates, (ii) the related Senior Principal Distribution Amount
will be distributed to the related Classes of remaining Senior
Certificates (other than the Interest Only Certificates and Principal
Only Certificates) pro rata in accordance with their respective
outstanding Certificate Principal Balances, and (iii) the amount set
forth in Section 4.02(a)(i) will be distributed as set forth therein.
Notwithstanding the foregoing, on or after the Credit Support Depletion
Date and after the reduction of the Certificate Principal Balances of
any
82
of the Group I or Group II Senior Certificates to zero, (i) the
remaining Senior Principal Distribution Amount for such group of Senior
Certificates will be distributed to the remaining Senior Certificates
(other than the Principal Only Certificates) pro rata in accordance
with their respective outstanding Certificate Principal Balances, and
(ii) the amount of Accrued Certificate Interest on such group of Senior
Certificates shall be distributed to the remaining Senior Certificates
(other than the Principal Only Certificates) on a pro rata basis based
on Accrued Certificate Interest payable on such Certificates with
respect to such Distribution Date.
(c) After the reduction of the Certificate Principal Balances
of a group of Senior Certificates (other than the Principal Only
Certificates) to zero but prior to the Credit Support Depletion Date,
such Senior Certificates (other than the Principal Only Certificates)
will be entitled to no further distributions of principal thereon and
the related Available Distribution Amount will be paid solely to the
holders of the Principal Only Certificates and Interest Only
Certificates, as applicable, Class M Certificates and Class B
Certificates, in each case as described herein.
(d) 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). If,
after taking into account such Subsequent Recoveries, the amount of a
Realized Loss is reduced, the amount of such Subsequent Recoveries will
be applied to increase the Certificate Principal Balance of the Class
of Subordinate Certificates with the Highest Priority to which Realized
Losses, other than Excess Bankruptcy Losses, Excess Special Hazard
Losses and Extraordinary Losses, have been allocated, but not by more
than the amount of Realized Losses previously allocated to that Class
of Certificates pursuant to Section 4.05. The amount of any remaining
Subsequent Recoveries will be applied to increase the Certificate
Principal Balance of the Class of Certificates with the next Lower
Priority, up to the amount of such Realized Losses previously allocated
to that Class of Certificates pursuant to Section 4.05. Any remaining
Subsequent Recoveries will in turn be applied to increase the
Certificate Principal Balance of the Class of Certificates with the
next Lower Priority up to the amount of such Realized Losses previously
allocated to that Class of Certificates pursuant to Section 4.05, and
so on. Holders of such Certificates will not be entitled to any payment
in respect of Accrued Certificate Interest on the amount of such
increases for any Interest Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied
to the Certificate Principal Balance of each Certificate of such Class
in accordance with its respective Percentage Interest.
(e) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository
shall be responsible for crediting the amount of such distribution to
the accounts of its Depository Participants in accordance with its
normal procedures. Each Depository Participant shall be responsible for
disbursing such distribution to the Certificate Owners that it
represents and to each indirect participating brokerage firm (a
"brokerage firm" or "indirect participating firm") for which it acts as
agent. Each brokerage firm shall be responsible for disbursing funds to
the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have
any responsibility therefor except as otherwise provided by this
Agreement or applicable law.
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(f) Except as otherwise provided in Section 9.01, if the
Master Servicer anticipates that a final distribution with respect to
any Class of Certificates will be made on the next Distribution Date,
the Master Servicer shall, no later than the Determination Date in the
month of such final distribution, notify the Trustee and the Trustee
shall, no later than two (2) Business Days after such Determination
Date, mail on such date to each Holder of such Class of Certificates a
notice to the effect that: (i) the Trustee anticipates that the final
distribution with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Trustee or as otherwise specified
therein, and (ii) no interest shall accrue on such Certificates from
and after the end of the related Interest Accrual Period. 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) The Master Servicer shall forward to the Trustee no later than 5:00
P.M. New York time on the second Business Day prior to each Distribution Date,
and the Trustee shall on such Distribution Date make available electronically
via the Trustee's internet website which is presently located at
xxxx://xxx.xxxxxxxx.xxx/xxx., or for persons unable to use this website by mail
by contacting the investor relations desk at (000) 000-0000, to each Holder and
the Depositor, a statement setting forth the following information as to each
Class of Certificates, in each case to the extent applicable:
(i) (A) the amount of such distribution to the
Certificateholders of such Class applied to reduce the Certificate
Principal Balance thereof, and (B) the aggregate amount included
therein representing Principal Prepayments;
(ii) the amount of such distribution to Holders of such Class
of Certificates allocable to interest;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable
to such Holders if there were sufficient funds available therefor, the
amount of the shortfall;
(iv) the amount of any Advance by the Master Servicer with
respect to the Group I Loans and Group II Loans pursuant to Section
4.04;
(v) the number of Group I Loans and Group II Loans and the
Stated Principal Balance after giving effect to the distribution of
principal on such Distribution Date;
(vi) the aggregate Certificate Principal Balance or Notional
Amount, as applicable, 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;
84
(vii) on the basis of the most recent reports furnished to it
by Subservicers, the number and aggregate principal balances of Group I
Loans and Group II Loans that are Delinquent (A) one month, (B) two
months and (C) three or more months and the number and aggregate
principal balance of Group I Loans and Group II Loans that are in
foreclosure;
(viii) the number, aggregate principal balance and book value
of any REO Properties;
(ix) the aggregate Accrued Certificate Interest remaining
unpaid, if any, for each Class of Certificates, after giving effect to
the distribution made on such Distribution Date;
(x) the aggregate amount of Realized Losses for such
Distribution Date and the aggregate amount of Realized Losses on the
Group I Loans and Group II Loans incurred since the Cut-off Date;
(xi) the Special Hazard Amount and Bankruptcy Amount as of the
close of business on such Distribution Date and a description of any
change in the calculation of such amounts;
(xii) the Pass-Through Rate on each Class of Certificates;
(xiii) the number and aggregate principal balance of Group I
Loans and Group II Loans repurchased under Section 4.07;
(xiv) the aggregate amount of any recoveries on previously
foreclosed loans from Residential Funding due to a breach of
representation or warranty;
(xv) the weighted average remaining term to maturity of the
Group I Loans and Group II Loans after giving effect to the amounts
distributed on such Distribution Date; and
(xvi) the weighted average Mortgage Rates of the Group I Loans
and Group II Loans after giving effect to the amounts distributed on
such Distribution Date.
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,
85
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 on the immediately succeeding
Certificate Account Deposit Date pursuant to clause (iii) of Section 4.01(a),
(iii) the amount of
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Prepayment Interest Shortfalls, and (iv) to the extent required, a report
detailing the Stated Principal Balance, Mortgage Rate, Modified Mortgage Rate,
remaining term to maturity and Monthly Payment for any Modified Mortgage Loan
pursuant to Section 3.13. The determination by the Master Servicer of such
amounts shall, in the absence of obvious error, be presumptively deemed to be
correct for all purposes hereunder and the Trustee shall be protected in relying
upon the same without any independent check or verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account
Deposit Date, the Master Servicer shall either (i) remit to the Trustee for
deposit in the Certificate Account from its own funds, or funds received
therefor from the Subservicers, an amount equal to the Advances to be made by
the Master Servicer in respect of the related Distribution Date, which shall be
in an aggregate amount equal to the sum of (A) the aggregate amount of Monthly
Payments (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 (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 hereunder, including
the obligation to deposit in the Certificate Account an amount equal to the
Advance for the immediately succeeding
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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 Modification, 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 during the related Due Period. The amount of
each Realized Loss shall be evidenced by an Officers' Certificate. All Realized
Losses, other than Excess Losses, shall be allocated as follows: first, to the
Class B-3 Certificates until the Certificate Principal Balance thereof has been
reduced to zero; second, to the Class B-2 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; third, to the Class B-1
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; fourth, to the Class M-3 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; fifth, to the Class M-2 Certificates
until the Certificate Principal Balance thereof has been reduced to zero; sixth,
to the Class M-1 Certificates until the Certificate Principal Balance thereof
has been reduced to zero; and, thereafter, (i) in the case of the Group I Loans,
among all the remaining Group I Senior Certificates on a pro rata basis, as
described in paragraph (c) below and (ii) in the case of the Group II Loans, if
any such Realized Losses are on a Discount Mortgage Loan in Loan Group II, to
the Class A-II-PO Certificates in an amount equal to the related Discount
Fraction of the principal portion thereof until the Certificate Principal
Balance thereof has been reduced to zero, and the remainder of such Realized
Losses on such Discount Mortgage Loans and the entire amount of such Realized
Losses on Non-Discount Mortgage Loans will be allocated among all the remaining
Classes of Group II Senior Certificates (other than the Class A-II-PO
Certificates) on a pro rata basis, as described in paragraph (c) below.
(b) Any Excess Losses on Non-Discount Mortgage Loans in a Loan Group
will be allocated among the related Senior Certificates (other than the
Principal Only Certificates) and the Subordinate Certificates, on a pro rata
basis, as described below. The principal portion of such Realized Losses on the
Discount Mortgage Loans in Loan Group I will be allocated among the Group I
Senior Certificates and Subordinate Certificates, on a pro rata basis, as
described in paragraph (c) below. The principal portion of such Realized Losses
on the Discount Mortgage Loans will be allocated to the Class A-II-PO
Certificates in an amount equal to the related Discount Fraction thereof and the
remainder of such Realized Losses on the Discount Mortgage Loans and the entire
amount of such Realized Losses on Non-Discount Mortgage Loans in such Loan Group
will be allocated among the Group II Senior Certificates (other than the Class
A-II-PO Certificates) and Subordinate Certificates, on a pro rata basis, as
described in paragraph (c) below.
(c) As used herein, an allocation of a Realized Loss on a "pro rata
basis" among two or more specified Classes of Certificates means an allocation
among the various Classes so specified, to each such Class of Certificates on
the basis of their then outstanding Certificate Principal Balances prior to
giving effect to distributions to be made on such Distribution Date in the case
of the principal portion of a Realized Loss or based on the Accrued Certificate
Interest thereon payable on such Distribution Date (without regard to any
Eligible Master Servicing Compensation for such Distribution Date) in the case
of an interest portion of a Realized Loss. Except as provided in the
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following sentence, any allocation of the principal portion of Realized Losses
(other than Debt Service Reductions) to a Class of 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. Any
allocation of the principal portion of Realized Losses (other than Debt Service
Reductions) to the Subordinate Certificates then outstanding with the Lowest
Priority shall be made by operation of the definition of "Certificate Principal
Balance" and by operation of the provisions of Section 4.02(a). Allocations of
the interest portions of Realized Losses to the Subordinate Certificates then
outstanding with the Lowest Priority shall be made in proportion to the amount
of Accrued Certificate Interest and by operation of the definition of "Accrued
Certificate Interest" and by operation of the provisions of Section 4.02(a).
Allocations of the principal portion of Debt Service Reductions shall be made by
operation of the provisions of Section 4.02(a). 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; provided that if any Subclasses of the Interest Only
Certificates have been issued pursuant to Section 5.01(c), such Realized Losses
and other losses allocated to the Interest Only Certificates shall be allocated
among such Subclasses in proportion to the respective amounts of Accrued
Certificate Interest payable on such Distribution Date that would have resulted
absent such reductions.
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; provided, that any such Mortgage
Loan that becomes 90 days or more delinquent during any given Calendar Quarter
shall only be eligible for purchase pursuant to this Section during the period
beginning on the first Business Day of the following Calendar Quarter, and
ending at the close of business on the second-to-last Business Day of such
following Calendar Quarter. Such option if not exercised shall not thereafter be
reinstated as to any Mortgage Loan, unless the delinquency is cured and the
Mortgage Loan thereafter again becomes delinquent in payment by 90 days or more
in a subsequent Calendar Quarter. 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,
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and all such security and documents, free of any further obligation to the
Trustee or the Certificateholders with respect thereto.
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ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Class A, Class M, Class B and Class R Certificates shall be
substantially in the forms set forth in Exhibits A, B, C and D, respectively,
and shall, on original issue, be executed and delivered by the Trustee to the
Certificate Registrar for authentication and delivery to or upon the order of
the Depositor upon receipt by the Trustee or one or more Custodians of the
documents specified in Section 2.01. The Class A (other than the Class A-II-IO
Certificates) and Class M-1 Certificates shall be issuable in minimum dollar
denominations of $25,000 and integral multiples of $1 in excess thereof. The
Class A-II-IO Certificates shall be issuable in minimum dollar denominations of
$1,000,000 Notional Amount and integral multiples of $1 in excess thereof. The
Class M-2 and Class M-3 Certificates shall be issuable in minimum dollar
denominations of $250,000 and integral multiples of $1 in excess thereof. The
Class B Certificates shall be issuable in minimum denominations of $100,000 and
integral multiples of $1 in excess thereof, except that one of each of the Class
B Certificates will be issued evidencing the sum of an authorized denomination
thereof plus the remainder of the aggregate initial Certificate Principal
Balance of such class. Each Class of Class R Certificates shall be issued in
registered, certificated form in minimum percentage interests of 20.00% and
integral multiples of 0.01% in excess thereof; provided, however, that one Class
R Certificate of each Class will be issuable to the REMIC Administrator as "tax
matters person" pursuant to Section 10.01(c) in a minimum denomination
representing a Percentage Interest of not less than 0.01%.The Certificates shall
be executed by manual or facsimile signature on behalf of an authorized officer
of the Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificate
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) The Class A Certificates and Class M Certificates shall initially
be issued as one or more Certificates registered in the name of the Depository
or its nominee and, except as provided below, registration of such Certificates
may not be transferred by the Trustee except to another Depository that agrees
to hold such Certificates for the respective Certificate Owners with Ownership
Interests therein. The Certificate Owners shall hold their respective Ownership
Interests in and to each Class A Certificate and Class M Certificate, through
the book-entry facilities of the Depository and, except as provided below, shall
not be entitled to Definitive Certificates in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall transfer
the Ownership Interests only in the Book-Entry Certificates of
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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 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, with the consent of a majority of the
Certificateholders, 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 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
reasonably 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.
None of the Depositor, the Master Servicer or the Trustee shall be
liable for any actions taken by the Depository or its nominee, including,
without limitation, any delay in delivery of any
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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.
(d) From time to time the initial Holder of the Interest Only
Certificates, may exchange such Holder's Interest Only Certificates for
Subclasses of Interest Only Certificates to be issued under this Agreement by
delivering a "Request for Exchange" substantially in the form attached hereto as
Exhibit Q executed by an authorized officer, which Subclasses, in the aggregate,
will represent the Uncertificated Class A-II-IO REMIC II Regular Interests
corresponding to the Class A-II-IO Certificates so surrendered for exchange. Any
Subclass so issued shall bear a numerical designation commencing with Class
A-II-IO, and continuing sequentially thereafter, and will evidence ownership of
the Uncertificated REMIC Regular Interest or Interests specified in writing by
such initial Holder to the Trustee. The Trustee may conclusively, without any
independent verification, rely on, and shall be protected in relying on, the
Holder's determinations of the Uncertificated Class A-II-IO REMIC II Regular
Interests corresponding to any Subclass, the Initial Notional Amount and the
initial Pass-Through Rate on a Subclass as set forth in such Request for
Exchange and the Trustee shall have no duty to determine if any Uncertificated
Class A-II-IO REMIC II Regular Interest designated on a Request for Exchange
corresponds to a Subclass which has previously been issued. Each Subclass so
issued shall be substantially in the form set forth in Exhibit A and shall, on
original issue, be executed and delivered by the Trustee to the Certificate
Registrar for authentication and delivery in accordance with Section 5.01(a).
Every Certificate presented or surrendered for exchange by the initial Holder
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer attached to
such Certificate and shall be completed to the satisfaction of the Trustee and
the Certificate Registrar duly executed by, the initial Holder thereof or his
attorney duly authorized in writing. The Certificates of any Subclass of Class
A-II-IO Certificates may be transferred in whole, but not in part, in accordance
with the provisions of Section 5.02.
Section 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions of
Section 8.11 a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee is initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar, or the Trustee, shall provide the
Master Servicer with a certified list of Certificateholders as of each Record
Date prior to the related Determination Date.
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(b) Upon surrender for registration of transfer of any Certificate at
any office or agency of the Trustee maintained for such purpose pursuant to
Section 8.11 and, in the case of any Class M, Class B 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
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 Certificate is
to be made, (i) unless the Depositor directs the Trustee in writing otherwise,
the Trustee shall require a written Opinion of Counsel addressed to and
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from said Act and laws or is
being made pursuant to said Act and laws, which Opinion of Counsel shall not be
an expense of the Trustee, the Trust Fund, the Depositor or the Master Servicer,
and (ii) the Trustee shall require the transferee to execute a representation
letter, substantially in the form of Exhibit I hereto, and the Trustee shall
require the transferor to execute a representation letter, substantially in the
form of Exhibit J hereto, each acceptable to and in form and substance
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which representation letters
shall not be an expense of the Trustee, the Trust Fund, the Depositor or the
Master Servicer. In lieu of the requirements set forth in the preceding
sentence, transfers of Class B Certificates may be made in accordance with this
Section 5.02(d) if the prospective transferee of such a Certificate provides the
Trustee and the Master Servicer with an investment letter substantially in the
form of Exhibit N attached hereto, which investment letter shall not be an
expense of the Trustee, the Depositor, or the Master Servicer, and which
investment letter states that, among other things, such transferee (i) is a
"qualified institutional buyer" as defined under Rule 144A, acting for its own
account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (ii) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the 1933 Act provided by
Rule 144A. The Holder of a Class B 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.
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(e) In the case of any Class M, Class B 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 M, Class B 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 paragraph six of Exhibit I or paragraph three of
Exhibit N (with respect to a Class B Certificate) or in paragraph fourteen of
Exhibit H-1 (with respect to a Class R Certificate) or in the case of the Class
M Certificates such transferee should be deemed to have made such
representations, which the Trustee may rely upon without further inquiry or
investigation, or such other certifications as the Trustee may deem desirable or
necessary in order to establish that such transferee or the Person in whose name
such registration is requested either (a) is not an employee benefit plan or
other plan 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 such Plan) who is using "plan assets" of any such
Plan within the meaning of the U.S. Department of Labor regulation promulgated
at 29 C.F.R. ss. 2510.3-101, to effect such acquisition (a "Plan Investor") or
(b) in the case of a Class B Certificate, the following conditions are
satisfied: (i) such Transferee is an insurance company, (ii) the source of funds
used to purchase or hold such Certificate (or interest therein) is an "insurance
company general account" (as defined in U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (iii) the conditions set forth
in Sections I and III of PTCE 95-60 have been satisfied (each entity that
satisfies this clause (b), a "Complying Insurance Company").
(ii) Any purported Certificate Owner whose acquisition or holding of
any Class M Certificate or Class B-1 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.
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(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of any Class R Certificate
until its receipt of,
(I) an affidavit and agreement (a "Transfer Affidavit
and Agreement," in the form attached hereto as
Exhibit H-1) from the proposed Transferee, in form
and substance satisfactory to the Master Servicer,
representing and warranting, among other things, that
it is a Permitted Transferee, that it is not
acquiring its Ownership Interest in the Class R
Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any
Person who is not a Permitted Transferee, that for so
long as it retains its Ownership Interest in a Class
R Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions
of this Section 5.02(f) and agrees to be bound by
them, and
(II) a certificate, in the form attached hereto as
Exhibit H-2, from the Holder wishing to transfer the
Class R Certificate, in form and substance
satisfactory to the Master Servicer, representing and
warranting, among other things, that no purpose of
the proposed Transfer is to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Trustee who is assigned to this Agreement
has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Class R
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Class R Certificate shall agree (x) to require a Transfer Affidavit
and Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest in a Class R Certificate and (y) not to
transfer its Ownership Interest unless it provides a certificate to the
Trustee in the form attached hereto as Exhibit H-2.
(E) Each Person holding or acquiring an Ownership Interest in
a Class R Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it is, or is holding an
Ownership Interest in a Class R Certificate on behalf of, a
"pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate
only if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Holder requesting such transfer in the form attached hereto
as Exhibit H-2 and all of such other documents as shall have been reasonably
required by the Trustee as a condition to such registration. Transfers of the
Class R Certificates to Non-United States Persons and Disqualified Organizations
(as defined in Section 860E(e)(5) of the Code) are prohibited.
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(A) If any Disqualified Organization shall become a holder of
a Class R Certificate, then the last preceding Permitted Transferee
shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration
of such Transfer of such Class R Certificate. If a Non-United States
Person shall become a holder of a Class R Certificate, then the last
preceding United States Person shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class
R Certificate. If a transfer of a Class R Certificate is disregarded
pursuant to the provisions of Treasury Regulations Section 1.860E-1 or
Section 1.860G-3, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of such
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by this Section 5.02(f) or
for making any payments due on such Certificate to the holder thereof
or for taking any other action with respect to such holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the restrictions in this Section
5.02(f) and to the extent that the retroactive restoration of the
rights of the Holder of such Class R Certificate as described in clause
(iii)(A) above shall be invalid, illegal or unenforceable, then the
Master Servicer shall have the right, without notice to the holder or
any prior holder of such Class R Certificate, to sell such Class R
Certificate to a purchaser selected by the Master Servicer on such
terms as the Master Servicer may choose. Such purported Transferee
shall promptly endorse and deliver each Class R Certificate in
accordance with the instructions of the Master Servicer. Such purchaser
may be the Master Servicer itself or any Affiliate of the Master
Servicer. The proceeds of such sale, net of the commissions (which may
include commissions payable to the Master Servicer or its Affiliates),
expenses and taxes due, if any, will be remitted by the Master Servicer
to such purported Transferee. The terms and conditions of any sale
under this clause (iii)(B) shall be determined in the sole discretion
of the Master Servicer, and the Master Servicer shall not be liable to
any Person having an Ownership Interest in a Class R Certificate as a
result of its exercise of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information necessary to
compute any tax imposed
(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.
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(v) The provisions of this Section 5.02(f) set forth prior to this
clause (v) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee the following:
(A) Written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such
provisions will not cause such Rating Agency to downgrade its
then-current ratings, if any, of the Class A Certificates
below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date by such
Rating Agency; and
(B) a certificate of the Master Servicer stating that the
Master Servicer has received an Opinion of Counsel, in form
and substance satisfactory to the Master Servicer, to the
effect that such modification, addition to or absence of such
provisions will not cause any of REMIC I or REMIC II to cease
to qualify as a REMIC and will not cause (x) any of REMIC I or
REMIC II 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.
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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 neither the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar nor any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar shall be affected by notice to the contrary except as
provided in Section 5.02(f).
Section 5.05. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.02. In the event of
any such appointment, on or prior to each Distribution Date the Master Servicer
on behalf of the Trustee shall deposit or cause to be deposited with the Paying
Agent a sum sufficient to make the payments to Certificateholders in the amounts
and in the manner provided for in Section 4.02, such sum to be held in trust for
the benefit of Certificateholders. The Trustee shall cause each Paying Agent to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums held by
it for the payment to Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. Any sums so held by such Paying Agent shall be held only in
Eligible Accounts to the extent such sums are not distributed to the
Certificateholders on the date of receipt by such Paying Agent.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by the Depositor and the Master
Servicer herein. By way of illustration and not limitation, the Depositor is not
liable for the servicing and administration of the Mortgage Loans, nor is it
obligated by Section 7.01 or 10.01 to assume any obligations of the Master
Servicer or to appoint a designee to assume such obligations, nor is it liable
for any other obligation hereunder that it may, but is not obligated to, assume
unless it elects to assume such obligation in accordance herewith.
Section 6.02. Merger or Consolidation of the Depositor or the
Master Servicer; Assignment of Rights and Delegation
of Duties by Master Servicer.
(a) The Depositor and the Master Servicer will each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and will each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx 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
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and delegation (as evidenced by a letter to such effect from each Rating
Agency). In the case of any such assignment and delegation, the Master Servicer
shall be released from its obligations under this Agreement, except that the
Master Servicer shall remain liable for all liabilities and obligations incurred
by it as Master Servicer hereunder prior to the satisfaction of the conditions
to such assignment and delegation set forth in the next preceding sentence.
Section 6.03. Limitation on Liability of the Depositor, the Master
Servicer and Others.
Neither the Depositor, the Master Servicer nor any of the directors,
officers, employees or agents of the Depositor or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer shall be indemnified
by the Trust Fund and held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal or administrative action, proceeding, hearing or examination that is
not incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor or the Master Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor and the Master Servicer shall be entitled to
be reimbursed therefor out of amounts attributable to the Mortgage Loans on
deposit in the Custodial Account as provided by Section 3.10 and, on the
Distribution Date(s) following such reimbursement, the aggregate of such
expenses and costs shall be allocated in reduction of the Accrued Certificate
Interest on each Class entitled thereto in the same manner as if such expenses
and costs constituted a Prepayment Interest Shortfall.
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
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of Counsel (at the expense of the resigning party) to such effect delivered to
the Trustee. No such resignation by the Master Servicer shall become effective
until the Trustee or a successor servicer shall have assumed the Master
Servicer's responsibilities and obligations in accordance with Section 7.02.
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ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be
distributed to Holders of Certificates of any Class any distribution required to
be made under the terms of the Certificates of such Class and this Agreement
and, in either case, such failure shall continue unremedied for a period of 5
days after the date upon which written notice of such failure, requiring such
failure to be remedied, shall have been given to the Master Servicer by the
Trustee or the Depositor or to the Master Servicer, the Depositor and the
Trustee by the Holders of Certificates of such Class evidencing Percentage
Interests aggregating not less than 25%; or
(ii) the Master Servicer shall fail to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in the Certificates of any Class or in this Agreement
and such failure shall continue unremedied for a period of 30 days (except that
such number of days shall be 15 in the case of a failure to pay the premium for
any Required Insurance Policy) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Master
Servicer by the Trustee or the Depositor, or to the Master Servicer, the
Depositor and the Trustee by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less than
25%; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or appointing a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding- up or liquidation of its affairs, shall have been entered against the
Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of, or relating
to, the Master Servicer or of, or relating to, all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of, or
commence a voluntary case under, any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(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.
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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
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to Sections 3.07(c) and 4.01(c) 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.
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Section 7.03. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived as provided in Section 7.04 hereof.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive any
default or Event of Default; provided, however, that (a) a default or Event of
Default under clause (i) of Section 7.01 may be waived only by all of the
Holders of Certificates affected by such default or Event of Default and (b) no
waiver pursuant to this Section 7.04 shall affect the Holders of Certificates in
the manner set forth in Section 11.01(b)(i), (ii) or (iii). Upon any such waiver
of a default or Event of Default by the Holders representing the requisite
percentage of Voting Rights of Certificates affected by such default or Event of
Default, such default or Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents in a timely
fashion. The Trustee shall forward, cause to be forwarded or make available
electronically on its website 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 and REMIC II as a REMIC under the REMIC Provisions and to prevent the
imposition of any federal, state or local income, prohibited transaction (except
as provided in Section 2.04 herein), contribution or other tax on the Trust Fund
to the extent that maintaining such status and avoiding such taxes are
reasonably within the control of the Trustee and are reasonably within the scope
of its duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all such Events of Default which may have
occurred, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee by the Depositor or
the Master Servicer and which on their face, do not contradict the
requirements of this Agreement;
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(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Certificateholders
holding Certificates which evidence, Percentage Interests aggregating
not less than 25% of the affected classes as to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any
default (other than a default in payment to the Trustee) specified in
clauses (i) and (ii) of Section 7.01 or an Event of Default under
clauses (iii), (iv) and (v) of Section 7.01 unless a Responsible
Officer of the Trustee assigned to and working in the Corporate Trust
Office obtains actual knowledge of such failure or event or the Trustee
receives written notice of such failure or event at its Corporate Trust
Office from the Master Servicer, the Depositor or any
Certificateholder; and
(v) Except to the extent provided in Section 7.02, no
provision in this Agreement shall require the Trustee to expend or risk
its own funds (including, without limitation, the making of any
Advance) or otherwise incur any personal financial liability in the
performance of any of its duties as Trustee hereunder, or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that repayment of funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust Fund or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only if such taxes arise out of a breach by the Trustee of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Trustee.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
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(ii) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant
to the provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred
therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of
Default (which has not been cured), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent investor would exercise
or use under the circumstances in the conduct of such investor's own
affairs;
(iv) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do
by the Holders of Certificates of any Class evidencing, as to such
Class, Percentage Interests, aggregating not less than 50%; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Master Servicer, if an Event of Default shall have occurred and is
continuing, and otherwise by the Certificateholder requesting the
investigation;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys provided that the Trustee shall remain
liable for any acts of such agents or attorneys; and
(vii) To the extent authorized under the Code and the
regulations promulgated thereunder, each Holder of a Class R
Certificate hereby irrevocably appoints and authorizes the Trustee to
be its attorney-in-fact for purposes of signing any Tax Returns
required to be filed on behalf of the Trust Fund. The Trustee shall
sign on behalf of the Trust Fund and deliver to the Master Servicer in
a timely manner any Tax Returns prepared by or on behalf of the Master
Servicer that the Trustee is required to sign as determined by the
Master Servicer pursuant to applicable federal, state or local tax
laws, provided that the Master Servicer shall indemnify the Trustee for
signing any such Tax Returns that contain errors or omissions.
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(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 or REMIC II to fail to qualify as a REMIC at any time that any Certificates
are outstanding or (ii) cause the Trust Fund to be subject to any federal tax as
a result of such contribution (including the imposition of any federal tax on
"prohibited transactions" imposed under Section 860F(a) of the Code).
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Mortgage Loans) shall be taken as the statements of the Depositor or the Master
Servicer as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (except that the
Certificates shall be duly and validly executed and authenticated by it as
Certificate Registrar) or of any Mortgage Loan or related document, or of MERS
or the MERS(R) System. Except as otherwise provided herein, the Trustee shall
not be accountable for the use or application by the Depositor or the Master
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account or the Certificate Account by the Depositor or the Master
Servicer.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.
(a) The Master Servicer covenants and agrees to pay to the Trustee and
any co-trustee from time to time, and the Trustee and any co-trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by each of them in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee and any co-trustee, and the Master Servicer will pay or
reimburse the Trustee and any co-trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or any
co-trustee in accordance with any of the provisions of this Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ, and the expenses incurred by the
Trustee or any co-trustee in connection with the appointment of an office or
agency pursuant to Section 8.12) except any such expense, disbursement or
advance as may arise from its negligence or bad faith.
(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,
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or in connection with, the provisions set forth in the second paragraph of
Section 2.01(a) hereof, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against any claim in connection
with the exercise or performance of any of its powers or duties under this
Agreement, provided that:
(i) with respect to any such claim, the Trustee shall have
given the Master Servicer written notice thereof promptly after the
Trustee shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Master Servicer in
preparing such defense; and
(iii) notwithstanding anything in this Agreement to the
contrary, the Master Servicer shall not be liable for settlement of any
claim by the Trustee entered into without the prior consent of the
Master Servicer which consent shall not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created
by this Section 8.05(b) of the Master Servicer to indemnify the Trustee under
the conditions and to the extent set forth herein. Notwithstanding the
foregoing, the indemnification provided by the Master Servicer in this Section
8.05(b) shall not pertain to any loss, liability or expense of the Trustee,
including the costs and expenses of defending itself against any claim, incurred
in connection with any actions taken by the Trustee at the direction of
Certificateholders pursuant to the terms of this Agreement.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a national banking
association or a New York banking corporation having its principal office in a
state and city acceptable to the Depositor and organized and doing business
under the laws of such state or the United States of America, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
Section 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor and the
Master Servicer. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to 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.
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(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee. In addition, in the event that
the Depositor determines that the Trustee has failed (i) to distribute or cause
to be distributed to Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee or its Paying Agent (other than
the Master Servicer or the Depositor) for distribution or (ii) to otherwise
observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period
of 5 days (in respect of clause (i) above) or 30 days (in respect of clause (ii)
above) after the date on which written notice of such failure, requiring that
the same be remedied, shall have been given to the Trustee by the Depositor,
then the Depositor may remove the Trustee and appoint a successor trustee by
written instrument delivered as provided in the preceding sentence. In
connection with the appointment of a successor trustee pursuant to the preceding
sentence, the Depositor shall, on or before the date on which any such
appointment becomes effective, obtain from each Rating Agency written
confirmation that the appointment of any such successor trustee will not result
in the reduction of the ratings on any class of the Certificates below the
lesser of the then current or original ratings on such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee so removed
and one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files at
the time 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.
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(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Depositor.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall mail notice of any such merger or
consolidation to the Certificateholders at their address as shown in the
Certificate Register.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee, and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust
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Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer and the
Depositor, appoint one or more Custodians who are not Affiliates of the
Depositor or the Master Servicer to hold all or a portion of the Mortgage Files
as agent for the Trustee, by entering into a Custodial Agreement. Subject to
Article VIII, the Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $15,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File. Each
Custodial Agreement may be amended only as provided in Section 11.01. The
Trustee shall notify the Certificateholders of the appointment of any Custodian
(other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11. The Trustee will maintain an office or agency in the City of New
York where Certificates may be surrendered for registration of transfer or
exchange. The Trustee initially designates its offices located at 0 Xxx Xxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the purpose of keeping the
Certificate Register. The Trustee will maintain an office at the address stated
in Section 11.05(c) hereof where notices and demands to or upon the Trustee in
respect of this Agreement may be served.
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase by the Master Servicer or
Liquidation of All Mortgage Loans.
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(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Depositor, the Master Servicer and the Trustee created
hereby in respect of the Certificates (other than the obligation of the Trustee
to make certain payments after the Final Distribution Date to Certificateholders
and the obligation of the Depositor to send certain notices as hereinafter set
forth) shall terminate upon the last action required to be taken by the Trustee
on the Final Distribution Date pursuant to this Article IX following the earlier
of:
(i) the later of the final payment or other liquidation (or
any Advance with respect thereto) of the last Mortgage Loan remaining
in the Trust Fund or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan, or
(ii) the purchase by the Master Servicer of all 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) (net of any unreimbursed Advances attributable to principal)
on the day of repurchase, plus accrued interest thereon at the Net
Mortgage Rate (or Modified Net Mortgage Rate in the case of any
Modified Mortgage Loan), to, but not including, the first day of the
month in which such repurchase price is distributed; provided, however,
that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof; provided
further, that, if the amount due under any Certificate shall not have
been reduced to zero prior to the Maturity Date, the Master Servicer
shall be required to terminate this Agreement in accordance with this
clause (ii); and provided further, that the purchase price set forth
above shall be increased as is necessary, as determined by the Master
Servicer, to avoid disqualification of any of REMIC I or REMIC II as a
REMIC. The purchase price paid by the Master Servicer shall also
include any amounts owed by Residential Funding pursuant to the Section
5 of the Assignment Agreement in respect of any liability, penalty or
expense that resulted from a covenant set forth in Section 5(B) that
remain unpaid on the date of such purchase.
The right of the Master Servicer 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 the Master Servicer, the Master
Servicer shall be deemed to have been reimbursed for the full amount of any
unreimbursed Advances theretofore made by it with respect to the Mortgage Loans
being purchased. In addition, the Master Servicer shall provide to the Trustee
the certification required by Section 3.15 and the Trustee and any Custodian
shall, promptly following payment of the purchase price, release to the Master
Servicer the Mortgage Files pertaining to the Mortgage Loans being purchased.
In addition to the foregoing, on any Distribution Date on or after the
Optional Termination Date, the Master Servicer shall have the right, at its
option, to purchase the Certificates in whole, but not in part, at a price equal
to the sum of the outstanding Certificate Principal Balance of such Certificates
plus the sum of one month's Accrued Certificate Interest thereon, or, with
respect to the
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Interest Only Certificates, on their Notional Amount, any previously unpaid
Accrued Certificate Interest, and any unpaid Prepayment Interest Shortfall
previously allocated thereto. If the Master Servicer exercises this right to
purchase the outstanding Certificates, the Master Servicer will promptly
terminate the respective obligations and responsibilities created hereby in
respect of these Certificates pursuant to this Article IX.
(b) The Master Servicer shall give the Trustee not less than 60 days'
prior notice of the Distribution Date on which the Master Servicer anticipates
that the final distribution will be made to Certificateholders (whether as a
result of the exercise by the Master Servicer of its right to purchase the
assets of the Trust Fund or otherwise). Notice of any termination, specifying
the anticipated Final Distribution Date (which shall be a date that would
otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Master Servicer
(if it is exercising its right to purchase the assets of the Trust Fund), or by
the Trustee (in any other case) by letter to Certificateholders mailed not
earlier than the 15th day and not later than the 25th day of the month next
preceding the month of such final distribution specifying:
(i) the anticipated Final Distribution Date upon which final
payment of the Certificates is anticipated to be made upon presentation
and surrender of Certificates at the office or agency of the Trustee
therein designated,
(ii) the amount of any such final payment, if known, and
(iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, and that payment will be made only
upon presentation and surrender of the Certificates at the office or
agency of the Trustee therein specified.
If the Master Servicer is obligated to give notice to
Certificateholders as aforesaid, it shall give such notice to the Certificate
Registrar at the time such notice is given to Certificateholders. In the event
such notice is given by the Master Servicer, the Master Servicer shall deposit
in the Certificate Account before the Final Distribution Date in immediately
available funds an amount equal to the purchase price for the assets of the
Trust Fund computed as above provided. The Master Servicer shall provide to the
Trustee written notification of any change to the anticipated Final Distribution
Date as soon as practicable. If the Trust Fund is not terminated on the
anticipated Final Distribution Date, for any reason, the Trustee shall promptly
mail notice thereof to each affected Certificateholder.
(c) Upon presentation and surrender of the Certificates by the
Certificateholders, the Trustee shall distribute to the Certificateholders (i)
the amount otherwise distributable on such Distribution Date, if not in
connection with the Master Servicer's election to repurchase, or (ii) if the
Master Servicer elected to so repurchase, an amount equal to the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest thereon
for the related Interest Accrual Period and any previously unpaid Accrued
Certificate Interest.
(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
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to be withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate escrow account for the benefit of such
Certificateholders, and the Master Servicer (if it exercised its right to
purchase the assets of the Trust Fund), or the Trustee (in any other case) shall
give a second written notice to the remaining Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within six months after the second notice any Certificate
shall not have been surrendered for cancellation, the Trustee shall take
appropriate steps as directed by the Master Servicer to contact the remaining
Certificateholders concerning surrender of their Certificates. The costs and
expenses of maintaining the escrow account and of contacting Certificateholders
shall be paid out of the assets which remain in the escrow account. If within
nine months after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall pay to the Master Servicer all
amounts distributable to the holders thereof and the Master Servicer shall
thereafter hold such amounts until distributed to such holders. No interest
shall accrue or be payable to any Certificateholder on any amount held in the
escrow account or by the Master Servicer as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with this Section 9.01 and the Certificateholders shall look only to the Master
Servicer for such payment.
Section 9.02. Additional Termination Requirements.
(a) Each of REMIC I and REMIC II, 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 and REMIC II, 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 or REMIC II 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 and REMIC II, 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 and REMIC II, under Section 860F of the
Code and the regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the
commencement of such 90-day liquidation period and, at or prior to the
time of making of the final payment on the Certificates, the Trustee
shall sell or otherwise dispose of all of the remaining assets of the
Trust Fund in accordance with the terms hereof; and
(iii) If the Master Servicer is exercising its right to
purchase the assets of the Trust Fund, the Master Servicer shall,
during the 90-day liquidation period and at or prior to the Final
Distribution Date, purchase all of the assets of the Trust Fund for
cash;
provided, however, that in the event that a calendar quarter ends after the
commencement of the 90- day liquidation period but prior to the Final
Distribution Date, the Master Servicer shall not purchase any of the assets of
the Trust Fund prior to the close of that calendar quarter.
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(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 and REMIC II at the expense of
the Trust Fund in accordance with the terms and conditions of this Agreement.
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ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The REMIC Administrator shall make an election to treat each of
REMIC I and REMIC II 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 Class A-I, Class A-II-1, Class A-II-2, Class A-II-IO, Class
A-II-PO, Class M and Class B Certificates shall be designated as the "regular
interests" in REMIC II and the Class R-II Certificates shall be designated the
sole class of "residual interests" in REMIC II. 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 and REMIC II 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 and REMIC II 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
and REMIC II in relation to any tax matter or controversy involving the Trust
Fund and (ii) represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. The legal expenses, including without limitation
attorneys' or accountants' fees, and costs of any such proceeding and any
liability resulting therefrom shall be expenses of the Trust Fund and the REMIC
Administrator shall be entitled to reimbursement therefor out of amounts
attributable to the Mortgage Loans on deposit in the Custodial Account as
provided by Section 3.10 unless such legal expenses and costs are incurred by
reason of the REMIC Administrator's willful misfeasance, bad faith or gross
negligence. If the REMIC Administrator is no longer the Master Servicer
hereunder, at its option the REMIC Administrator may continue its duties as
REMIC Administrator and shall be paid reasonable compensation not to exceed
$3,000 per year by any successor Master Servicer hereunder for so acting as the
REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all
of the Tax Returns that it determines are required with respect to the 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
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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 or REMIC II as a
REMIC or (ii) result in the imposition of a tax upon any of REMIC I or REMIC II
(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. 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
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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 or REMIC II 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 or REMIC II
will receive a fee or other compensation for services nor permit any of REMIC I
or REMIC II 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.
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(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 April
25, 2031.
(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 or REMIC II as a REMIC or
(b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause any REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02. Master Servicer, REMIC Administrator and Trustee
Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Depositor, the
REMIC Administrator and the Master Servicer for any taxes and costs including,
without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Master Servicer, as a result of a breach of the
Trustee's covenants set forth in Article VIII or this Article X. In the event
that Residential Funding is no longer the Master Servicer, the Trustee shall
indemnify Residential Funding for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by Residential
Funding as a result of a breach of the Trustee's covenants set forth in Article
VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the
Depositor, the Master Servicer and the Trustee for any taxes and costs
(including, without limitation, any reasonable attorneys' fees) imposed on or
incurred by the Trust Fund, the Depositor, the Master Servicer or the Trustee,
as a result of a breach of the REMIC Administrator's covenants set forth in this
Article X with respect to compliance with the REMIC Provisions, including
without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the REMIC Administrator that contain errors or omissions;
provided, however, that such liability will not be imposed to the extent such
breach is a result of an error or omission in information provided to the REMIC
Administrator by the Master Servicer in which case Section 10.02(c) will apply.
(c) The Master Servicer agrees to indemnify the Trust Fund, the
Depositor, the REMIC Administrator and the Trustee for any taxes and costs
(including, without limitation, any reasonable attorneys' fees) imposed on or
incurred by the Trust Fund, the Depositor 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
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the Trustee's execution of Tax Returns prepared by the Master Servicer that
contain errors or omissions.
Section 10.03 Distributions on the REMIC I Regular Interests.
(a) On each Distribution Date the Trustee shall be deemed to distribute
to itself, as the holder of the REMIC I Regular Interests, REMIC I Accrued
Interest on the REMIC I Regular Interests for such Distribution Date, plus any
REMIC I Accrued Interest thereon remaining unpaid from any previous Distribution
Date.
(b) On each Distribution Date, distributions of principal shall be
deemed to be made to the REMIC I Regular Interests, in each case from the
related Loan Group, first, to each REMIC I Regular Interest ending with the
designation "SUB," so that the Uncertificated Principal Balance of each such
REMIC I Regular Interest is equal to 0.01% of the excess of (x) the aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan Group over
(y) the Certificate Principal Amount of the related Senior Certificates (except
that if any such excess is a larger number than in the preceding distribution
period, the least amount of principal shall be distributed to such REMIC I
Regular Interests such that the REMIC I Subordinated Balance Ratio is
maintained); and second, any remaining principal in each Loan Group to the
related REMIC I Regular Interest ending with the designation "ZZZ" (provided
that a portion of the remaining principal equal to the Class A-II-PO Principal
Distribution Amount will be distributed to REMIC I Regular Interest A-II-PO).
Realized Losses from each Loan Group shall be applied after all distributions
have been made on each Distribution Date first, to the related REMIC I Regular
Interest ending with the designation "SUB," so that the Uncertificated Principal
Balance of each such REMIC I Regular Interest is equal to 0.01% of the excess of
(x) the aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group over (y) the Certificate Principal Amount of the related Senior
Certificates (except that if any such excess is a larger number than in the
preceding distribution period, the least amount of Realized Losses shall be
applied to such REMIC I Regular Interests such that the REMIC I Subordinated
Balance Ratio is maintained); and second, any remaining Realized Losses from
each Loan Group shall be allocated to the related REMIC I Regular Interests
ending with the designation "ZZZ" (except that if a Realized Loss is recognized
with respect to a Discount Mortgage Loan that is a Group II Loan, the applicable
portion of such Realized Loss will be allocated to REMIC I Regular Interest
A-II-PO).
(c) Notwithstanding the deemed distributions on the REMIC I Regular
Interests described in this Section 10.03, distributions of funds from the
Certificate Account shall be made only in accordance with Section 4.02.
Section 10.04. Distributions on the Uncertificated REMIC Regular
Interests.
(a) On each Distribution Date the Trustee shall be deemed to distribute
to itself, as the holder of the Uncertificated REMIC Regular Interests,
Uncertificated Accrued Interest on the Uncertificated REMIC Regular Interests
for such Distribution Date, plus any Uncertificated Accrued Interest thereon
remaining unpaid from any previous Distribution Date.
(b) In determining from time to time the Uncertificated REMIC Regular
Interest Distribution Amounts, Realized Losses allocated to the Class A-II-IO
Certificates under Section 4.05
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shall be deemed allocated to related Uncertificated REMIC Regular Interests on a
pro rata basis based on the related Uncertificated Accrued Interest for the
related Distribution Date.
(c) On each Distribution Date, the Trustee shall be deemed to
distribute from the Trust Fund, in the priority set forth in Section 4.02(a), to
the Class A-II-IO Certificates, the amounts distributable thereon from the
related Uncertificated REMIC Regular Interest Distribution Amounts deemed to
have been received by the Trustee from the Trust Fund under this Section 10.05.
The amount deemed distributable hereunder with respect to the Class A-II-IO
Certificates shall equal 100% of the amounts payable with respect to the related
Uncertificated REMIC Regular Interests.
(d) Notwithstanding the deemed distributions on the REMIC I Regular
Interests described in this Section 10.05, distributions of funds from the
Certificate Account shall be made only in accordance with Section 4.02.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time
to time by the Depositor, the Master Servicer and the Trustee, without the
consent of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or
therein, which may be inconsistent with any other provisions herein or
therein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the
qualification of REMIC I or REMIC II 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
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evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder.
(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 or REMIC II to fail to qualify as REMICs at any time that any
Certificate is outstanding. The Trustee may but shall not be obligated to enter
into any amendment pursuant to this Section that affects its rights, duties and
immunities and this agreement or otherwise; provided however, such consent shall
not be unreasonably withheld.
(d) Promptly after the execution of any such amendment the Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(e) The Depositor shall have the option, in its sole discretion, to
obtain and deliver to the Trustee any corporate guaranty, payment obligation,
irrevocable letter of credit, surety bond, insurance policy or similar
instrument or a reserve fund, or any combination of the foregoing, for the
purpose of protecting the Holders of the Class R Certificates against any or all
Realized Losses or 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
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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 or REMIC II to fail to qualify as a REMIC at
any time that any Certificate is outstanding. In the event that the Depositor
elects to provide such coverage in the form of a limited guaranty provided by
General Motors Acceptance Corporation, the Depositor may elect that the text of
such amendment to this Agreement shall be substantially in the form attached
hereto as Exhibit K (in which case Residential Funding's Subordinate Certificate
Loss Obligation as described in such exhibit shall be established by Residential
Funding's consent to such amendment) and that the limited guaranty shall be
executed in the form attached hereto as Exhibit L, with such changes as the
Depositor shall deem to be appropriate; it being understood that the Trustee has
reviewed and approved the content of such forms and that the Trustee's consent
or approval to the use thereof is not required.
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.
127
(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
128
address as may be hereafter furnished to the Depositor and the Trustee by the
Master Servicer in writing; (c) in the case of the Trustee, 0 Xxx Xxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust
Services/Global Debt, Residential Asset Mortgage Products Inc. Series 2004-SP2
or such other address as may hereafter be furnished to the Depositor and the
Master Servicer in writing by the Trustee; (d) in the case of Standard & Poor's,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Mortgage Surveillance or
such other address as may be hereafter furnished to the Depositor, Trustee and
Master Servicer by Standard & Poor's; and (e) in the case of Moody's, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring Department, or such
other address as may be hereafter furnished to the Depositor, the Trustee and
the Master Servicer in writing by Moody's. 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, shall
notify each Rating Agency and each 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), (d), (g), (h), (i) or (j) below or
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) the termination or appointment of a successor Master Servicer or
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) a change in the location of the Custodial Account or 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
129
(j) the repurchase of or substitution for any Mortgage Loan, provided,
however, that with respect to notice of the occurrence of the events described
in clauses (d), (g) or (h) above, the Master Servicer shall provide prompt
written notice to each Rating Agency and the Subservicer of any such event known
to the Master Servicer.
Section 11.07. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.08. Supplemental Provisions for Resecuritization.
(a) This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Certificates issued hereunder, under the following
circumstances. With respect to any Class or Classes of Certificates issued
hereunder, or any portion of any such Class, as to which the Depositor or any of
its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Depositor may deposit such Resecuritized
Certificates into a new REMIC, grantor trust, FASIT or custodial arrangement (a
"Restructuring Vehicle") to be held by the Trustee pursuant to a Supplemental
Article. The instrument adopting such Supplemental Article shall be executed by
the Depositor, the Master Servicer and the Trustee; provided, that neither the
Master Servicer nor the Trustee shall withhold their consent thereto if their
respective interests would not be materially adversely affected thereby. To the
extent that the terms of the Supplemental Article do not in any way affect any
provisions of this Agreement as to any of the Certificates initially issued
hereunder, the adoption of the Supplemental Article shall not constitute an
"amendment" of this Agreement. Each Supplemental Article shall set forth all
necessary provisions relating to the holding of the Resecuritized Certificates
by the Trustee, the establishment of the Restructuring Vehicle, the issuing of
various classes of new certificates by the Restructuring Vehicle and the
distributions to be made thereon, and any other provisions necessary to the
purposes thereof. In connection with each Supplemental Article, the Depositor
shall deliver to the Trustee an Opinion of Counsel to the effect that (i) the
Restructuring Vehicle will qualify as a REMIC, grantor trust, FASIT or other
entity not subject to taxation for federal income tax purposes and (ii) the
adoption of the Supplemental Article will not endanger the status of any of
REMIC I or REMIC II 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.
130
IN WITNESS WHEREOF, the Depositor, the Master Servicer and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, duly attested, to be
hereunto affixed, all as of the day and year first above written.
[Seal] RESIDENTIAL ASSET
MORTGAGE PRODUCTS,
INC.
Attest: /s/ Xxxxxx Xxxxxx By:/s/ Xxxx Xxxxx
--------------------------------- --------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxx
Title: Associate Title:Vice President
[Seal]
RESIDENTIAL FUNDING CORPORATION
Attest: /s/ Xxxx Xxxxx By:/s/ Xxxxxx Xxxxxx
--------------------------------- -----------------
Name: Xxxx Xxxxx Name: Xxxxxx Xxxxxx
Title: Vice President Title:Associate
[Seal]
JPMORGAN
CHASE
BANK
as
Trustee
Attest: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxx
-----------------------------------
Title: Trust Officer Name: Xxxxx X. Xxxx
Title:Trust Officer
131
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the 6th day of August, 2004 before me, a notary public in
and for said State, personally appeared Xxxx Xxxxx, 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]
000
XXXXX XX XXXXXXXXX )
) ss.:
COUNTY OF HENNEPIN )
On the 6th day of August, 2004 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]
000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF ORANGE )
On the 6th day of August, 2004 before me, a notary public in
and for said State, personally appeared ________________, known to me to be a(n)
____________ of JPMorgan Chase Bank, a New York banking corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said banking corporation and acknowledged to me that
such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-----------------
[Notarial Seal]
134
EXHIBIT A
FORM OF CLASS A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Certificate No. [____] [____]% Pass-Through Rate
Class [A-___] Senior Percentage Interest: ____%
Date of Pooling and Servicing Agreement and Aggregate Initial [Certificate Principal
Cut-off Date: Balance] [Notional Amount] of the Class [A-
July 1, 2004 ___] Certificates: $________
First Distribution Date: [Initial] [Certificate Principal Balance]
August 25, 2004 [Notional Amount] of this Certificate:
$[--------------]
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[ ][ ] [--------------]
MORTGAGE LOAN BACKED CERTIFICATE
SERIES 2004-SP2
evidencing a percentage interest in the distributions allocable
to the Class A-__ Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first lien mortgage loans sold by
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
GMAC Mortgage Group, Inc. or any of their affiliates. Neither this Certificate
nor the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Asset Mortgage Products, Inc., the
Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, Inc.
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that ______________ is the registered owner of the
Percentage Interest evidenced by this Certificate [(obtained by dividing the
[Initial Certificate Principal Balance] [Initial Notional Amount] of this
Certificate by the aggregate [Initial Certificate Principal Balance of all Class
A-__ Certificates] [Initial Notional Amount of all [Class A-I-IO][Class A-IO]
Certificates], both as specified above)] in certain distributions with respect
to the Trust Fund consisting primarily of an interest in a pool of conventional
one- to four-family fixed interest rate first lien mortgage loans (the "Mortgage
Loans"), sold by Residential Asset Mortgage Products, Inc. (hereinafter called
A-2
the "Company," which term includes any successor entity under the Agreement
referred to below). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of July 1, 2004 (the "Pooling and Servicing
Agreement" or the "Agreement") among the Company, the Master Servicer and
JPMorgan Chase Bank, as Trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the related Available Distribution Amount in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount (of
[interest][and][principal], if any) required to be distributed to Holders of
Class A-__ Certificates on such Distribution Date. [The Notional Amount of the
[Class A-I-IO][Class A-I-IO] Certificates as of any date of determination will
be calculated as set forth in the Agreement. The [Class A-I-IO][Class A-IO]
Certificates have no Certificate Principal Balance.]
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The [Initial
Certificate Principal Balance] [Initial Notional Amount] of this Certificate is
set forth above.] [The Certificate Principal Balance hereof will be reduced to
the extent of distributions allocable to principal and any Realized Losses
allocable hereto.]
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Loan Backed Certificates of the
Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the related Mortgage Loans, all as more specifically
set forth herein and in the Agreement. In the event Master Servicer funds are
advanced with respect to any Mortgage Loan, such advance is reimbursable to the
Master Servicer, to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
A-3
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Company and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates. As provided in the
Agreement and subject to certain limitations therein set forth, the transfer of
this Certificate is registrable in the Certificate Register upon surrender of
this Certificate for registration of transfer at the offices or agencies
appointed by the Trustee in the City and State of New York, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new certificates of authorized denominations
evidencing the same class and aggregate percentage interest will be issued to
the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
A-4
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
related Certificates. The Agreement permits, but does not require, the Master
Servicer to (i) purchase at a price determined as provided in the Agreement all
remaining Mortgage Loans and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the Certificates from
the Holders thereof; provided, that any such option may only be exercised if the
aggregated Stated Principal Balance of the Mortgage Loans as of the Distribution
Date upon which the proceeds of any such purchase are distributed is less than
one percent of the Cut-off Date Principal Balance of the Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: August 6, 2004 JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By:
--------------------------
Authorized Signatory
A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Loan Backed
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
---------------- ---------------------------------------
Signature by or on behalf of assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
A-7
EXHIBIT B
FORM OF CLASS M CERTIFICATES
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AND THE [CLASS M-[ ] CERTIFICATES] DESCRIBED IN THE AGREEMENT (AS
DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED BY
VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN) THAT
EITHER (A) SUCH TRANSFEREE IS NOT A PERSON, AN INVESTMENT MANAGER, A NAMED
FIDUCIARY OR A TRUSTEE OF ANY PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF
OR PURCHASING ANY CERTIFICATE WITH "PLAN ASSETS" OF ANY PLAN (A "PLAN
INVESTOR"), (B) IT HAS ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE ON
PROHIBITED TRANSACTION EXEMPTION ("PTE") 94-29, 59 FED. REG. 14674 (MARCH 29,
1994), AS AMENDED BY PTE 97-34, 62 FED. REG. 39021 (JULY 21, 1997), PTE 2000-58,
65 FED. REG. 67765 (NOVEMBER 13, 2000), AND PTE 2002-41, 67 FED. REG. 54487
(AUGUST 22, 2002) (THE "RFC EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE
CERTAIN CONDITIONS TO THE AVAILABILITY OF THE RFC EXEMPTION INCLUDING THAT SUCH
CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN "BBB- " (OR
ITS EQUIVALENT) BY STANDARD & POOR'S, FITCH OR MOODY'S OR (C)(I) THE TRANSFEREE
IS AN INSURANCE COMPANY, (II) THE SOURCE OF FUNDS TO BE USED BY IT TO PURCHASE
THE CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60),
AND (III) THE CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (C), A "COMPLYING INSURANCE
COMPANY").
B-1
IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST PRECEDING
TRANSFEREE THAT EITHER (I) IS NOT A PLAN INVESTOR, (II) ACQUIRED SUCH
CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION OR (III) IS A COMPLYING
INSURANCE COMPANY SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL
RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF
SUCH TRANSFER OF THIS CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO LIABILITY TO
ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING
TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS
IN SECTION 5.02(E) OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND
HOLD HARMLESS THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, ANY SUBSERVICER,
AND THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
B-2
Certificate No. [____] [Adjustable] [Variable] Pass-Through Rate
Class [M-___] Subordinate
Date of Pooling and Servicing Agreement and Aggregate Certificate Principal Balance of the
Cut-off Date: Class [M-__] Certificates: $_______________
July 1, 2004
First Distribution Date: Initial Certificate Principal Balance of this
August 25, 2004 Certificate:
$[--------------]
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[-------------] [--------------]
MORTGAGE LOAN BACKED CERTIFICATE,
SERIES 2004-SP2
evidencing a percentage interest in any distributions allocable
to the Class [M-___] Certificates with respect to the Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first lien mortgage loans sold by
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
GMAC Mortgage Group, Inc. or any of their affiliates. Neither this Certificate
nor the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Asset Mortgage Products, Inc., the
Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their
affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group,
Inc. or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Certificate Principal Balance of this Certificate by the aggregate Certificate
Principal Balance of all Class [M-___] Certificates, both as specified above) in
certain distributions with respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed interest rate first lien mortgage
loans (the "Mortgage Loans"), formed and sold by Residential Asset Mortgage
Products, Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of July 1, 2004,
(the
B-3
"Pooling and Servicing Agreement" or the "Agreement") among the Depositor, the
Master Servicer and JPMorgan Chase Bank, as trustee (the "Trustee"), a summary
of certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business [on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution][on the Business Day
prior to the Distribution Date] (the "Record Date"), from the related Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to Holders of Class [M-___] Certificates on such
Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of the
distributions allocable to principal and any Realized Losses allocable hereto.
As described above, any transferee of this Certificate will be deemed to
have represented by virtue of its purchase or holding of this Certificate (or
interest herein) that either (A) such transferee is not a Plan Investor, (B) it
has acquired and is holding this Certificate in reliance on the RFC Exemption
and that it understands that there are certain conditions to the availability of
the RFC Exemption including that this Certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch
or Xxxxx'x or (C) the transferee is a Complying Insurance Company. In addition,
any purported Certificate Owner whose acquisition or holding of this Certificate
(or interest herein) was effected in violation of the restrictions in Section
5.02(e) of the Agreement shall indemnify and hold harmless the Depositor, the
Trustee, the Master Servicer, any Subservicer, and the Trust Fund from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Loan Backed Certificates of the
Series specified hereon (herein collectively called the "Certificates").
B-4
The Certificates are limited in right of payment to certain collections
and recoveries respecting the related Mortgage Loans, all as more specifically
set forth herein and in the Agreement. In the event Master Servicer funds are
advanced with respect to any Mortgage Loan, such advance is reimbursable to the
Master Servicer, to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Depositor and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor , the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person
B-5
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Master Servicer, the Trustee nor any
such agent shall be affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
related Certificates. The Agreement permits, but does not require, the Master
Servicer to (i) purchase at a price determined as provided in the Agreement all
remaining Mortgage Loans and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the Certificates from
the Holders thereof; provided, that any such option may only be exercised if the
aggregated Stated Principal Balance of the Mortgage Loans as of the Distribution
Date upon which the proceeds of any such purchase are distributed is less than
one percent of the Cut-off Date Principal Balance of the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:________________ JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [M-__ ] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By:
--------------------------
Authorized Signatory
B-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Loan Backed
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
---------------- ---------------------------------------
Signature by or on behalf of assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
B-8
EXHIBIT C
FORM OF CLASS B CERTIFICATES
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES[,] [AND] THE CLASS M-[ ] CERTIFICATES [AND] [CLASS B-[__]
CERTIFICATES] DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[For Class B-1 Certificates: ANY TRANSFEREE OF THIS CERTIFICATE SHALL
CERTIFY IN A REPRESENTATION LETTER THAT EITHER (A) SUCH TRANSFEREE IS NOT A
PERSON, AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY PLAN)
ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING ANY CERTIFICATE WITH
"PLAN ASSETS" OF ANY PLAN (A "PLAN INVESTOR"), (B) IT HAS ACQUIRED AND IS
HOLDING SUCH CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION EXEMPTION ("PTE")
94-29, 59 FED. REG. 14674 (MARCH 29, 1994), AS AMENDED BY PTE 97-34, 62 FED.
REG. 39021 (JULY 21, 1997), PTE 2000-58, 65 FED. REG. 67765 (NOVEMBER 13, 2000),
AND PTE 2002-41, 67 FED. REG. 54487 (AUGUST 22, 2002) (THE "RFC EXEMPTION"), AND
THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE
RFC EXEMPTION INCLUDING THAT SUCH CERTIFICATE MUST BE RATED, AT THE TIME OF
PURCHASE, NOT LOWER THAN "BBB- " (OR ITS EQUIVALENT) BY STANDARD & POOR'S, FITCH
OR XXXXX'X OR (C)(I) THE TRANSFEREE IS AN INSURANCE COMPANY, (II) THE SOURCE OF
FUNDS TO BE USED BY IT TO PURCHASE THE CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (WITHIN THE MEANING OF U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 95-60), AND (III) THE CONDITIONS SET FORTH
IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED (EACH ENTITY THAT
SATISFIES THIS CLAUSE (C), A "COMPLYING INSURANCE COMPANY").]
[For Class B-1 Certificates: IF THIS CERTIFICATE (OR ANY INTEREST
HEREIN) IS ACQUIRED OR HELD IN VIOLATION OF THE PROVISIONS OF THE PRECEDING
PARAGRAPH, THEN THE LAST PRECEDING TRANSFEREE THAT EITHER (I) IS NOT A PLAN
INVESTOR, (II) ACQUIRED SUCH CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION OR
(III) IS A COMPLYING INSURANCE COMPANY SHALL BE RESTORED, TO THE EXTENT
PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF
RETROACTIVE TO THE DATE OF SUCH TRANSFER OF THIS CERTIFICATE. THE TRUSTEE SHALL
BE UNDER NO LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS
CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF
THIS CERTIFICATE (OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE
C-1
RESTRICTIONS IN SECTION 5.02(E) OF THE POOLING AND SERVICING AGREEMENT SHALL
INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, ANY
SUBSERVICER, AND THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES,
CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH
ACQUISITION OR HOLDING.]
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
[For Class B-2 Certificates and Class B-3 Certificates: NO TRANSFER OF
THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE PROVIDES
EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(E) OF THE AGREEMENT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE COMPANY AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.]
C-2
Certificate No. [____] [Adjustable] [Variable] Pass-Through Rate
Class [B-___] Subordinate
Date of Pooling and Servicing Agreement and Aggregate Certificate Principal Balance of the
Cut-off Date: Class [B-___] Certificates: $_______________
July 1, 2004
First Distribution Date: Initial Certificate Principal Balance of this
August 25, 2004 Certificate:
$[--------------]
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[-------------] [--------------]
MORTGAGE LOAN BACKED CERTIFICATE,
SERIES 2004-SP2
evidencing a percentage interest in any distributions allocable
to the Class [M-___][B-___] Certificates with respect to the
Trust Fund consisting primarily of a pool of conventional one- to
four-family fixed interest rate first lien mortgage loans sold by
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
GMAC Mortgage Group, Inc. or any of their affiliates. Neither this Certificate
nor the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Asset Mortgage Products, Inc., the
Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their
affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group,
Inc. or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Certificate Principal Balance of this Certificate by the aggregate Certificate
Principal Balance of all Class [B-___] Certificates, both as specified above) in
certain distributions with respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed interest rate first lien mortgage
loans (the "Mortgage Loans"), formed and sold by Residential Asset Mortgage
Products, Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of July 1, 2004,
(the
C-3
"Pooling and Servicing Agreement" or the "Agreement") among the Depositor, the
Master Servicer and JPMorgan Chase Bank, as trustee (the "Trustee"), a summary
of certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business [on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution][on the Business Day
prior to the Distribution Date] (the "Record Date"), from the related Available
Distribution Amount in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount (of interest and principal, if any)
required to be distributed to Holders of Class [B-___] Certificates on such
Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of the
distributions allocable to principal and any Realized Losses allocable hereto.
No transfer of this Class [B-___] Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Company that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described in Section 5.02(e) of the Agreement. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Company, the Master Servicer and the Certificate Registrar acting
on behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with such Federal and state laws.
[For Class B-1 Certificates: As described above, any transferee of this
Certificate shall certify in a representation letter in the form described in
the Agreement that either (A) such transferee is not a Plan Investor, (B) it has
acquired and is holding this Certificate in reliance on the RFC Exemption
C-4
and that it understands that there are certain conditions to the availability of
the RFC Exemption including that this Certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch
or Xxxxx'x or (C) the transferee is a Complying Insurance Company. In addition,
any purported Certificate Owner whose acquisition or holding of this Certificate
(or interest herein) was effected in violation of the restrictions in Section
5.02(e) of the Agreement shall indemnify and hold harmless the Depositor, the
Trustee, the Master Servicer, any Subservicer, and the Trust Fund from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.]
[For Class B-2 Certificates or Class B-3 Certificates: In connection
with any such transfer, the Trustee will also require either (i) an opinion of
counsel acceptable to and in form and substance satisfactory to the Trustee, the
Company and the Master Servicer with respect to the permissibility of such
transfer under the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and Section 4975 of the Internal Revenue Code (the "Code") and
stating, among other things, that the transferee's acquisition of a Class [B-2]
[B-3] Certificate will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code or (ii) a
representation letter, in the form as described by the Agreement, either stating
that the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan, or stating that the
transferee is an insurance company, the source of funds to be used by it to
purchase the Certificate is an "insurance company general account" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60), and the purchase is being made in reliance upon the availability of the
exemptive relief afforded under Sections I and III of PTCE 95-60.]
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Loan Backed Certificates of the
Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the related Mortgage Loans, all as more specifically
set forth herein and in the Agreement. In the event Master Servicer funds are
advanced with respect to any Mortgage Loan, such advance is reimbursable to the
Master Servicer, to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Depositor and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor , the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the
C-5
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Certificates affected thereby. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon the Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional circumstances,
without the consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
related Certificates. The Agreement permits, but does not require, the Master
Servicer to (i) purchase at a price determined as provided in the Agreement all
remaining Mortgage Loans and all property
C-6
acquired in respect of any Mortgage Loan or (ii) purchase in whole, but not in
part, all of the Certificates from the Holders thereof; provided, that any such
option may only be exercised if the aggregated Stated Principal Balance of the
Mortgage Loans as of the Distribution Date upon which the proceeds of any such
purchase are distributed is less than one percent of the Cut-off Date Principal
Balance of the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:________________ JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B-__] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By:
--------------------------
Authorized Signatory
C-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Loan Backed
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
---------------- ---------------------------------------
Signature by or on behalf of assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
C-9
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON- UNITED
STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED
PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH
ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND
IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(E) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE
DEPOSITOR OR THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE DEPOSITOR
OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN
THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER
SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES,
OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO
TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY
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SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(A)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(A) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED
ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE
OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
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Certificate No. [____] [____]% Pass-Through Rate
Class [R-___] Subordinate
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of the Class R-___ Certificates: [$50.00]
July 1, 2004
First Distribution Date: Initial Certificate Principal Balance of this
August 25, 2004 Certificate:
$[--------------]
Master Servicer: Percentage Interest: _____%
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[--------------] [--------------]
MORTGAGE LOAN BACKED CERTIFICATE,
SERIES 2004-SP2
evidencing a percentage interest in any distributions allocable
to the Class R[-__] Certificates with respect to the Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first lien mortgage loans sold by
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below or
GMAC Mortgage Group, Inc. or any of their affiliates. Neither this Certificate
nor the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Asset Mortgage Products, Inc., the
Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their
affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group,
Inc. or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that is ____________________ the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class R[-__] Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of a pool of conventional one- to four-family fixed
interest rate first lien mortgage loans (the "Mortgage Loans"), sold by
Residential Asset Mortgage Products, Inc. (hereinafter called the "Depositor,"
which term includes any successor entity under the Agreement referred to below).
The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as of July 1, 2004, (the "Pooling
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and Servicing Agreement" or the "Agreement") among the Depositor, the Master
Servicer and JPMorgan Chase Bank, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class R-__
Certificates on such Distribution Date.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Depositor will have the right, in
its sole discretion and without notice to the Holder of this Certificate, to
sell this Certificate to a purchaser selected by the Depositor, which purchaser
may be the Depositor, or any affiliate of the Depositor, on such terms and
conditions as the Depositor may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
Notwithstanding the reduction of the Certificate Principal Balance hereof to
zero, this Certificate will remain outstanding under the Agreement and the
Holder hereof may have additional obligations with respect to this Certificate,
including tax liabilities, and may be entitled to certain additional
distributions hereon, in accordance with the terms and provisions of the
Agreement.
No transfer of this Class R-__ Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Depositor may require an opinion of counsel
acceptable to and in
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form and substance satisfactory to the Trustee and the Depositor that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state
and (ii) the transferee shall execute an investment letter in the form described
by Section 5.02(e) of the Agreement. The Holder hereof desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
the Master Servicer and the Certificate Registrar acting on behalf of the
Trustee against any liability that may result if the transfer is not so exempt
or is not made in accordance with such Federal and state laws. In connection
with any such transfer, the Trustee will also require either (i) an opinion of
counsel acceptable to and in form and substance satisfactory to the Trustee, the
Depositor and the Master Servicer with respect to the permissibility of such
transfer under the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and Section 4975 of the Internal Revenue Code (the "Code") and
stating, among other things, that the transferee's acquisition of a Class R
Certificate will not constitute or result in a non- exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code or (ii) a
representation letter, in the form as described by the Agreement, stating that
the transferee is not an employee benefit or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other Person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Loan Backed Certificates of the
Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Depositor and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor , the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in
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certain circumstances without the consent of the Holders of any of the
Certificates and, in certain additional circumstances, without the consent of
the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
related Certificates. The Agreement permits, but does not require, the Master
Servicer to (i) purchase at a price determined as provided in the Agreement all
remaining Mortgage Loans and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the Certificates from
the Holders thereof; provided, that any such option may only be exercised if the
aggregated Stated Principal Balance of the Mortgage Loans as of the Distribution
Date upon which the proceeds of any such purchase are distributed is less than
one percent of the Cut-off Date Principal Balance of the Mortgage Loans.
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Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purpose
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:________________ JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R- ] Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK,
as Certificate Registrar
By:
--------------------------
Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Loan Backed
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
---------------- ---------------------------------------
Signature by or on behalf of assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
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EXHIBIT E
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time
to time, the "Agreement"), dated as of July 1, 2004, by and among JPMORGAN CHASE
BANK, as trustee (including its successors under the Pooling Agreement defined
below, the "Trustee"), RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as Depositor
(together with any successor in interest, the "Depositor"), RESIDENTIAL FUNDING
CORPORATION, as master servicer (together with any successor in interest or
successor under the Pooling Agreement referred to below, the "Master Servicer")
and XXXXX FARGO BANK, N.A., as custodian (together with any successor in
interest or any successor appointed hereunder, the "Custodian").
W I T N E S S E T H T H A T :
- - - - - - - - - - - - - -
WHEREAS, the Depositor, the Master Servicer, and the Trustee have
entered into a Pooling and Servicing Agreement, dated as of July 1, 2004,
relating to the issuance of Residential Asset Mortgage Products, Inc., Mortgage
Loan Backed Certificates, Series 2004-SP2 (as in effect on the date of this
Agreement, the "Original Pooling Agreement," and as amended and supplemented
from time to time, the "Pooling Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee
for the purposes of receiving and holding certain documents and other
instruments delivered by the Depositor and the Master Servicer under the Pooling
Agreement, all upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Depositor, the
Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned in the Original Pooling Agreement, unless
otherwise required by the context herein.
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ARTICLE II
Custody of Mortgage Documents
Section 2.1. Custodian to Act as Agent; Acceptance of Mortgage
Files. The Custodian, as the duly appointed agent of the Trustee for these
purposes, acknowledges receipt of the Mortgage Files relating to the Mortgage
Loans identified on the schedule attached hereto (the "Mortgage Files") and
declares that it holds and will hold the Mortgage Files as agent for the
Trustee, in trust, for the use and benefit of all present and future
Certificateholders.
Section 2.2. Recordation of Assignments. If any Mortgage File
includes one or more assignments to the Trustee of Mortgage Notes and related
Mortgages that have not been recorded, each such assignment shall be delivered
by the Custodian to the Depositor for the purpose of recording it in the
appropriate public office for real property records, and the Depositor, at no
expense to the Custodian, shall promptly cause to be recorded in the appropriate
public office for real property records each such assignment and, upon receipt
thereof from such public office, shall return each such assignment to the
Custodian.
Section 2.3. Review of Mortgage Files.
------------------------
(a) On or prior to the Closing Date, the Custodian shall deliver
to the Trustee an Initial Certification in the form annexed hereto as Exhibit
One evidencing receipt of a Mortgage File for each Mortgage Loan listed on the
Schedule attached hereto (the "Mortgage Loan Schedule").
(b) Within 45 days after the closing date, the Custodian agrees,
for the benefit of Certificateholders, to review, in accordance with the
provisions of Section 2.02 of the Pooling Agreement, each Mortgage File, and
shall deliver to the Trustee an Interim Certification in the form annexed hereto
as Exhibit Two to the effect that all documents required to be delivered
pursuant to Section 2.01(b) of the Pooling Agreement have been executed and
received and that such documents relate to the Mortgage Loans identified on the
Mortgage Loan Schedule, except for any exceptions listed on Schedule A attached
to such Interim Certification. Within 45 days of receipt of the documents
required to be delivered pursuant to Section 2.01(c) of the Pooling Agreement,
the Custodian agrees, for the benefit of Certificateholders, to review, in
accordance with the provisions of Section 2.02 of the Pooling Agreement, each
such document, and shall deliver to the Trustee either (i) an Interim
Certification in the form attached hereto as Exhibit Two to the effect that all
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 or (ii) a Final Certification as set forth in subsection
(c) below. The Custodian shall be under no duty or obligation to inspect, review
or examine said documents, instruments, certificates or other papers to
determine that the same are genuine, enforceable, or appropriate for the
represented purpose or that they have actually been recorded or that they are
other than what they purport to be on their face. If in performing the review
required by this Section 2.3 the Custodian finds any document or documents
constituting a part of a Mortgage File to be defective in any material respect,
the Custodian shall promptly so notify the Depositor, the Master Servicer and
the Trustee.
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(c) Upon receipt of all documents required to be in the Mortgage
Files the Custodian shall deliver to the Trustee a Final Certification in the
form annexed hereto as Exhibit Three evidencing the completeness of the Mortgage
Files.
Upon receipt of written request from the Trustee, the Custodian
shall as soon as practicable supply the Trustee with a list of all of the
documents relating to the Mortgage Loans then contained in the Mortgage Files.
Section 2.4. Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Master Servicer or the Depositor as set forth in the
Pooling Agreement or by a Seller in a Seller's Agreement or by Residential
Funding or the Depositor in the Assignment Agreement with respect to a Mortgage
Loan relating to a Mortgage File, the Custodian shall give prompt written notice
to the Depositor, the Master Servicer and the Trustee.
Section 2.5. Custodian to Cooperate; Release of Mortgage Files.
Upon the repurchase or substitution of any Mortgage Loan pursuant to Article II
of the Pooling Agreement or payment in full of any Mortgage Loan, or the receipt
by the Master Servicer of a notification that payment in full will be escrowed
in a manner customary for such purposes, the Master Servicer shall immediately
notify the Custodian by a certification (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 of the Pooling Agreement have been or will be
so deposited) of a Servicing Officer and shall request delivery to it of the
Mortgage File. The Custodian agrees, upon receipt of such certification and
request, promptly to release to the Master Servicer the related Mortgage File.
The Master Servicer shall deliver to the Custodian and the Custodian agrees to
accept the Mortgage Note and other documents constituting the Mortgage File with
respect to any Qualified Substitute Mortgage Loan.
Upon receipt of written notification from the Master Servicer,
signed by a Servicing Officer, that the Master Servicer or a Subservicer, as the
case may be, has made a deposit into the Certificate Account in payment for the
purchase of the related Mortgage Loan in an amount equal to the Purchase Price
for such Mortgage Loan, the Custodian shall release to the Master Servicer the
related Mortgage File.
From time to time as is appropriate for the servicing or
foreclosures of any Mortgage Loan, including, for this purpose, collection under
any Primary Insurance Policy or any Mortgage Pool Insurance Policy, the Master
Servicer shall deliver to the Custodian a certificate of a Servicing Officer
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 of the Required
Insurance Policies. With such certificate, the Master Servicer shall deliver to
the Custodian a trust receipt signed by a Servicing Officer on behalf of the
Master Servicer, and upon receipt of the foregoing, the Custodian shall deliver
the Mortgage File or such document to the Master Servicer. The Master Servicer
shall cause each Mortgage File or any document therein so released to be
returned to the Custodian when the need therefor by the Master Servicer no
longer exists, unless (i) the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the
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Mortgage Loan have been deposited in the Custodial Account or (ii) the Mortgage
File or such document has been delivered to an attorney, or to a public trustee
or other public official as required by law, for purposes of initiating or
pursuing legal action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially, and the Master Servicer has
delivered to the Custodian a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery. In the event of the
liquidation of a Mortgage Loan, the Custodian shall deliver the Trust Receipt
with respect thereto to the Master Servicer upon deposit of the related
Liquidation Proceeds in the Custodial Account as provided in the Pooling
Agreement.
Section 2.6. Assumption Agreements. In the event that any
assumption agreement or substitution of liability agreement is entered into with
respect to any Mortgage Loan subject to this Agreement in accordance with the
terms and provisions of the Pooling Agreement, the Master Servicer shall notify
the Custodian that such assumption or substitution agreement has been completed
by forwarding to the Custodian the original of such assumption or substitution
agreement, which shall be added to the related Mortgage File and, for all
purposes, shall be considered a part of such Mortgage File to the same extent as
all other documents and instruments constituting parts thereof.
ARTICLE III
Concerning the Custodian
Section 3.1. Custodian a Bailee and Agent of the Trustee. With
respect to each Mortgage Note, Mortgage and other documents constituting each
Mortgage File which are delivered to the Custodian, the Custodian is exclusively
the bailee and agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee, holds
such documents for the benefit of Certificateholders and undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. Except upon compliance with the provisions of Section 2.5 of this
Agreement, no Mortgage Note, Mortgage or other document constituting a part of a
Mortgage File shall be delivered by the Custodian to the Depositor or the Master
Servicer or otherwise released from the possession of the Custodian.
Section 3.2. Indemnification. The Depositor hereby agrees to
indemnify and hold the Custodian harmless from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the Custodian
may incur or with which the Custodian may be threatened by reason of its acting
as custodian under this Agreement, including indemnification of the Custodian
against any and all expenses, including attorney's fees if counsel for the
Custodian has been approved by the Depositor, and the cost of defending any
action, suit or proceedings or resisting any claim. Notwithstanding the
foregoing, it is specifically understood and agreed that in the event any such
claim, liability, loss, action, suit or proceeding or other expense, fee or
charge shall have been caused by reason of any negligent act, negligent failure
to act or willful misconduct on the part of the Custodian, or which shall
constitute a willful breach of its duties hereunder, the indemnification
provisions of this Agreement shall not apply.
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Section 3.3. Custodian May Own Certificates. The Custodian in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Custodian.
Section 3.4. Master Servicer to Pay Custodian's Fees and
Expenses. The Master Servicer covenants and agrees to pay to the Custodian from
time to time, and the Custodian shall be entitled to, reasonable compensation
for all services rendered by it in the exercise and performance of any of the
powers and duties hereunder of the Custodian, and the Master Servicer will pay
or reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith.
Section 3.5. Custodian May Resign; Trustee May Remove Custodian.
The Custodian may resign from the obligations and duties hereby imposed upon it
as such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either take
custody of the Mortgage Files itself and give prompt notice thereof to the
Depositor, the Master Servicer and the Custodian, or promptly appoint a
successor Custodian by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Custodian and one copy to the
successor Custodian. If the Trustee shall not have taken custody of the Mortgage
Files and no successor Custodian shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Custodian may petition any court of competent jurisdiction for the
appointment of a successor Custodian.
The Trustee may remove the Custodian at any time. In such event,
the Trustee shall appoint, or petition a court of competent jurisdiction to
appoint, a successor Custodian hereunder. Any successor Custodian shall be a
depository institution subject to supervision or examination by federal or state
authority and shall be able to satisfy the other requirements contained in
Section 3.7 and shall be unaffiliated with the Master Servicer or the Depositor
..
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Depositor and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall be
appointed by the Trustee without the prior approval of the Depositor and the
Master Servicer.
Section 3.6. Merger or Consolidation of Custodian. Any Person
into which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
E-5
Section 3.7. Representations of the Custodian. The Custodian
hereby represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $15,000,000 and is qualified to do business in the jurisdictions in
which it will hold any Mortgage File.
ARTICLE IV
Miscellaneous Provisions
Section 4.1. Notices. All notices, requests, consents and demands
and other communications required under this Agreement or pursuant to any other
instrument or document delivered hereunder shall be in writing and, unless
otherwise specifically provided, may be delivered personally, by telegram or
telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar notice
in writing), in which case the notice will be deemed delivered when received.
Section 4.2. Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto, and neither the Depositor, the Master
Servicer nor the Trustee shall enter into any amendment hereof except as
permitted by the Pooling Agreement. The Trustee shall give prompt notice to the
Custodian of any amendment or supplement to the Pooling Agreement and furnish
the Custodian with written copies thereof.
SECTION 4.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer and at its expense on
direction by the Trustee (pursuant to the request of holders of Certificates
evidencing undivided interests in the aggregate of not less than 25% of the
Trust Fund), but only upon direction accompanied by an Opinion of Counsel
reasonably satisfactory to the Master Servicer to the effect that the failure to
effect such recordation is likely to materially and adversely affect the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
E-6
Section 4.5. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
E-7
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
Address: JPMORGAN CHASE BANK,
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 By:__________________________
Name:
Title:
Address: RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:__________________________
Name:
Title:
Address: RESIDENTIAL FUNDING
CORPORATION, as Master
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:__________________________
Name:
Title:
Address: XXXXX FARGO BANK, N.A.
Mortgage Document Custody
One Meridian Crossings - 3rd Floor
Xxxxxxxxx, Xxxxxxxxx 00000
By:__________________________
Name:
Title:
E-8
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the ____ day of August, 2004, before me, a notary public in
and for said State, personally appeared _____________, known to me to be a
_______________ of JPMorgan Chase Bank, that executed the within instrument, and
also known to me to be the person who executed it on behalf of said corporation
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------
Notary Public
[SEAL]
E-9
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ___ day of August, 2004, before me, a notary public in and
for said State, personally appeared ____________, known to me to be a
____________ of Residential Asset Mortgage Products, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
---------------------------
Notary Public
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of August, 2004, before me, a notary public in
and for said State, personally appeared, ____________, known to me to be a
_____________ of Residential Funding Corporation, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written. .
-----------------------
Notary Public
[Notarial Seal]
E-10
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of August, 2004, before me, a notary public in
and for said State, personally appeared ___________, known to me to be an
______________ of Xxxxx Fargo Bank, N.A., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said national banking association, and acknowledged to me that such
national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------
Notary Public
E-11
EXHIBIT ONE
FORM OF CUSTODIAN
INITIAL CERTIFICATION
August 6, 2004
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2004-SP2
Re: Custodial Agreement, dated as of July 1, 2004, by and among
JPMorgan Chase Bank, Residential Asset Mortgage Products, Inc.,
Residential Funding Corporation and Xxxxx Fargo Bank, N.A.,
relating to Mortgage Loan Backed Certificates, Series 2004-SP2
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement, and subject to Section 2.02 of the Pooling Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage File
(which contains an original Mortgage Note or an original Lost Note Affidavit
with a copy of the related Mortgage Note) to the extent required in Section
2.01(b) of the Pooling Agreement with respect to each Mortgage Loan listed in
the Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
XXXXX FARGO BANK, N.A.
By:________________________
Name:______________________
Title:_____________________
E-12
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
_____________ __, 2004
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2004-SP2
Re: Custodial Agreement, dated as of July 1, 2004, by and among
JPMorgan Chase Bank, Residential Asset Mortgage Products, Inc.,
Residential Funding Corporation and Xxxxx Fargo Bank, N.A.,
relating to Mortgage Loan Backed Certificates, Series 2004-SP2
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement, the undersigned, as Custodian, hereby certifies that it has received
a Mortgage File to the extent required pursuant to Section 2.01(b) of the
Pooling Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule, and it has reviewed the Mortgage File and the Mortgage Loan Schedule
and has determined that: all required documents have been executed and received
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, with any exceptions listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
XXXXX FARGO BANK, N.A.
By:__________________________
Name:________________________
Title:_______________________
E-13
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
_____________ __, 2004
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2004-SP2
Re: Custodial Agreement, dated as of July 1, 2004, by and among
JPMorgan Chase Bank, Residential Asset Mortgage Products, Inc.,
Residential Funding Corporation and Xxxxx Fargo Bank, N.A.,
relating to Mortgage Loan Backed Certificates, Series 2004-SP2
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement, the undersigned, as Custodian, hereby certifies that it has received
a Mortgage File with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule and it has reviewed the Mortgage File and the Mortgage Loan Schedule
and has determined that: all required documents referred to in Section 2.01(b)
of the Pooling Agreement have been executed and received and that such documents
relate to the Mortgage Loans identified on the Mortgage Loan Schedule.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
XXXXX FARGO BANK, N.A.
By:_________________________
Name:_______________________
Title:______________________
E-14
EXHIBIT F-1
GROUP I LOAN SCHEDULE
Fixed Rate Loan
Loan Number S/S Code Payment Type Original Bal Loan Feature
Orig Term Principal Bal # of Units
Orig Rate Original PI LTV
Net Curr Current PI
City State Zip Loan Purp Note Date MI Co Code
Servicer Loan # Prop Type First Pay Date MI Coverage
Seller Loan # Occup Code Maturity Date
Investor Loan #
9103717 Q72/Y11 F 310,000.00 ZZ
360 300,156.76 1
7.2500 2114.75 80
7.0000 2114.75
XXXXXXX XX 00000 2 10/08/01 00
617748057 05 12/01/01 0.0000
617748057 O 11/01/31
0
9103721 Q72/Y11 F 419,650.00 ZZ
360 407,020.60 1
6.7500 2721.85 70
6.5000 2721.85
XXXXXX XX 00000 2 10/15/01 00
617748331 05 12/01/01 0.0000
617748331 O 11/01/31
0
9103725 Q72/Y11 F 430,000.00 ZZ
360 416,991.43 1
7.2500 2933.36 61
7.0000 2933.36
XXXXX XXXX XX 00000 5 09/19/01 00
617750713 05 11/01/01 0.0000
617750713 O 10/01/31
0
9103729 Q72/Y11 F 333,450.00 ZZ
360 324,141.94 1
7.3750 2303.06 95
7.1250 2303.06
XXXXXXXXXX XX 00000 1 09/28/01 10
617752496 01 11/01/01 30.0000
617752496 O 10/01/31
0
9103733 Q72/Y11 F 520,000.00 ZZ
180 458,117.69 1
6.0000 4388.06 75
5.7500 4388.06
XXXXXXXXX XX 00000 5 10/19/01 00
617763967 05 12/01/01 0.0000
617763967 O 11/01/16
0
9103737 Q72/Y11 F 474,100.00 ZZ
360 450,563.09 1
7.1250 3194.10 75
6.8750 3194.10
XXXXXX XXXXXX XX 00000 2 10/20/01 00
617765629 05 12/01/01 0.0000
617765629 O 11/01/31
0
9103745 Q72/Y11 F 360,000.00 ZZ
360 349,517.50 1
7.3750 2486.43 80
7.1250 2486.43
XXXX XXXX XX 00000 1 09/14/01 00
617773527 05 11/01/01 0.0000
617773527 N 10/01/31
0
9103755 Q72/Y11 F 500,000.00 ZZ
180 442,614.48 1
6.5000 4355.54 36
6.2500 4355.54
XXXX XX 00000 2 10/22/01 00
617782016 05 12/01/01 0.0000
617782016 O 11/01/16
0
9103763 Q72/Y11 F 310,000.00 ZZ
360 301,214.87 1
7.0000 2062.44 78
6.7500 2062.44
XXXXXXXXXX XX 00000 2 11/12/01 00
617817983 05 01/01/02 0.0000
617817983 O 12/01/31
0
9103767 Q72/Y11 F 350,000.00 ZZ
360 339,031.66 1
7.1250 2358.01 69
6.8750 2358.01
XXXXXXXXX XX 00000 5 10/25/01 00
617820330 05 12/01/01 0.0000
617820330 O 11/01/31
0
9103771 Q72/Y11 F 335,200.00 ZZ
360 325,112.41 1
6.7500 2174.10 80
6.5000 2174.10
THE XXXXXXXXX XX 00000 1 10/09/01 00
617820513 05 12/01/01 0.0000
617820513 O 11/01/31
0
9103779 Q72/Y11 F 304,000.00 ZZ
360 289,971.68 1
6.8750 1997.06 80
6.6250 1997.06
SOUTHWEST RANCFL 33331 1 10/17/01 00
617840492 05 12/01/01 0.0000
617840492 O 11/01/31
0
9103801 Q72/Y11 F 369,600.00 ZZ
360 357,693.90 1
6.3750 2305.82 48
6.1250 2305.82
XXXX XXXX XX 00000 2 10/08/01 00
617845022 05 12/01/01 0.0000
617845022 O 11/01/31
0
9103805 Q72/Y11 F 466,000.00 ZZ
180 414,331.87 1
6.5000 4059.36 73
6.2500 4059.36
LONGBOAT XXX XX 00000 2 11/07/01 00
617848490 05 01/01/02 0.0000
617848490 N 12/01/16
0
9103807 Q72/Y11 F 745,000.00 ZZ
360 722,579.58 1
6.7500 4832.06 60
6.5000 4832.06
XXXXXXXXX XX 00000 1 10/12/01 00
617861307 05 12/01/01 0.0000
617861307 N 11/01/31
0
9103809 Q72/Y11 F 373,000.00 ZZ
180 327,807.28 1
5.7500 3097.43 60
5.5000 3097.43
XXXXX XXXXXX XX 00000 5 11/01/01 00
617864479 05 12/01/01 0.0000
617864479 O 11/01/16
0
9103815 Q72/Y11 F 525,000.00 ZZ
360 509,548.64 1
6.8750 3448.88 68
6.6250 3448.88
XXXXXX XXXX XX 00000 5 10/09/01 00
617871434 05 12/01/01 0.0000
617871434 O 11/01/31
0
9103817 Q72/Y11 F 350,000.00 ZZ
360 340,056.19 1
6.8750 2299.25 63
6.6250 2299.25
XXXXXX XX 00000 1 11/08/01 00
617893931 05 01/01/02 0.0000
617893931 O 12/01/31
0
9103819 Q72/Y11 F 304,000.00 ZZ
360 294,851.26 1
6.7500 1971.74 76
6.5000 1971.74
XXXX XXXX XX 00000 2 10/04/01 00
617906743 05 12/01/01 0.0000
617906743 O 11/01/31
0
9103823 Q72/Y11 F 378,000.00 ZZ
360 366,500.23 1
6.8750 2483.19 80
6.6250 2483.19
XXX XXXXXXX XX 00000 1 10/04/01 00
617586223 05 11/01/01 0.0000
617586223 N 10/01/31
0
9103825 Q72/Y11 F 300,000.00 ZZ
360 204,159.70 1
7.1250 2021.16 47
6.8750 2021.16
XXXXXX XX 00000 1 10/10/01 00
617590081 05 12/01/01 0.0000
617590081 O 11/01/31
0
9103829 Q72/Y11 F 350,000.00 ZZ
360 331,064.70 1
7.2500 2387.62 66
7.0000 2387.62
XXXXX XXXX XX 00000 5 10/11/01 00
617609128 05 12/01/01 0.0000
617609128 O 11/01/31
0
9103831 Q72/Y11 F 377,600.00 ZZ
360 365,847.20 1
6.7500 2449.11 80
6.5000 2449.11
XXXXXXX XX 00000 1 09/17/01 00
617619346 05 11/01/01 0.0000
617619346 O 10/01/31
0
9103835 Q72/Y11 F 487,200.00 ZZ
360 472,847.06 1
6.8750 3200.56 80
6.6250 3200.56
XXXXXX XX 00000 1 10/08/01 00
617622513 05 12/01/01 0.0000
617622513 O 11/01/31
0
9103837 Q72/Y11 F 325,000.00 ZZ
360 311,369.94 1
6.7500 2107.94 65
6.5000 2107.94
SHAKER HEIGHTSOH 44122 5 10/09/01 00
617624913 05 12/01/01 0.0000
617624913 O 11/01/31
0
9103841 Q72/Y11 F 384,000.00 ZZ
360 371,891.60 1
6.7500 2490.62 80
6.5000 2490.62
XXXXX XXXXX XX 00000 2 10/01/01 00
617637020 05 11/01/01 0.0000
617637020 O 10/01/31
0
9103847 Q72/Y11 F 315,000.00 ZZ
360 301,971.25 1
6.7500 2043.08 75
6.5000 2043.08
XXXX XXXXXXXXXXX 00000 5 09/26/01 00
617652781 05 12/01/01 0.0000
617652781 O 11/01/31
0
9103857 Q72/Y11 F 630,000.00 ZZ
180 553,177.70 1
6.1250 5358.94 75
5.8750 5358.94
XXXXXXX XX 00000 5 09/20/01 00
617665296 05 11/01/01 0.0000
617665296 O 10/01/16
0
9103859 Q72/Y11 F 396,000.00 ZZ
180 348,574.11 1
6.8750 3531.74 52
6.6250 3531.74
XXXXX XX 00000 2 08/16/01 00
617671330 05 10/01/01 0.0000
617671330 O 09/01/16
0
9103863 Q72/Y11 F 308,000.00 ZZ
180 270,778.58 1
6.2500 2640.87 80
6.0000 2640.87
XXXX XXXXXX XX 00000 1 09/28/01 00
617688226 01 11/01/01 0.0000
617688226 N 10/01/16
0
9103865 Q72/Y11 F 667,000.00 ZZ
360 648,260.07 1
7.1250 4493.70 54
6.8750 4493.70
XXXX XX 00000 2 10/15/01 00
617690505 05 12/01/01 0.0000
617690505 O 11/01/31
0
9103869 Q72/Y11 F 350,000.00 ZZ
360 339,280.68 1
7.2500 2387.62 64
7.0000 2387.62
N XXXX XXXX XX 00000 5 09/24/01 00
617695760 05 11/01/01 0.0000
617695760 O 10/01/31
0
9103871 Q72/Y11 F 790,000.00 ZZ
180 694,890.39 1
5.8750 6613.24 69
5.6250 6613.24
XXXXXXXX XX 00000 2 10/15/01 00
617714683 05 12/01/01 0.0000
617714683 O 11/01/16
0
9103877 Q72/Y11 F 356,000.00 ZZ
360 345,528.54 1
6.8750 2338.67 80
6.6250 2338.67
XXXX XXXXXXX XX 00000 1 10/26/01 00
617734131 05 12/01/01 0.0000
617734131 N 11/01/31
0
9103881 Q72/Y11 F 600,000.00 ZZ
180 529,430.53 1
6.6250 5267.96 40
6.3750 5267.96
XXXXX XXXXX XXXX 00000 1 10/03/01 00
617558207 01 11/01/01 0.0000
617558207 N 10/01/16
0
9103885 Q72/Y11 F 527,500.00 ZZ
360 513,347.66 1
7.3750 3643.31 80
7.1250 3643.31
XXXXX XXXX XX 00000 1 10/29/01 00
617740479 05 12/01/01 0.0000
617740479 O 11/01/31
0
9103889 Q72/Y11 F 432,000.00 ZZ
360 419,300.92 1
7.1250 2910.46 80
6.8750 2910.46
XXXXXXX XX 00000 1 09/24/01 00
617403108 05 11/01/01 0.0000
617403108 O 10/01/31
0
9103927 Q72/Y11 F 304,000.00 ZZ
360 295,058.28 1
6.8750 1997.06 79
6.6250 1997.06
XXXXXX XXXXX XX 00000 1 10/03/01 00
617407066 05 12/01/01 0.0000
617407066 O 11/01/31
0
9103931 Q72/Y11 F 320,500.00 ZZ
360 310,003.89 1
6.6250 2052.20 67
6.3750 2052.20
XXXXXXXXXX XX 00000 2 09/28/01 00
617412234 05 11/01/01 0.0000
617412234 O 10/01/31
0
9103935 Q72/Y11 F 350,000.00 ZZ
180 308,722.32 1
6.1250 2977.19 66
5.8750 2977.19
XXXXXX XX 00000 2 10/15/01 00
617412677 05 12/01/01 0.0000
617412677 O 11/01/16
0
9103943 Q72/Y11 F 460,000.00 ZZ
360 446,633.38 1
7.1250 3099.11 80
6.8750 3099.11
XXXXXXX XX 00000 1 09/26/01 00
617414975 05 11/01/01 0.0000
617414975 O 10/01/31
0
9103949 Q72/Y11 F 308,000.00 ZZ
360 296,658.17 1
6.5000 1946.77 80
6.2500 1946.77
XXXXXXX XX 00000 1 10/12/01 00
617426560 05 12/01/01 0.0000
617426560 O 11/01/31
0
9103955 Q72/Y11 F 376,000.00 ZZ
360 365,191.37 1
7.0000 2501.54 76
6.7500 2501.54
XXXXXXX XX 00000 2 10/03/01 00
617429073 01 12/01/01 0.0000
617429073 O 11/01/31
0
9103959 Q72/Y11 F 320,000.00 ZZ
360 310,482.62 1
6.6250 2049.00 78
6.3750 2049.00
XXXXXXXXXX XX 00000 1 11/08/01 00
617460825 05 01/01/02 0.0000
617460825 O 12/01/31
0
9103965 Q72/Y11 F 380,000.00 ZZ
360 369,325.39 1
7.1250 2560.13 80
6.8750 2560.13
XXXXX XXXXX XX 00000 1 10/02/01 00
617463178 05 12/01/01 0.0000
617463178 O 11/01/31
0
9103975 Q72/Y11 F 302,400.00 ZZ
180 265,952.50 1
6.6250 2655.05 80
6.3750 2655.05
XXXXX XXXXX XX 00000 1 09/25/01 00
617488417 01 11/01/01 0.0000
617488417 N 10/01/16
0
9103979 Q72/Y11 F 348,750.00 ZZ
360 336,381.18 1
6.7500 2261.99 75
6.5000 2261.99
XXXXXXX XX 00000 5 10/12/01 00
617488601 05 12/01/01 0.0000
617488601 O 11/01/31
0
9103983 Q72/Y11 F 368,000.00 ZZ
360 326,526.77 1
7.2500 2510.41 79
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BARRINGTON HILIL 60010 2 09/25/01 00
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9106053 Q72/Y11 F 300,000.00 ZZ
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9106069 Q72/Y11 F 300,000.00 ZZ
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9106071 Q72/Y11 F 284,000.00 ZZ
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9106073 Q72/Y11 F 450,000.00 ZZ
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9106075 Q72/Y11 F 284,000.00 ZZ
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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618168401 05 12/01/01 25.0000
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0
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0
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0
9106383 Q72/Y11 F 350,000.00 ZZ
360 339,938.76 1
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618195552 05 12/01/01 0.0000
618195552 O 11/01/31
0
9106385 Q72/Y11 F 540,000.00 ZZ
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618203609 05 12/01/01 0.0000
618203609 O 11/01/31
0
9106387 Q72/Y11 F 344,000.00 ZZ
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618204984 05 12/01/01 0.0000
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0
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6.7500 2568.07
XXXXXXXXXX XX 00000 5 10/25/01 00
618209581 05 12/01/01 0.0000
618209581 O 11/01/31
0
9106391 Q72/Y11 F 355,000.00 ZZ
360 334,548.77 1
6.2500 2185.80 51
6.0000 2185.80
XXXXXXX XX 00000 2 10/26/01 00
618212018 05 12/01/01 0.0000
618212018 O 11/01/31
0
9106395 Q72/Y11 F 505,000.00 ZZ
360 481,652.63 1
6.8750 3317.49 72
6.6250 3317.49
XXXXXXXX XX 00000 5 10/15/01 00
618236506 05 12/01/01 0.0000
618236506 O 11/01/31
0
9106397 Q72/Y11 F 431,000.00 ZZ
180 381,081.83 1
6.3750 3724.92 38
6.1250 3724.92
XXXXXXXXX XX 00000 2 10/19/01 00
618240001 05 12/01/01 0.0000
618240001 O 11/01/16
0
9106401 Q72/Y11 F 500,000.00 ZZ
180 443,135.51 1
6.6250 4389.97 80
6.3750 4389.97
XXXX XXXX XXXXXX 00000 2 10/26/01 00
618272738 05 12/01/01 0.0000
618272738 N 11/01/16
0
9106403 Q72/Y11 F 328,000.00 ZZ
360 318,352.10 1
6.8750 2154.73 80
6.6250 2154.73
XXXX XXXXXX XX 00000 2 10/15/01 00
618134499 05 12/01/01 0.0000
618134499 O 11/01/31
0
Total Number of Loans 410
Total Original Balance 162,079,320.00
Total Principal Balance 147,208,932.28
Total Original P+I 1,166,648.07
Total Current P+I 1,166,648.07
EXHIBIT F-2
GROUP II LOAN SCHEDULE
Fixed Rate Passthru
Loan Number Sub Serv Fee
Principal Bal Mstr Serv Fee
Curr Note Rate Alloc Exp
Net Curr Misc Exp
Investor Rate Spread
Post Strip Rate Strip
9103717 0.2500
300156.76 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9103721 0.2500
407020.60 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103725 0.2500
416991.43 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9103729 0.2500
324141.94 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9103733 0.2500
458117.69 0.0400
6.0000 0.0000
5.7500 0.0000
5.7100
5.7100 0.0000
9103737 0.2500
450563.09 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9103745 0.2500
349517.50 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9103755 0.2500
442614.48 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9103763 0.2500
301214.87 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9103767 0.2500
339031.66 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9103771 0.2500
325112.41 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103779 0.2500
289971.68 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103801 0.2500
357693.90 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9103805 0.2500
414331.87 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9103807 0.2500
722579.58 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103809 0.2500
327807.28 0.0400
5.7500 0.0000
5.5000 0.0000
5.4600
5.4600 0.0000
9103815 0.2500
509548.64 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103817 0.2500
340056.19 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103819 0.2500
294851.26 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103823 0.2500
366500.23 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103825 0.2500
204159.70 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9103829 0.2500
331064.70 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9103831 0.2500
365847.20 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103835 0.2500
472847.06 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103837 0.2500
311369.94 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103841 0.2500
371891.60 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103847 0.2500
301971.25 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103857 0.2500
553177.70 0.0400
6.1250 0.0000
5.8750 0.0000
5.8350
5.8350 0.0000
9103859 0.2500
348574.11 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103863 0.2500
270778.58 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9103865 0.2500
648260.07 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9103869 0.2500
339280.68 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9103871 0.2500
694890.39 0.0400
5.8750 0.0000
5.6250 0.0000
5.5850
5.5850 0.0000
9103877 0.2500
345528.54 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103881 0.2500
529430.53 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9103885 0.2500
513347.66 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9103889 0.2500
419300.92 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9103927 0.2500
295058.28 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103931 0.2500
310003.89 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9103935 0.2500
308722.32 0.0400
6.1250 0.0000
5.8750 0.0000
5.8350
5.8350 0.0000
9103943 0.2500
446633.38 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9103949 0.2500
296658.17 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9103955 0.2500
365191.37 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9103959 0.2500
310482.62 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9103965 0.2500
369325.39 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9103975 0.2500
265952.50 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9103979 0.2500
336381.18 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9103983 0.2500
326526.77 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9103989 0.2500
310138.68 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9103993 0.2500
313888.34 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104001 0.2500
368530.36 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9104081 0.2500
351515.89 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9104085 0.2500
306053.72 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9104089 0.2500
336427.39 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9104095 0.2500
365245.52 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9104103 0.2500
417034.19 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9104109 0.2500
667574.09 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104117 0.2500
350187.42 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104123 0.2500
327197.53 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104131 0.2500
389635.69 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9104739 0.2500
314372.82 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9104747 0.2500
417837.27 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104755 0.2500
425745.69 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9104761 0.2500
336933.54 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9104767 0.2500
362161.56 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9104841 0.2500
348549.63 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104849 0.2500
327232.57 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104853 0.2500
280598.14 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9104857 0.2500
338023.81 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9104871 0.2500
267022.43 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9104877 0.2500
506992.32 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9104883 0.2500
385612.40 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9104889 0.2500
304760.73 0.0400
5.8750 0.0000
5.6250 0.0000
5.5850
5.5850 0.0000
9104895 0.2500
333016.64 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104909 0.2500
344431.94 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9104913 0.2500
380869.49 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9104917 0.2500
491895.26 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9104919 0.2500
334504.39 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9104923 0.2500
275555.63 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9104927 0.2500
486103.54 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9104933 0.2500
310110.71 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9105083 0.2500
291529.98 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9105089 0.2500
308759.88 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9105093 0.2500
417790.38 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105101 0.2500
523732.57 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9105105 0.2500
362830.96 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9105119 0.2500
473036.65 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9105165 0.2500
451830.83 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9105167 0.2500
326016.00 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9105171 0.2500
356595.14 0.0400
7.6250 0.0000
7.3750 0.0000
7.3350
7.3350 0.0000
9105175 0.2500
529761.70 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9105181 0.2500
301088.60 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9105185 0.2500
295114.05 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9105187 0.2500
247732.99 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9105189 0.2500
236866.54 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9105191 0.2500
297450.67 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9105195 0.2500
186636.94 0.0400
6.1250 0.0000
5.8750 0.0000
5.8350
5.8350 0.0000
9105197 0.2500
211353.89 0.0400
7.6250 0.0000
7.3750 0.0000
7.3350
7.3350 0.0000
9105199 0.2500
227098.67 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9105239 0.2500
355345.07 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9105243 0.2500
171779.71 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9105247 0.2500
307557.80 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9105249 0.2500
47132.10 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9105253 0.2500
433309.04 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9105259 0.2500
210870.31 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9105263 0.2500
315969.37 0.0400
5.7500 0.0000
5.5000 0.0000
5.4600
5.4600 0.0000
9105265 0.2500
180350.54 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9105267 0.2500
387830.83 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9105271 0.2500
401843.06 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105277 0.2500
328402.57 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105289 0.2500
327917.10 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105291 0.2500
544901.96 0.0400
6.0000 0.0000
5.7500 0.0000
5.7100
5.7100 0.0000
9105297 0.2500
426280.83 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9105299 0.2500
491921.78 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9105301 0.2500
345999.52 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9105303 0.2500
286706.27 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9105359 0.2500
420406.39 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9105361 0.2500
672137.01 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9105363 0.2500
397044.31 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9105367 0.2500
482559.75 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9105369 0.2500
394351.76 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9105373 0.2500
360273.36 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9105379 0.2500
306583.82 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9105381 0.2500
387872.06 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9105383 0.2500
409569.69 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9105385 0.2500
466306.92 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9105387 0.2500
596821.94 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9105389 0.2500
337335.89 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9105391 0.2500
862566.82 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9105395 0.2500
492912.28 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9105403 0.2500
395430.87 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9105405 0.2500
313755.00 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9105409 0.2500
475207.45 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9105413 0.2500
881006.59 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9105415 0.2500
396771.43 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9105417 0.2500
369210.15 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105439 0.2500
335648.51 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9105443 0.2500
343644.01 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9105445 0.2500
314202.34 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9105447 0.2500
392018.27 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9105449 0.2500
378921.39 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105455 0.2500
388381.34 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9105457 0.2500
539136.78 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9105459 0.2500
462408.55 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105461 0.2500
383360.54 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9105465 0.2500
256726.35 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9105469 0.2500
295282.82 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9105471 0.2500
314530.43 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9105473 0.2500
346643.12 0.0400
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9106069 0.2500
281918.83 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106071 0.2500
210409.63 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106073 0.2500
421953.11 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106075 0.2500
268407.16 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9106079 0.2500
279029.90 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106081 0.2500
432545.65 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9106083 0.2500
472548.16 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9106085 0.2500
373240.35 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106091 0.2500
235621.63 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106093 0.2500
283968.51 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106095 0.2500
316736.63 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106097 0.2500
321589.87 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9106099 0.2500
302507.36 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9106101 0.2500
271545.61 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106103 0.2500
251389.22 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9106119 0.2500
374480.15 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106159 0.2500
293452.30 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9106163 0.2500
250787.29 0.0400
7.7500 0.0000
7.5000 0.0000
7.4600
7.4600 0.0000
9106165 0.2500
339963.76 0.0400
7.3750 0.0000
7.1250 0.0000
7.0850
7.0850 0.0000
9106167 0.2500
358110.78 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9106169 0.2500
341645.98 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106171 0.2500
349400.01 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106173 0.2500
437575.75 0.0400
7.5000 0.0000
7.2500 0.0000
7.2100
7.2100 0.0000
9106177 0.2500
271942.99 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106179 0.2500
258404.35 0.0400
7.1250 0.0000
6.8750 0.0000
6.8350
6.8350 0.0000
9106181 0.2500
352855.96 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106183 0.2500
301311.43 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106187 0.2500
334863.00 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106189 0.2500
409479.91 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106191 0.2500
642384.48 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106193 0.2500
317547.81 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106195 0.2500
310557.35 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106197 0.2500
348390.26 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106199 0.2500
482448.85 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9106201 0.2500
270176.28 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9106203 0.2500
286235.18 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106205 0.2500
343102.33 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106207 0.2500
324147.79 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9106209 0.2500
329001.27 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9106211 0.2500
307593.82 0.0400
5.7500 0.0000
5.5000 0.0000
5.4600
5.4600 0.0000
9106219 0.2500
333448.57 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106221 0.2500
377310.54 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106225 0.2500
300117.60 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106227 0.2500
269358.52 0.0400
6.1250 0.0000
5.8750 0.0000
5.8350
5.8350 0.0000
9106229 0.2500
402874.32 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9106233 0.2500
512509.96 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9106235 0.2500
344557.99 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106237 0.2500
445837.63 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106239 0.2500
338976.97 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9106241 0.2500
389217.16 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9106243 0.2500
348862.16 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106245 0.2500
477192.00 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106247 0.2500
408163.92 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106249 0.2500
397406.62 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9106251 0.2500
879836.37 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106253 0.2500
304078.60 0.0400
5.7500 0.0000
5.5000 0.0000
5.4600
5.4600 0.0000
9106257 0.2500
413935.00 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106259 0.2500
340607.03 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106261 0.2500
399799.80 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106267 0.2500
492595.60 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106271 0.2500
407645.84 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106273 0.2500
520961.77 0.0400
5.8750 0.0000
5.6250 0.0000
5.5850
5.5850 0.0000
9106275 0.2500
368822.68 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106277 0.2500
279200.51 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106279 0.2500
402150.92 0.0400
6.0000 0.0000
5.7500 0.0000
5.7100
5.7100 0.0000
9106281 0.2500
504350.95 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106283 0.2500
369969.25 0.0400
6.5000 0.0000
6.2500 0.0000
6.2100
6.2100 0.0000
9106285 0.2500
354652.10 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106287 0.2500
356887.86 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106289 0.2500
391463.30 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9106291 0.2500
381081.83 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106293 0.2500
346715.18 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9106299 0.2500
295584.82 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106301 0.2500
371074.53 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106305 0.2500
387962.34 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106307 0.2500
272094.77 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106313 0.2500
402329.55 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106315 0.2500
559516.31 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106319 0.2500
310369.92 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106321 0.2500
419412.70 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106359 0.2500
418083.60 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106361 0.2500
471936.62 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106363 0.2500
388346.25 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106365 0.2500
573013.91 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106367 0.2500
303308.25 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106369 0.2500
366561.01 0.0400
6.7500 0.0000
6.5000 0.0000
6.4600
6.4600 0.0000
9106373 0.2500
398165.82 0.0400
6.0000 0.0000
5.7500 0.0000
5.7100
5.7100 0.0000
9106375 0.2500
302268.52 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106377 0.2500
411815.17 0.0400
7.2500 0.0000
7.0000 0.0000
6.9600
6.9600 0.0000
9106379 0.2500
340282.34 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106381 0.2500
841909.77 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106383 0.2500
339938.76 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106385 0.2500
523197.86 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106387 0.2500
333376.48 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106389 0.2500
371742.80 0.0400
7.0000 0.0000
6.7500 0.0000
6.7100
6.7100 0.0000
9106391 0.2500
334548.77 0.0400
6.2500 0.0000
6.0000 0.0000
5.9600
5.9600 0.0000
9106395 0.2500
481652.63 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
9106397 0.2500
381081.83 0.0400
6.3750 0.0000
6.1250 0.0000
6.0850
6.0850 0.0000
9106401 0.2500
443135.51 0.0400
6.6250 0.0000
6.3750 0.0000
6.3350
6.3350 0.0000
9106403 0.2500
318352.10 0.0400
6.8750 0.0000
6.6250 0.0000
6.5850
6.5850 0.0000
Total Number of Loans: 410
Total Original Balance: 162,079,320.00
Total Principal Balance: 147,208,932.28
Total Original P+I: 1,166,648.07
Total Current P+I: 1,166,648.07
EXHIBIT G
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
Residential Funding Corporation
Authorized Signature
****************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
-------------------------------
Name
Title
Date
G-1
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Mortgage Loan Backed Certificates, Series _______, Class
R[-__] (the "Owner"), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on behalf of
which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" or an electing large partnership as of [date of transfer] within
the meaning of Sections 860E(e)(5) and 775, respectively, of the Internal
Revenue Code of 1986, as amended (the "Code") or an electing large partnership
under Section 775(a) of the Code, (ii) will endeavor to remain other than a
disqualified organization for so long as it retains its ownership interest in
the Class R[-__] Certificates, and (iii) is acquiring the Class R[-__]
Certificates for its own account or for the account of another Owner from which
it has received an affidavit and agreement in substantially the same form as
this affidavit and agreement. (For this purpose, a "disqualified organization"
means an electing large partnership under Section 775 of the Code, the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R[-__] Certificates to disqualified organizations or electing
large partnerships, under the Code, that applies to all transfers of Class
R[-__] Certificates after March 31, 1988; (ii) that such tax would be on the
transferor (or, with respect to transfers to electing large partnerships, on
each such partnership), or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a disqualified organization, on the
agent; (iii) that the person (other than with respect to transfers to electing
large partnerships) otherwise liable for the tax shall be relieved of liability
for the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Class R[-__] Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that the
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
H-1-1
4. That the Owner is aware of the tax imposed on a "pass-through entity"
holding Class R[-__] Certificates if either the pass-through entity is an
electing large partnership under Section 775 of the Code or if at any time
during the taxable year of the pass-through entity a disqualified organization
is the record holder of an interest in such entity. (For this purpose, a "pass
through entity" includes a regulated investment Depositor, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity treated as a corporation or a
partnership for U.S. federal income tax purposes and created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States person
under any applicable Treasury regulations), (iii) an estate that is described in
Section 7701(a)(30)(D) of the Code, or (iv) a trust that is described in Section
7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the Class
R[-__] Certificates to be attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of the Owner
of another United States taxpayer.
7. That the Owner is aware that the Trustee will not register the
transfer of any Class R[- __] Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it knows
or believes that any of the representations contained in such affidavit and
agreement are false.
8. That the Owner has reviewed the restrictions set forth on the face of
the Class R[-__] Certificates and the provisions of Section 5.02(f) of the
Pooling and Servicing Agreement under which the Class R[-__] Certificates were
issued (in particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which
authorize the Trustee to deliver payments to a person other than the Owner and
negotiate a mandatory sale by the Trustee in the event the Owner holds such
Certificates in violation of Section 5.02(f)). The Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R[-__] Certificates will only
be owned, directly or indirectly, by an Owner that is not a disqualified
organization.
10. The Owner's Taxpayer Identification Number is ________________.
11. This affidavit and agreement relates only to the Class R[-__]
Certificates held by the Owner and not to any other holder of the Class R[-__]
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R[-__] Certificates.
12. That no purpose of the Owner relating to the transfer of any of the
Class R[-__] Certificates by the Owner is or will be to impede the assessment or
collection of any tax; in making this representation, the Owner warrants that
the Owner is familiar with (i) Treasury Regulation
H-1-2
Section 1.860E-1(c) and recent amendments thereto, effective as of July 19,
2002, and (ii) the preamble describing the adoption of the amendments to such
regulation, which is attached hereto as Exhibit 1.
13. That the Owner has no present knowledge or expectation that it will
be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R[-__]
Certificate that the Owner intends to pay taxes associated with holding such
Class R[- __] Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R[-__]
Certificate.
14. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of the
Class R[-__] Certificates remain outstanding.
15. (a) The Owner is not an employee benefit plan or other plan subject
to the prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or an investment manager, named
fiduciary or a trustee of any such plan, or any other Person acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets" of any
such plan; or
(b) The Owner has provided the Trustee, the Depositor and the
Master Servicer with an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee, the Depositor and the Master Servicer to
the effect that the purchase of Certificates is permissible under applicable
law, will not constitute or result in any non-exempt prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Trustee, the
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 the Pooling and Servicing Agreement.
In addition, the Owner hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Trustee and the Master Servicer that the
Purchaser will not transfer such Certificates to any Plan or person unless
either such Plan or person meets the requirements set forth in either (a) or (b)
above.
Capitalized terms used but not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement.
H-1-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this day of _____,___ 200__.
[NAME OF OWNER]
By:
--------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this ___ day of ________, 200 __.
NOTARY PUBLIC
COUNTY OF
---------------------------------
STATE OF
----------------------------------
My Commission expires the ____ day of
_____, 20__ .
H-1-4
EXHIBIT 1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-
(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and, pending
receipt and evaluation of public comments, approved by the Office of Management
and Budget (OMB) under 44 U.S.C. 3507 and assigned control number 1545-1675.
The collection of information in this regulation is in Sec. 1.860E -
1(c)(5)(ii). This information is required to enable the IRS to verify
that a taxpayer is complying with the conditions of this regulation.
The collection of information is mandatory and is required. Otherwise,
H-1-5
the taxpayer will not receive the benefit of safe harbor treatment as provided
in the regulation. The likely respondents are businesses and other for-profit
institutions.
Comments on the collection of information should be sent to the Office of
Management and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX, 00000, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the collection of information
should be received by October 17, 2002. Comments are specifically requested
concerning:
Whether the collection of information is necessary for the proper performance of
the functions of the Internal Revenue Service, including whether the information
will have practical utility;
The accuracy of the estimated burden associated with the collection of
information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the collection of information may be minimized,
including through the application of automated collection techniques or other
forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and
purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to respond
to, a collection of information unless it displays a valid control number
assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an estimated
number of respondents of 470 and an estimated average annual burden hours per
respondent of one hour.
Books or records relating to a collection of information must be retained as
long as their contents may become material in the administration of any internal
revenue law. Generally, tax returns and tax return information are confidential,
as required by 26 U.S.C. 6103.
Background
This document contains final regulations regarding the proposed amendments to 26
CFR part 1 under section 860E of the Internal Revenue
H-1-6
Code (Code). The regulations provide the circumstances under which a transferor
of a noneconomic REMIC residual interest meeting the investigation and
representation requirements may avail itself of the safe harbor by satisfying
either the formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules governing the
transfer of noneconomic REMIC residual interests. In general, a transfer of a
noneconomic residual interest is disregarded for all tax purposes if a
significant purpose of the transfer is to
[[Page 47452]]
enable the transferor to impede the assessment or collection of tax. A purpose
to impede the assessment or collection of tax (a wrongful purpose) exists if the
transferor, at the time of the transfer, either knew or should have known that
the transferee would be unwilling or unable to pay taxes due on its share of the
REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual interest is
presumed not to have a wrongful purpose if two requirements are satisfied: (1)
the transferor conducts a reasonable investigation of the transferee's financial
condition (the investigation requirement); and (2) the transferor secures a
representation from the transferee to the effect that the transferee understands
the tax obligations associated with holding a residual interest and intends to
pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of noneconomic
residual interests claim they satisfy the safe harbor even in situations where
the economics of the transfer clearly indicate the transferee is unwilling or
unable to pay the tax associated with holding the interest. For this reason, on
February 7, 2000, the IRS published in the Federal Register (65 FR 5807) a
notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed to clarify
the safe harbor by adding the "formula test," an economic test. The proposed
regulation provides that the safe harbor is unavailable unless the present value
of the anticipated tax liabilities associated with holding the residual interest
does not exceed the sum of: (1) The present value of any consideration given to
the transferee to acquire the interest; (2) the present value of the expected
future distributions on the interest; and (3) the present value of the
anticipated tax savings associated with holding the interest as the REMIC
generates losses.
The notice of proposed rulemaking also contained rules for FASITs. Section
1.860H-6(g) of the proposed regulations provides requirements
H-1-7
for transfers of FASIT ownership interests and adopts a safe harbor by reference
to the safe harbor provisions of the REMIC regulations.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to set
forth an alternative safe harbor that taxpayers could use while the IRS and the
Treasury considered comments on the proposed regulations. Under the alternative
safe harbor, if a transferor meets the investigation requirement and the
representation requirement but the transfer fails to meet the formula test, the
transferor may invoke the safe harbor if the transferee meets a two- prong test
(the asset test). A transferee generally meets the first prong of this test if,
at the time of the transfer, and in each of the two years preceding the year of
transfer, the transferee's gross assets exceed $100 million and its net assets
exceed $10 million. A transferee generally meets the second prong of this test
if it is a domestic, taxable corporation and agrees in writing not to transfer
the interest to any person other than another domestic, taxable corporation that
also satisfies the requirements of the asset test. A transferor cannot rely on
the asset test if the transferor knows, or has reason to know, that the
transferee will not comply with its written agreement to limit the restrictions
on subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied in the
case of a transfer or assignment of a noneconomic residual interest to a foreign
branch of an otherwise eligible transferee. If such a transfer or assignment
were permitted, a corporate taxpayer might seek to claim that the provisions of
an applicable income tax treaty would resource excess inclusion income as
foreign source income, and that, as a consequence, any U.S. tax liability
attributable to the excess inclusion income could be offset by foreign tax
credits. Such a claim would impede the assessment or collection of U.S. tax on
excess inclusion income, contrary to the congressional purpose of assuring that
such income will be taxable in all events. See, e.g., sections 860E(a)(1), (b),
(e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers transferring
noneconomic residual interests to foreign branches have attempted to rely on the
formula test to obtain safe harbor treatment in an effort to impede the
assessment or collection of U.S. tax on excess inclusion income. Accordingly,
the final regulations provide that if a noneconomic residual interest is
transferred to a foreign permanent establishment or fixed base of a U.S.
taxpayer, the transfer is not eligible for safe harbor treatment under either
the asset test or the formula test. The final regulations also require a
transferee to represent that it will not cause income from the noneconomic
residual interest to be attributable to a foreign permanent establishment or
fixed base.
H-1-8
Section 1.860E -1(c)(8) provides computational rules that a taxpayer may use
to qualify for safe harbor status under the formula test. Section
1.860E-1(c)(8)(i) provides that the transferee is presumed to pay tax at a rate
equal to the highest rate of tax specified in section 11(b). Some commentators
were concerned that this presumed rate of taxation was too high because it does
not take into consideration taxpayers subject to the alternative minimum tax
rate. In light of the comments received, this provision has been amended in the
final regulations to allow certain transferees that compute their taxable income
using the alternative minimum tax rate to use the alternative minimum tax rate
applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present
values in the formula test are to be computed using a discount rate equal to the
applicable Federal short-term rate prescribed by section 1274(d). This is a
change from the proposed regulation and Rev. Proc. 2001-12. In those
publications the provision stated that "present values are computed using a
discount rate equal to the applicable Federal rate prescribed in section 1274(d)
compounded semiannually" and that "[a] lower discount rate may be used if the
transferee can demonstrate that it regularly borrows, in the course of its trade
or business, substantial funds at such lower rate from an unrelated third
party." The IRS and the Treasury Department have learned that, based on this
provision, certain taxpayers have been attempting to use unrealistically low or
zero interest rates to satisfy the formula test, frustrating the intent of the
test. Furthermore, the Treasury Department and the IRS believe that a rule
allowing for a rate other than a rate based on an objective index would add
unnecessary complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if the
transferee can demonstrate that it regularly borrows substantial funds at such
lower rate, is not included in the final regulations; and the Federal short-term
rate has been substituted for the applicable Federal rate. To simplify
taxpayers' computations, the final regulations allow use of any of the published
short-term rates, provided that the present values are computed with a
corresponding period of compounding. With the exception of the provisions
relating to transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may choose to
apply the interest rate formula set forth in the proposed regulation and Rev.
Proc. 2001-12 for transfers occurring before August 19, 2002.
It is anticipated that when final regulations are adopted with respect to
[[Page 47453]]
H-1-9
FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a significant
economic impact on a substantial number of small entities. This certification is
based on the fact that it is unlikely that a substantial number of small
entities will hold REMIC residual interests. Therefore, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that sections
553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do
not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However,
other personnel from the IRS and Treasury Department participated in their
development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
H-1-10
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
X-0-00
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE
__________________, 200__
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Funding Corporation Series 2004-SP2
Re: Mortgage Loan Backed Certificates,
Series 2004-SP2, Class R-[ ]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by _______________________________ (the "Seller") to
_______________________________ (the "Purchaser") of $_____________ Initial
Certificate Principal Balance of Mortgage Loan Backed Certificates, Series
2004-SP2, Class R-[__] (the "Certificates"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of July 1, 2004 among Residential Asset Mortgage Products, Inc., as seller
(the "Depositor"), Residential Funding Corporation, as master servicer, and
JPMorgan Chase Bank, as trustee (the "Trustee"). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. No purpose of the Seller relating to the transfer of the
Certificate by the Seller to the Purchaser is or will be to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit H-1. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Seller has determined that the Purchaser
H-2-1
has historically paid its debts as they become due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Seller understands that the transfer of a
Class R Certificate may not be respected for United States income tax purposes
(and the Seller may continue to be liable for United States income taxes
associated therewith) unless the Seller has conducted such an investigation.
4. The Seller has no actual knowledge that the proposed
Transferee is not both a United States Person and a Permitted Transferee.
Very truly yours,
(Seller)
By:
--------------------------
Name:
------------------------
Title:
-----------------------
H-2-2
EXHIBIT I
FORM OF INVESTOR REPRESENTATION LETTER
______________, 20__
Residential Asset Mortgage Products, Inc
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2004-SP2
Re: Mortgage Loan Backed Certificates,
Series 2004-SP2, Class [B-__]
Ladies and Gentlemen:
_________________________ (the "Purchaser") intends to purchase
from ___________________________ (the "Seller") $_____________ Initial
Certificate Principal Balance of Mortgage Loan Backed Certificates, Series
2004-SP2, Class [B-__] (the "Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of July 1,
2004, among Residential Asset Mortgage Products, Inc., as seller (the
"Depositor"), Residential Funding Corporation, as master servicer (the "Master
Servicer"), and JPMorgan Chase Bank, as trustee (the "Trustee"). All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Purchaser hereby certifies, represents and
warrants to, and covenants with, the Depositor, the Trustee and the Master
Servicer that:
1. The Purchaser understands that (a) the Certificates
have not been and will not be registered or qualified under the
Securities Act of 1933, as amended (the "Act") or any state
securities law, (b) the Depositor is not required to so register
or qualify the Certificates, (c) the Certificates may be resold
only if registered and qualified pursuant to the provisions of
the Act or any state securities law, or if an exemption from such
registration and qualification is available, (d) the Pooling and
Servicing Agreement contains restrictions regarding the transfer
of the Certificates and (e) the Certificates will bear a legend
to the foregoing effect.
I-1
2. The Purchaser is acquiring the Certificates for its own
account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such
matters related to securities similar to the Certificates, such
that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic
risks of such an investment and (c) an "accredited investor"
within the meaning of Rule 501(a) promulgated pursuant to the
Act.
4. [Class B-1 only] The Purchaser has been furnished with,
and has had an opportunity to review (a) [a copy of the Private
Placement Memorandum, dated ___________________, 20__, relating
to the Certificates (b)] a copy of the Pooling and Servicing
Agreement and [b] [c] such other information concerning the
Certificates, the Mortgage Loans and the Depositor as has been
requested by the Purchaser from the Depositor or the Seller and
is relevant to the Purchaser's decision to purchase the
Certificates. The Purchaser has had any questions arising from
such review answered by the Depositor or the Seller to the
satisfaction of the Purchaser. [If the Purchaser did not purchase
the Certificates from the Seller in connection with the initial
distribution of the Certificates and was provided with a copy of
the Private Placement Memorandum (the "Memorandum") relating to
the original sale (the "Original Sale") of the Certificates by
the Depositor, the Purchaser acknowledges that such Memorandum
was provided to it by the Seller, that the Memorandum was
prepared by the Depositor solely for use in connection with the
Original Sale and the Depositor did not participate in or
facilitate in any way the purchase of the Certificates by the
Purchaser from the Seller, and the Purchaser agrees that it will
look solely to the Seller and not to the Depositor with respect
to any damage, liability, claim or expense arising out of,
resulting from or in connection with (a) error or omission, or
alleged error or omission, contained in the Memorandum, or (b)
any information, development or event arising after the date of
the Memorandum.]
5. The Purchaser has not and will not nor has it
authorized or will it authorize any person to (a) offer, pledge,
sell, dispose of or otherwise transfer any Certificate, any
interest in any Certificate or any other similar security to any
person in any manner, (b) solicit any offer to buy or to accept a
pledge, disposition of other transfer of any Certificate, any
interest in any Certificate or any other similar security from
any person in any manner, (c) otherwise approach or negotiate
with respect to any Certificate, any interest in any Certificate
or any other similar security with any person in any manner, (d)
make any general solicitation by means of general advertising or
in any other manner or (e) take any other action, that (as to any
of (a) through (e) above) would constitute a distribution of any
Certificate under the Act, that would render the disposition of
any Certificate a violation of Section 5 of the Act or any state
securities law, or that would require registration or
qualification pursuant
I-2
thereto. The Purchaser will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the
Pooling and Servicing Agreement.
6. The Purchaser hereby certifies, represents and warrants to,
and covenants with the Depositor, the Trustee and the Master
Servicer that the following statements in (a), (b), (c) or (d)
are correct:
(a) The Purchaser is not an employee benefit or other plan
subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code") (a "Plan"), or any other person (including an
investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan within the meaning of
the Department of Labor ("DOL") regulation at 29 C.F.R.
ss.2510.3-101; or
(b) The Purchaser is an insurance company; the source of
the funds being used by the Purchaser to acquire the Certificates
is an "insurance company general account"(within the meaning of
DOL Prohibited Transaction Class Exemption ("PTCE") 95-60; the
conditions set forth in Sections I and III of PTCE 95-60 have
been satisfied and the purchase, holding and transfer of
Certificates by or on behalf of the Purchaser are exempt under
PTCE 95-60; or
[For Class B-1 Certificates only: (c) The Purchaser has
acquired and is holding such Certificate in reliance on
Prohibited Transaction Exemption ("PTE") 94-29, 59 Fed. Reg.
14674 (March 29, 1994), as amended by PTE 97-34, 62 Fed. Reg.
39021 (July 21, 1997), PTE 2000-58, 65 Fed. Reg. 67765 (November
13, 2000), and PTE 2002-41, 67 Fed. Reg. 54487 (August 22, 2002)
(the "RFC Exemption"), and the Purchaser understands that there
are certain conditions to the availability of the RFC Exemption
including that such Certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Standard &
Poor's, Fitch or Xxxxx'x[; or]
[(d)] has provided the Trustee, the Depositor and the
Master Servicer with an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee, the Depositor and
the Master Servicer to the effect that the purchase of
Certificates is permissible under applicable law, will not
constitute or result in any non-exempt prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the
Trustee, the 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 the
Pooling and Servicing Agreement.
In addition, the Purchaser hereby certifies, represents
and warrants to, and covenants with, the Depositor, the Trustee
and the Master Servicer that the Purchaser will not transfer such
Certificates to any Plan or person unless either such Plan or
person meets the requirements set forth in either [(a), (b), (c)
or (d)] above.
I-3
Very truly yours,
(Purchaser)
By:
--------------------------
Name:
------------------------
Title:
-----------------------
I-4
EXHIBIT J
FORM OF TRANSFEROR REPRESENTATION LETTER
, 20
--------- --
Residential Asset Mortgage Products, Inc
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2004-SP2
Re: Mortgage Loan Backed Certificates,
Series 2004-SP2, Class [B-__]
Ladies and Gentlemen:
In connection with the sale by (the "Seller") to (the
"Purchaser") of $ Initial Certificate Principal Balance of Mortgage Loan Backed
Certificates, Series 2004- SP2, Class [R-__][B-__] (the "Certificates"), issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of July 1, 2004, among Residential Asset Mortgage
Products, Inc., as seller (the "Depositor"), Residential Funding Corporation, as
master servicer, and JPMorgan Chase Bank, as trustee (the "Trustee"). The Seller
hereby certifies, represents and warrants to, and covenants with, the Depositor
and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933 (the "Act"), that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law, or
that would require registration or qualification pursuant thereto. The Seller
will not act, in any manner set forth in the foregoing sentence with respect to
any Certificate. The Seller has not and will not
J-1
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of the Pooling and Servicing Agreement.
Very truly yours,
(Seller)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
J-2
EXHIBIT K
TEXT OF AMENDMENT TO POOLING AND SERVICING
AGREEMENT PURSUANT TO SECTION 11.01(E) FOR A
LIMITED GUARANTY
ARTICLE XII
Subordinate Certificate Loss Coverage; Limited Guaranty
Section 12.01. Subordinate Certificate Loss Coverage; Limited
Guaranty. (a) Subject to subsection (c) below, prior to the later of the third
Business Day prior to each Distribution Date or the related Determination Date,
the Master Servicer shall determine whether it or any Subservicer will be
entitled to any reimbursement pursuant to Section 4.02(a) on such Distribution
Date for Advances or Subservicer Advances previously made, (which will not be
Advances or Subservicer Advances that were made with respect to delinquencies
which were subsequently determined to be Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses) and, if so, the
Master Servicer shall demand payment from Residential Funding of an amount equal
to the amount of any Advances or Subservicer Advances reimbursed pursuant to
Section 4.02(a), to the extent such Advances or Subservicer Advances have not
been included in the amount of the Realized Loss in the related Mortgage Loan,
and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a).
(b) Subject to subsection (c) below, prior to the later of the
third Business Day prior to each Distribution Date or the related Determination
Date, the Master Servicer shall determine whether any Realized Losses (other
than Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
and Extraordinary Losses) will be allocated to the Class B Certificates on such
Distribution Date pursuant to Section 4.05, and, if so, the Master Servicer
shall demand payment from Residential Funding of the amount of such Realized
Loss and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a);
provided, however, that the amount of such demand in respect of any Distribution
Date shall in no event be greater than the sum of (i) the additional amount of
Accrued Certificate Interest that would have been paid for the Class B
Certificateholders on such Distribution Date had such Realized Loss or Losses
not occurred plus (ii) the amount of the reduction in the Certificate Principal
Balances of the Class B Certificates on such Distribution Date due to such
Realized Loss or Losses. Notwithstanding such payment, such Realized Losses
shall be deemed to have been borne by the Certificateholders for purposes of
Section 4.05. Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses and Extraordinary Losses allocated to the Class B Certificates
will not be covered by the Subordinate Certificate Loss Obligation.
(c) Demands for payments pursuant to this Section shall be made
prior to the later of the third Business Day prior to each Distribution Date or
the related Determination Date by the Master Servicer with written notice
thereof to the Trustee. The maximum amount that Residential Funding shall be
required to pay pursuant to this Section on any Distribution Date (the "Amount
K-1
Available") shall be equal to the lesser of (X) minus the sum of (i) all
previous payments made under subsections (a) and (b) hereof and (ii) all draws
under the Limited Guaranty made in lieu of such payments as described below in
subsection (d) and (Y) the then outstanding Certificate Principal Balances of
the Class B Certificates, or such lower amount as may be established pursuant to
Section 12.02. Residential Funding's obligations as described in this Section
are referred to herein as the "Subordinate Certificate Loss Obligation."
(d) The Trustee will promptly notify General Motors Acceptance
Corporation of any failure of Residential Funding to make any payments hereunder
and shall demand payment pursuant to the limited guaranty (the "Limited
Guaranty"), executed by General Motors Acceptance Corporation, of Residential
Funding's obligation to make payments pursuant to this Section, in an amount
equal to the lesser of (i) the Amount Available and (ii) such required payments,
by delivering to General Motors Acceptance Corporation a written demand for
payment by wire transfer, not later than the second Business Day prior to the
Distribution Date for such month, with a copy to the Master Servicer.
(e) All payments made by Residential Funding pursuant to this
Section or amounts paid under the Limited Guaranty shall be deposited directly
in the Certificate Account, for distribution on the Distribution Date for such
month to the Class B Certificateholders.
(f) The Depositor shall have the option, in its sole discretion,
to substitute for either or both of the Limited Guaranty or the Subordinate
Certificate Loss Obligation another instrument in the form of a corporate
guaranty, an irrevocable letter of credit, a surety bond, insurance policy or
similar instrument or a reserve fund; provided that (i) the Depositor obtains
(subject to the provisions of Section 10.01(f) as if the Depositor was
substituted for the Master Servicer solely for the purposes of such provision)
an Opinion of Counsel (which need not be an opinion of Independent counsel) to
the effect that obtaining such substitute corporate guaranty, irrevocable letter
of credit, surety bond, insurance policy or similar instrument or reserve fund
will not cause either (a) any federal tax to be imposed on the Trust Fund,
including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860(F)(a)(1) of the Code or on "contributions after
the startup date" under Section 860(G)(d)(1) of the Code or (b) the Trust Fund
to fail to qualify as a REMIC at any time that any Certificate is outstanding,
and (ii) no such substitution shall be made unless (A) the substitute Limited
Guaranty or Subordinate Certificate Loss Obligation is for an initial amount not
less than the then current Amount Available and contains provisions that are in
all material respects equivalent to the original Limited Guaranty or Subordinate
Certificate Loss Obligation (including that no portion of the fees,
reimbursements or other obligations under any such instrument will be borne by
the Trust Fund), (B) the long term debt obligations of any obligor of any
substitute Limited Guaranty or Subordinate Certificate Loss Obligation (if not
supported by the Limited Guaranty) shall be rated at least the lesser of (a) the
rating of the long term debt obligations of General Motors Acceptance
Corporation as of the date of issuance of the Limited Guaranty and (b) the
rating of the long term debt obligations of General Motors Acceptance
Corporation at the date of such substitution and (C) the Depositor obtains
written confirmation from each nationally recognized credit rating agency that
rated the Class B Certificates at the request of the Depositor that such
substitution shall not lower the rating on the Class B Certificates below the
lesser of (a) the then-current rating assigned to the Class B Certificates by
such rating agency and (b) the original rating assigned to the Class B
Certificates by such rating
K-2
agency. Any replacement of the Limited Guaranty or Subordinate Certificate Loss
Obligation pursuant to this Section shall be accompanied by a written Opinion of
Counsel to the substitute guarantor or obligor, addressed to the Master Servicer
and the Trustee, that such substitute instrument constitutes a legal, valid and
binding obligation of the substitute guarantor or obligor, enforceable in
accordance with its terms, and concerning such other matters as the Master
Servicer and the Trustee shall reasonably request. Neither the Depositor, the
Master Servicer nor the Trustee shall be obligated to substitute for or replace
the Limited Guaranty or Subordinate Certificate Loss Obligation under any
circumstance.
Section 12.02. Amendments Relating to the Limited Guaranty.
Notwithstanding Sections 11.01 or 12.01: (i) the provisions of this Article XII
may be amended, superseded or deleted, (ii) the Limited Guaranty or Subordinate
Certificate Loss Obligation may be amended, reduced or canceled, and (iii) any
other provision of this Agreement which is related or incidental to the matters
described in this Article XII may be amended in any manner; in each case by
written instrument executed or consented to by the Depositor and Residential
Funding but without the consent of any Certificateholder and without the consent
of the Master Servicer or the Trustee being required unless any such amendment
would impose any additional obligation on, or otherwise adversely affect the
interests of, the Master Servicer or the Trustee, as applicable; provided that
the Depositor shall also obtain a letter from each nationally recognized credit
rating agency that rated the Class B Certificates at the request of the
Depositor to the effect that such amendment, reduction, deletion or cancellation
will not lower the rating on the Class B Certificates below the lesser of (a)
the then-current rating assigned to the Class B Certificates by such rating
agency and (b) the original rating assigned to the Class B Certificates by such
rating agency, unless (A) the Holder of 100% of the Class B Certificates is
Residential Funding or an Affiliate of Residential Funding, or (B) such
amendment, reduction, deletion or cancellation is made in accordance with
Section 11.01(e) and, provided further that the Depositor obtains (subject to
the provisions of Section 10.01(f) as if the Depositor was substituted for the
Master Servicer solely for the purposes of such provision), in the case of a
material amendment or supersession (but not a reduction, cancellation or
deletion of the Limited Guaranty or the Subordinate Certificate Loss
Obligation), an Opinion of Counsel (which need not be an opinion of Independent
counsel) to the effect that any such amendment or supersession will not cause
either (a) any federal tax to be imposed on the Trust Fund, including without
limitation, any federal tax imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or on "contributions after the startup date" under
Section 860G(d)(1) of the Code or (b) the Trust Fund to fail to qualify as a
REMIC at any time that any Certificate is outstanding. A copy of any such
instrument shall be provided to the Trustee and the Master Servicer together
with an Opinion of Counsel that such amendment complies with this Section 12.02.
K-3
EXHIBIT L
FORM OF LIMITED GUARANTY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
Mortgage Loan Backed Certificates
Series 2004-SP2
_____________, 200__
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2004-SP2
Ladies and Gentlemen:
WHEREAS, Residential Funding Corporation, a Delaware corporation
("Residential Funding"), an indirect wholly-owned subsidiary of General Motors
Acceptance Corporation, a New York corporation ("GMAC"), plans to incur certain
obligations as described under Section 12.01 of the Pooling and Servicing
Agreement dated as of July 1, 2004, (the "Servicing Agreement"), among
Residential Asset Mortgage Products, Inc. (the "Depositor"), Residential Funding
and JPMorgan Chase Bank (the "Trustee") as amended by Amendment No. ___ thereto,
dated as of ________, with respect to the Mortgage Loan Backed Certificates,
Series 2004-SP2 (the "Certificates"); and
WHEREAS, pursuant to Section 12.01 of the Servicing Agreement,
Residential Funding agrees to make payments to the Holders of the Class B
Certificates with respect to certain losses on the Mortgage Loans as described
in the Servicing Agreement; and
WHEREAS, GMAC desires to provide certain assurances with respect
to the ability of Residential Funding to secure sufficient funds and faithfully
to perform its Subordinate Certificate Loss Obligation;
NOW THEREFORE, in consideration of the premises herein contained
and certain other good and valuable consideration, the receipt of which is
hereby acknowledged, GMAC agrees as follows:
1. Provision of Funds. (a) GMAC agrees to contribute and deposit
in the Certificate Account on behalf of Residential Funding (or otherwise
provide to Residential Funding, or to cause to be made available to Residential
Funding), either directly or through a subsidiary, in any case prior to the
related Distribution Date, such moneys as may be required by Residential Funding
to perform its Subordinate Certificate Loss Obligation when and as the same
arises from
L-1
time to time upon the demand of the Trustee in accordance with Section 12.01 of
the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall be
absolute, irrevocable and unconditional and shall not be affected by the
transfer by GMAC or any other person of all or any part of its or their interest
in Residential Funding, by any insolvency, bankruptcy, dissolution or other
proceeding affecting Residential Funding or any other person, by any defense or
right of counterclaim, set-off or recoupment that GMAC may have against
Residential Funding or any other person or by any other fact or circumstance.
Notwithstanding the foregoing, GMAC's obligations under clause (a) shall
terminate upon the earlier of (x) substitution for this Limited Guaranty
pursuant to Section 12.01(f) of the Servicing Agreement, or (y) the termination
of the Trust Fund pursuant to the Servicing Agreement.
2. Waiver. GMAC hereby waives any failure or delay on the part of
Residential Funding, the Trustee or any other person in asserting or enforcing
any rights or in making any claims or demands hereunder. Any defective or
partial exercise of any such rights shall not preclude any other or further
exercise of that or any other such right. GMAC further waives demand,
presentment, notice of default, protest, notice of acceptance and any other
notices with respect to this Limited Guaranty, including, without limitation,
those of action or nonaction on the part of Residential Funding or the Trustee.
3. Modification, Amendment and Termination. This Limited Guaranty
may be modified, amended or terminated only by the written agreement of GMAC and
the Trustee and only if such modification, amendment or termination is permitted
under Section 12.02 of the Servicing Agreement. The obligations of GMAC under
this Limited Guaranty shall continue and remain in effect so long as the
Servicing Agreement is not modified or amended in any way that might affect the
obligations of GMAC under this Limited Guaranty without the prior written
consent of GMAC.
4. Successor. Except as otherwise expressly provided herein, the
guarantee herein set forth shall be binding upon GMAC and its respective
successors.
5. Governing Law. This Limited Guaranty shall be governed by the
laws of the State of New York.
6. Authorization and Reliance. GMAC understands that a copy of
this Limited Guaranty shall be delivered to the Trustee in connection with the
execution of Amendment No. 1 to the Servicing Agreement and GMAC hereby
authorizes the Depositor and the Trustee to rely on the covenants and agreements
set forth herein.
7. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meaning given them in the Servicing Agreement.
8. Counterparts. This Limited Guaranty may be executed in any
number of counterparts, each of which shall be deemed to be an original and such
counterparts shall constitute but one and the same instrument.
L-2
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be
executed and delivered by its respective officers thereunto duly authorized as
of the day and year first above written.
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
-----------------------------
Acknowledged by:
JPMORGAN CHASE BANK
as Trustee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
RESIDENTIAL FUNDING CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
L-3
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
__________________, 20____
Residential Asset Mortgage
Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Asset Mortgage Products, Inc., Series 2004-SP2
Re: Mortgage Loan Backed Certificates, Series 2004-SP2
Assignment of Mortgage Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the assignment
by _________________ (the "Trustee") to _______________________ (the "Lender")
of _______________ (the "Mortgage Loan") pursuant to Section 3.13(d) of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of July 1, 2004, among Residential Asset Mortgage Products, Inc., as seller
(the "Depositor"), Residential Funding Corporation, as master servicer, and the
Trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Lender hereby certifies,
represents and warrants to, and covenants with, the Master Servicer and the
Trustee that:
(i) the Mortgage Loan is secured by Mortgaged Property located in a
jurisdiction in which an assignment in lieu of satisfaction is required to
preserve lien priority, minimize or avoid mortgage recording taxes or otherwise
comply with, or facilitate a refinancing under, the laws of such jurisdiction;
(ii) the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and the form of the transaction is solely to
comply with, or facilitate the transaction under, such local laws;
(iii) the Mortgage Loan following the proposed assignment will be
modified to have a rate of interest at least 0.25 percent below or above the
rate of interest on such Mortgage Loan prior to such proposed assignment; and
M-1
(iv) such assignment is at the request of the borrower under the
related Mortgage Loan.
Very truly yours,
(Lender)
By:
---------------------------------
Name:
-----------------------
Title:
------------------------------
M-2
EXHIBIT N
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
===============================================
===============================================
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee and the Master Servicer (as defined in the Pooling and
Servicing Agreement (the "Agreement"), dated as of July 1, 2004, among
Residential Funding Corporation as Master Servicer, Residential Asset Mortgage
Products, Inc. as depositor pursuant to Section 5.02 of the Agreement and
JPMorgan Chase Bank, as trustee, as follows:
a. The Buyer understands that the Rule 144A Securities
have not been registered under the 1933 Act or the securities laws of
any state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and
risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Seller, the Trustee or the Servicer.
N-1
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Rule
144A Securities under the 1933 Act or that would render the disposition
of the Rule 144A Securities a violation of Section 5 of the 1933 Act or
require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that
term is defined in Rule 144A under the 1933 Act and has completed either
of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. The Buyer is aware that the sale to it is being made in
reliance on Rule 144A. The Buyer is acquiring the Rule 144A Securities
for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer
a. is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code") (a "Plan"), or
any other person (including an investment manager, a named fiduciary or
a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan; or
b. is an insurance company, the source of funds to be used
by it to purchase the Certificates is an "insurance company general
account" (within the meaning of DOL Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the conditions set forth in PTCE 95-60
have been satisfied; or
[Class B-1 Certificates only: c. The Purchaser has
acquired and is holding such Certificate in reliance on Prohibited
Transaction Exemption ("PTE") 94-29, 59 Fed. Reg. 14674 (March 29,
1994), as amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE
2000-58, 65 Fed. Reg. 67765 (November 13, 2000), and PTE 2002-41, 67
Fed. Reg. 54487 (August 22, 2002) (the "RFC Exemption"), and the
Purchaser understands that there are certain conditions to the
availability of the RFC Exemption including that such Certificate must
be rated, at the time of purchase, not lower than "BBB-" (or its
equivalent) by Standard & Poor's, Fitch or Moody's[; or]
N-2
[d.] has provided the Trustee, the Depositor and the
Master Servicer with an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee, the Depositor and the Master
Servicer to the effect that the purchase of Certificates is permissible
under applicable law, will not constitute or result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code and will
not subject the Trustee, the 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
the Pooling and Servicing Agreement.
4. This document may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
N-2
IN WITNESS WHEREOF, each of the parties has executed this
document as of the date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
Date: Date:
--------------------------- ---------------------------
N-3
ANNEX 1 TO EXHIBIT N
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $______________________ in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto.
N-4
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined
by a State or Federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Adviser. The Buyer is an investment adviser
registered under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed
by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political subdivisions, or
any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees, or (b) employee
benefit plans within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, but is not a trust fund that
includes as participants individual retirement accounts or H.R. 10
plans.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
N-5
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
Print Name of Buyer
By:
-----------------------------------
Name:
Title:
Date:
--------------------------------------
N-6
ANNEX 2 TO EXHIBIT N
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $___________________ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each
of the parties to which this certification is made are relying and will continue
to rely on the statements made herein
N-7
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Buyer
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
IF AN ADVISER:
Print Name of Buyer
Date:
-----------------------------
N-8
EXHIBIT O
[Reserved]
O-1
EXHIBIT P
SCHEDULE OF DISCOUNT FRACTIONS
P-1
EXHIBIT Q
FORM OF REQUEST FOR EXCHANGE
[Date]
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Re: Residential Funding Mortgage Securities I, Inc.
Mortgage Loan Backed Certificates, Series 0000-XX0
Xxxxxxxxxxx Funding Corporation, as the Holder of a ____% Percentage
Interest of the [Class/Subclass] of A-II-IO Certificates, hereby requests the
Trustee to exchange the above-referenced Certificates for the Subclasses
referred to below:
1. A-II-IO Certificates, corresponding to the following
Uncertificated REMIC Regular Interests: [List numbers
corresponding to the related loans and Pool Strip Rates from the
Mortgage Loan Schedule]. The Initial Subclass Notional Amount and
the initial Pass-Through Rate on the Class A-II-IO Certificates
will be $___________ and _____%, respectively.
[2. Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate all of
the Uncertificated REMIC Regular Interests represented by the A-II-IO
Certificates surrendered for exchange.
The capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement, dated as of _______,
among Residential Funding Mortgage Securities I, Inc., Residential Funding
Corporation and JPMorgan Chase Bank, as trustee.
RESIDENTIAL FUNDING
CORPORATION
By:
--------------------------
Name:
Title:
Q-1
EXHIBIT R-1
FORM OF FORM 10-K CERTIFICATE
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of the trust (the "Trust") created pursuant to the Pooling and Servicing
Agreement dated __________ (the "Agreement") among Residential Asset Mortgage
Products, Inc. (the "Depositor"), Residential Funding Corporation (the "Master
Servicer") and JPMorgan Chase Bank (the "Trustee");
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer under the Agreement for inclusion
in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the Agreement and based upon my knowledge and the annual
compliance review required under the Agreement, and except as disclosed in the
report, the Master Servicer has fulfilled its obligations under the Agreement;
and
5. The reports disclose all significant deficiencies relating to the
Master Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
as set forth in the Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the Trustee].
Date:____________
_________________________________*
[Signature]
Name:
Title:
* - to be signed by the senior officer in charge of the servicing functions of
the Master Servicer
X-0-0
XXXXXXX X-0
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of JPMorgan Chase Bank (the
"Trustee") certifies that:
1. The Trustee has performed all of the duties specifically required to
be performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated _________ (the "Agreement") by and among Residential Funding
Mortgage Securities I, Inc. (the "Depositor"), Residential Funding Corporation
(the "Master Servicer") and the Trustee in accordance with the standards set
forth therein.
2. Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is provided by the
Trustee pursuant to Section 4.03(d) of the Agreement is accurate as of the last
day of the 20___ calendar year.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
IN WITNESS THEREOF, I have duly executed this certificate as of
____________, 20___
Name:_____________
Title:
R-2-1
EXHIBIT S
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING
AGENCIES RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Term (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
S-1
