EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC.,
Company,
GMAC MORTGAGE CORPORATION,
Servicer
and
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 21, 2005
GMACM Mortgage Loan Trust 2005-J1
Residential Asset Mortgage Products,
Inc.GMACM
Mortgage Pass-Through Certificates, Series 2005-J1
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS...............................................................3
Section 1.01.
Definitions.......................................................3
Section 1.02.
Use of Words and Phrases.........................................37
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES..........38
Section 2.01.
Conveyance of Mortgage Loans.....................................38
Section 2.02.
Acceptance by Trustee............................................41
Section 2.03.
Representations, Warranties and Covenants of the Servicer........42
Section 2.04.
Representations and Warranties of the Seller.....................43
Section 2.05.
Execution and Authentication of Certificates.....................44
Section 2.06.
Purposes and Powers of the Trust Fund............................44
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS...........................45
Section 3.01.
Servicer to Act as Servicer......................................45
Section 3.02.
Subservicing Agreements Between Servicer and Subservicers;
Enforcement of Subservicers' and Seller's Obligations............46
Section 3.03.
Successor Subservicers...........................................46
Section 3.04.
Liability of the Servicer........................................47
Section 3.05.
No Contractual Relationship Between Subservicer and Trustee
or Certificateholders............................................47
Section 3.06.
Assumption or Termination of Subservicing Agreements by
Trustee..........................................................47
Section 3.07.
Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account................................................47
Section 3.08.
Subservicing Accounts; Servicing Accounts........................49
Section 3.09.
Access to Certain Documentation and Information Regarding
the Mortgage Loans...............................................50
Section 3.10.
Permitted Withdrawals from the Custodial Account.................51
Section 3.11.
Maintenance of the Primary Insurance Policies; Collections
Thereunder.......................................................52
Section 3.12.
Maintenance of Hazard Insurance and Omissions and Fidelity
Coverage.........................................................53
Section 3.13.
Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.....................54
Section 3.14.
Realization Upon Defaulted Mortgage Loans........................56
Section 3.15.
Trustee to Cooperate; Release of Mortgage Notes..................58
Section 3.16.
Servicing and Other Compensation; Compensating Interest..........59
Section 3.17.
Periodic Filings with the Securities and Exchange
Commission; Additional Information...............................60
Section 3.18.
Annual Statement as to Compliance................................61
Section 3.19.
Annual Independent Public Accountants' Servicing Report..........61
Section 3.20.
Rights of the Company in Respect of the Servicer.................62
Section 3.21.
Administration of Buydown Funds..................................62
Section 3.22.
Advance Facility.................................................62
ARTICLE IV
PAYMENTS TO
CERTIFICATEHOLDERS...........................................63
Section 4.01.
Payment Account..................................................63
Section 4.02.
Distributions....................................................64
Section 4.03.
Statements to Certificateholders.................................71
Section 4.04.
Distribution of Reports to the Trustee and the Company;
Advances by the Servicer.........................................72
Section 4.05.
Allocation of Realized Losses....................................73
Section 4.06.
Reports of Foreclosures and Abandonment of Mortgaged Property....74
Section 4.07.
Optional Purchase of Defaulted Mortgage Loans....................74
ARTICLE V
THE
CERTIFICATES.........................................................75
Section 5.01.
The Certificates.................................................75
Section 5.02.
Registration of Transfer and Exchange of Certificates............76
Section 5.03.
Mutilated, Destroyed, Lost or Stolen Certificates................81
Section 5.04.
Persons Deemed Owners............................................81
Section 5.05.
Appointment of Paying Agent......................................82
Section 5.06.
Optional Purchase of Certificates................................82
ARTICLE VI
THE COMPANY AND THE
SERVICER.............................................83
Section 6.01.
Respective Liabilities of the Company and the Servicer...........83
Section 6.02.
Merger or Consolidation of the Company or the Servicer;
Assignment of Rights and Delegation of Duties by Servicer........83
Section 6.03.
Limitation on Liability of the Company, the Servicer and
Others...........................................................84
Section 6.04.
Company and Servicer Not to Resign...............................85
ARTICLE VII
DEFAULT..................................................................85
Section 7.01.
Events of Default................................................85
Section 7.02.
Trustee to Act; Appointment of Successor.........................87
Section 7.03.
Notification to Certificateholders...............................88
Section 7.04.
Waiver of Events of Default......................................88
ARTICLE VIII
CONCERNING THE
TRUSTEE...................................................89
Section 8.01.
Duties of Trustee................................................89
Section 8.02.
Certain Matters Affecting the Trustee............................90
Section 8.03.
Trustee Not Liable for Certificates or Mortgage Loans............91
Section 8.04.
Trustee May Own Certificates.....................................92
Section 8.05.
Servicer to Pay Trustee's Fees and Expenses; Indemnification.....92
Section 8.06.
Eligibility Requirements for Trustee.............................92
Section 8.07.
Resignation and Removal of the Trustee...........................93
Section 8.08.
Successor Trustee................................................94
Section 8.09.
Merger or Consolidation of Trustee...............................94
Section 8.10.
Appointment of Co-Trustee or Separate Trustee....................94
Section 8.11.
Appointment of Custodians........................................95
Section 8.12.
Appointment of Office or Agency..................................95
Section 8.13.
U.S.A. Patriot Act...............................................96
ARTICLE IX
TERMINATION..............................................................96
Section 9.01.
Termination Upon Purchase by the Servicer or Liquidation of
All Mortgage Loans...............................................96
Section 9.02.
Additional Termination Requirements..............................98
ARTICLE X
REMIC
PROVISIONS.........................................................99
Section 10.01.
REMIC Administration.............................................99
Section 10.02.
Servicer, REMIC Administrator and Trustee Indemnification.......101
Section 10.03.
Designation of REMIC(s).........................................102
Section 10.04.
Compliance with Withholding Requirements........................102
ARTICLE XI
MISCELLANEOUS
PROVISIONS................................................102
Section 11.01.
Amendment.......................................................102
Section 11.02.
Recordation of Agreement; Counterparts..........................104
Section 11.03.
Limitation on Rights of Certificateholders......................104
Section 11.04.
Governing Law...................................................105
Section 11.05.
Notices.........................................................105
Section 11.06.
Required Notices to Rating Agency and Subservicer...............106
Section 11.07.
Severability of Provisions......................................106
Section 11.08.
Supplemental Provisions for Resecuritization....................107
Section 11.09.
Allocation of Voting Rights.....................................107
Section 11.10.
Non-Petition....................................................107
EXHIBITS
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Exhibit
A-1:
Exhibit A-2:
Exhibit A-3:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G-1:
Exhibit G-2:
Exhibit H:
Exhibit I:
Exhibit J:
Exhibit K:
Exhibit L:
Exhibit M:
Exhibit N-1
Exhibit N-2
Exhibit O:
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Form of Class A
Certificate
Form of Class IO Certificate
Form of Class PO Certificate
Form of Class M Certificate
Form of Class B Certificate
Form of Class R Certificate
Mortgage Loan Schedule
Form of Request for Release
Form of Transfer Affidavit and Agreement
Form of Transferor Certificate
Form of Investor Representation Letter
Form of Transferor Representation Letter
Form of Rule 144A Investment Representation Letter
Form of Lender Certification for Assignment of Mortgage Loan
Information to be Included in Remittance Report
Form of Custodian Certification
Form of Form 10-K Certification
Form of Back-Up Certification to Form 10-K Certificate
Schedule of Discount Fractions
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This
is the Pooling and Servicing Agreement, dated as of November 21,
2005 (the “Pooling and Servicing Agreement” or
“Agreement”), among RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC., as the company (together with its permitted
successors and assigns, the “Company”), GMAC MORTGAGE
CORPORATION, as servicer (together with its permitted successors
and assigns, the “Servicer”), and DEUTSCHE BANK
NATIONAL TRUST COMPANY, a banking association organized under the
laws of the United States, as Trustee (together with its permitted
successors and assigns, the “Trustee”).
PRELIMINARY STATEMENT:
The
Company intends to sell mortgage-backed pass-through certificates
(collectively, the “Certificates”), to be issued
hereunder in twenty-four Classes, which in the aggregate will
evidence the entire beneficial ownership interest in the Mortgage
Loans (as defined herein) and certain other related
assets.
REMIC
As
provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Mortgage
Loans and certain other related assets subject to this Agreement as
a real estate mortgage investment conduit (a “REMIC”)
for federal income tax purposes. The Class R Certificates will
represent the sole Class of “residual interests” in the
REMIC or 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 and Month of Final Scheduled Distribution Date for
each Class of Certificates comprising the interests representing
“regular interests” in the REMIC and of 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 Maturity
Date.
CLASS DESIGNATION
FINAL
FOR THE REMIC REGULAR
AGGREGATE INITIAL
SCHEDULED
INTEREST AND THE
TYPE OF
PASS-THROUGH
CLASS PRINCIPAL
DISTRIBUTION
CLASS R CERTIFICATES
INTEREST
RATE
BALANCE
FEATURES
DATE
Class A-1
Regular
5.50%
$ 25,052,000.00
Senior
December 2035
Class A-2
Regular
5.50%
$ 75,000,000.00
Senior
December 2035
Class A-3
Regular
5.50%
$4,948,000.00
Senior
December 2035
Class A-4
Regular
5.50%
$149,760,000.00
Super Senior
December 2035
Class A-5
Regular
5.50%
$28,678,000.00
Senior
December 2035
Class A-6
Regular
6.00%
$5,542,000.00
Senior
December 2035
Class A-7
Regular
6.00%
$5,541,416.00
Senior
December 2035
Class A-8
Regular
0.00
$1,007,584.00
Senior/Principal Only
December 2035
Class A-9
Regular
5.50%
$26,168,000.00
Senior/Lockout
December 2035
Class A-10
Regular
5.50%
$ 20,149,000.00
Senior /Lockout
December 2035
Class A-11
Regular
5.50%
$ 17,585,000.00
Senior /Lockout
December 2035
Class A-12
Regular
5.50%
$35,000,000.00
Super Senior/Lockout
December 2035
Class A-13
5.50%
$10,251,455.00
Senior/Lockout
December 2035
Class A-14
Regular
5.50%
$
51,325,066.00
Senior /Lockout
December 2035
Class A-15
Regular
5.50%
$ 1,225,000.00
Senior Support/Lockout
December 2035
Class A-16
Regular
5.50%
$ 3,000,000.00
Senior Support
December 2035
Class A-17
Regular
5.50%
$34,831,988.00
Senior
December 2035
Class A-18
Regular
6.00%
$ 9,166,666.00
Senior
December 2035
Class A-19
Regular
5.50%
$ 833,334.00
Senior/Principal Only
December 2035
Class PO
Regular
0.00
$2,043,527.11
Senior/Principal Only
December 2035
Class IO
Regular
Variable(1)
(1)
Senior/Interest Only
December 2035
Class M-1
Regular
5.50%
$10,510,013.00
Subordinate
December 2035
Class M-2
Regular
5.50%
$ 3,678,504.00
Subordinate
December 2035
Class M-3
Regular
5.50%
$,
1,576,502.00
Subordinate
December 2035
Class B-1
Regular
5.50%
$
1,051,002.00
Subordinate
December 2035
Class B-2
Regular
5.50%
$
788,251.00
Subordinate
December 2035
Class B-3
Regular
5.50%
$
788,252.90
Subordinate
December 2035
Component II
of the Class R(2)
Residual
5.50%
$
100.00
Senior/Residual
December 2035
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(1)
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With respect to
the Class IO Certificates and any Distribution Date, a rate
equal to the weighted average of the Pool Strip Rate of each
Non-Discount Mortgage Loan weighted on the basis of the respective
Stated Principal Balances of such Mortgage Loans 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). The initial pass through rate on the Class IO
Certificates is approximately 0.19729% per annum.
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(2)
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Component II of
the Class R Certificates shall be entitled to receive the
applicable Residual Distribution Amount. Component II of the
Class R Certificates shall not be entitled to receive any
distributions of interest or principal.
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In
consideration of the mutual agreements herein contained, the
Company, the Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions
.
Whenever
used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in
this Article.
Accrued Certificate Interest : With respect to each
Distribution Date and any Class of Certificates, other than
Principal Only Certificates, interest accrued during the related
Interest Accrual Period at the related Pass-Through Rate on the
Certificate Principal Balance or Notional Amount, as applicable,
thereof immediately prior to such Distribution Date. Accrued
Certificate Interest on each Class of Certificates will be
calculated on the basis of a 360-day year, consisting of twelve
30-day months.
With
respect to each Distribution Date, Accrued Certificate Interest on
any Class of Certificates will be reduced by the amount
of:
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(i)
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Prepayment
Interest Shortfalls on the Mortgage Loans prepaid during the prior
calendar month and, in the case of a Principal Prepayment in Full,
during the related Prepayment Period (to the extent not offset by
the Servicer with a payment of Compensating Interest),
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(ii)
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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 (including Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses and
Extraordinary Losses) not allocated solely to one or more specific
Classes of Certificates pursuant to Section 4.05,
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(iii)
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the interest
portion of Advances that were made with respect to delinquencies
related to Mortgage Loans or REO Property that were ultimately
determined to be Excess Special Hazard Losses, Excess Fraud Losses,
Excess Bankruptcy Losses or Extraordinary Losses, and
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(iv)
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any other
interest shortfalls on the Mortgage Loans 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,
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with all such reductions
allocated among all of the Certificates in proportion to their
respective amounts of Accrued Certificate Interest payable on such
Distribution Date absent such 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.
Advance: As to any Mortgage Loan, any advance
made by the 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.
Amount Held for Future Distribution : With respect to any
Distribution Date, the total of the amounts held in the Custodial
Account at the close of business on the related Determination Date
on account of (i) Liquidation Proceeds, Subsequent Recoveries,
Insurance Proceeds, Curtailments, Mortgage Loan purchases made
pursuant to Section 2.02, 2.04 or 4.07 and Mortgage Loan
substitutions made pursuant to Section 2.04 received or made
in the month of such Distribution Date (other than such Liquidation
Proceeds, Insurance Proceeds, Subsequent Recoveries and purchases
of Mortgage Loans that the Servicer has deemed to have been
received in the preceding month in accordance with
Section 3.07(b)), and Principal Prepayments in Full received
or made after the related Prepayment Period, and (ii) payments
which represent early receipt of scheduled payments of principal
and interest due on a date or dates subsequent to the related Due
Date.
Appraised Value : As to any Mortgaged Property, the lesser
of (i) the appraised value of such Mortgaged Property based
upon the appraisal made at the time of the origination of the
related Mortgage Loan, and (ii) the sales price of the
Mortgaged Property at such time of origination, except in the case
of a Mortgaged Property securing a refinanced or modified Mortgage
Loan as to which it is either the appraised value determined above
or the appraised value determined in an appraisal at the time of
refinancing or modification, as the case may be, provided that if
permitted by the applicable underwriting standards of GMACM, the
Appraised Value shall be the value of the Mortgaged Property as
stated by the Mortgagor.
Assignment : An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage
Loan to the Trustee for the benefit of Certificateholders, which
assignment, notice of transfer or equivalent instrument may be in
the form of one or more blanket assignments covering Mortgages
secured by Mortgaged Properties located in the same county, if
permitted by law and accompanied by an Opinion of Counsel to that
effect.
Assignment of Proprietary Lease : With respect to a
Cooperative Loan, the assignment of the related Cooperative Lease
from the Mortgagor to the originator of the Cooperative
Loan.
Available Distribution Amount : With respect to any
Distribution Date, an amount equal to (a) the sum of
(i) the amount relating to the Mortgage Loans on deposit in
the Custodial Account as of the close of business on the
immediately preceding Determination Date, including any Subsequent
Recoveries, and amounts deposited in the Custodial Account in
connection with the substitution of Qualified Substitute Mortgage
Loans, (ii) the amount of any Advance made on the immediately
preceding Payment Account Deposit Date, (iii) any amount
deposited in the Payment Account on the related Payment Account
Deposit Date pursuant to the second paragraph of
Section 3.12(a), (iv) any amount deposited in the Payment
Account pursuant to Section 4.07, and (v) any amount that
the Servicer is not permitted to withdraw from the Custodial
Account pursuant to Section 3.16(e), reduced by (b) the
sum as of the close of business on the immediately preceding
Determination Date of (w) aggregate Foreclosure Profits,
(x) the Amount Held for Future Distribution and (y) amounts
permitted to be withdrawn by the Servicer from the Custodial
Account in respect of the Mortgage Loans pursuant to clauses
(ii)-(x), inclusive, of Section 3.10(a).
Bankruptcy Amount : As of any date of determination prior to
the first anniversary of the Cut-off Date, an amount equal to the
excess, if any, of (A) $102,776 over (B) the aggregate amount of
Bankruptcy Losses allocated solely to one or more specific Classes
of Certificates in accordance with Section 4.05. As of any
date of determination on or after the first anniversary of the
Cut-off Date, an amount equal to the excess, if any, of:
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(1)
the lesser of (a) the Bankruptcy Amount calculated as of the
close of business on the Business Day immediately preceding the
most recent anniversary of the Cut-off Date coinciding with or
preceding such date of determination (or, if such date of
determination is an anniversary of the Cut-off Date, the Business
Day immediately preceding such date of determination) (for purposes
of this definition, the “Relevant Anniversary”) and
(b) the greatest of:
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(A)
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the
greater of (i) 0.0006 times the aggregate principal balance of
all the Mortgage Loans in the Mortgage Pool as of the Relevant
Anniversary having a Loan-to-Value Ratio at origination which
exceeds 75% and (ii) $100,000;
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(B)
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(i) if the aggregate principal balance of the Non-Primary
Residence Loans as of the Relevant Anniversary is less than 10% of
the Stated Principal Balance of the Mortgage Loans as of the
Relevant Anniversary, $0.00, or (ii) if the aggregate
principal balance of the Non-Primary Residence Loans as of the
Relevant Anniversary is equal to or greater than 10% of the Stated
Principal Balance of the Mortgage Loans as of the Relevant
Anniversary, the sum of (I) the aggregate principal balance of the
Non-Primary Residence Loans with a Loan-to-Value Ratio of greater
than 80.00% but less than or equal to 90.00%, times 0.25%, (II) the
aggregate principal balance of the Non-Primary Residence Loans with
a Loan-to-Value Ratio of greater than 90.00% but less than or equal
to 95.00%, times 0.50%, and (III) the aggregate principal balance
of the Non-Primary Residence Loans with a Loan-to-Value Ratio of
greater than 95.00% times 0.75%, in each case as of the Relevant
Anniversary; and
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(C)
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the
greater of (i) the product of (x) an amount equal to the
largest difference in the related Monthly Payment for any
Non-Primary Residence Loan remaining in the Mortgage Pool which had
an original Loan-to-Value Ratio of 80% or greater that would result
if the Net Mortgage Rate thereof was equal to the weighted average
(based on the principal balance of the Mortgage Loans as of the
Relevant Anniversary) of the Net Mortgage Rates of all Outstanding
Mortgage Loans as of the Relevant Anniversary less 1.25% per annum,
(y) a number equal to the weighted average remaining term to
maturity, in months, of all Non-Primary Residence Loans remaining
in the Mortgage Pool as of the Relevant Anniversary, and
(z) one plus the quotient of the number of all Non-Primary
Residence Loans remaining in the Mortgage Pool divided by the total
number of Outstanding Mortgage Loans in the Mortgage Pool as of the
Relevant Anniversary, and (ii) $50,000; S
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over
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(2)
the aggregate amount of Bankruptcy Losses allocated solely to one
or more specific Classes of Certificates in accordance with
Section 4.05 since the Relevant Anniversary.
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The
Bankruptcy Amount may be further reduced by the Servicer (including
accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Servicer shall
(i) obtain written confirmation from each Rating Agency that
such reduction shall 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 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 Servicer has notified the Trustee in writing that the
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
Servicer or a Subservicer, in either case without giving effect to
any Debt Service Reduction.
Book-Entry Certificate : Any Certificate registered in the
name of the Depository or its nominee.
Business Day : Any day other than (i) a Saturday or a
Sunday, or (ii) a day on which banking institutions in the
State of New York, State of California or the Commonwealth of
Pennsylvania (and such other state or states in which the Custodial
Account or the Payment Account are at the time located) are
required or authorized by law or executive order to be
closed.
Buydown Account: As defined in Section
3.21(a).
Buydown Funds : Any amount contributed by the seller of a
Mortgaged Property, the Company or other source in order to enable
the Mortgagor to reduce the payments required to be made from the
Mortgagor’s funds in the early years of a Mortgage Loan.
Buydown Funds are not part of the Trust Fund prior to deposit into
the Custodial Account or Payment Account.
Buydown Mortgage Loan : Any Mortgage Loan as to which a
specified amount of interest is paid out of related Buydown Funds
in accordance with a related buydown agreement.
Buydown Period: As defined in Section
3.21(b).
Cash Liquidation : As to any defaulted Mortgage Loan other
than a Mortgage Loan as to which an REO Acquisition occurred, a
determination by the Servicer that it has received all Insurance
Proceeds, Liquidation Proceeds and other payments or cash
recoveries which the Servicer reasonably and in good faith expects
to be finally recoverable with respect to such Mortgage
Loan.
Certificate: Any Class A, Class IO, Class PO,
Class M, Class B or Class R Certificate.
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 the Class IO Certificates, on any date of
determination, an amount equal to:
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(i)
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the Initial
Certificate Principal Balance of such Certificate as specified on
the face thereof; plus
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(ii)
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any Subsequent
Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.02(d); minus
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(iii)
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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 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;
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provided
, however , that the
Certificate Principal Balance of the Class of Subordinate
Certificates with the Lowest Priority at any given time shall be
calculated to equal the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate
Stated Principal Balance of the Mortgage Loans over (B) the then
aggregate Certificate Principal Balance of all other Classes of
Certificates then outstanding. The Class IO Certificates will not
have a Certificate Principal Balance.
Certificate Register and Certificate Registrar : The
register maintained and the registrar appointed pursuant to
Section 5.02.
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 purposes hereof
and, 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 Company,
the Servicer or any Subservicer or any Affiliate thereof shall be
deemed not to be outstanding and the Percentage Interest or Voting
Rights evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests or
Voting Rights necessary to effect any such consent or direction has
been obtained. All references herein to “Holders” or
“Certificateholders” shall reflect the rights of
Certificate Owners as they may indirectly exercise such rights
through the Depository and participating members thereof, except as
otherwise specified herein; provided , however , that
the Trustee shall be required to recognize as a
“Holder” or “Certificateholder” only the
Person in whose name a Certificate is registered in the Certificate
Register.
Class: Collectively, all of the Certificates
bearing the same designation.
Class A Certificates : Collectively, the
Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8,
Class A-9, Class A-10, Class A-11, Class A-12,
Class A-13, Class A-14, Class A-15, Class A-16, Class A-17, Class
A-18 and Class A-19 Certificates.
Class A-1 Certificate : Any one of the Class A-1
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-2 Certificate : Any one of the Class A-2
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-3 Certificate : Any one of the Class A-3
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the REMIC
for purposes of the REMIC Provisions.
Class A-4 Certificate : Any one of the Class A-4
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the REMIC
for purposes of the REMIC Provisions.
Class A-5 Certificate : Any one of the Class A-5
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the REMIC
for purposes of the REMIC Provisions.
Class A-6 Certificate : Any one of the Class A-6
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-7 Certificate : Any one of the Class A-7
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-8 Certificate : Any one of the Class A-8
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-9 Certificate : Any one of the Class A-9
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-10 Certificate : Any one of the Class A-10
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-11 Certificate : Any one of the Class A-11
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-12 Certificate : Any one of the Class A-12
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-12/A-13 Lockout Percentage : With respect to any
Distribution Date, the aggregate Certificate Principal Balance of
the Class A-12 and Class A-13 Certificates, divided by the
aggregate Certificate Principal Balance of all Classes of
Certificates, other than the Class PO Certificates.
Class A-12/A-13 Lockout Distribution Amount : With respect
to any Distribution Date, an amount equal to the product of (a) the
Lockout Percentage for that distribution date and (b) the Class A-
12/A-13 Pro Rata Distribution Amount for that Distribution Date. In
no event shall the Class A-12/A-13 Lockout Distribution Amount for
a distribution date exceed the Senior Principal Distribution Amount
less the $100.00 and less the Class A-14/Class A-15 Lockout
Distribution Amount for that Distribution Date or the aggregate
Certificate Principal Balance of the Class A-12 and Class A13
Certificates immediately prior to that Distribution
Date.
Class A-12/A-13 Pro Rata Distribution Amount : With respect
to any Distribution Date, an amount equal to the product of (a) a
fraction, the numerator of which is the sum of (i) aggregate
Certificate Principal Balance of the Class A-12 and Class A-13
Certificates immediately prior to that Distribution Date plus (ii)
$30,000,000 and the denominator of which is the aggregate
Certificate Principal Balance of all classes of certificates other
than the Class PO Certificates immediately prior to that
Distribution Date and (b) the aggregate of the collections
described in clauses 4.02(a)(A), (B), (C) and (E) (to the extent
clause (E) relates to clause (A), (B) or (C) thereof) without
application of the Senior Percentage or Senior Accelerated
Distribution Percentage; provided that, if the aggregate of the
collections described in clauses 4.02(a)(A), (B), (C) and (E) (to
the extent clause (E) relates to clause (A), (B) or (C) thereof)
without application of the Senior Percentage or Senior Accelerated
Distribution Percentage is more than the portion of the Senior
Principal Distribution Amount available for distribution to the
Class A-12 and Class A-13 Certificates pursuant to Section
4.02(b)(ii) hereof, the amount paid to the Class A-12 and Class
A-13 Certificates pursuant to Section 4.02(b)(ii) hereof shall be
reduced by an amount equal to the Class A-12/A-13 Lockout
Percentage of that difference.
Class A-13 Certificate : Any one of the Class A-13
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-14 Certificate : Any one of the Class A-14
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-14/A-15 Lockout Distribution Amount : With respect
to any Distribution Date, an amount equal to the product of (a) the
Lockout Percentage for such Distribution Date and (b) the Class A-
14/A-15 Pro Rata Distribution Amount for such Distribution Date. In
no event shall the Class A-14/A-15 Lockout Distribution Amount for
a Distribution Date exceed the Senior Principal Distribution Amount
for such Distribution Date or the aggregate Certificate Principal
Balance of the Class A-14 and Class A-15 Certificates immediately
prior to such Distribution Date.
Class A-14/A-15 Lockout Percentage : With respect to any
Distribution Date, the aggregate Certificate Principal Balance of
the Class A-14 and Class A-15 Certificates, divided by the
aggregate Certificate Principal Balance of all Classes of
Certificates, other than the Class PO Certificates.
Class A-14/A-15 Pro Rata Distribution Amount : With respect
to any Distribution Date, an amount equal to the product of (a) a
fraction, the numerator of which is the aggregate Certificate
Principal Balance of the Class A-14 and Class A-15 Certificates
immediately prior to such Distribution Date and the denominator of
which is the aggregate Certificate Principal Balance of all Classes
of Certificates other than the Class PO Certificates immediately
prior to such Distribution Date and (b) the aggregate of the
collections described in clauses 4.02(a)(A), (B), (C) and (E) (to
the extent clause (E) relates to clause (A), (B) or (C) thereof)
without application of the Senior Percentage or Senior Accelerated
Distribution Percentage; provided that, if the aggregate of the
collections described in clauses 4.02(a)(A), (B), (C) and (E) (to
the extent clause (E) relates to clause (A), (B) or (C) thereof)
without application of the Senior Percentage or Senior Accelerated
Distribution Percentage is more than the portion of the Senior
Principal Distribution Amount available for distribution to the
Class A-12 and Class A-13 Certificates pursuant to Section
4.02(b)(i) hereof, the amount paid to the Class A-12 and Class A-13
Certificates pursuant to Section 4.02(b)(i) hereof shall be reduced
by an amount equal to the Class A-14/A-15 Lockout Percentage of
that difference.
Class A-15 Certificate : Any one of the Class A-15
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the REMIC
for purposes of the REMIC Provisions.
Class A-16 Certificate : Any one of the Class A-16
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-17 Certificate : Any one of the Class A-17
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-18 Certificate : Any one of the Class A-18
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class A-19 Certificate : Any one of the Class A-19
Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form hereto as
Exhibit A, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class B Certificates: Collectively, the Class
B-1, Class B-2 and 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, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC 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, each such Certificate representing an interest
designated as a “regular interest” in the REMIC
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, representing an interest designated as a
“regular interest” in the REMIC for purposes of
the REMIC Provisions.
Class IO Certificate : Any one of the Certificates
designated as a Class IO Certificate, executed by the Trustee
and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit A-2, each such Certificate
representing an interest designated as a “regular
interest” in the REMIC for purposes of the REMIC
Provisions.
Class M Certificates: Collectively, the Class
M-1, Class M-2 and 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, each such Certificate representing an interest
designated as a “regular interest” in the REMIC 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, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC 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, each such Certificate representing an interest
designated as a “regular interest” in the
REMIC for purposes of the REMIC Provisions.
Class PO Certificate : Any one of the Certificates
designated as a Class PO Certificate, executed by the Trustee
and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit A-3, each such Certificate
representing an interest designated as a “regular
interest” in the REMIC for purposes of the REMIC
Provisions.
Class 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
clause (a)(iii)(1) of the definition of the Class PO
Principal Distribution Amount over the amount described in
clause (a)(iii)(2) of the definition of the Class PO
Principal Distribution Amount.
Class PO Principal Distribution Amount: On
each Distribution Date:
(a)
prior to the Credit Support Depletion Date, an amount equal to the
aggregate of:
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(i)
The related 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;
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(ii)
The related 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 (iii) below), including Principal Prepayments in
Full, Curtailments and repurchases (including deemed repurchases
under Section 3.07(b)) of Discount Mortgage Loans (or, in the
case of a substitution of a Deleted Mortgage Loan, the Discount
Fraction of the amount of any shortfall deposited in the Custodial
Account in connection with such substitution);
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(iii)
In connection with the Cash Liquidation or REO Disposition of a
Discount Mortgage Loan that did not result in any Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary 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
Mortgage Loan to the extent applied as recoveries of
principal;
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(iv)
Any amounts allocable to principal for any previous Distribution
Date (calculated pursuant to clauses (i) through
(iii) above) that remain undistributed; and
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(v)
The amount of any Class PO Collection Shortfalls for such
Distribution Date and the amount of any Class PO Collection
Shortfalls remaining unpaid for all previous Distribution Dates,
but only to the extent of the Eligible Funds for such Distribution
Date; and
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(b)
On or after the Credit Support Depletion Date, an amount equal to
the Discount Fraction of the principal portion of scheduled
payments and unscheduled collections received or advanced in
respect of Discount Mortgage Loans.
Class Principal Balance : For any Class of REMIC Regular
Interests, the applicable initial Class Principal Balance therefor
set forth in the Preliminary Statement hereto, corresponding to the
rights of such Class in payments of principal due to be passed
through to such Class from principal payments on the Mortgage
Loans, as reduced from time to time by (x) distributions of
principal to such Class and (y) the portion of Realized Losses
allocated to the Class Principal Balance of such Class pursuant to
the definition of “Realized Loss” with respect to a
given Distribution Date and as increased by Subsequent Recoveries
allocated in respect thereof.
Class R Certificate : Any one of the Class R
Certificates executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form annexed hereto as
Exhibit D and evidencing ownership of interests designated as
“residual interests” in the REMIC for purposes of
the REMIC Provisions.
Closing
Date: November 21, 2005.
Code: The Internal Revenue Code of 1986, as
amended.
Compensating Interest : With respect to any Distribution
Date, an amount (but not in excess of the Servicing Fee for such
Distribution Date) equal to Prepayment Interest Shortfalls
resulting from Principal Prepayments in Full during the period from
the 16th day through the last day of the prior calendar month and
resulting from Curtailments during the prior calendar
month.
Cooperative : A private, cooperative housing corporation
which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors
authorizes, among other things, the sale of Cooperative
Stock.
Cooperative Apartment : A dwelling unit in a multi-dwelling
building owned or leased by a Cooperative, which unit the Mortgagor
has an exclusive right to occupy pursuant to the terms of a
proprietary lease or occupancy agreement.
Cooperative Lease : With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the
Cooperative Apartment occupied by the Mortgagor and relating to the
related Cooperative Stock, which lease or agreement confers an
exclusive right to the holder of such Cooperative Stock to occupy
such apartment.
Cooperative Loans : Any of the Mortgage Loans made in
respect of a Cooperative Apartment, evidenced by a Mortgage Note
and secured by (i) a Security Agreement, (ii) the related
Cooperative Stock Certificate, (iii) an assignment of the
Cooperative Lease, (iv) financing statements and (v) a
stock power (or other similar instrument), and ancillary
thereto, a recognition agreement between the Cooperative and the
originator of the Cooperative Loan, each of which was transferred
and assigned to the Trustee pursuant to Section 2.01 and are
from time to time held as part of the Trust Fund.
Cooperative Stock : With respect to a Cooperative Loan, the
single outstanding class of stock, partnership interest or other
ownership instrument in the related Cooperative.
Cooperative Stock Certificate : With respect to a
Cooperative Loan, the stock certificate or other instrument
evidencing the related Cooperative Stock.
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 1761
East St. Andrew Place, Santa Ana, California 92705-4934, GMACM
Mortgage Pass-Through Certificates, Series 2005-J1. For the
purpose of registration, transfer and exchange only, the Corporate
Trust Office shall be DB Securities Tennessee, 648 Grassmere Park
Road, Nashville, Tennessee 37211-3658, or such other office as
designated by the Trustee.
Credit Support Depletion Date : The first Distribution Date
on which the Certificate Principal Balances of the Subordinate
Certificates have been reduced to zero.
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, into which
the amounts set forth in Section 3.07 shall be deposited
directly.
Custodial Agreement : An agreement that may be entered into
among the Servicer, the Trustee and a Custodian pursuant to which
the Custodian will hold certain documents relating to the Mortgage
Loans on behalf of the Trustee.
Custodian: A custodian appointed pursuant to a
Custodial Agreement.
Cut-off
Date: November 1, 2005.
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, 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 Certificate other
than a Book-Entry 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 last business day
immediately prior to 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 last business day
immediately prior to 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 July 31 would then be considered to be 30 to 59 days
delinquent. Delinquency information as of the Cut-off Date is
determined and prepared as of the close of business on the last
business day immediately prior to the Cut-off Date.
Depository : The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository
for purposes of registering those Certificates that are to be
Book-Entry Certificates is Cede & Co. The Depository shall at
all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the
State of New York and a “clearing agency” registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended.
Depository Participant : A broker, dealer, bank or other
financial institution or other Person for whom from time to time a
Depository effects book-entry transfers and pledges of securities
deposited with the Depository.
Determination Date : With respect to any Distribution Date,
the 15th day (or if such 15th day is not a Business Day, the
Business Day immediately following such 15th 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 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 Discount Net Mortgage Rate. The Discount Fraction with respect
to each Discount Mortgage Loan is set forth as on Exhibit O
attached hereto.
Discount Mortgage Loan : Any Mortgage Loan having a Net
Mortgage Rate (or the initial Net Mortgage Rate) of less than
the Discount Net Mortgage Rate per annum and any Mortgage Loan
deemed to be a Discount Mortgage Loan pursuant to the definition of
Qualified Substitute Mortgage Loan.
Discount Net
Mortgage Rate: 5.50% per annum.
Disqualified Organization : Any organization defined as a
“disqualified organization” under
Section 860E(e)(5) of the Code, and if not otherwise included,
any of the following: (i) the United States, any State or
political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for Freddie 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), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of
the Code, (v) any “electing large partnership,” as
defined in Section 775(a) of the Code and (vi) any
other Person so designated by the Trustee based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust Fund 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 each Distribution Date and any
Mortgage Loan, the period commencing on the second day of the month
prior to the month in which such Distribution Date occurs and
ending on the first day of the month in which such Distribution
Date occurs.
Eligible Account : An account that is any of the following:
(i) maintained with a federal or state chartered depository
institution the accounts of which are insured by the FDIC (to the
limits established by the FDIC) and the short-term debt ratings and
the long-term deposit ratings of which are rated in one of the two
highest rating categories by the Rating Agencies, or (ii) a
trust account or accounts maintained with a federal or state
chartered depository institution or trust company with trust powers
acting in its fiduciary capacity subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of
Federal Regulation Section 9.10(b), or (iii) in the case
of the Payment Account, a trust account or accounts maintained in
the corporate trust division of the Trustee, or (iv) 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 Payment
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 : On any Distribution Date, the portion, if
any, of the 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 related
Senior Principal Distribution Amount (determined without regard to
Section 4.02(a)(iv)(D) hereof), (iii) the Class PO
Principal Distribution Amount (determined without regard to
clause (a)(v) of the definition thereof), (iv) the
aggregate amount of Accrued Certificate Interest on the
Class M, Class B-1 and Class B-2 Certificates, and
(v) the portion of the payment to the Trustee for any
servicing transfer expenses reimbursable to the Trustees pursuant
to Section 7.02(a).
Event of
Default: As defined in Section 7.01.
Excess Bankruptcy Loss: Any Bankruptcy Loss,
or portion thereof, which exceeds the then applicable Bankruptcy
Amount. Excess Fraud Loss: Any Fraud Loss, or portion thereof,
which exceeds the then applicable Fraud Loss Amount. Excess Special
Hazard Loss: Any Special Hazard Loss, 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 class or classes
of Certificates on such Distribution Date as reduced by any amount
calculated pursuant to clause (a)(v) of the definition of
Class PO Principal Distribution Amount.
Extraordinary Events : Any of the following conditions with
respect to a Mortgaged Property (or, with respect to a Cooperative
Loan, the Cooperative Apartment) or Mortgage Loan causing or
resulting in a loss which causes the liquidation of such Mortgage
Loan:
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(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;
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(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”;
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(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:
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1.
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by any
government or sovereign power, de jure or de facto, or by any
authority maintaining or using military, naval or air forces;
or
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2.
by military, naval or air forces; or
3.
by an agent of any such government, power, authority or
forces;
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(d)
any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; or
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(e)
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.
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Extraordinary Losses: Any loss incurred on a Mortgage Loan caused
by or resulting from an Extraordinary Event.
Fannie Mae : Federal National Mortgage Association, or
Fannie Mae, 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: Federal Deposit Insurance Corporation or
any successor thereto.
Final Distribution Date : The Distribution Date on which the
final distribution in respect of the Certificates will be made
pursuant to Section 9.01, which Final Distribution Date shall
in no event be later than the end of the 90-day liquidation period
described in Section 9.02.
Fitch: Fitch Ratings or its successor in
interest.
Foreclosure Profits : With respect to any Distribution Date
or related Determination Date and any Mortgage Loan, the excess, if
any, of Liquidation Proceeds, Insurance Proceeds and REO Proceeds
(net of all amounts reimbursable therefrom pursuant to
Section 3.10(a)(ii)) in respect of each Mortgage Loan or REO
Property for which a Cash Liquidation or REO Disposition occurred
in the related Prepayment Period over the sum of the unpaid
principal balance of such Mortgage Loan or REO Property
(determined, in the case of an REO Disposition, in accordance with
Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which
interest was last paid by the Mortgagor to the first day of the
month following the month in which such Cash Liquidation or REO
Disposition occurred.
Fraud Loss Amount : As of any date of determination after
the Cut-off Date, an amount equal to: (X) prior to the third
anniversary of the Cut-off Date an amount equal to 1.00% of the
aggregate outstanding principal balance of all of the Mortgage
Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of
Certificates in accordance with Section 4.05 since the Cut-off
Date up to such date of determination and (Y) from the third to the
fifth anniversary of the Cut-off Date, an amount equal to
(1) the lesser of (a) the Fraud Loss Amount as of the
most recent anniversary of the Cut-off Date and (b) .050% of
the aggregate outstanding principal balance of all of the Mortgage
Loans as of the most recent anniversary of the Cut-off Date minus
(2) the aggregate amount of Fraud Losses allocated solely to
one or more specific Classes of Certificates in accordance with
Section 4.05 since the most recent anniversary of the Cut-off
Date up to such date of determination. On and after the fifth
anniversary of the Cut-off Date, the Fraud Loss Amount shall be
zero.
The
Fraud Loss Amount may be further reduced by the Servicer (including
accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Servicer shall
(i) obtain written confirmation from each Rating Agency that
such reduction shall 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 and (ii) provide
a copy of such written confirmation to the Trustee.
Fraud Losses : Losses on Mortgage Loans as to which there
was fraud in the origination of such Mortgage Loan.
Freddie Mac : Federal Home Loan Mortgage Corporation, or
Freddie Mac, a corporate instrumentality of the United States
created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor thereto.
GMACM : GMAC Mortgage Corporation, a Pennsylvania
corporation, in its capacity as seller of the Mortgage Loans to the
Company, and any successor thereto.
Highest Priority : As of any date of determination, 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 Company, the Servicer and the Trustee, or any Affiliate
thereof, (ii) does not have any direct financial interest or
any material indirect financial interest in the Company, the
Servicer or the Trustee or in an Affiliate thereof, and
(iii) is not connected with the Company, the Servicer or the
Trustee as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar
functions.
Indirect Depository Participant : An institution that is not
a Depository Participant but clears through or maintains a
custodial relationship with Participants and has access to the
Depository’s clearing system.
Initial Certificate Principal Balance : With respect to each
Class of Certificates, other than the Class IO 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 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: 2.00% Class B-1:
0.20%
Class M-2: 0.70% Class B-2:
0.15%
Class M-3: 0.30% 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 Servicer or the Trustee and are not
applied to the restoration of the related Mortgaged Property (or,
with respect to a Cooperative Loan, the related Cooperative
Apartment) or released to the Mortgagor in accordance with the
procedures that the Servicer would follow in servicing mortgage
loans held for its own account.
Insurer : Any named insurer under any Primary Insurance
Policy or any successor thereto or the named insurer in any
replacement policy.
Interest Accrual Period : With respect to any Class of
Certificates and any Distribution Date, the thirty-day period
ending on the last day of the calendar month preceding the month in
which such Distribution Date occurs.
Issuer Exemption: As defined in Section
5.02(e)(ii). Junior Certificateholder: The Holder of not less than
95% of the Percentage Interests of the Junior Class of
Certificates.
Junior Class of Certificates : The Class of
Subordinate Certificates outstanding as of the date of the
repurchase of a Mortgage Loan pursuant to Section 4.07 herein
that has the Lowest Priority.
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.
Liquidation Proceeds : Amounts (other than Insurance
Proceeds) received by the Servicer in connection with the taking of
an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation or in connection with the liquidation of a
defaulted Mortgage Loan through trustee’s sale, foreclosure
sale or otherwise, other than REO Proceeds.
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 Percentage : With respect to any Distribution Date
occurring prior to the Distribution Date in December 2010, 0%. With
respect to any Distribution Date thereafter, the percentage
indicated below:
Distribution Date Lockout Distribution
Percentage December 2010 through November 30%
2011
December 2011 through November 40%
2012
December 2012 through November 60%
2013
December 2013 through November 80%
2014
December 2014 and 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, the Distribution Date occurring in
December 2035.
MERS: Mortgage Electronic Registration
Systems, Inc., a corporation organized and existing under the laws
of the State of Delaware, or any successor thereto.
MERS® 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® System.
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 any Due Date, 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: Moody's Investors Service, Inc., or
its successor in interest.
Mortgage : With respect to each Mortgage Note related to a
Mortgage Loan which is not a Cooperative Loan, the mortgage, deed
of trust or other comparable instrument creating a first lien on an
estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File : (I) with respect to each Mortgage Loan
(other than a Cooperative Loan):
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(i)
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The original
Mortgage Note, endorsed without recourse in blank, or in the name
of the Trustee as trustee, and signed by an authorized officer
(which endorsement shall contain either an original signature or a
facsimile signature of an authorized officer of GMACM, and if in
the form of an allonge, the allonge shall be stapled to the
Mortgage Note), with all intervening endorsements showing a
complete chain of title from the originator to GMACM. If the
Mortgage Loan was acquired by the endorser in a merger, the
endorsement must be by “____________, successor by merger to
[name of predecessor].” If the Mortgage Loan was acquired or
originated by the endorser while doing business under another name,
the endorsement must be by “____________ formerly known as
[previous name]";
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(ii)
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The original
Mortgage, noting the presence of the MIN of the Mortgage Loan, if
the Mortgage is registered on the MERS® System, and language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan, with evidence of recording indicated thereon or
a copy of the Mortgage certified by the public recording office in
which such Mortgage has been recorded;
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(iii)
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The original of
any guarantee executed in connection with the Mortgage Note, if
applicable;
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(iv)
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Any rider or
the original of any modification agreement executed in connection
with the related Mortgage Note or Mortgage, with evidence of
recording if required by applicable law;
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(v)
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Unless the
Mortgage Loan is registered on the MERS® System, an original
Assignment or Assignments of the Mortgage (which may be included in
a blanket assignment or assignments) from GMACM to “Deutsche
Bank National Trust Company, as Trustee under that certain Pooling
and Servicing Agreement dated as of November 21, 2005, for GMACM
Mortgage Pass-Through Certificates, Series 2005-J1” c/o
the Servicer at an address specified by the Servicer, and signed by
an authorized officer, which assignment shall be in form and
substance acceptable for recording. If the Mortgage Loan was
acquired by the assignor in a merger, the assignment must be by
” , successor by merger to [name of predecessor].” If
the Mortgage Loan was acquired or originated by the assignor while
doing business under another name, the assignment must be by
“_________ formerly known as [previous name]";
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(vi)
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Originals of
all intervening assignments of mortgage, which together with the
Mortgage shows a complete chain of title from the originator to
GMACM (or to MERS, if the Mortgage Loan is registered on the
MERS® System, and which notes the presence of a MIN), with
evidence of recording thereon, or a copy of the assignment
certified by the applicable recording office in which such
assignment has been recorded;
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(vii)
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The original
mortgagee policy of title insurance, including riders and
endorsements thereto, or if the policy has not yet been issued,
(i) a written commitment or interim binder for title issued by
the title insurance or escrow company dated as of the date the
Mortgage Loan was funded, with a statement by the title insurance
company or closing attorney that the priority of the lien of the
related Mortgage during the period between the date of the funding
of the related Mortgage Loan and the date of the related title
policy (which title policy shall be dated the date of recording of
the related Mortgage) is insured, or (ii) a preliminary title
report issued by a title insurer in anticipation of issuing a title
insurance policy which evidences existing liens and gives a
preliminary opinion as to the absence of any encumbrance on title
to the Mortgaged Property, except liens to be removed on or before
purchase by the Mortgagor or which constitute customary exceptions
acceptable to lenders generally; or other evidence of title
insurance acceptable to Fannie Mae or Freddie Mac, in accordance
with the Fannie Mae Seller/Servicer Guide or Freddie Mac
Seller/Servicer Guide, respectively;
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(viii)
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A certified
true copy of any power of attorney, if applicable; and
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(ix)
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Originals of
any security agreement, chattel mortgage or the equivalent executed
in connection with the Mortgage, if any.
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and (II) with respect to each
Cooperative Loan:
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(i)
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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 GMACM;
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(ii)
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A counterpart
of the Cooperative Lease and the Assignment of Proprietary Lease to
the originator of the Cooperative Loan with intervening assignments
showing an unbroken chain of title from such originator to the
Trustee;
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(iii)
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The related
Cooperative Stock Certificate, representing the related Cooperative
Stock pledged with respect to such Cooperative Loan, together with
an undated stock power (or other similar instrument) executed
in blank;
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(iv)
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The original
recognition agreement by the Cooperative of the interests of the
mortgagee with respect to the related Cooperative Loan;
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(v)
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The Security
Agreement;
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(vi)
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Copies of the
original UCC financing statement, and any continuation statements,
filed by the originator of such Cooperative Loan as secured party,
each with evidence of recording thereof, evidencing the interest of
the originator under the Security Agreement and the Assignment of
Proprietary Lease;
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(vii)
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Copies of the
filed UCC assignments or amendments of the security interest
referenced in clause (vi) above showing an unbroken chain
of title from the originator to the Trustee, each with evidence of
recording thereof, evidencing the interest of the originator under
the Security Agreement and the Assignment of Proprietary
Lease;
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(viii)
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An executed
assignment of the interest of the originator in the Security
Agreement, Assignment of Proprietary Lease and the recognition
agreement referenced in clause (iv) above, showing an
unbroken chain of title from the originator to the
Trustee;
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(ix)
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The original of
each modification, assumption agreement or preferred loan
agreement, if any, relating to such Cooperative Loan;
and
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(x)
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A duly
completed UCC financing statement showing GMACM as debtor, the
Company as secured party and the Trustee as assignee and a duly
completed UCC financing statement showing the Company as debtor and
the Trustee as secured party, each in a form sufficient for filing,
evidencing the interest of such debtors in the Cooperative
Loans.
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It is understood that the
Mortgage File (other than the Mortgage Note) may be retained in
microfilm, microfiche, optical storage or magnetic media in lieu of
hard copy; provided , that with respect to any Mortgage Loan
not registered on the MERS® System, the original Assignments
required by (I)(v) above shall be retained in the Mortgage
File.
Mortgage Loan Schedule : The list or lists of the Mortgage
Loans attached hereto as Exhibit E, as amended from time to
time to reflect the addition of Qualified Substitute Mortgage
Loans, which list or lists shall set forth the following
information as to each Mortgage Loan:
(a) loan
number;
(b) state
code;
(c) zip
code;
(d) the
Loan-to-Value Ratio;
(e) the
original principal balance and date of the Mortgage
Note;
(f) the
first Due Date;
(g) the
type of Mortgaged Property;
(h) the
scheduled monthly payment in effect as of the Cut-off
Date;
(i) the
principal balance as of the Cut-off Date;
(j) the
Mortgage Rate as of the Cut-off Date;
(k) the
occupancy status;
(l) the
purpose of the Mortgage Loan;
(m) the
paid-through date of the Mortgage Loan;
(n) the
documentation type; and (o) the code “Y” under the
column “BUYDOWN,” indicating that the Mortgage Loan is
a Buydown Mortgage Loan, if applicable.
Such
schedule 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, (i) with respect to each Cooperative Loan,
the related Mortgage Note, Security Agreement, Assignment of
Proprietary Lease, Cooperative Stock Certificate, Cooperative Lease
and Mortgage File and all rights appertaining thereto, and
(ii) with respect to each Mortgage Loan other than a
Cooperative 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 Pool: The pool of mortgage loans
consisting of the Mortgage Loans.
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.
Mortgaged Property : The underlying real property securing a
Mortgage Loan or, with respect to a Cooperative Loan, the related
Cooperative Lease and Cooperative Stock.
Mortgagor: The obligor on a Mortgage Note. Net
Mortgage Rate: As to each Mortgage Loan, the related Mortgage Rate
minus the Servicing Fee Rate. Non-Discount Mortgage Loan: A
Mortgage Loan that is not a Discount Mortgage Loan.
Non-Primary Residence Loans : The Mortgage Loans designated
as secured by second or vacation residences, or by non-owner
occupied residences, on the Mortgage Loan Schedule.
Non-United States Person: Any Person other
than a United States Person.
Nonrecoverable Advance : Any Advance previously made or
proposed to be made by the Servicer in respect of a Mortgage Loan
(other than a Deleted Mortgage Loan) which, in the good faith
judgment of the Servicer, will not, or, in the case of a proposed
Advance, would not, be ultimately recoverable by the Servicer from
related Late Collections, Insurance Proceeds, Liquidation Proceeds,
REO Proceeds or amounts reimbursable to the Servicer pursuant to
Section 4.02(a) hereof. The determination by the Servicer
that it has made a Nonrecoverable Advance or that any proposed
Advance would constitute a Nonrecoverable Advance, shall be
evidenced by an Officer’s Certificate delivered to the
Company and the Trustee promptly following such
determination.
Nonsubserviced Mortgage Loan : Any Mortgage Loan that, at
the time of reference thereto, is not subject to a Subservicing
Agreement.
Notional Amount: With respect to any date of determination
and the Class IO Certificates, an amount equal to the
aggregate Stated Principal Balance of the Non-Discount Mortgage
Loans immediately prior to such date.
Officer’s Certificate : A certificate signed by the
Chairman of the Board, the President or a Vice President or
Assistant Vice President, or a Director or Managing Director, and,
if necessary, by the Treasurer, the Secretary, or one of the
Assistant Treasurer or Assistant Secretaries of the Company or the
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 Servicer, who may be counsel for the Company
or the Servicer, provided that any opinion of counsel
(i) referred to in the definition of “Disqualified
Organization” or (ii) relating to the qualification of
any REMIC or compliance with the REMIC Provisions must, unless
otherwise specified, be an opinion of Independent
counsel.
Outstanding Mortgage Loan : As to any Due Date, a Mortgage
Loan (including an REO Property) which was not the subject of a
Principal Prepayment in Full, Cash Liquidation or REO Disposition
and which was not purchased, deleted or substituted for prior to
such Due Date pursuant to Section 2.02, 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
Certificates, Class IO Certificates, Class M
Certificates, Class B Certificates and Class R
Certificates and any Distribution Date, the per annum rates set
forth in the Preliminary Statement hereto. The Principal Only
Certificates have no Pass-Through Rate and are not entitled to
Accrued Certificate Interest.
Paying Agent: The Trustee or any successor
Paying Agent appointed by the Trustee.
Payment Account : The separate and segregated account or
accounts created and maintained pursuant to Section 4.01,
which shall be entitled “Deutsche Bank National Trust
Company, as trustee, in trust for the registered holders of
Residential Asset Mortgage Products, Inc., GMACM Mortgage
Pass-Through Certificates, Series 2005-J1” and which
must be an Eligible Account.
Payment Account Deposit Date : With respect to any
Distribution Date, the Business Day prior thereto.
Percentage Interest : With respect to any Certificate (other
than a Class IO or 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 or initial
Notional Amount thereof divided by the aggregate Initial
Certificate Principal Balance or initial Notional Amount of all the
Certificates of the same Class. With respect to a Class IO
Certificate or 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:
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(i)
obligations of or guaranteed as to timely payment of 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;
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(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 short-term debt
obligations of the party agreeing to repurchase such obligations
are at the time rated by each Rating Agency in its highest
short-term rating available;
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(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 short-term 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; 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; provided ,
further , that if the original maturity of such short-term
debt 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
the Rating Agency;
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(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 shall have a remaining maturity of not more than
30 days;
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(v)
any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to
instruments that otherwise would constitute Permitted Investments
hereunder and have been rated by each Rating Agency in its highest
short-term rating available, including any such fund that is
managed by the Trustee or any affiliate of the Trustee or for which
the Trustee or any of its affiliates acts as an adviser;
and
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(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;
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provided
, however , 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 rating category available shall mean AAA in the
case of Standard & Poor’s and Fitch, and references
herein to the highest short-term rating category available shall
mean A-1+ in the case of Standard & Poor’s.
Permitted Transferee : Any Transferee of a Class R
Certificate, other than a Disqualified Organization or Non-United
States Person.
Person : Any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
Pool Stated Principal Balance : With respect to any
Distribution Date, the aggregate of the Stated Principal Balances
of the Mortgage Loans.
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 Discount Net Mortgage Rate
(but not less than 0.00% per annum).
Prepayment Assumption : The prepayment assumption of 100% of
the prepayment speed assumption, used for determining the accrual
of original issue discount and market discount and premium on the
Certificates for federal income tax purposes.
Prepayment Distribution Percentage : With respect to any
Distribution Date, each Class of Subordinate Certificates,
under the applicable circumstances set forth below, the respective
percentages set forth below:
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(i)
For any Distribution Date prior to the Distribution Date in
December 2010 (unless the Certificate Principal Balances of the
Senior Certificates (other than the Principal Only Certificates)
have been reduced to zero), 0%.
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(ii)
For any Distribution Date for which clause (i) above does
not apply and on which any Class of Subordinate Certificates
are outstanding:
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(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
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(b)
in the case of each other Class of Subordinate Certificates
for which the Prepayment Distribution Triggers have not been
satisfied, 0%; and
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(ii)
Notwithstanding the foregoing, if the application of the foregoing
percentages on any Distribution Date as provided in
Section 4.02 (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
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 Maturing
Class or Classes pursuant to clause (a) of this
sentence, expressed as an aggregate percentage, shall be allocated
among the 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 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 Maturing Class had not been reduced
to zero, plus (2) the related Adjustment
Percentage.
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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
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
Class and each Class of Subordinate Certificates with a Lower
Priority than such Class.
Prepayment Interest Shortfall : With respect to any
Distribution Date and any Mortgage Loan (other than a Mortgage Loan
relating to an REO Property) that was the subject of (a) a
Principal Prepayment in Full during the related Prepayment Period,
an amount equal to the excess of one month’s interest at the
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 during such
Prepayment Period to the date of such Principal Prepayment in Full
or (b) a Curtailment during the preceding calendar month, 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 : With respect to any Distribution Date
and Principal Prepayment in Full, the period commencing of the 16th
day of the month prior to that Distribution Date and ending on the
15th day of the month in which the Distribution Date
occurs.
Primary Insurance Policy : The policy, if any, of primary
mortgage guaranty insurance related to a Mortgage Loan.
Principal Only Certificates : Collectively, the Class A-8,
Class A-19 and Class PO Certificates.
Principal Prepayment : Any payment of principal or other
recovery on a Mortgage Loan, including a recovery that takes the
form of Liquidation Proceeds or Insurance Proceeds, which is
received in advance of its scheduled Due Date and is not
accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or
months subsequent to the month of prepayment.
Principal Prepayment in Full : Any Principal Prepayment made
by a Mortgagor of the entire principal balance of a Mortgage
Loan.
Purchase Agreement : The Mortgage Loan Purchase Agreement,
dated as of the Closing Date, between the Seller and the Company,
as purchaser, and all amendments thereof and supplements
thereto.
Purchase Price : With respect to any Mortgage Loan
(or REO Property) required to be or otherwise purchased on any
date pursuant to Section 2.01, 2.02, 2.04, 3.13 or 4.07, an
amount equal to the sum of (i) 100% of the Stated Principal
Balance thereof as of such date, plus the principal portion of any
related unreimbursed Advances and (ii) unpaid accrued interest
at the 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 Servicer) on
the Stated Principal Balance thereof to the Due Date in the Due
Period related to the Distribution Date occurring in the month
following the month of purchase from the Due Date to which interest
was last paid by the Mortgagor and (iii) in connection with
any Mortgage Loan required to be repurchased pursuant to
Section 7.03 of the Purchase Agreement, any costs and damages
incurred by the Trust Fund with respect to such Mortgage Loan in
connection with a breach of Section 7.02 (h) of the Purchase
Agreement.
Qualified Substitute Mortgage Loan : A Mortgage Loan
substituted by the Seller for a Deleted Mortgage Loan which must,
on the date of such substitution, as confirmed in an
Officer’s Certificate delivered to the Trustee, with a copy
to the Custodian,
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(i)
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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 the Seller in the Custodial
Account in the month of substitution);
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(ii)
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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;
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(iii)
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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;
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(iv)
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have a
remaining term to stated maturity not greater than (and not more
than one year less than) that of the Deleted Mortgage
Loan;
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(v)
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comply with
each representation and warranty made by the Seller set forth in
Section 7.02 of the Purchase Agreement; and
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(vi)
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have a Pool
Strip Rate equal to or greater than that of the Deleted Mortgage
Loan.
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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 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,
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(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
for purposes of calculating the Pass-Through Rate on the
Class IO Certificates; and
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(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.
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Rating Agency : Fitch and Standard & Poor’s. If
any agency or a successor is no longer in existence, “Rating
Agency” shall be such statistical credit rating agency, or
other comparable Person, designated by the Company, notice of which
designation shall be given to the Trustee and the
Servicer.
Realized Loss: With respect to each Mortgage
Loan (or REO Property):
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(a)
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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 Due Date in the Due Period related to
the Distribution Date on which such Realized Loss will be allocated
pursuant to Section 4.05 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 Servicer or any Subservicer with respect to
related Advances or expenses as to which the Servicer or
Subservicer is entitled to reimbursement thereunder but which have
not been previously reimbursed,
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(b)
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which is the
subject of a Servicing Modification, (i) the amount by which
the interest portion of a Monthly Payment or the principal balance
of such Mortgage Loan was reduced, and (ii) 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,
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(c)
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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, or
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(d)
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which has
become the object of a Debt Service Reduction, the amount of such
Debt Service Reduction.
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Notwithstanding the above,
neither a Deficient Valuation nor a Debt Service Reduction shall be
deemed a Realized Loss hereunder so long as the Servicer has
notified the Trustee in writing that the 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 Servicer or a Subservicer, in
either case without giving effect to any Debt Service
Reduction.
Record Date : With respect to each Class of Certificates and
any Distribution Date, the last day of the related Interest Accrual
Period.
Regular Certificate: Any of the Certificates
other than a Class R Certificate. Relief Act: The Servicemembers
Civil Relief Act, or similar legislation or regulations as in
effect from time to time. Relief Act Shortfalls: Shortfalls in
interest payable by a Mortgagor that is not collectible from the
Mortgagor pursuant to the Relief Act.
REMIC : A “real estate mortgage investment
conduit” within the meaning of Section 860D of the Code.
As used herein, the term “the REMIC” or “the
REMICs” shall mean one or more of the REMICs created under
this Agreement. The REMIC will consist of the segregated pool of
assets, with respect to which a REMIC election is made pursuant to
this Agreement, consisting of:
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(a)
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the Mortgage
Loans and the related Mortgage Files and collateral securing such
Mortgage Loans,
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(b)
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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 Payment Account and identified as belonging to the Trust
Fund,
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(c)
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property that
secured a Mortgage Loan and that has been acquired for the benefit
of the Certificateholders by foreclosure or deed in lieu of
foreclosure,
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(d)
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the hazard
insurance policies and Primary Insurance Policies, if any,
and
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(e)
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all proceeds of
clauses (a) through (d) above.
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REMIC Administrator : The Trustee; provided that if
the REMIC Administrator is found by a court of competent
jurisdiction to no longer be able to fulfill its obligations as
REMIC Administrator under this Agreement the Servicer (or the
Trustee acting as successor Servicer) shall appoint a successor
REMIC Administrator, subject to assumption of the REMIC
Administrator obligations under this Agreement.
REMIC Certificate: Any Certificate, other than
a Class R Certificate.
REMIC Regular Interest : Any of the twenty-seven
certificated beneficial ownership interests in REMIC issued
hereunder, and, hereby, designated as a “regular
interest” in REMIC, as follows: Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-12, Class A-13,
Class A-14, Class A-15, Class A-16, Class A-17, Class A-18, Class
A-19, Class IO, Class PO, Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3
Certificates.
REMIC Provisions : Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at Sections 860A through 860G of Subchapter M of Chapter 1 of the
Code, and related provisions, and temporary and final regulations
(or, to the extent not inconsistent with such temporary or final
regulations, proposed regulations) and published rulings, notices
and announcements promulgated thereunder, as the foregoing may be
in effect from time to time.
Remittance Report : A report that includes the information
set forth in Exhibit L hereto.
REO Acquisition : The acquisition by the 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 Servicer that it has received all Insurance Proceeds,
Liquidation Proceeds, REO Proceeds and other payments and
recoveries (including proceeds of a final sale) which the 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 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 or, with
respect to a Cooperative Loan, the related Cooperative Apartment)
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 Servicer
through foreclosure or deed in lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Request for Release : A request for release, the forms of
which are attached as Exhibit F 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 or the related Subservicing
Agreement in respect of such Mortgage Loan.
Responsible Officer : When used with respect to the Trustee,
any officer of the Corporate Trust Office of the Trustee, including
any managing director, director, any vice president, any assistant
vice president, any assistant secretary, any associate, 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 and having direct responsibility for the administration of
this Agreement.
Schedule of Discount Fractions : The schedule setting forth
the Discount Fractions with respect to the Discount Mortgage Loans,
attached hereto as Exhibit O.
Scheduled Final Distribution Date: The
Distribution Date occurring in December 2035. Security Agreement:
With respect to a Cooperative Loan, the agreement creating a
security interest in favor of the originator in the related
Cooperative Stock.
Seller:
GMACM.
Senior Accelerated Distribution Percentage : With respect to
any Distribution Date occurring on or prior to the Distribution
Date in December 2010, 100%. With respect to any Distribution Date
thereafter, as follows:
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(i)
for any Distribution Date after the 60th Distribution Date but on
or prior to the 72nd Distribution Date, the Senior Percentage for
such Distribution Date plus 70% of the Subordinate Percentage for
such Distribution Date;
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(ii)
for any Distribution Date after the 72nd Distribution Date but on
or prior to the 84th Distribution Date, the Senior Percentage for
such Distribution Date plus 60% of the Subordinate Percentage for
such Distribution Date;
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(iii)
for any Distribution Date after the 84th Distribution Date but on
or prior to the 96th Distribution Date, the Senior Percentage for
such Distribution Date plus 40% of the Subordinate Percentage for
such Distribution Date;
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(iv)
for any Distribution Date after the 96th Distribution Date but on
or prior to the 108th Distribution Date, the Senior Percentage for
such Distribution Date plus 20% of the Subordinate Percentage for
such Distribution Date; and
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(v)
for any Distribution Date thereafter, the Senior Percentage for
such Distribution Date;
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provided, however,
(i)
that any scheduled reduction to the Senior Accelerated Distribution
Percentage for any described above shall occur as of any
Distribution Date only if:
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(a)(1)(X)
the outstanding principal balance of the Mortgage Loans delinquent
60 days or more (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with
respect to which the Mortgagor is in bankruptcy and any REO
Property) 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 Mortgage Loans delinquent 60 days or more
(including Mortgage Loans which are in foreclosure, have been
foreclosed or otherwise liquidated, or with respect to which the
Mortgagor is in bankruptcy and any REO Property) 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
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(b)(1) the
outstanding principal balance of 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
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(ii)
that for any Distribution Date on which the Senior Percentage is
greater than the Senior Percentage as of the Closing Date, the
Senior Accelerated Distribution Percentage for such Distribution
Date shall be 100%.
Notwithstanding
the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the
Class PO Certificates, if any) to zero, the related Senior
Accelerated Distribution Percentage shall thereafter be
0%.
Senior Certificate : Any one of the Class A,
Class IO, Class PO or Class R Certificates, executed
by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit A-1,
Exhibit A-2, Exhibit A-3 and Exhibit D
respectively.
Senior Percentage : As of any Distribution Date, the lesser
of (i) 100% and (ii) a fraction, expressed as a
percentage, the numerator of which is the aggregate Certificate
Principal Balance of the Senior Certificates (other than the
Class PO 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 each
Discount Mortgage Loan) immediately prior to such Distribution
Date.
Senior Principal Distribution Amount : As to any
Distribution Date, the lesser of (a) the balance of the
Available Distribution Amount remaining after the distribution of
all amounts required to be distributed pursuant to 4.02(a)(i),(ii)
and (iii) and (b) the sum of the amounts required to be
distributed to the Senior Certificateholders on such Distribution
Date pursuant to Section 4.02(a)(iv).
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 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
or, with respect to a Cooperative Loan, the related Cooperative
Apartment, (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 and (iv) compliance with the
obligations under Sections 3.01, 3.08, 3.12(a) and 3.14,
including, if the Servicer or any Affiliate of the 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 Servicer in
respect of servicing compensation that accrues at the Servicing Fee
Rate.
Servicing
Fee Rate: 0.250% per annum.
Servicing Modification : Any reduction of the interest rate
on or the outstanding principal balance of a Mortgage Loan that is
in default, or for which, in the judgment of the Servicer, default
is reasonably foreseeable, pursuant to a modification of such
Mortgage Loan in accordance with Section 3.07(a).
Servicing Officer : Any officer of the 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 Servicer, as
such list may from time to time be amended.
Special Hazard Amount : As of any Distribution Date, an
amount equal to $5,255,006.62 minus the sum of (i) the
aggregate amount of Special Hazard Losses allocated solely to one
or more specific Classes of Certificates 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 greatest of
(A) the greatest of (i) twice the outstanding principal
balance of the Mortgage Loan in the Trust Fund which 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, (B) the greater of
(i) the product of the Special Hazard Percentage for such
anniversary multiplied by the outstanding principal balance of all
the Mortgage Loans on the Distribution Date immediately preceding
such anniversary and (ii) twice the outstanding principal
balance of the Mortgage Loan in the Trust Fund which has the
largest outstanding principal balance on the Distribution Date
immediately preceding such anniversary, and (C) 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 34.56% (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 (or, with respect to
a Cooperative Loan, the related Cooperative Apartment) located in
the State of California.
The
Special Hazard Amount may be further reduced by the Servicer
(including accelerating the manner in which coverage is reduced)
provided that prior to any such reduction, the Servicer shall
(i) obtain written confirmation from each Rating Agency that
such reduction shall 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 and (ii) provide
a copy of such written confirmation to the Trustee.
Special Hazard Loss : Any Realized Loss not in excess of the
cost of the lesser of repair or replacement of a Mortgaged Property
(or, with respect to a Cooperative Loan, the related Cooperative
Apartment) suffered by such Mortgaged Property (or Cooperative
Apartment) 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.
Special Hazard Percentage : As of each anniversary of the
Cut-off Date, the greater of (i) 1.0% and (ii) the
largest percentage obtained by dividing the aggregate outstanding
principal balance (as of immediately preceding Distribution Date)
of the Mortgage Loans secured by Mortgaged Properties located in a
single, five-digit zip code area in the State of California by the
outstanding principal balance of all the Mortgage Loans as of the
immediately preceding Distribution Date.
Standard & Poor's: Standard & Poor's,
a division of The McGraw-Hill Companies, Inc., or its successor in
interest.
Stated Principal Balance : With respect to any Mortgage Loan
or related REO Property, at any given time, (i) the Cut-off
Date Principal Balance of the Mortgage Loan, minus (ii) the
sum of (a) the principal portion of the Monthly Payments due
with respect to such Mortgage Loan or REO Property during each Due
Period ending prior to the most recent Distribution Date which were
received or with respect to which an Advance was made, and
(b) all Principal Prepayments with respect to such Mortgage
Loan or REO Property, and all Insurance Proceeds, Liquidation
Proceeds and REO Proceeds, to the extent applied by the Servicer as
recoveries of principal in accordance with Section 3.14 with
respect to such Mortgage Loan or REO Property, in each case which
were distributed pursuant to Section 4.02 on any previous
Distribution Date, and (c) any Realized Loss allocated to
Certificateholders with respect thereto for any previous
Distribution Date.
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 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 each Discount Mortgage Loan)
immediately prior to such Distribution Date.
Subordinate Percentage : As of any Distribution Date, 100%
minus the 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)(v) (without giving effect to the Senior
Percentage) to the extent not payable to the 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 clause (b) of Section 4.02(a)(iv)(B)
(without giving effect to the Senior Accelerated Distribution
Percentage) to the extent such collections are not otherwise
distributed to the 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
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 to the
extent not payable to the Senior Certificates; 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 with a Lower Priority minus (b) 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.
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 Servicer has entered
into a Subservicing Agreement.
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
Servicer and any Subservicer relating to servicing and
administration of certain Mortgage Loans as provided in
Section 3.02.
Subservicing Fee: As to any Mortgage Loan, the
fee payable monthly to the related Subservicer, if any.
Subsequent Recoveries : As of any Distribution Date, amounts
received by the Servicer (net of any related expenses permitted to
be reimbursed pursuant to Section 3.10) or surplus amounts
held by the 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.
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
the REMICs due to its classification as a REMIC under the REMIC
Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or
any other governmental taxing authority under any applicable
provisions of federal, state or local tax laws.
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: The segregated pool of assets consisting
of:
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(i)
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the Mortgage
Loans and the related Mortgage Files and collateral securing such
Mortgage Loans,
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(ii)
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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 Payment Account and identified as belonging to the Trust
Fund,
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(iii)
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property that
secured a Mortgage Loan and that has been acquired for the benefit
of the Certificateholders by foreclosure or deed in lieu of
foreclosure,
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(iv)
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the hazard
insurance policies and Primary Insurance Policies, if any,
and
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(v)
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all proceeds of
clauses (i) through (v) above.
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A
REMIC election with respect to the Trust Fund.
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.
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 : (i) A citizen or resident of the
United States, (ii) a corporation, partnership or other entity
treated as a corporation or partnership for United States federal
income tax purposes organized in or under the laws of the United
States or any state thereof or the District of Columbia (unless, in
the case of a partnership, Treasury regulations provide otherwise),
provided that, for purposes solely of the restrictions on the
transfer of residual interests, 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
indirectly through any chain of entities no one of which is a
corporation for United States federal income tax purposes are
required by the applicable operating agreement to be United States
Persons, (iii) an estate the income of which is includible in
gross income for United States tax purposes, regardless of its
source, or (iv) a trust if a court within the United States is
able to exercise primary supervision over the administration of the
trust and one or more United States persons have authority to
control all substantial decisions of the trust. Notwithstanding the
preceding sentence, to the extent provided in Treasury regulations,
certain trusts in existence on August 20, 1996, and treated as
United States persons prior to such date, that elect to continue to
be treated as United States persons will also be a United States
Person.
Voting Rights : The portion of the voting rights of all of
the Certificates which is allocated to any Certificate, as
designated in Section 11.09.
Section 1.02. Use of Words and Phrases.
“Herein,”
“hereby,” “hereunder,”
‘hereof,” “hereinbefore,”
“hereinafter” and other equivalent words refer to the
Pooling and Servicing Agreement as a whole. All references herein
to Articles, Sections or Subsections shall mean the corresponding
Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definition set forth herein include both the
singular and the plural.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage
Loans.
(a) The
Company, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee for the benefit of the
Certificateholders without recourse all the right, title and
interest of the Company in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage
Loans after the Cut-off Date (other than payments of principal and
interest due on the Mortgage Loans on or before the Cut-off Date).
The Company, the Servicer and the Trustee agree that it is not
intended that any mortgage loan be included in the Trust Fund that
is either (i) a High-Cost Home Loan as defined in the New Jersey
Home Ownership Act effective November 27, 2003, (ii) a High-Cost
Home Loan as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (ii) a High-Cost Home Loan as defined in
the Massachusetts Predatory Home Loan Practices Act effective
November 7, 2004 or (iv) a High-Cost Home Loan as defined in the
Indiana High Cost Home Loan Law Act effective January 1,
2005.
(b) In
connection with such assignment, and contemporaneously with the
delivery of this Agreement, the Company 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 original Mortgage Note, with respect to each Mortgage
Loan so assigned, endorsed without recourse in blank, or in the
name of the Trustee as trustee, and signed by an authorized officer
(which endorsement shall contain either an original signature or a
facsimile signature of an authorized officer of GMACM, and if in
the form of an allonge, the allonge shall be stapled to the
Mortgage Note), with all intervening endorsements showing a
complete chain of title from the originator to GMACM. If the
Mortgage Loan was acquired by the endorser in a merger, the
endorsement must be by “____________, successor by merger to
[name of predecessor].” If the Mortgage Loan was acquired or
originated by the endorser while doing business under another name,
the endorsement must be by “____________ formerly known as
[previous name].”
In lieu of delivering the
Mortgage Note relating to any Mortgage Loan, the Company may
deliver or cause to be delivered a lost note affidavit from the
Seller stating that the original Mortgage Note was lost, misplaced
or destroyed, and, if available, a copy of each original Mortgage
Note; provided , however , that in the case of
Mortgage Loans which have been prepaid in full after the Cut-off
Date and prior to the Closing Date, the Company, in lieu of
delivering the above documents, may deliver or cause to be
delivered to the Custodian, if any, or the Trustee, a certification
to such effect and shall deposit all amounts paid in respect of
such Mortgage Loan in the Payment Account on the Closing
Date.
(c) All
other documents contained in the Mortgage File and any original
documents relating to the Mortgage Loans not contained in the
Mortgage File or delivered to the Custodian, if any, or the Trustee
are and shall be held by the Servicer in trust as agent for the
Trustee on behalf of the Certificateholders.
In
the event that in connection with any Mortgage Loan: (a) the
original recorded Mortgage (or evidence of submission to the
recording office), (b) all interim recorded assignments,
(c) the original recorded modification agreement, if required,
or (d) evidence of title insurance (together with all riders
thereto, if any) satisfying the requirements of
clause (I)(ii), (iv), (vi) or (vii) of the
definition of Mortgage File, respectively, have not been delivered
to the Servicer concurrently with the execution and delivery hereof
because such document or documents have not been returned from the
applicable public recording office, or, in the case of each such
interim assignment or modification agreement, because the related
Mortgage has not been returned by the appropriate recording office,
in the case of clause (I)(ii), (iv) or (vi) of the
definition of Mortgage File, or because the evidence of title
insurance has not been delivered to the Seller by the title insurer
in the case of clause (I)(vii) of the definition of
Mortgage File, the Servicer shall use its reasonable best efforts
to obtain, (A) in the case of clause (I)(ii),
(iv) or (vi) of the definition of Mortgage File, such
original Mortgage, such interim assignment, or such modification
agreement, with evidence of recording indicated thereon upon
receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording
office, or (B) in the case of clause (I)(vii) of the
definition of Mortgage File, evidence of title
insurance.
(d) If
any of the documents held by the Servicer pursuant to
clause (c) above are missing or defective in any other
respect and such missing document or defect materially and
adversely affects the interests of the Certificateholders in the
related Mortgage Loan, the Servicer shall request that GMACM either
(i) cure such defect in all material respects,
(ii) substitute for such Mortgage Loan a Qualified Substitute
Mortgage Loan, which substitution shall be accomplished in the
manner and subject to the conditions set forth in
Section 2.04, or (iii) purchase such Mortgage Loan from
the Trust Fund at the Purchase Price within 90 days after the
date on which GMACM was notified of such defect; provided
that if such 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. If GMACM fails to comply with such
request by the Servicer, the Servicer shall notify the Trustee of
such missing document or material defect and the Trustee shall
notify GMACM of its obligation to comply with clause (i),
(ii) or (iii) of the preceding sentence. It is understood
and agreed that the obligation of GMACM to cure a material defect
in, or substitute for, or purchase any Mortgage Loan as to which a
material defect in or omission of a constituent document exists,
shall constitute the sole remedy respecting such material defect or
omission available to Certificateholders or the Trustee on behalf
of Certificateholders. The Purchase Price for the purchased
Mortgage Loan shall be deposited or caused to be deposited upon
receipt by the Trustee in the Payment Account, or upon receipt by
the Servicer in the Custodial Account. Upon receipt by the Trustee
of written notification of such deposit signed by a Servicing
Officer, and upon receipt of a Request for Release from the
Servicer, the Custodian on behalf of the Trustee, shall
(i) release or cause to be released to GMACM the related
Mortgage Note, and (ii) cause the Servicer to release to GMACM
any remaining documents in the related Mortgage File which are held
by the Servicer. The Trustee execute and deliver such instruments
of transfer or assignment, in each case without recourse, as GMACM
shall require as necessary to vest in GMACM ownership of any
Mortgage Loan released pursuant hereto and at such time the Trustee
shall have no further responsibility with respect to the related
Mortgage Note.
(e) The
Servicer shall keep in its possession (a) from time to time
additional original documents evidencing an assumption or
modification of a Mortgage Loan and (b) any other documents
required to be held by the Servicer.
Except
as may otherwise expressly be provided herein, none of the Seller,
the Servicer or the Trustee shall assign, sell, dispose of or
transfer any interest in the Trust Fund or any portion thereof, or
permit the Trust Fund or any portion thereof to be subject to any
lien, claim, mortgage, security interest, pledge or other
encumbrance of, any other Person.
The
Servicer shall cause to be filed the UCC assignment and UCC
financing statement referred to in clause (II)(vii) and
(x), respectively, of the definition of Mortgage File. If any UCC
assignment or amendment or UCC financing statement, as applicable,
is lost or returned unfiled to the Servicer because of any defect
therein, the Servicer shall prepare a substitute UCC assignment or
amendment or UCC financing statement, as applicable, or cure such
defect, and cause such UCC assignment or amendment or UCC financing
statement, as applicable, to be filed in accordance with this
paragraph. In connection with its servicing of Cooperative Loans,
the Servicer will use its reasonable best efforts to file timely
continuation statements with regard to each financing statement and
assignment relating to Cooperative Loans as to which the related
Cooperative Apartment is located outside of the State of New
York.
In
connection with the assignment of any Mortgage Loan registered on
the MERS® System, the Servicer further agrees that it will
cause, at the Servicer’s own expense, as soon as practicable
after the Closing Date, the MERS® System to indicate that such
Mortgage Loans have been assigned 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 specific code which identifies the Trustee as
the assignee of such Mortgage Loan and (b) the series specific
code in the field “Pool Field” which identifies the
series of Certificates issued in connection with such Mortgage
Loans. The 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,
and there is filed any financing statement or amendment thereof
necessary to comply with the New York Uniform Commercial Code or
the Uniform Commercial Code of any applicable
jurisdiction.
(f) It is
intended that the conveyance by the Company to the Trustee of the
Mortgage Loans as provided for in this Section 2.01 be
construed as a sale by the Company to the Trustee of the Mortgage
Loans for the benefit of the Certificateholders. Further, it is not
intended that such conveyance be deemed to be a grant of a security
interest in the Mortgage Loans by the Company to the Trustee to
secure a debt or other obligation of the Company. However, if the
Mortgage Loans are held to be property of the Company or of the
Seller, 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 be and hereby is a security
agreement within the meaning of Article 9 of the Uniform
Commercial Code of any applicable jurisdiction; (b) the
conveyance provided for in Section 2.01 shall be deemed to be,
and hereby is, (1) a grant by the Company to the Trustee of a
security interest in all of the Company’s right, title and
interest, whether now owned or hereafter acquired, in and to the
following: (A) the Mortgage Loans, including (i) with
respect to each Cooperative Loan, the related Mortgage Note,
Security Agreement, Assignment of Proprietary Lease, Cooperative
Stock Certificate and Cooperative Lease, (ii) with respect to
each Mortgage Loan other than a Cooperative Loan, the related
Mortgage Note and Mortgage, and (iii) 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, (C) 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 Payment Account
or the Custodial Account, whether in the form of cash, instruments,
securities or other property, (D) all accounts, general
intangibles, chattel paper, instruments, documents, money, deposit
accounts, goods, letters of credit, letter-of-credit rights, oil,
gas, and other minerals, and investment property consisting of,
arising from or relating to any of the foregoing, and (E) all
proceeds of the foregoing, and (2) an assignment by the
Company to the Trustee of any security interest in any and all of
the Seller’s right (including the power to convey title
thereto), title and interest, whether now owned or hereafter
acquired, in and to the property described in the foregoing clauses
(1)(A), (B), (C), (D) and (E) granted by the Seller to the Company
pursuant to the Purchase Agreement; (c) the possession by the
Trustee, the Custodian or any other agent of the Trustee of any of
the foregoing property shall be deemed to be possession by the
secured party, or possession by a purchaser or a person holding for
the benefit of such secured party, for purposes of perfecting the
security interest pursuant to the Pennsylvania Uniform Commercial
Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Sections 9-313 and
9-314 thereof); and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents of, or persons holding for, the
Trustee (as applicable) for the purpose of perfecting such security
interest under applicable law.
The
Company and, at the Company’s direction, GMACM 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 determined to create a security interest in the
Mortgage Loans and the other property described above, such
security interest would be determined 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 Company shall prepare
and deliver to the Trustee not less than 15 days prior to any
filing date and, the Trustee shall forward for filing, in
accordance with the Servicer’s instructions, or shall cause
to be forwarded for filing, at the expense of the Company, 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 the Mortgage Loans, as evidenced by an Officer’s
Certificate of the Company, including without limitation (x)
continuation statements, and (y) such other statements as may be
occasioned by (1) any change of name of the Seller, the
Company 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 type or jurisdiction
of organization of the Seller or the Company and (3) any
transfer of any interest of the Seller or the Company in any
Mortgage Loan. The Company shall file or cause to be filed the
original filing necessary under the Uniform Commercial Code to
perfect the Trustee’s security interest in the Mortgage
Loans.
Section 2.02. Acceptance by
Trustee .
The
Trustee acknowledges that the Custodian, acting on behalf of the
Trustee, has received (subject to any exceptions noted in the
custodian certification described below) the Mortgage Notes and the
Trustee declares that it holds or will hold the assets included in
the definition of “Trust Fund,” in trust for the
exclusive use and benefit of all present and future
Certificateholders.
The
Trustee agrees, for the benefit of the Certificateholders, that
pursuant to the Custodial Agreement, the Custodian will review each
Mortgage Note and will execute and deliver, or cause to be executed
and delivered, to GMACM, the Trustee and the Servicer a custodian
certification substantially in the form annexed hereto as
Exhibit M on or prior to the Closing Date. Pursuant to the
Custodial Agreement, in conducting such review, the Custodian is
required to ascertain whether the Mortgage Notes have been executed
and received, and whether the Mortgage Notes relate, determined on
the basis of the original principal balance and loan number, to the
Mortgage Loans. Neither the Custodian nor the Trustee shall be
under any 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
are in recordable form or that they are other than what they
purport to be on their face.
If,
in the process of reviewing the Mortgage Notes and preparing the
certifications referred to above, the Custodian finds any Mortgage
Note to be missing or contains any defect which materially and
adversely affects the interests of the Certificateholders in the
related Mortgage Loan, the Custodian is required pursuant to the
Custodial Agreement, to notify the Trustee, the Company and the
Seller, and the Trustee shall request that GMACM cure any such
defect in all material respects within 90 days from the date
on which GMACM was notified of such defect, and if GMACM does not
cure such defect in all material respects during such period, the
Trustee shall request on behalf of the Certificateholders that
GMACM either (i) substitute for such Mortgage Loan a Qualified
Substitute Mortgage Loan, which substitution shall be accomplished
in the manner and subject to the conditions set forth in
Section 2.04, or (ii) purchase such Mortgage Loan from
the Trust Fund at the Purchase Price within 90 days after the
date on which GMACM was notified of such defect; provided
that if such 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. It is understood and agreed that
the obligation of GMACM to cure a material defect in, or substitute
for, or purchase any Mortgage Loan as to which a material defect
in, or omission of, a Mortgage Note exists shall constitute the
sole remedy respecting such material defect or omission available
to Certificateholders or the Trustee on behalf of
Certificateholders. The Purchase Price for the purchased Mortgage
Loan shall be deposited or caused to be deposited upon receipt by
the Trustee in the Payment Account, or upon receipt by the Servicer
in the Custodial Account. Upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, and
upon receipt of a Request for Release from the Servicer, the
Custodian on behalf of the Trustee, shall (i) release or cause
to be released to GMACM the related Mortgage Note, and
(ii) cause the Servicer to release to GMACM any remaining
documents in the related Mortgage File which are held by the
Servicer. The Trustee execute and deliver such instruments of
transfer or assignment, in each case without recourse,
representation or warranty, as GMACM shall require as necessary to
vest in GMACM ownership of any Mortgage Loan released pursuant
hereto and at such time the Trustee shall have no further
responsibility with respect to the related Mortgage
Note.
Section 2.03. Representations, Warranties and
Covenants of the Servicer.
The
Servicer hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that:
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(i)
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The 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;
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(ii)
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The execution
and delivery of this Agreement by the Servicer and its performance
and compliance with the terms of this Agreement will not violate
the Servicer’s Certificate of Incorporation or Bylaws or
constitute a material default (or an event which, with notice
or lapse of time, would constitute a material default) under, or
result in the material breach of, any material contract, agreement
or other instrument to which the Servicer is a party or which may
be applicable to the Servicer or any of its assets;
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(iii)
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This Agreement,
assuming due authorization, execution and delivery by the Trustee
and the Company, constitutes a valid, legal and binding obligation
of the 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 and to public policy as it relates
to indemnification and contribution under applicable securities
laws;
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(iv)
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The 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 Servicer or its properties or might
have consequences that would materially adversely affect its
performance hereunder;
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(v)
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No litigation
is pending or, to the best of the Servicer’s knowledge,
threatened against the Servicer which would prohibit its entering
into this Agreement or performing its obligations under this
Agreement;
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(vi)
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The 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;
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(vii)
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No information,
certificate of an officer, statement furnished in writing or report
delivered to the Company, any Affiliate of the Company or the
Trustee by the Servicer will, to the knowledge of the 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; and
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(viii)
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The 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.
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It is understood and agreed that
the representations and warranties set forth in this
Section 2.03 shall survive delivery of the respective Mortgage
Notes to the Custodian, if any, or the Trustee.
Section 2.04. Representations and Warranties
of the Seller.
The
Company hereby assigns to the Trustee for the benefit of
Certificateholders all of its right, title and interest in respect
of the Purchase Agreement insofar as the Purchase Agreement relates
to the representations and warranties made by the Seller in respect
of the Mortgage Loans and any remedies provided thereunder for any
breach of such representations and warranties, such right, title
and interest may be enforced by the Servicer on behalf of the
Trustee and the Certificateholders. Upon the discovery by the
Company, the Servicer, the Trustee or any Custodian of a breach of
any of the representations and warranties made by the Seller in the
Purchase Agreement (which, for purposes hereof, will be deemed to
include any other cause giving rise to a repurchase obligation
under the Purchase Agreement) in respect of any Mortgage Loan 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
Servicer shall promptly notify the Seller of such breach and
request that the Seller either (i) cure such breach in all
material respects within 90 days from the date the Seller was
notified of such breach 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 under the Purchase Agreement, the Seller, 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, repurchase or substitution must occur within
90 days from the date the breach was discovered. In the event
that the Seller elects to substitute a Qualified Substitute
Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant to this
Section 2.04, the Trustee shall notify the Seller to deliver
to the Custodian with respect to such Qualified Substitute Mortgage
Loan or Loans, the original Mortgage Note endorsed as required by
Section 2.01, and the Trustee shall notify the Seller to
deliver to the Servicer with respect to such Qualified Substitute
Mortgage Loan, the Mortgage, an Assignment of the Mortgage in
recordable form if required pursuant to Section 2.01, and such
other documents and agreements as are required to be held by the
Servicer pursuant to 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 Servicer and remitted by
the Servicer to the Seller on the next succeeding Distribution
Date. For the month of substitution, distributions to the
Certificateholders will include the Monthly Payment due on a
Deleted Mortgage Loan for such month and thereafter the Seller
shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Servicer shall amend or cause to be
amended the Mortgage Loan Schedule and, if the Deleted Mortgage
Loan was a Discount Mortgage Loan, the Schedule of Discount
Fractions, 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 Servicer shall
deliver the amended Mortgage Loan Schedule, and, if the Deleted
Mortgage Loan was a Discount Mortgage Loan, the amended Schedule of
Discount Fractions, to the Trustee 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 Servicer shall deliver the amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, the Qualified
Substitute Mortgage Loan or Loans shall be subject to the terms of
this Agreement and the related Subservicing Agreement in all
respects, and the Seller shall be deemed to have made the
representations and warranties with respect to the Qualified
Substitute Mortgage Loan contained in the Purchase Agreement as of
the date of substitution.
In
connection with the substitution of one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the 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). The Servicer shall deposit the amount of such
shortfall received from the Seller into the Custodial Account on
the day of substitution. Prior to the delivery of the Qualified
Substitute Mortgage Loan, the Servicer shall give notice in writing
to the Trustee of any such shortfall, which notice shall be
accompanied by an Officer’s Certificate stating that such
Mortgage Loan is a Qualified Substitute Mortgage Loan and as to the
calculation of any such shortfall and (subject to
Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any
federal tax imposed on “prohibited transactions” under
Section 860F(a)(1) of the Code or on “contributions
after the startup date” under Section 860G(d)(1) of
the Code or (b) any portion of the REMIC to fail to qualify as
such at any time that any Certificate is outstanding.
It
is understood and agreed that the obligation of the Seller to cure
such breach or purchase (or to substitute for) such Mortgage
Loan as to which a breach of its representations and warranties has
occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Certificateholders or the
Trustee on behalf of Certificateholders. In connection with the
purchase of or substitution for any such Mortgage Loan by the
Seller, the Trustee shall assign, pursuant to an assignment
delivered to the Trustee by the Seller, to the Seller or its
designee all of the right, title and interest in respect of the
Purchase Agreement applicable to such Mortgage Loan.
Section 2.05. Execution and Authentication of
Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and
the delivery of the Mortgage Notes to the Custodian on its behalf,
subject to any exceptions noted, together with the assignment to it
of all other assets included in the Trust Fund and/or the REMIC,
receipt of which is hereby acknowledged. Concurrently with such
delivery and in exchange therefor, the Trustee, pursuant to the
written request of the Company executed by an officer of the
Company has executed and caused to be authenticated and delivered
to or upon the order of the Company the Certificates in authorized
denominations which evidence ownership of the entire Trust
Fund.
Section 2.06. Purposes and Powers of the Trust
Fund.
The
purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to
sell the Certificates to the Company in exchange for the Mortgage
Loans;
(b) to
enter into and perform its obligations under this
Agreement;
(c) to
engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or
connected therewith; and
(d)
subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of
the Trust Fund and the making of distributions to the
Certificateholders.
The
trust is hereby authorized to engage in the foregoing activities.
The trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the
terms of this Agreement while any Certificate is outstanding
without the consent of the Certificateholders evidencing a majority
of the aggregate Voting Rights of the Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Servicer to Act as Servicer.
(a) The
Servicer shall service and administer the Mortgage Loans in
accordance with the terms of this Agreement and the respective
Mortgage Loans, shall follow such practices and procedures as it
shall deem necessary or advisable and as shall be 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 Servicer in its own name or in the name of a
Subservicer is hereby authorized and empowered by the Trustee when
the Servicer or the Subservicer, as the case may be, believes it
appropriate in its best judgment, to execute and deliver, on behalf
of the Certificateholders and the Trustee or any of them, any and
all instruments of satisfaction or cancellation, or of partial or
full release or discharge, or of consent to assumption or
modification in connection with a proposed conveyance, or of
assignment of any Mortgage and Mortgage Note in connection with the
repurchase of a Mortgage Loan and all other comparable instruments,
or with respect to the modification or re-recording of a Mortgage
for the purpose of correcting the Mortgage, the subordination of
the lien of the Mortgage in favor of a public utility company or
government agency or unit with powers of eminent domain, the taking
of a deed in lieu of foreclosure, the commencement, prosecution or
completion of judicial or non-judicial foreclosure, the conveyance
of a Mortgaged Property to the related Insurer, the acquisition of
any property acquired by foreclosure or deed in lieu of
foreclosure, or the management, marketing and conveyance of any
property acquired by foreclosure or deed in lieu of foreclosure
with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. The 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 Servicer or the Subservicer, as the case may be, believes
it appropriate in its best judgment to register any Mortgage Loan
on the MERS® System, or cause the removal from the
registration of any Mortgage Loan on the MERS® 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 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
System, it becomes necessary to remove any Mortgage Loan from
registration on the MERS System and to arrange for the assignment
of the related Mortgages to the Trustee, then any related expenses
shall be reimbursable to the Servicer pursuant to
Section 3.10(a)(ii). Notwithstanding the foregoing, subject to
Section 3.07(a), the 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 the REMIC formed
under this Agreement to fail to qualify as a REMIC under the Code.
Upon request, the Trustee shall furnish the Servicer with any
powers of attorney and other documents necessary or appropriate to
enable the Servicer to service and administer the Mortgage Loans.
The Trustee shall not be liable for any action taken by the
Servicer or any Subservicer pursuant to such powers of attorney. In
connection with servicing and administering the Mortgage Loans, the
Servicer and any Affiliate of the Servicer (i) may perform
services such as appraisals and brokerage services that are not
customarily provided by 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 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
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
Servicer of amounts received by the 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 Servicer
hereunder.
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Section
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3.02.
Subservicing Agreements Between Servicer and Subservicers;
Enforcement of Subservicers’ and Seller’s
Obligations .
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The
Servicer may enter into Subservicing Agreements with Subservicers,
for the servicing and administration of all or some of the Mortgage
Loans. 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 Servicer in
respect of such Mortgage Loan. Any Subservicing Fee shall be paid
by the Servicer out of the Servicing Fee for the related Mortgage
Loans. Unless the context otherwise requires, references in this
Agreement to actions taken or to be taken by the Servicer in
servicing the Mortgage Loans include actions taken or to be taken
by a Subservicer on behalf of the Servicer.
Section 3.03. Successor
Subservicers .
The
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 Servicer or the
Subservicer, the 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.
Section 3.04. Liability of the Servicer.
Notwithstanding
any Subservicing Agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Servicer or a
Subservicer or reference to actions taken through a Subservicer or
otherwise, the Servicer shall remain obligated and liable to the
Trustee and the 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 Company and to the same extent and under the
same terms and conditions as if the Servicer alone were servicing
and administering the Mortgage Loans. The Servicer shall be
entitled to enter into any agreement with a Subservicer or the
Seller for indemnification of the 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 Servicer alone and
the Trustee and the 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.
Section 3.06. Assumption or Termination of
Subservicing Agreements by Trustee.
(a) If
the Servicer shall for any reason no longer be the 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 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 Servicer’s interest therein and to have replaced
the 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 Servicer shall not thereby be
relieved of any liability or obligations under the Subservicing
Agreement.
(b) The
Servicer shall, upon request of the Trustee but at the expense of
the 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 reasonable efforts to effect
the orderly and efficient transfer of each Subservicing Agreement
to the assuming party.
Section 3.07. Collection of
Certain Mortgage Loan Payments; Deposits to Custodial Account
.
(a) The
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 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 Note
for a period not greater than 180 days; provided ,
however , that the Servicer shall first determine that any
such waiver or extension will not impair the coverage of any
related Primary Insurance Policy or materially adversely affect the
lien of the related Mortgage. In the event of any such arrangement,
the 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 such advance would be a Nonrecoverable Advance.
Consistent with the terms of this Agreement, the 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 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 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), or extend the final maturity date of such Mortgage Loan,
unless such Mortgage Loan is in default or, in the judgment of the
Servicer, such default is reasonably foreseeable; provided ,
further , that no such modification shall reduce the
interest rate on a Mortgage Loan below the sum of the Pool Strip
Rate and the Servicing Fee Rate. In connection with any Curtailment
of a Mortgage Loan, the Servicer, to the extent not inconsistent
with the terms of the Mortgage Note and local law and practice, may
permit the Mortgage Loan to be reamortized 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 re-amortization shall not be permitted if it would constitute
a reissuance of the Mortgage Loan for federal income tax purposes,
except if such reissuance is described in Treasury Regulation
Section 1.860G-2(b)(3). The Servicer shall not be required to
institute or join in litigation with respect to collection of any
payment (whether under a Mortgage, Mortgage Note or otherwise or
against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which
such payment is required is prohibited by applicable
law.
(b) The
Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its
own funds and general assets and shall establish and maintain one
or more Custodial Accounts held in trust, entitled “GMAC
Mortgage Corporation Custodial Account in trust for the benefit of
the Holders of GMACM Mortgage Pass-Through Certificates,
Series 2005-J1.” Each Custodial Account shall be an
Eligible Account. The Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage pass-through certificates of other series, and the other
accounts of the Servicer.
Within
two Business Days of receipt, except as otherwise specifically
provided herein, the Servicer shall deposit or cause to be
deposited 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 due on such Mortgage Loans on or before the Cut-off
Date) and the following amounts required to be deposited
hereunder:
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(i)
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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;
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(ii)
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All payments on
account of interest at the Net Mortgage Rate on the Mortgage Loans,
and 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, minus the amount of any interest paid
by a Mortgagor in connection with a Principal Prepayment in Full
for the calendar month in which such Principal Prepayment is to be
distributed pursuant to Section 4.02;
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(iii)
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Insurance
Proceeds, Subsequent Recoveries and Liquidation Proceeds (net of
any related expenses of the Subservicer);
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(iv)
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All proceeds of
any Mortgage Loans purchased pursuant to Section 2.02, 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 2.04;
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(v)
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Any amounts
required to be deposited pursuant to Section 3.07(c);
and
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(vi)
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All amounts
transferred from the Payment Account to the Custodial Account in
accordance with Section 4.02(a)(v).
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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 in the nature of prepayment charges or
late payment charges or assumption fees may but need not be
deposited by the Servicer in the Custodial Account. In the event
any amount not required to be deposited in the Custodial Account is
so deposited, the Servicer may at any time withdraw such amount
from the Custodial Account, any provision herein to the contrary
notwithstanding. The Servicer shall maintain records with respect
to all deposits made pursuant to this Section. All funds deposited
in the Custodial Account shall be held in trust for the
Certificateholders until withdrawn in accordance with
Section 3.10. S
With
respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds
and the proceeds of the purchase of any Mortgage Loan pursuant to
Sections 2.02, 2.04 and 4.07 received in any calendar month, the
Servicer may elect to treat such amounts as included in the
Available Distribution Amount for the Distribution Date in the
month of receipt, but is not obligated to do so. If the 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
Servicer shall use commercially reasonable 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 Payment
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 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 Servicer out of its own funds immediately as realized without
any right of reimbursement.
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 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 be acceptable to the 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 Servicer shall be deemed to have received
such monies upon receipt thereof by the Subservicer. The
Subservicer shall not be required to deposit in the Subservicing
Account payments or collections in the nature of prepayment charges
or late charges or assumption fees. On or before each Determination
Date, the Servicer shall cause the Subservicer, pursuant to the
Subservicing Agreement, to remit to the 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 Servicer.
(b) In
addition to the Custodial Account and the Payment Account, the
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 be hold in trust, entitled “GMAC
Mortgage Corporation Servicing Account in trust for the benefit of
the of the Holders of GMACM Mortgage Pass-Through Certificates,
Series 2005-J1.” 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 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.
As part of its servicing duties, the 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.
(c) The
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 Servicer shall
be required so to advance only to the extent that such advances, in
the good faith judgment of the Servicer, will be recoverable by the
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise. !
Section 3.09. Access to
Certain Documentation and Information Regarding the Mortgage
Loans .
If
compliance with this Section 3.09 shall make any Class of
Certificates legal for investment by federally insured savings and
loan associations, the Servicer shall provide, or cause the
Subservicers to provide, to the Trustee, the Office of Thrift
Supervision or the FDIC and the supervisory agents and examiners
thereof access to the documentation regarding the Mortgage Loans
required by applicable regulations of the Office of Thrift
Supervision, such access being afforded without charge but only
upon reasonable request and during normal business hours at the
offices designated by the Servicer. The 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
Servicer.
Section 3.10. Permitted Withdrawals from the
Custodial Account.
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(a)
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The 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 collected on or attributable to the
Mortgage Loans for the following purposes:
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(i)
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to make
deposits into the Payment Account in the amounts and in the manner
provided for in Section 4.01;
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(ii)
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to reimburse
itself or the related Subservicer for previously unreimbursed
advances or expenses made pursuant to Sections 3.01, 3.07(a), 3.08,
3.11, 3.12(a), 3.14 and 4.04 or otherwise reimbursable pursuant to
the terms of this Agreement, such withdrawal right being limited to
amounts received on 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, 2.04 or 4.07) which represent (A) Late
Collections of Monthly Payments for which any such advance was made
in the case of Subservicer Advances or Advances pursuant to
Section 4.04 and (B) recoveries of amounts in respect of which
such advances were made in the case of Servicing
Advances;
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(iii)
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to pay to
itself or the related Subservicer (if not previously retained by
such Subservicer) out of each payment received by the 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 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;
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(iv)
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to pay to
itself as additional servicing compensation any interest or
investment income earned on funds and other property deposited in
or credited to the Custodial Account that it is entitled to
withdraw pursuant to Section 3.07(c);
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(v)
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to pay to
itself as additional servicing compensation any Foreclosure
Profits, and any amounts remitted by Subservicers or received from
Mortgagors as interest in respect of Curtailments;
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(vi)
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to pay the
Seller, with respect to each Mortgage Loan or property acquired in
respect thereof that has been purchased or otherwise transferred
pursuant to Section 2.02, 2.04, 4.07 or 9.01, all amounts
received thereon and not required to be distributed to the
Certificateholders as of the date on which the related Stated
Principal Balance or Purchase Price is determined;
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(vii)
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to reimburse
itself or the related Subservicer for any Nonrecoverable Advance or
any Advance that was ultimately determined to be Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses in the manner and to the extent provided in
subsection (c) below, any Advance made in connection with a
modification of a Mortgage Loan that is in default or, in the
judgment of the Servicer, default is reasonably foreseeable
pursuant to Section 3.07(a), to the extent the amount of the
Advance has been added to the outstanding principal balance of the
Mortgage Loan, or any Advance reimbursable to the Servicer pursuant
to Section 4.02(a);
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(viii)
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to reimburse
itself, the REMIC Administrator or the Company for expenses
incurred by and reimbursable to it, the REMIC Administrator or the
Company pursuant to Sections 3.01(a), 3.01(b), 3.11, 3.13, 3.14(c),
6.03, 10.01 or otherwise;
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(ix)
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to reimburse
itself for Servicing Advances 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
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(x)
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to withdraw any
amount deposited in the Custodial Account that was not required to
be deposited therein pursuant to Section 3.07.
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(b)
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Since, in
connection with withdrawals pursuant to clauses (ii), (iii),
(v) and (vi), the Servicer’s entitlement thereto is
limited to collections or other recoveries on the related Mortgage
Loan, the 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.
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(c)
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The Servicer
shall be entitled to reimburse itself or the related Subservicer
for any Advance made in respect of a Mortgage Loan that the
Servicer determines to be a Nonrecoverable Advance or an Advance
that was ultimately determined to be Excess Special Hazard Losses,
Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary
Losses by withdrawal from the Custodial Account of amounts on
deposit therein attributable to the Mortgage Loans on any Payment
Account Deposit Date succeeding the date of such determination.
Such right of reimbursement in respect of a Nonrecoverable Advance
on any such Payment 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 Servicer
or the related Subservicer).
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Section 3.11. Maintenance of
the Primary Insurance Policies; Collections Thereunder
.
(a) The
Servicer shall not take, or permit any Subservicer to take, any
action which would result in non-coverage under any applicable
Primary Insurance Policy of any loss which, but for the actions of
the Servicer or Subservicer, would have been covered thereunder. To
the extent coverage is available, the Servicer shall keep or cause
to be kept in full force and effect a Primary Insurance Policy in
the case of each Mortgage Loan having a Loan-to-Value Ratio at
origination in excess of 80%, until the principal balance of the
related Mortgage Loan secured by a Mortgaged Property is reduced to
80% or less of the appraised value based on the most recent
appraisal of the Mortgaged Property performed by a qualified
appraiser, such appraisal to be included in the related servicing
file. The 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. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 3.13,
the Servicer shall promptly notify the insurer under the related
Primary Insurance Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such
insurer as a condition to the continuation of coverage under the
Primary Insurance Policy. If such Primary Insurance Policy is
terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement Primary
Insurance Policy as provided above.
(b) In
connection with its activities as administrator and servicer of the
Mortgage Loans, the Servicer agrees to present or to cause the
related Subservicer to present, on behalf of the Servicer, the
Subservicer, if any, the Trustee and Certificateholders, claims to
the related 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 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 Hazard Insurance
and Omissions and Fidelity Coverage.
(a) The
Servicer shall cause to be maintained for each Mortgage Loan (other
than a Cooperative Loan) hazard insurance with extended coverage in
an amount which is equal to the lesser of (i) the greater of
(A) the principal balance owing on such Mortgage Loan and (B) the
percentage such that the proceeds thereof shall be sufficient to
prevent the application of a co-insurance clause; or
(ii) 100 percent of the insurable value of the
improvements. If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as
being a special flood hazard area that has federally-mandated flood
insurance requirements, the Servicer will cause to be maintained a
flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier, in an amount representing coverage
not less than the least of (i) the outstanding principal
balance of the Mortgage Loan, (ii) the maximum insurable value
of the improvements securing such Mortgage Loan or (iii) the
maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. The Servicer shall
also cause to be maintained on property acquired upon foreclosure,
or deed in lieu of foreclosure, of any Mortgage Loan (other than a
Cooperative Loan), hazard insurance with extended coverage in an
amount which is at least equal to the maximum insurable value of
the improvements which are a part of such property, liability
insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in an
amount as provided above. Pursuant to Section 3.07, any
amounts collected by the 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 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 Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to
the 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 Servicer out of
related late payments by the Mortgagor, out of Insurance Proceeds
and Liquidation Proceeds or from amounts on deposit in the
Custodial Account 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. All such
policies shall be endorsed with standard mortgagee clauses with
loss payable to the Servicer and its successors and/or assigns and
shall provide for at least thirty days prior written notice of any
cancellation, reduction in the amount or material change in
coverage to the Servicer. The Servicer shall not interfere with the
Mortgagor’s freedom of choice in selecting either his
insurance carrier or agent; provided , however , that
the Servicer shall not accept any such insurance policies from
insurance companies unless such companies currently reflect a
General Policy Rating in Best’s Key Rating Guide currently
acceptable to Fannie Mae and are licensed to do business in the
state wherein the property subject to the policy is
located.
If
the Servicer shall obtain and maintain a blanket hazard 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 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 Payment Account the amount not otherwise payable under the
blanket policy because of such deductible clause. Any such deposit
by the Servicer shall be made on the Payment 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 Servicer agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims under any such blanket
policy.
(b) The
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 Servicer’s officers and employees and other
persons acting on behalf of the Servicer in connection with its
activities under this Agreement. The amount of coverage, taken
together, shall be at least equal to the coverage that would be
required by Fannie Mae or Freddie Mac, with respect to the Servicer
if the Servicer were servicing and administering the Mortgage Loans
for Fannie Mae or Freddie Mac. In the event that any such bond or
policy ceases to be in effect, the Servicer shall obtain a
comparable replacement bond or policy from an issuer or insurer, as
the case may be, meeting the requirements set forth
above.
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Section
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3.13.
Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments .
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(a) When
any Mortgaged Property is conveyed by the Mortgagor, the 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, the
Servicer is not required to exercise such rights with respect to a
Mortgage Loan if the Person to whom the related Mortgaged Property
has been conveyed or is proposed to be conveyed satisfies the terms
and conditions contained in the Mortgage Note and Mortgage related
thereto and the consent of the mortgagee under such Mortgage Note
or Mortgage is not otherwise so required under such Mortgage Note
or Mortgage as a condition to such transfer. In the event that the
Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any Required Insurance Policy would be
adversely affected, or if nonenforcement is otherwise permitted
hereunder, the Servicer is authorized, subject to
Section 3.13(b), to take or enter into an assumption and
modification agreement from or with the person to whom such
property has been or is about to be conveyed, pursuant to which
such person becomes liable under the Mortgage Note and, unless
prohibited by applicable state law, the Mortgagor remains liable
thereon, provided that the Mortgage Loan shall continue to be
covered (if so covered before the Servicer enters such agreement)
by the applicable Required Insurance Policies. The Servicer,
subject to Section 3.13(b), is also authorized with the prior
approval of the insurers under any Required Insurance Policies to
enter into a substitution of liability agreement with such Person,
pursuant to which the original Mortgagor is released from liability
and such Person is substituted as Mortgagor and becomes liable
under the Mortgage Note. Notwithstanding the foregoing, the
Servicer shall not be deemed to be in default under this
Section by reason of any transfer or assumption which the
Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b)
Subject to the 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 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 , that in connection
with any such assumption, no material term of the Mortgage Note may
be changed. Upon receipt of appropriate instructions from the
Servicer in accordance with the foregoing, the Trustee shall
execute any necessary instruments for such assumption or
substitution of liability delivered to it by the Servicer and as
directed in writing by the Servicer. Upon the closing of the
transactions contemplated by such documents, the 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 Servicer or such related
Subservicer for entering into an assumption or substitution of
liability agreement will be retained by the Servicer or such
Subservicer as additional servicing compensation.
(c) The
Servicer or the related Subservicer, as the case may be, shall be
entitled to approve a request from a Mortgagor for a partial
release of the related Mortgaged Property, the granting of an
easement thereon in favor of another Person, any alteration or
demolition of the related Mortgaged Property (or, with respect to a
Cooperative Loan, the related Cooperative Apartment) 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
if it has also determined that any portion of the REMIC would not
fail to continue to qualify as a REMIC under the Code as a result
thereof and (subject to Section 10.01(f)) that no tax on
“prohibited transactions” or
“contributions” after the startup day would be imposed
on the REMIC as a result thereof. Any fee collected by the Servicer
or the related Subservicer for processing such a request will be
retained by the Servicer or such Subservicer as additional
servicing compensation.
(d)
Subject to any other applicable terms and conditions of this
Agreement, the Trustee, if so directed by the Servicer, and the
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 Servicer with a “Lender
Certification for Assignment of Mortgage Loan” in the form
attached hereto as Exhibit K, in form and substance
satisfactory to the Trustee and the Servicer, providing the
following: (i) that the substance of the assignment is, and is
intended to be, a refinancing of such Mortgage; (ii) 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
(iii) 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
Servicer shall receive cash in an amount equal to the unpaid
principal balance of and accrued interest on such Mortgage Loan and
the Servicer shall treat such amount as a Principal Prepayment in
Full with respect to such Mortgage Loan for all purposes
hereof.
(e)
Consistent with the terms of this Agreement, the Servicer may
modify any Mortgage Loan to provide for bi-weekly payments in
connection with its “Bi-Saver Program” if requested to
do so from the related Mortgagor; provided , however
, that the Servicer may not modify or permit any Subservicer to
modify any Mortgage Loan in accordance with this clause (e),
if such Mortgage Loan is in default or, in the judgment of the
Servicer, such default is reasonably foreseeable; provided ,
further , that upon such modification, the Servicer shall
purchase such Mortgage Loan from the Trust Fund at the Purchase
Price therefor. If at any time the Servicer makes a payment to the
Payment Account covering the amount of the Purchase Price for such
a Mortgage Loan, and the Servicer provides to the Trustee a
certification signed by a Servicing Officer stating that the amount
of such payment has been deposited in the Payment Account, then the
Trustee shall execute the assignment of such Mortgage Loan
delivered to it by the Servicer at the request of the Servicer,
without recourse to or representation or warranty by the Trustee,
to the 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 Servicer shall
thereupon own such Mortgage, and all such security and documents,
free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
Section 3.14. Realization Upon Defaulted
Mortgage Loans.
(a) The
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. In connection with such foreclosure or other
conversion, the 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, as shall meet the requirements of the Insurer
under any Required Insurance Policy, and as shall be consistent
with the provisions of this Agreement. With respect to any REO
Property, the deed or certificate of sale shall be taken in the
name of the Trustee for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. If the
Trustee’s name is placed on the title to such REO Property,
it shall be solely as the Trustee hereunder and not in its
individual capacity. The Servicer shall ensure that the title to
such REO Property references this Agreement and the Trustee’s
capacity thereunder. The 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 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 or 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 Servicer pursuant to this
Section 3.14(a), the Servicer shall be entitled to
reimbursement of such amounts pursuant to Section 3.10. If the
Servicer has knowledge that a Mortgaged Property which the Servicer
is contemplating acquiring in foreclosure or by deed in lieu of
foreclosure is located within a one (1) mile radius of any
site listed in the Expenditure Plan for the Hazardous Substance
Clean Up Bond Act of 1984 or other site with environmental or
hazardous waste risks known to the Servicer, the Servicer will,
prior to acquiring the Mortgaged Property, consider such risks and
only take action in accordance with its established environmental
review procedures.
The
Servicer shall, either itself or through an agent selected by the
Servicer, and in accordance with the Fannie Mae guidelines, manage,
conserve, protect and operate each REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. Each
disposition of REO Property shall be carried out by the Servicer at
such price and upon such terms and conditions as the Servicer deems
to be in the best interest of the Certificateholders.
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 Servicer the related Mortgage File and the Trustee shall
execute and deliver such instruments of transfer or assignment
prepared by the Servicer, in each case without recourse, as shall
be necessary to vest in the 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
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 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 any other unscheduled
collections or the amount of any Realized Loss, the 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) If
title to any Mortgaged Property is acquired by the Trust Fund as an
REO Property by foreclosure or by deed in lieu of foreclosure, the
deed or certificate of sale shall be issued to the Trustee or to
its nominee on behalf of Certificateholders. Notwithstanding any
such acquisition of title and cancellation of the related Mortgage
Loan, such REO Property shall (except as otherwise expressly
provided herein) be considered to be an Outstanding Mortgage Loan
held in the Trust Fund until such time as the REO Property shall be
sold. Consistent with the foregoing for purposes of all
calculations hereunder so long as such REO Property shall be
considered to be an Outstanding Mortgage Loan it shall be assumed
that, notwithstanding that the indebtedness evidenced by the
related Mortgage Note shall have been discharged, such Mortgage
Note and the related amortization schedule in effect at the time of
any such acquisition of title (after giving effect to any previous
Curtailments and before any adjustment thereto by reason of any
bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period) remain in effect. To the extent the net
income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at
the related Mortgage Rate on the related Mortgage Loan for such
calendar month, such excess shall be considered to be a Curtailment
of the related Mortgage Loan.
(c) If
the Trust Fund acquires any REO Property as aforesaid or otherwise
in connection with a default or imminent default on a Mortgage
Loan, the 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 any
portion of the applicable REMIC 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 Servicer (subject to
Section 10.01(f)) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee and the 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 the REMIC 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 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 the Trust
Fund 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
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 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
Servicer or the related Subservicer in accordance with
Section 3.10(a)(ii); second, to all Servicing Fees and
Subservicing Fees payable therefrom (and the Servicer and the
Subservicer shall have no claims for any deficiencies with respect
to such fees which result from the foregoing allocation); third, 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 prior to the
Distribution Date on which such amounts are to be distributed;
fourth, to the Certificateholders as a recovery of principal on the
Mortgage Loan (or REO Property)(provided that, if such
recovery is of an amount previously allocated to one or more
Classes of Certificates as a Realized Loss, such recovery shall be
allocated among such Classes in the same proportions as the
allocation of such Realized Losses and, 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); and fifth, to Foreclosure Profits.
(e) In
the event of a default on a Mortgage Loan one or more of whose
obligors is not a United States Person, in connection with any
foreclosure or acquisition of a deed in lieu of foreclosure
(together, “foreclosure”) in respect of such Mortgage
Loan, the Servicer will cause compliance with the provisions of
Treasury Regulation Section 1.1445-2(d)(3) (or any
successor thereto) necessary to assure that no withholding tax
obligation arises with respect to the proceeds of such foreclosure
except to the extent, if any, that proceeds of such foreclosure are
required to be remitted to the obligors on such Mortgage
Loan.
Section 3.15. Trustee to Cooperate; Release of
Mortgage Notes.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or upon
the receipt by the Servicer of a notification that payment in full
will be escrowed in a manner customary for such purposes, the
Servicer will immediately notify the Custodian, if any, or the
Trustee (if it holds the related Mortgage Note) by delivery of a
Request for Release substantially in the form attached hereto as
Exhibit F requesting delivery to it of the Mortgage Note. The
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® 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. No
expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Custodial
Account or the Payment Account.
(b) From
time to time as is appropriate for the servicing or foreclosure of
any Mortgage Loan, the Servicer shall deliver a Request for Release
to the Custodian, if any, or the Trustee (if it holds the related
Mortgage Note) requesting that possession of the Mortgage Note be
released to the 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 (if it holds the related Mortgage Note) or the Custodian
shall deliver the Mortgage Note to the Servicer. The Servicer shall
cause each Mortgage Note so released to be returned to the Trustee,
or the Custodian on behalf of the Trustee when the need therefor by
the 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 Note 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
Servicer has delivered directly or through a Subservicer to the
Trustee and the Custodian a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such
Mortgage Note was delivered and the purpose or purposes of such
delivery. In the event of the liquidation of any such Mortgage
Loan, the Custodian, if any, or the Trustee shal
