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EXECUTION COPY
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RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
Company,
GMAC MORTGAGE CORPORATION,
Servicer
and
JPMORGAN CHASE BANK, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 30, 2004
GMACM Mortgage Loan Trust 2004-J6
Residential Asset Mortgage Products, Inc.
GMACM Mortgage Pass-Through Certificates, Series 2004-J6
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<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
ARTICLE I
DEFINITIONS...............................................................1
Section 1.01.
Definitions.......................................................1
Section 1.02. Use of Words and
Phrases.........................................39
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES..........39
Section 2.01. Conveyance of Mortgage
Loans.....................................39
Section 2.02. Acceptance by
Trustee............................................43
Section 2.03. Representations, Warranties and Covenants of the
Servicer........44
Section 2.04. Representations and Warranties of the
Seller.....................45
Section 2.05. Execution and Authentication of
Certificates.....................47
Section 2.06. Purposes and Powers of the Trust
Fund............................47
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS...........................47
Section 3.01. Servicer to Act as
Servicer......................................47
Section 3.02. Subservicing Agreements Between Servicer and
Subservicers;
Enforcement of Subservicers' and Seller's
Obligations............49
Section 3.03. Successor
Subservicers...........................................49
Section 3.04. Liability of the
Servicer........................................49
Section 3.05. No Contractual Relationship Between Subservicer
and Trustee
or
Certificateholders............................................49
Section 3.06. Assumption or Termination of Subservicing
Agreements by
Trustee..........................................................50
Section 3.07. Collection of Certain Mortgage Loan Payments;
Deposits to
Custodial
Account................................................50
Section 3.08. Subservicing Accounts; Servicing
Accounts........................52
Section 3.09. Access to Certain Documentation and Information
Regarding
the Mortgage
Loans...............................................53
Section 3.10. Permitted Withdrawals from the Custodial
Account.................54
Section 3.11. Maintenance of the Primary Insurance Policies;
Collections
Thereunder.......................................................55
Section 3.12. Maintenance of Fire Insurance and Omissions and
Fidelity
Coverage.........................................................56
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption
and
Modification Agreements; Certain
Assignments.....................58
Section 3.14. Realization Upon Defaulted Mortgage
Loans........................59
i
<PAGE>
Section 3.15. Trustee to Cooperate; Release of Mortgage
Notes..................62
Section 3.16. Servicing and Other Compensation; Compensating
Interest..........64
Section 3.17. Periodic Filings with the Securities and
Exchange
Commission; Additional
Information...............................64
Section 3.18. Annual Statement as to
Compliance................................65
Section 3.19. Annual Independent Public Accountants' Servicing
Report..........66
Section 3.20. Rights of the Company in Respect of the
Servicer.................66
Section 3.21. Administration of Buydown
Funds..................................66
Section 3.22. Advance
Facility.................................................67
ARTICLE IV PAYMENTS TO
CERTIFICATEHOLDERS...........................................68
Section 4.01. Payment
Account..................................................68
Section 4.02.
Distributions....................................................69
Section 4.03. Statements to
Certificateholders.................................79
Section 4.04. Distribution of Reports to the Trustee and the
Company;
Advances by the
Servicer.........................................80
Section 4.05. Allocation of Realized
Losses....................................81
Section 4.06. Reports of Foreclosures and Abandonment of
Mortgaged Property....83
Section 4.07. Optional Purchase of Defaulted Mortgage
Loans....................83
Section 4.08. Determination of
LIBOR...........................................84
ARTICLE V THE
CERTIFICATES.........................................................84
Section 5.01. The
Certificates.................................................84
Section 5.02. Registration of Transfer and Exchange of
Certificates............86
Section 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates................91
Section 5.04. Persons Deemed
Owners............................................92
Section 5.05. Appointment of Paying
Agent......................................92
Section 5.06. Optional Purchase of
Certificates................................92
ARTICLE VI THE COMPANY AND THE
SERVICER.............................................94
Section 6.01. Respective Liabilities of the Company and the
Servicer...........94
Section 6.02. Merger or Consolidation of the Company or the
Servicer;
Assignment of Rights and Delegation of Duties by
Servicer........94
Section 6.03. Limitation on Liability of the Company, the
Servicer and
Others...........................................................95
ii
<PAGE>
Section 6.04. Company and Servicer Not to
Resign...............................96
ARTICLE VII
DEFAULT..................................................................96
Section 7.01. Events of
Default................................................96
Section 7.02. Trustee to Act; Appointment of
Successor.........................98
Section 7.03. Notification to
Certificateholders...............................99
Section 7.04. Waiver of Events of
Default......................................99
ARTICLE VIII CONCERNING THE
TRUSTEE..................................................100
Section 8.01. Duties of
Trustee...............................................100
Section 8.02. Certain Matters Affecting the
Trustee...........................102
Section 8.03. Trustee Not Liable for Certificates or Mortgage
Loans...........103
Section 8.04. Trustee May Own
Certificates....................................103
Section 8.05. Servicer to Pay Trustee's Fees and Expenses;
Indemnification....103
Section 8.06. Eligibility Requirements for
Trustee............................104
Section 8.07. Resignation and Removal of the
Trustee..........................104
Section 8.08. Successor
Trustee...............................................105
Section 8.09. Merger or Consolidation of
Trustee..............................106
Section 8.10. Appointment of Co-Trustee or Separate
Trustee...................106
Section 8.11. Appointment of
Custodians.......................................107
Section 8.12. Appointment of Office or
Agency.................................108
Section 8.13. Representations and Warranties of the
Trustee...................108
ARTICLE IX
TERMINATION.............................................................109
Section 9.01. Termination Upon Purchase by the Servicer or
Liquidation of
All Mortgage
Loans..............................................109
Section 9.02. Additional Termination
Requirements.............................111
ARTICLE X REMIC
PROVISIONS........................................................112
Section 10.01. REMIC
Administration............................................112
Section 10.02. Servicer, REMIC Administrator and Trustee
Indemnification.......115
Section 10.03. Designation of
REMIC(s).........................................116
Section 10.04. Distributions on Uncertificated REMIC I Regular
Interests,
REMIC II Regular Interests, and REMIC III Regular
Interests.....116
Section 10.05. Compliance with Withholding
Requirements........................118
ARTICLE XI MISCELLANEOUS
PROVISIONS................................................118
iii
<PAGE>
Section 11.01.
Amendment.......................................................118
Section 11.02. Recordation of Agreement;
Counterparts..........................120
Section 11.03. Limitation on Rights of
Certificateholders......................121
Section 11.04. Governing
Law...................................................121
Section 11.05.
Notices.........................................................121
Section 11.06. Required Notices to Rating Agency and
Subservicer...............122
Section 11.07. Severability of
Provisions......................................123
Section 11.08. Supplemental Provisions for
Resecuritization....................123
Section 11.09. Allocation of Voting
Rights.....................................124
Section 11.10.
Non-Petition....................................................124
</TABLE>
iv
<PAGE>
EXHIBITS
Exhibit A-1: Form of Class A Certificate
Exhibit A-2: Form of Class IO Certificate
Exhibit A-3: Form of Class PO Certificate
Exhibit B: Form of Class M Certificate
Exhibit C: Form of Class B Certificate
Exhibit D: Form of Class R Certificate
Exhibit E-1: Mortgage Loan Schedule for Loan Group 1
Exhibit E-2: Mortgage Loan Schedule for Loan Group 2
Exhibit F: Form of Request for Release
Exhibit G-1: Form of Transfer Affidavit and Agreement
Exhibit G-2: Form of Transferor Certificate
Exhibit H: Form of Investor Representation Letter
Exhibit I: Form of Transferor Representation Letter
Exhibit J: Form of Rule 144A Investment Representation
Letter
Exhibit K: Form of Lender Certification for Assignment of
Mortgage Loan
Exhibit L: Schedule of Discount Fractions
Exhibit M: Information to be Included in Monthly Distribution
Date
Statement
Exhibit N: Form of Custodian Certification
Exhibit O-1 Form of Form 10-K Certification
Exhibit O-2 Form of Back-Up Certification to Form 10-K
Certificate
v
<PAGE>
This is the Pooling and Servicing Agreement, dated as of
December 30,
2004 (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
JPMORGAN CHASE BANK, N.A., a national banking association, as
Trustee (together
with its permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell mortgage pass-through
certificates
(collectively, the "Certificates"), to be issued hereunder in
multiple classes,
which in the aggregate will evidence the entire beneficial
ownership interest in
the Mortgage Loans (as defined herein). As provided herein, the
REMIC
Administrator will make an election to treat the entire
segregated pool of
assets relating to the Mortgage Loans, as described in the
definition of REMIC I
below, as a real estate mortgage investment conduit (a "REMIC")
for federal
income tax purposes, and such segregated pool of assets will be
designated as
"REMIC I." The Class R-I Certificates will represent the sole
class of "residual
interests" in REMIC I for purposes of the REMIC Provisions (as
defined herein)
under federal income tax law. The following table irrevocably
sets forth the
designation, the REMIC I Remittance Rate, the initial
Uncertificated Balance,
and solely for purposes of satisfying Treasury Regulation
Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC I
Regular Interests. None of the REMIC I Regular Interests will be
certificated.
<PAGE>
<TABLE>
<CAPTION>
INITIAL RELATED LOAN
REMIC I REMIC I UNCERTIFICATED LATEST POSSIBLE GROUP/CLASS
OF
REGULAR INTERESTS REMITTANCE RATE BALANCE MATURITY DATE1
CERTIFICATES
<S> <C> <C> <C> <C> <C>
<C>
Class 1-A 5.00% $385.07 February 25, 2035 Loan Group 1
Class 2-A 5.50% $630.35 February 25, 2035 Loan Group 2
Class PO 0.00% $1,850,011.00 February 25, 2035 Class PO
Class IO 2 February 25, 2035 Class IO
Class 1-ZZZ 5.00% $154,029,217.44 February 25, 2035 Loan Group
1
Class 2-ZZZ 5.50% $252,135,885.20 February 25, 2035 Loan Group
2
R-1 Interest 5.50% $67.00 February 25, 2035 Loan Group 2
</TABLE>
_____________
1 Solely for purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date immediately following the
maturity
date for the Mortgage Loan with the latest maturity date has
been
designated as the "latest possible maturity date" for each REMIC
I
Regular Interest.
2 With respect to any Distribution Date, the weighted average of
the Pool
Strip Rates with respect to the Premium Mortgage Loans, weighted
on the
basis of their respective Stated Principal Balances immediately
prior to
such Distribution Date applied to a notional amount equal to
the
aggregate Stated Principal Balance of the Premium Mortgage
Loans
immediately prior to such Distribution Date.
<PAGE>
As provided herein, the REMIC Administrator will elect to treat
the
segregated pool of assets consisting of the REMIC I Regular
Interests as a REMIC
for federal income tax purposes, and such segregated pool of
assets will be
designated as "REMIC II." The Class R-II Certificates will
represent the sole
class of "residual interests" in REMIC II for purposes of the
REMIC Provisions
under federal income tax law. The following table irrevocably
sets forth the
designation, the REMIC II Remittance Rate, the initial
Uncertificated Balance,
and solely for purposes of satisfying Treasury Regulation
Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC
II Regular Interests. None of the REMIC II Regular Interests
will be
certificated.
<PAGE>
<TABLE>
<CAPTION>
REMIC II REMIC II Initial Latest Related
Regular Remittance Uncertificated Possible Class of
Interests Rate Balance Maturity Date (1) Certificates
_______________ ___________ _________________ __________________
_____________
<S> <C> <C> <C> <C> <C>
<C> <C> <C>
Class 1-A-1 5.00% $150,238,710.00 January 25, 2020 Class
1-A-1
Class 2-A-1 5.25% $148,359,556.00 February 25, 2035 Class
2-A-1
Class 2-A-2 5.25% $26,500,000.00 February 25, 2035 Class
2-A-2
Class 2-A-3 5.50% $21,981,010.00 February 25, 2035 Class
2-A-3
Class 2-A-4 5.50% $25,000,000.00 February 25, 2035 Class
2-A-4
Class 2-A-5 7.50% $21,857,444.00 February 25, 2035 Class
2-A-5
Class 2-A-6
Class 2-A-7 5.50% $2,233,000.00 February 25, 2035 Class
2-A-7
Class R-2 5.50% $33.00 January 25, 2035 Class R-III
Regular Interest
Class M-1 Variable Rate(2) $5,508,200.00 February 25, 2035 Class
M-1
Class M-2 Variable Rate(2) $1,836,000.00 February 25, 2035 Class
M-2
Class M-3 Variable Rate(2) $1,020,000.00 February 25, 2035 Class
M-3
Class B-1 Variable Rate(2) $612,000.00 February 25, 2035 Class
B-1
Class B-2 Variable Rate(2) $408,000.00 February 25, 2035 Class
B-2
<PAGE>
REMIC II REMIC II Initial Latest Related
Regular Remittance Uncertificated Possible Class of
Interests Rate Balance Maturity Date (1) Certificates
_______________ ___________ _________________ __________________
_____________
Class B-3 Variable Rate(2) $612,198.70 February 25, 2035 Class
B-3
Class IO (3) $0.00 February 25, 2035 Class IO
Class PO 0.00% $1,850,011.00 February 25, 2035 Class PO
</TABLE>
__________________
1 Solely for purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date immediately following the
maturity
date for the Mortgage Loan with the latest maturity date has
been
designated as the "latest possible maturity date" for each REMIC
II
Regular Interest.
2 With respect to the Class M and Class B Certificates and
any
Distribution Date, a rate equal to the weighted average of 5.00
% and
5.50% per annum, weighted on the basis of the aggregate Stated
Principal
Balance, of the Group 1 and Group 2 Loans (other than the
related
Discount Fraction of such Stated Principal Balance with respect
to each
Discount Mortgage Loan), in each case after subtracting the
aggregate
Certificate Principal Balance of the Group 1 Certificates and
Group 2
Certificates, respectively as of the day immediately preceding
such
Distribution Date. The initial Pass-Through Rate for the Class M
and
Class B Certificates shall be equal to 5.30981%. For federal
income tax
purposes, however, the REMIC II Class M and Class B Regular
Interests
will bear interest at a variable Pass-Through Rate equal to the
weighted
average of the REMIC I Remittance Rates on REMIC I Regular
Interests
Class 1-A and Class 2-A, immediately preceding the related
Distribution
Date.
3 REMIC II Regular Interest Class IO will not have an
Uncertificated
Principal Balance or Pass-Through Rate, but will be entitled to
receive
100% of the interest payable with respect to REMIC I Regular
Interest
Class IO.
<PAGE>
As provided herein, the REMIC Administrator will elect to treat
the
segregated pool of assets consisting of the REMIC II Regular
Interests as a
REMIC for federal income tax purposes, and such segregated pool
of assets will
be designated as REMIC III. The Class R-III Certificates will
represent the sole
class of "residual interests" in REMIC III for purposes of the
REMIC Provisions
under federal income tax law. The following table irrevocably
sets forth the
designation, remittance rate (the "REMIC III Remittance Rate")
and Initial
Certificate Principal Balance for each of the "regular
interests" in REMIC III
(the "REMIC III Regular Interests") and summarizes the terms of
the Class R-I,
Class R-II and Class R-III Certificates. The "latest possible
maturity date"
(determined solely for purposes of satisfying Treasury
regulation Section
1.860G-1(a)(4)(iii)) for each REMIC III Regular Interest shall
be the first
Distribution Date that follows the stated maturity date for the
Mortgage Loan
included in the Trust Fund as of the Closing Date with the
longest remaining
term to stated maturity.
<PAGE>
<TABLE>
<CAPTION>
PASS- AGGREGATE INITIAL
THROUGH CERTIFICATE FITCH/ MINIMUM
DESIGNATION RATE PRINCIPAL BALANCE FEATURES(1) MATURITY DATE
MOODY'S DENOMINATIONS(2)
<S> <C> <C> <C> <C> <C>
<C> <C>
Class 1-A-1 5.00% $150,238,710.00 Senior/Fixed Rate January 25,
2020 AAA/Aaa $25,000.00
Class 2-A-1 5.25% $148,359,556.00 Senior/Fixed Rate February 25,
AAA/Aaa $25,000.00
2035
Class 2-A-2 5.25% $26,500,000.00 Senior/Super February 25,
AAA/Aaa $25,000.00
Senior/Lockout/Fixed 2035
Rate
Class 2-A-3 5.50% $21,981,010.00 Senior/Super February 25,
AAA/Aaa $25,000.00
Senior/Fixed Rate 2035
Class 2-A-4 5.50% $25,000,000.00 Senior/Lockout/Fixed February
25, AAA/Aaa $25,000.00
Rate 2035
Class 2-A-5 Variable $21,857,444.00 Senior/Floater/Super
February 25, AAA/Aaa $25,000.00
Rate(3) Senior/Variable 2035
Rate
Class 2-A-6 Variable $0.00(5) Senior/Inverse February 25,
AAA/Aaa (6)
Rate(4) Floater/Interest 2035
Only/Variable Rate
Class 2-A-7 5.50% $2,233,000.00 Senior/Senior February 25,
AAA/Aa1 $25,000.00
Support/Lockout/Fixed 2035
Rate
Class IO Variable $0.00(8) Senior/Interest February 25, AAA/Aaa
(9)
Rate(7) Only/Variable Rate 2035
Class PO 0.00% $1,850,011.00 Senior/Principal February 25,
AAA/Aaa
Only 2035
Class R-I 5.50% $33.00 Senior/Residual/Fixed February 25,
AAA/Aaa (10)
Rate 2035
Class R-II 5.50% $33.00 Senior/Residual/Fixed February 25,
AAA/Aaa
Rate 2035
Class R-III 5.50% $34.00 Senior/Residual/Fixed February 25,
AAA/Aaa
Rate 2035
Class M-1 Variable $5,508,200.00 Mezzanine/Variable February 25,
AA/NA $25,000.00
Rate(11) 2035
Class M-2 Variable $1,836,000.00 Mezzanine/Variable February 25,
A/NA $250,000.00
Rate(11) 2035
Class M-3 Variable $1,020,000.00 Mezzanine/Variable February 25,
BBB/NA $250,000.00
Rate(11) 2035
Class B-1 Variable $612,000.00 Subordinate/Variable February 25,
BB/NA $250,000.00
Rate(11) 2035
Class B-2 Variable $408,000.00 Subordinate/Variable February 25,
B/NA $250,000.00
Rate(11) 2035
Class B-3 Variable $612,198.70 Subordinate/Variable February 25,
NA/NA $250,000.00
Rate(11) 2035
</TABLE>
________________
1 The Certificates (other than the Class B and Class R
Certificates) shall
be Book-Entry Certificates. The Class B and Class R Certificates
shall
be delivered to the holders thereof in physical form.
2 The Certificates (other than the Class IO, Class R-I, Class
R-II and
Class R-III Certificates) shall be issuable in minimum
dollar
denominations as indicated above (by Certificate Principal
Balance) and
integral multiples of $1 (or $1,000 in the case of the Class PO,
Class
B-1, Class B-2 and Class B-3 Certificates) in excess thereof,
except
that one Certificate of any of the Class PO, Class B-1, Class
B-2 and
Class B-3 Certificates that contain an uneven multiple of $1,000
shall
be issued in a denomination equal to the sum of the related
minimum
denomination set forth above and such uneven multiple for such
Class or
the sum of such denomination and, if applicable, an integral
multiple of
$1,000.
3 With respect to the Class 2-A-5 Certificates and any
Distribution Date
(other than the first Distribution Date), the Pass Through Rate
will
equal a per annum rate equal to the lesser of LIBOR plus a
margin of
0.40% and 7.50%. Notwithstanding the foregoing, the Pass Through
Rate
for the Class 2-A-5 Certificates will not be less than 0.40% per
annum.
The initial Pass Through Rate for the Class 2-A-5 Certificates
shall be
equal to 2.80% per annum.
4 With respect to the Class 2-A-6 Certificates and any
Distribution Date
(other than the first Distribution Date), the Pass Through Rate
will
equal a per annum rate equal to the greater of 7.10% minus LIBOR
and
0.00%. Notwithstanding the foregoing, the Pass Through Rate for
the
Class 2-A-6 Certificates will not be greater than 7.10% per
annum. The
initial Pass Through Rate for the Class 2-A-6 Certificates shall
be
equal to 4.70% per annum.
5 The initial Notional Amount for the Class 2-A-6 Certificates
shall be
equal to $21,857,444.00, and thereafter the Notional Amount of
the Class
2-A-6 Certificates shall be equal to the Certificate Principal
Balance
of the Class 2-A-5 Certificates.
6 The Class 2-A-6 Certificates will be issuable in minimum
denominations
of not less than $1,000,000.00 Notional Amount.
7 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
Premium 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 for the Class IO Certificates shall be
equal
to 0.21842%. For federal income tax purposes, however, REMIC III
Regular
Interest Class IO will not have an Uncertificated Principal
Balance or
Pass-Through Rate, but will be entitled to receive 100%of the
interest
payable with respect to REMIC II Regular Interest Class IO.
8 The initial Notional Amount for the Class IO Certificates
shall be equal
to $361,434,281.89.
9 The Class IO Certificates shall be issuable in minimum
denominations of
not less than a 20% Percentage Interest.
10 The Class R-I, Class R-II and Class R-III Certificates shall
be issuable
in minimum denominations of not less than a 20% Percentage
Interest;
provided, however, that one Class R-I C rtificate, one Class
R-II
Certificate and one Class R-III Certificate will be issuable to
GMACM as
"tax matters person" pursuant to Section 10.01(c) and (e) in
minimum
denominations representing a Percentage Interest of not less
than 0.01%
of each of Class R-I, Class R-II and Class R-III.
11 With respect to the Class M and Class B Certificates and
any
Distribution Date, a rate equal to the weighted average of 5.00
% and
5.50% per annum, weighted on the basis of the aggregate Stated
Principal
Balance of the Group 1 and Group 2 Loans (other than the
related
Discount Fraction of such Stated Principal Balance with respect
to each
Discount Mortgage Loan), in each case after subtracting the
aggregate
Certificate Principal Balance of the Group 1 Certificates and
Group 2
Certificates, respectively as of the day immediately preceding
such
Distribution Date. The initial Pass-Through Rate for the Class M
and
Class B Certificates shall be equal to 5.30981%. For federal
income tax
purposes, however, the Class M and Class B Certificates will
bear
interest at a variable Pass-Through Rate equal to the weighted
average
of the REMIC II Remittance Rates on REMIC II Regular Interests
M-1, M-2,
M-3, B-1, B-2 and B-3, weighted on the basis of the
Uncertificated
Balance of each such REMIC II Regular Interest immediately
preceding the
related Distribution Date.
The Mortgage Loans have an aggregate principal balance as of the
Cut-off
Date of $408,016,230.31.
In consideration of the mutual agreements herein contained, the
Company,
the Servicer and the Trustee agree as follows:
<PAGE>
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,
(a) as to any Class of Certificates (other than any Class PO
Certificates or
Interest Only Certificates), interest accrued during the related
Interest
Accrual Period at the related Pass-Through Rate on the
Certificate Principal
Balance thereof immediately prior to such Distribution Date and
(b) in the case
of the Interest Only Certificates, interest accrued during the
related Interest
Accrual Period at the related Pass-Through Rate on the Notional
Amount thereof
immediately prior to such Distribution Date. Accrued Certificate
Interest will
be calculated on the basis of a 360-day year, consisting of
twelve 30-day
months. In each case Accrued Certificate Interest on any Class
of Certificates
will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on the Mortgage Loans in the
related Loan
Group 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),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or
the Modified
Net Mortgage Rate in the case of a Modified Mortgage Loan)) of
Realized
Losses on the Mortgage Loans in the related Loan Group
(including Excess
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,
(iii) the interest portion of Advances that were made with
respect to
delinquencies related to Mortgage Loans or REO Property in the
related
Loan Group that were ultimately determined to be Excess Special
Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary
Losses, and
(iv) any other interest shortfalls on the Mortgage Loans in the
related Loan
Group 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,
with the Senior Percentage of all such reductions with respect
to the Mortgage
Loans in a Loan Group being allocated among the related Senior
Certificates in
proportion to the amounts of Accrued Certificate Interest
payable from the
related Loan Group on such Distribution Date absent such
reductions, with the
remainder of such reductions allocated among the holders of the
Class M
Certificates and Class B Certificates in proportion to their
respective amounts
of Accrued Certificate Interest payable on such Distribution
Date absent such
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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: As to any Distribution Date
and
with respect to each Loan Group, the total of the amounts held
in the Custodial
Account at the close of business on the preceding Determination
Date on account
of (i) Liquidation Proceeds, Insurance Proceeds, 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
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: As to any Distribution Date and
each Loan
Group, 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
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immediately preceding Determination Date 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). Such amount shall be determined separately for
each Loan Group.
Additionally, if on any Distribution Date Compensating Interest
provided
pursuant to Section 3.16(e) is less than Prepayment Interest
Shortfalls incurred
on the Mortgage Loans in connection with Principal Prepayments
in Full received
during the related Prepayment Period and Curtailments made in
the prior calendar
month, such Compensating Interest shall be allocated on such
Distribution Date
to the Available Distribution Amount for each Loan Group on a
pro rata basis in
accordance with the respective amounts of such Prepayment
Interest Shortfalls
incurred on the Mortgage Loans in such Loan Group in respect of
such
Distribution Date.
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)
$100,000 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
(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 greater of
(A) 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; and
(B) 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 Mortgage
Loans as of the Relevant Anniversary less 1.25% per annum,
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(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, over
(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.
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 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 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.
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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 any Interest Only Certificate), on any date of
determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such
Certificate as
specified on the face thereof, minus
(ii) the sum of (x) the aggregate of all amounts previously
distributed with
respect to such Certificate (or any predecessor Certificate) and
applied
to reduce the Certificate Principal Balance thereof pursuant to
Section
4.02 and (y) the aggregate of all reductions in Certificate
Principal
Balance deemed to have occurred in connection with Realized
Losses which
were previously allocated to such Certificate (or any
predecessor
Certificate) pursuant to Section 4.05;
provided, 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.
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
5
<PAGE>
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 Certificate: Any one of the Group 1 or Group 2
Certificates
(other than the Class R Certificates), executed by the Trustee
and authenticated
by the Certificate Registrar substantially in the form annexed
hereto as Exhibit
A-1.
Class 2-A-2 Percentage: With respect to any Distribution Date,
an amount
equal to the lesser of (i) the percentage equivalent of a
fraction, the
numerator of which is the sum of (A) $795,000 and (B) the
Certificate Principal
Balance of the Class 2-A-2 Certificates immediately prior to
such Distribution
Date, and the denominator of which is the aggregate Certificate
Principal
Balance of the Class 2-A-1 and Class 2-A-2 Certificates
immediately prior to
such Distribution Date and (ii) 99%.
Class B Certificate: Any one of the Certificates designated as a
Class
B-1 Certificate, Class B-2 Certificate or Class B-3 Certificate,
executed by the
Trustee and authenticated by the Certificate Registrar
substantially in the form
annexed hereto as Exhibit C.
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.
Class M Certificate: Any one of the Certificates designated as a
Class
M-1 Certificate, Class M-2 Certificate or Class M-3 Certificate,
executed by the
Trustee and authenticated by the Certificate Registrar
substantially in the form
annexed hereto as Exhibit B.
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.
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 Section 4.02(b)(i)(C)(1) over
the amount
described in Section 4.02(b)(i)(C)(2).
Class PO Principal Distribution Amount: As defined in Section
4.02(b)(i).
Class R Certificate: Any one of the Class R-I, Class R-II or
Class R-III
Certificates.
Class R-I Certificate: Any one of the Class R-I Certificates
executed by
the Trustee and authenticated by the Certificate Registrar
substantially in the
form annexed hereto as Exhibit D and evidencing an interest
designated as a
"residual interest" in REMIC I for purposes of the REMIC
Provisions.
Class R-II Certificate: Any one of the Class R-II Certificates
executed
by the Trustee and authenticated by the Certificate Registrar
substantially in
the form annexed hereto as Exhibit D and evidencing an interest
designated as a
"residual interest" in REMIC II for purposes of the REMIC
Provisions.
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<PAGE>
Class R-III Certificate: Any one of the Class R-III
Certificates
executed by the Trustee and authenticated by the Certificate
Registrar
substantially in the form annexed hereto as Exhibit D and
evidencing an interest
designated as a "residual interest" in REMIC III for purposes of
the REMIC
Provisions.
Closing Date: December 30, 2004.
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 227 West Monroe Street, 26th Floor,
Chicago, Illinois
60606, Attention: Institutional Trust Services, GMACM
2004-J6.
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<PAGE>
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: December 1, 2004.
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
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<PAGE>
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 Discount Mortgage Loan and the
denominator of
which is the Discount Net Mortgage Rate. The Discount Fraction
with respect to
each Discount Mortgage Loan is as set forth on Exhibit L
attached hereto.
Discount Mortgage Loan: Any Mortgage Loan having a 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)) 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: With respect to the Mortgage Loans
in Loan
Group 1, 5.00% per annum, and with respect to the Mortgage Loans
in Loan Group
2, 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
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<PAGE>
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), the
long-term deposit ratings of which are rated in one of the two
highest rating
categories by the Rating Agencies and the short term debt
ratings of which are
rated in the 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 and with respect to
each Loan
Group, the portion, if any, of the Available Distribution Amount
for such Loan
Group 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)(ii)(D) hereof), (iii) the aggregate amount of
Accrued
Certificate Interest on the Class M, Class B-1 and Class B-2
Certificates to the
extent such Accrued Certificate Interest is derived from such
Loan Group, (iv)
the related Class PO Principal Distribution Amount (determined
without regard to
Section 4.02(b)(i)(E) hereof) 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) allocated to such Loan Group, with such
allocation being made to
each Loan Group pro rata based on the Stated Principal Balance
of the Mortgage
Loans in each Loan Group.
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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 classes of Certificates
on such
Distribution Date as reduced by any amount calculated pursuant
to Section
4.02(b)(i)(E) hereof. The Excess Subordinate Principal Amount
will be allocated
between each Loan Group on a pro rata basis in accordance with
the amount of
Realized Losses attributable to each Loan Group and the amount
allocated to the
Certificates on such Distribution Date.
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:
(a) losses that are of the type that would be covered by the
fidelity bond and the errors and omissions insurance policy
required to
be maintained pursuant to Section 3.12(b) but are in excess of
the
coverage maintained thereunder;
(b) nuclear reaction or nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, and
whether such
loss be direct or indirect, proximate or remote or be in whole
or in
part caused by, contributed to or aggravated by a peril covered
by the
definition of the term "Special Hazard Loss";
(c) hostile or warlike action in time of peace or war,
including
action in hindering, combating or defending against an actual,
impending
or expected attack:
1. by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using
military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(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.
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.
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: As to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of
Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all
amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each
Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition
occurred in the
related Prepayment Period over the sum of the unpaid principal
balance of such
Mortgage Loan or REO Property (determined, in the case of an REO
Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest
at the Mortgage
Rate on such unpaid principal balance from the Due Date to which
interest was
last paid by the Mortgagor to the first day of the month
following the month in
which such Cash Liquidation or REO Disposition occurred.
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) 1.00% 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
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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.
GMAC: General Motors Acceptance Corporation, a Delaware
corporation.
GMACM: GMAC Mortgage Corporation, a Pennsylvania corporation, in
its
capacity as seller of the Mortgage Loans to the Company, and any
successor
thereto.
Group 1 Certificate: Any one of the Class 1-A-1 Certificates
executed by
the Trustee and authenticated by the Certificate Registrar
substantially in the
form annexed hereto as Exhibit A, each such Certificate
evidencing an interest
designated as a "regular interest" in REMIC III for purposes of
the REMIC
Provisions and representing an undivided interest in Loan Group
1.
Group 1 Loans: The Mortgage Loans designated in Exhibit E-1.
Group 1 Senior Percentage: As of any Distribution Date, the
lesser of
(x) 100% and (y) a fraction, expressed as a percentage, the
numerator of which
is the aggregate Certificate Principal Balance of the Group 1
Certificates
immediately prior to such Distribution Date and the denominator
of which is the
aggregate Stated Principal Balance of all of the Group 1 Loans
(or related REO
Properties) (other than the related Discount Fraction of the
Discount Mortgage
Loans) immediately prior to such Distribution Date.
Group 1 Senior Principal Distribution Amount: As to any
Distribution
Date, the lesser of (a) the balance of the Available
Distribution Amount for
Loan Group 1 remaining after the distribution of all amounts
required to be
distributed therefrom pursuant to Section 4.02(a)(i)(I) and
(a)(ii)(X), and (b)
the sum of the amounts required to be distributed therefrom to
the holders of
the Group 1 Certificates on such Distribution Date pursuant to
Section
4.02(a)(ii)(y) hereof.
Group 2 Certificate: Any one of the Class 2-A-1, Class 2-A-2,
Class
2-A-3, Class 2-A-4, Class 2-A-5, Class 2-A-6, Class 2-A-7 and
Class R
Certificates, executed by the Trustee and authenticated by the
Certificate
Registrar substantially in the form annexed hereto as Exhibit
A-1 for the Class
A Certificates and Exhibit D for the Class R Certificates, each
such Certificate
representing an interest designated as a "regular interest" in
REMIC III for
purposes of the REMIC Provisions, and representing an undivided
interest in Loan
Group 2.
Group 2 Loans: The Mortgage Loans designated in Exhibit E-2.
Group 2 Senior Percentage: As of any Distribution Date, the
lesser of
(x) 100% and (y) a fraction, expressed as a percentage, the
numerator of which
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is the aggregate Certificate Principal Balance of the Group 2
Certificates
immediately prior to such Distribution Date and the denominator
of which is the
aggregate Stated Principal Balance of all of the Group 2 Loans
(or related REO
Properties) (other than the related Discount Fraction of the
Discount Mortgage
Loans) immediately prior to such Distribution Date.
Group 2 Senior Principal Distribution Amount: As to any
Distribution
Date, the lesser of (a) the balance of the Available
Distribution Amount for
Loan Group 2 remaining after the distribution of all amounts
required to be
distributed therefrom pursuant to Section 4.02(a)(i)(II) and
(a)(ii)(X), and (b)
the sum of the amounts required to be distributed therefrom to
the holders of
the Group 2 Certificates on such Distribution Date pursuant to
Section
4.02(a)(ii)(y) hereof.
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, 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: 1.35% Class B-1: 0.15%
Class M-2: 0.45% Class B-2: 0.10%
Class M-3: 0.25% 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.
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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 Certificates other
than the
Variable Rate Certificates, and any Distribution Date, the
calendar month
preceding the month in which such Distribution Date occurs. With
respect to the
Variable Rate Certificates and any Distribution Date, the one
month period
beginning on the 25th day of the preceding calendar month and
ending on the 24th
day of the month in which such Distribution Date occurs.
Interest Only Certificates: Any one of the Certificates
designated as a
Class 2-A-6 Certificate or Class IO Certificate. The Interest
Only Certificates
will have no Certificate Principal Balance.
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.
LIBOR: With respect to any Distribution Date, the arithmetic
mean of the
London interbank offered rate quotations for one-month
Eurodollar deposits,
determined on the preceding LIBOR Rate Adjustment Date as set
forth in Section
4.08 hereof.
LIBOR Business Day: Any day other than (i) a Saturday or a
Sunday or
(ii) a day on which banking institutions in the city of London,
England are
required or authorized by law to be closed.
LIBOR Rate Adjustment Date: With respect to any Interest Accrual
Period
for the Variable Rate Certificates, the second LIBOR Business
Day preceding the
commencement of such Interest Accrual Period.
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 Group: Loan Group 1 or Loan Group 2.
Loan Group 1: The group of Mortgage Loans comprised of the Group
1
Loans.
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Loan Group 2: The group of Mortgage Loans comprised of the Group
2
Loans.
Loan-to-Value Ratio: As of any date, the fraction, expressed as
a
percentage, the numerator of which is the current principal
balance of the
related Mortgage Loan at the date of determination and the
denominator of which
is the Appraised Value of the related Mortgaged Property.
Lockout Certificate Share: With respect to any Distribution
Date, the
sum of the Certificate Principal Balances of the Class 2-A-4 and
Class 2-A-7
Certificates immediately prior to such Distribution Date,
divided by the
aggregate principal balance of the Mortgage Loans in Loan Group
2 (other than
the related Discount Fraction of the Discount Mortgage Loans in
Loan Group 2).
Lockout Certificates: Any one of the Certificates designated as
a Class
2-A-2, Class 2-A-4 or Class 2-A-7 Certificate.
Lockout Percentage: With respect to any Distribution Date
occurring
prior to the Distribution Date in January 2010, 0%. With respect
to any
Distribution Date thereafter, the percentage indicated
below:
Distribution Date Lockout Distribution Percentage
January 2010 through December 2011 30%
January 2011 through December 2012 40%
January 2012 through December 2013 60%
January 2013 through December 2014 80%
January 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 the Class 1-A-1 Certificates,
January 25,
2020, and with respect to all other Classes of Certificates,
February 25, 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(R) System: The system of recording transfers of
Mortgages
electronically maintained by MERS.
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MIN: The Mortgage Identification Number for Mortgage Loans
registered
with MERS on the MERS(R) 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):
(i) 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]";
(ii) The original Mortgage, noting the presence of the MIN of
the Mortgage
Loan, if the Mortgage is registered on the MERS(R) 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) The original of any guarantee executed in connection with
the Mortgage
Note, if applicable;
(iv) 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;
(v) Unless the Mortgage Loan is registered on the MERS(R)
System, an
original Assignment or Assignments of the Mortgage (which may
be
included in a blanket assignment or assignments) from GMACM to
"JPMorgan
Chase Bank, N.A., as Trustee under that certain Pooling and
Servicing
Agreement dated as of December 30, 2004, for GMACM Mortgage
Pass-Through
Certificates, Series 2004-J6" 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]";
(vi) 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(R)
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;
(vii) 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;
(viii) A certified true copy of any power of attorney, if
applicable; and
(ix) Originals of any security agreement, chattel mortgage or
the equivalent
executed in connection with the Mortgage, if any.
and (II) with respect to each Cooperative Loan:
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(x) 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;
(xi) 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;
(xii) 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;
(xiii) The original recognition agreement by the Cooperative of
the interests
of the mortgagee with respect to the related Cooperative
Loan;
(xiv) The Security Agreement;
(xv) 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;
(xvi) 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;
(xvii) 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;
(xviii) The original of each modification, assumption agreement
or preferred
loan agreement, if any, relating to such Cooperative Loan;
and
(xix) 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.
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(R) 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-1 (with respect to the Group 1 Loans) and
Exhibit E-2 (with
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<PAGE>
respect to the Group 2 Loans) (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 in the
related Loan
Group:
(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;
(o) the code "Y" under the column "BUYDOWN", indicating that the
Mortgage Loan
is a Buydown Mortgage Loan, if applicable; and
(p) whether such Mortgage Loan constitutes a Group 1 Loan or
Group 2 Loan.
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.
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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 (including all Loan
Groups)
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-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
2-A-6 Certificates, an amount equal to the Certificate Principal
Balance of the
Class 2-A-5 Certificates immediately prior to such date. With
respect to any
date of determination and the Class IO Certificates, an amount
equal to the
aggregate Stated Principal Balance of the Premium 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.
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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 either of
the REMICs 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 and
Class R
Certificates and any Distribution Date, the per annum rates set
forth in the
Preliminary Statement hereto. With respect to the Class IO
Certificates and any
Distribution Date, a rate equal to the weighted average,
expressed as a
percentage, of the Pool Strip Rates of all Premium Mortgage
Loans as of the Due
Date in the related Due Period, 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). With respect to the
Class IO
Certificates and the initial Distribution Date the Pass-Through
Rate is equal to
0.21842% per annum. With respect to the Class M and Class B
Certificates and any
Distribution Date, a rate equal to the weighted average of 5.00%
and 5.50% per
annum, weighted on the basis of the aggregate Stated Principal
Balances of Group
1 and Group 2 Loans (in each case other than the related
Discount Fraction of
such Stated Principal Balance with respect to each Discount
Mortgage Loan) in
each case after subtracting the aggregate Certificate Principal
Balance of the
Group 1 Certificates and Group 2 Certificates, respectively 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). With respect
to the Class M and Class B Certificates and the initial
Distribution Date the
Pass-Through Rate is equal to 5.30981% per annum. The Class PO
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
"JPMorgan Chase
Bank, N.A., as trustee, in trust for the registered holders of
Residential Asset
Mortgage Products, Inc., GMACM Mortgage Pass-Through
Certificates, Series
2004-J6" and which must be an Eligible Account.
Payment Account Deposit Date: As to any Distribution Date, the
Business
Day prior thereto.
Percentage Interest: With respect to any Certificate (other than
a Class
IO Certificate or Class R Certificate), the undivided percentage
ownership
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<PAGE>
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:
(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;
(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;
(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; and provided further that,
if the
only Rating Agency is Standard & Poor's and if the
depository or trust
company is a principal subsidiary of a bank holding company and
the debt
obligations of such subsidiary are not separately rated, the
applicable
rating shall be that of the bank holding company; and, provided
further
that, if the original maturity of such short-term 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;
(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;
(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
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<PAGE>
short-term rating available (in the case of Standard &
Poor's such
rating shall be either AAAm or AAAm-G), 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
(vi) other obligations or securities that are acceptable to
each
Rating Agency as a Permitted Investment hereunder and will not
reduce
the rating assigned to any Class of Certificates by such Rating
Agency
below the lower of the then-current rating or the rating
assigned to
such Certificates as of the Closing Date by such Rating Agency,
as
evidenced in writing;
provided, however, 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 Fitch and AAA
in the case of Standard & Poor's, and references herein to
the highest
short-term rating category available shall mean F-1 in the case
of Fitch and
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: As to any Distribution Date,
the
aggregate of the Stated Principal Balances of each Mortgage
Loan.
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 Premium Net Mortgage Rate (but not less than 0.00% per
annum).
Premium Mortgage Loan: A Mortgage Loan having a Net Mortgage
Rate equal
to or greater than the Premium Net Mortgage Rate per annum.
Premium Net Mortgage Rate: In the case of Group 1 Loans, 5.00%
per
annum, and in the case of Group 2 Loans, 5.50% per annum.
Prepayment Assumption: A prepayment assumption of 300% 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. The prepayment speed assumption assumes a constant
rate of prepayment
of mortgage loans of 0.2% per annum of the then outstanding
principal balance of
such mortgage loans in the first month of the life of the
mortgage loans,
increasing by an additional 0.2% per annum in each succeeding
month until the
thirtieth month, and a constant 6% per annum rate of prepayment
thereafter for
the life of the mortgage loans.
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<PAGE>
Prepayment Distribution Percentage: With respect to any
Distribution
Date, each Loan Group and each Class of Subordinate
Certificates, under the
applicable circumstances set forth below, the respective
percentages set forth
below:
(i) For any Distribution Date prior to the Distribution Date
in
January 2010 (unless the Certificate Principal Balances of the
Senior
Certificates (other than the Class PO Certificates) have been
reduced to
zero), 0%.
(ii) For any Distribution Date for which clause (i) above
does
not apply, and on which any Class of Subordinate Certificates
are
outstanding:
(a) in the case of the Class of Subordinate Certificates
then outstanding with the Highest Priority and each other Class
of
Subordinate Certificates for which the related Prepayment
Distribution
Trigger has been satisfied, a fraction, expressed as a
percentage, the
numerator of which is the Certificate Principal Balance of such
Class
immediately prior to such date and the denominator of which is
the sum
of the Certificate Principal Balances immediately prior to such
date of
(1) the Class of Subordinate Certificates then outstanding with
the
Highest Priority and (2) all other Classes of Subordinate
Certificates
for which the respective Prepayment Distribution Triggers have
been
satisfied; and
(b) in the case of each other Class of Subordinate
Certificates for which the Prepayment Distribution Triggers have
not
been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of
the
foregoing percentages on any Distribution Date as provided in
Section
4.02 (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
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<PAGE>
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.
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
Classes of
Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and
any
Mortgage Loan (other than a Mortgage Loan relating to an REO
Property) that was
the subject of (a) a Principal Prepayment in Full during the
related Prepayment
Period, an amount equal to the excess of one month's interest at
the Net
Mortgage Rate (or Modified Net Mortgage Rate in the case of a
Modified Mortgage
Loan) on the Stated Principal Balance of such Mortgage Loan over
the amount of
interest (adjusted to the Net Mortgage Rate (or Modified Net
Mortgage Rate in
the case of a Modified Mortgage Loan)) paid by the Mortgagor
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: As 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 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 2.02, 2.04
or 4.07, an amount equal to the sum of (i) 100% of the Stated
Principal Balance
thereof plus the principal portion of any related unreimbursed
Advances and (ii)
unpaid accrued interest at the 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
26
<PAGE>
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,
(i) have an outstanding principal balance, after deduction of
the principal
portion of the monthly payment due in the month of substitution
(or in
the case of a substitution of more than one Mortgage Loan for a
Deleted
Mortgage Loan, an aggregate outstanding principal balance, after
such
deduction), not in excess of the Stated Principal Balance of the
Deleted
Mortgage Loan (the amount of any shortfall to be deposited by
the Seller
in the Custodial Account in the month of substitution);
(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than
and not more
than 1% per annum higher than the Mortgage Rate and Net Mortgage
Rate,
respectively, of the Deleted Mortgage Loan as of the date of
substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no
higher than
that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a remaining term to stated maturity not greater than
(and not more
than one year less than) that of the Deleted Mortgage Loan;
(v) comply with each representation and warranty made by the
Seller set
forth in Section 7.02 of the Purchase Agreement; and
(vi) have a Pool Strip Rate equal to or greater than that of the
Deleted
Mortgage Loan.
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,
(vii) 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
(viii) 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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<PAGE>
Rating Agency: Fitch and Moody's with respect to the Senior
Certificates
and Fitch with respect to the Class M-1, Class M-2, Class M-3,
Class B-1 and
Class B-2 Certificates. 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):
(a) 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,
(b) 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,
(c) 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
(d) which has become the object of a Debt Service Reduction,
the
amount of such Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a
Debt Service
Reduction shall be deemed a Realized Loss hereunder so long as
the 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
28
<PAGE>
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 other
than the
Variable Rate Certificates and any Distribution Date, the close
of business on
the last Business Day of the month next preceding the month in
which such
Distribution Date occurs. With respect to the Variable Rate
Certificates and any
Distribution Date, the close of business on the Business Day
next preceding such
Distribution Date.
Reference Bank Rate: The rates at which deposits in U.S. Dollars
are
offered by the reference banks (which shall be three major banks
that are
engaged in transactions in the London interbank market, selected
by the Trustee
after consultation with the Servicer) as of 11:00 A.M., London
time, on the day
that is one LIBOR Business Day prior to the immediately
preceding Distribution
Date to prime banks in the London interbank market for a period
of one month in
amounts approximately equal to the aggregate Certificate
Principal Balances of
the Class 2-A-5 Certificates then outstanding.
Regular Certificate: Any of the Certificates other than a Class
R
Certificate.
Related Class of Certificates: For each REMIC I Regular
Interest, the
related class or classes of certificates set forth in the
Preliminary Statement
hereto.
Relief Act: The Servicemembers Civil Relief Act, as amended, 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.
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 Trustee acting as Servicer shall appoint a successor
REMIC
Administrator, subject to assumption of the REMIC Administrator
obligations
under this Agreement.
REMIC I: The segregated pool of assets, with respect to which a
REMIC
election is made pursuant to this Agreement, consisting of:
(a) the Mortgage Loans and the related Mortgage Files and
collateral
securing such Mortgage Loans,
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<PAGE>
(b) 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,
(c) 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,
(d) the hazard insurance policies and Primary Insurance
Policies, if
any, and
(e) all proceeds of clauses (a) through (d) above.
REMIC I Interest: The REMIC I Regular Interests and the Class
R-I
Certificates.
REMIC I Regular Interest: Any of the seven separate
non-certificated
beneficial ownership interests in REMIC I issued hereunder and
designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest
shall accrue
interest at the related REMIC I Remittance Rate in effect from
time to time, and
shall be entitled to distributions of principal, subject to the
terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated
Balance as set forth in the preliminary statement hereto. The
designations for
the respective REMIC I Regular Interests are set forth in the
Preliminary
Statement hereto.
REMIC I Subordinated Balance Ratio: The ratio among the
Uncertificated
Balances of each of the REMIC I Regular Interests ending with
the designation
"A," equal to the ratio among, with respect to each such REMIC I
Regular
Interest, the excess of (x) the aggregate Stated Principal
Balance of the
Mortgage Loans in the related Loan Group (other than the related
Discount
Fraction of the Stated Principal Balance of any such Mortgage
Loan that is a
Discount Mortgage Loan) over (y) the Certificate Principal
Balance of the Senior
Certificates (other than the Class PO Certificates) in the
related Loan Group.
REMIC II: The segregated pool of assets consisting of all of the
REMIC I
Regular Interests, with respect to which a separate REMIC
election is to be
made.
REMIC II Certificate: Any Certificate, other than a Class
R-I
Certificate.
REMIC II Regular Certificate: Any REMIC II Certificate, other
than a
Class R-II Certificate.
REMIC II Regular Interest: Any of the fifteen certificated
beneficial
ownership interests in REMIC II issued hereunder, and, hereby,
designated as a
"regular interest" in REMIC II, as follows: Class 1-A-1, Class
2-A-1, Class
2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5, Class 2-A-7, 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 III: The segregated pool of assets consisting of all of
the REMIC
II Regular Interests, with respect to which a separate REMIC
election is to be
made.
REMIC III Certificate: Any Certificate, other than a Class
R-II
Certificate.
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<PAGE>
REMIC III Regular Certificate: Any REMIC III Certificate, other
than a
Class R-III Certificate.
REMIC III Regular Interest: Any of the sixteen certificated
beneficial
ownership interests in REMIC III issued hereunder, and, hereby,
designated as a
"regular interest" in REMIC III, as follows: Class 1-A-1, Class
2-A-1, Class
2-A-2, Class 2-A-3, Class 2-A-4, Class 2-A-5, Class 2-A-6, Class
2-A-7, 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 M 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
Senior Vice
President, any Vice President, any Assistant Vice President, any
Assistant
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Secretary, any Trust Officer or Assistant Trust Officer, or any
other officer of
the Trustee customarily performing functions similar to those
performed by any
of the above designated officers to whom, with respect to a
particular matter,
such matter is referred.
Schedule of Discount Fractions: The schedule setting forth the
Discount
Fractions with respect to the Discount Mortgage Loans, attached
hereto as
Exhibit L.
Scheduled Final Distribution Date: With respect to the Class
1-A-1
Certificates, January 25, 2020, and with respect to all other
Classes of
Certificates, February 25, 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 60th Distribution
Date and any
Loan Group, 100%. With respect to any Distribution Date
thereafter and any Loan
Group, as follows:
(i) for any Distribution Date after the 60th Distribution
Date
but on or prior to the 72nd Distribution Date, the Senior
Percentage for
such Loan Group for such Distribution Date plus 70% of the
Subordinate
Percentage for such Loan Group for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution
Date
but on or prior to the 84th Distribution Date, the Senior
Percentage for
such Loan Group for such Distribution Date plus 60% of the
Subordinate
Percentage for such Loan Group for such Distribution Date;
(iii) for any Distribution Date after the 84th Distribution
Date
but on or prior to the 96th Distribution Date, the Senior
Percentage for
such Loan Group for such Distribution Date plus 40% of the
Subordinate
Percentage for such Loan Group for such Distribution Date;
(iv) for any Distribution Date after the 96th Distribution
Date
but on or prior to the 108th Distribution Date, the Senior
Percentage
for such Loan Group for such Distribution Date plus 20% of
the
Subordinate Percentage for such Loan Group for such Distribution
Date;
and
(v) for any Distribution Date thereafter, the Senior
Percentage
for such Distribution Date;
provided, however,
(i) that any scheduled reduction to the Senior Accelerated
Distribution
Percentage for any Loan Group 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 or equal to 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 as of such distribution date, is less than or
equal to 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 do
not
exceed 30%, 35%, 40%, 45% or 50%, respectively, of the sum of
the
Initial Certificate Principal Balances of the Subordinate
Certificates,
or
(b)(1) the outstanding principal balance of 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 as of
such
distribution date, is less than or equal to 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 do not exceed 10%, 15%, 20%,
25% or
30%, respectively, of the sum of the Initial Certificate
Principal
Balances of the Subordinate Certificates, and
(ii) that for any Distribution Date on which the weighted
average of the
Senior Percentages for each Loan Group, weighted on the basis of
the Stated
Principal Balances of the Mortgage Loans in the related Loan
Group, exceeds the
weighted average of the initial Senior Percentages (calculated
on such basis)
for each Loan Group, each of the Senior Accelerated Distribution
Percentages for
such Distribution Date shall equal 100%.
Notwithstanding the foregoing, upon the reduction of the
Certificate Principal
Balances of the related Senior Certificates (other than the
Class PO
Certificates) 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 Support Certificate: Any of the Class 2-A-7
Certificates.
Series: All of the Certificates issued pursuant to a Pooling
and
Servicing Agreement and bearing the same series designation.
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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: 0.25% 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
$4,080,162 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
greater 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 and (B) the greater of (i) the
product of 0.50%
multiplied by the outstanding principal balance of all Mortgage
Loans on the
Distribution Date immediately preceding such anniversary
multiplied by a
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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 33.62%
(which
percentage is equal to the percentage of Mortgage Loans
initially secured by
Mortgaged Properties located in the State of California) and
(ii) the aggregate
outstanding principal balance (as of the immediately preceding
Distribution
Date) of the largest Mortgage Loan secured by a Mortgaged
Property located in
the State of California.
The Special Hazard Amount may be further reduced by the
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.
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
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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 and any Loan
Group,
100% minus the Senior Percentage for such Loan Group as of such
Distribution
Date.
Subordinate Principal Distribution Amount: With respect to
any
Distribution Date, any Loan Group and each Class of Subordinate
Certificates,
(a) the sum of (i) the product of (x) such Class's pro rata
share, based on the
Certificate Principal Balance of each Class of Subordinate
Certificates then
outstanding, and (y) the aggregate of the amounts calculated for
such
Distribution Date under clauses (1), (2) and (3) of Section
4.02(a)(ii)(A)
(without giving effect to the related Senior Percentage) with
respect to such
Loan Group 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 Section 4.02(a)(ii)(B)(b) (without giving effect to
the related
Senior Accelerated Distribution Percentage) with respect to such
Loan Group 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)
with respect to such Loan Group to the extent not payable to the
related Senior
Certificates; (iv) if such Class is the Class of Subordinate
Certificates with
the Highest Priority, any Excess Subordinate Principal Amount
for such Loan
Group for such Distribution Date to the extent not payable to
the related 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 Loan Group 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.
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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.
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 either 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.
Telerate Screen Page 3750: The display designated as page 3750
on the
Telerate Service (or such other page as may replace page 3750 on
that service
for the purpose of displaying London interbank offered rates of
major banks).
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:
(i) the Mortgage Loans and the related Mortgage Files and
collateral
securing such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage
Loans due
after the Cut-off Date as shall be on deposit in the Custodial
Account
or in the Payment Account and identified as belonging to the
Trust Fund,
(iii) 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,
(iv) the hazard insurance policies and Primary Insurance
Policies, if any,
and
(v) all proceeds of clauses (i) through (iv) above.
A REMIC election with respect to the Trust Fund is made pursuant
to this
Agreement.
Uncertificated Balance: The amount of any REMIC I Regular
Interest
outstanding as of any date of determination. As of the Closing
Date, the
Uncertificated Balance of each REMIC I Regular Interest shall
equal the amount
set forth in the Preliminary Statement hereto as its Initial
Uncertificated
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Balance. On each Distribution Date, the Uncertificated Balance
of each REMIC I
Regular Interest shall be reduced, first, by the portion of
Realized Losses
allocated in reduction of the principal balances of the Related
Classes of
Certificates on such Distribution Date and, second, by all
distributions of
principal deemed made on such REMIC I Regular Interest, as
applicable, on such
Distribution Date pursuant to Section 10.04. The Uncertificated
Balance of each
REMIC I Regular Interest shall never be less than zero.
Uncertificated Interest: With respect to any REMIC I Regular
Interest
for any Distribution Date, one month's interest at the REMIC I
Remittance Rate
applicable to such REMIC I Regular Interest for such
Distribution Date, accrued
on the Uncertificated Balance (or Notional Balance) thereof
immediately prior to
such Distribution Date. Uncertificated Interest in respect of
any REMIC I
Regular Interest shall accrue on the basis of a 360-day year
consisting of
twelve 30-day months. Uncertificated Interest with respect to
each Distribution
Date, as to any REMIC I Regular Interest, shall be reduced by
any interest
shortfalls allocated to the Related Classes of Certificates on
such Distribution
Date. In addition, Uncertificated Interest with respect to each
Distribution
Date, as to any REMIC I Regular Interest shall be reduced by
interest portion of
Realized Losses (including Excess Special Hazard Losses, Excess
Fraud Losses,
Excess Bankruptcy Losses and Extraordinary Losses) allocated to
the Related
Classes of Certificates on such Distribution Date.
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.
Variable Rate Certificates: The Class 2-A-5 and Class 2-A-6
Certificates.
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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 definitions 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).
(b) In connection with such assignment, 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
Depositor 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 Depositor, 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.
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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 cause GMACM 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, the Trustee shall (i) release or cause to be released
to GMACM the
related Mortgage Note, (ii) cause the Servicer to release to
GMACM any remaining
documents in the related Mortgage File which are held by the
Servicer, and (iii)
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.
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(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(R) 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(R) 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 code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the field
"[IDENTIFY THE
FIELD NAME FOR TRUSTEE]" which identifies the Trustee and (b)
the code
"[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool
Field" which
identifies the series of the 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
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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,
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.
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(g) The parties hereto acknowledge and agree that it is not
intended that any
Mortgage Loan to be included in the Trust Fund be a "High-Cost
Home Loan" as
defined in either The Home Ownership Security Act of New Jersey
(effective
November 27, 2003), The Home Loan Protection Act of New Mexico
(effective
January 1, 2004) or Massachusetts Predatory Home Loan Practices
Act (effective
November 7, 2004).
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,
to cause
the Custodian to review each Mortgage Note and to 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 N 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 Mortgagor name, 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
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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, the
Trustee shall
(i) release or cause to be released to GMACM the related
Mortgage Note, (ii)
cause the Servicer to release to GMACM any remaining documents
in the related
Mortgage File which are held by the Servicer, and (iii) 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.
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:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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) 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;
(vii) 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
(viii) 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.
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 GMACM elects to
substitute a Qualified
Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan
pursuant to this
Section 2.04, the Trustee shall cause 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 cause
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
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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. 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. The Servicer shall give notice in
writing to the
Trustee of such event, which notice shall be accompanied by (x)
an Officer's
Certificate as to the calculation of such shortfall and (y)
either (i) (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
either of the REMICs to fail to qualify as such at any time that
any Certificate
is outstanding or (ii) an agreement by the Servicer, made in its
sole
discretion, to indemnify the Trust Fund against any such tax
that may arise from
the substitution.
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 to such Person all of the right, title
and interest in
respect of the Purchase Agreement applicable to such Mortgage
Loan.
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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 applicable 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
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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(R) System, or cause the removal from
the registration
of any Mortgage Loan on the MERS(R) System, to execute and
deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and
all instruments
of assignment and other comparable instruments with respect to
such assignment
or re-recording of a Mortgage in the name of MERS, solely as
nominee for the
Trustee and its successors and assigns. Any expenses incurred in
connection with
the actions described in the preceding sentence shall be borne
by the 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. 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 any
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).
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(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.
Section 3.02. Subservicing Agreements Between Servicer and
Subservicers; Enforcement of Subservicers' and Seller's
Obligations.
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 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
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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
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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; and 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 2004-J6." 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:
(i) All payments on account of principal, including Principal
Prepayments
made by Mortgagors on the Mortgage Loans and the principal
component of
any Subservicer Advance or of any REO Proceeds received in
connection
with an REO Property for which an REO Disposition has
occurred;
(ii) All payments on account of interest at the 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) Insurance Proceeds and Liquidation Proceeds (net of any
related expenses
of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to
Section 2.02,
2.04 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;
(v) Any amounts required to be deposited pursuant to Section
3.07(c); and
(vi) All amounts transferred from the Payment Account to the
Custodial
Account in accordance with Section 4.02(a).
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.
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.
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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 2004-J6." 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
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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.
(a) 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 attributable to the Mortgage Loans for
the
following purposes:
(i) to make deposits into the Payment Account in the amounts and
in the
manner provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer for
previously
unreimbursed advances 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;
(iii) 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;
(iv) to pay to itself as additional servicing compensation any
interest or
investment income earned on funds and other property deposited
in or
credited to the Custodial Account that it is entitled to
withdraw
pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any
Foreclosure
Profits, and any amounts remitted by Subservicers or received
from
Mortgagors as interest in respect of Curtailments;
(vi) to pay GMACM, with respect to each Mortgage Loan or
property acquired in
respect thereof that has been purchased or otherwise
transferred
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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;
(vii) 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
Stated
Principal Balance of the Mortgage Loan, or any Advance
reimbursable to
the Servicer pursuant to Section 4.02(a);
(viii) to reimburse itself or the Company for expenses incurred
by and
reimbursable to it or the Company pursuant to Sections 3.01(a),
3.11,
3.13, 3.14(c), 6.03, 10.01 or otherwise;
(ix) 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
(x) to withdraw any amount deposited in the Custodial Account
that was not
required to be deposited therein pursuant to Section 3.07.
(b) 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.
(c) 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).
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
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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 Fire Insurance and Omissions and
Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each Mortgage
Loan (other than
a Cooperative Loan) fire 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
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foreclosure, of any Mortgage Loan (other than a Cooperative
Loan), fire
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 or
out of Insurance Proceeds and Liquidation Proceeds to the extent
permitted by
Section 3.10. It is understood and agreed that no earthquake or
other additional
insurance is to be required of any Mortgagor or maintained on
property acquired
in respect of a Mortgage Loan other than pursuant to such
applicable laws and
regulations as shall at any time be in force and as shall
require such
additional insurance. 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 fire
insurance
policy with extended coverage insuring against hazard losses on
all of the
Mortgage Loans, it shall conclusively be deemed to have
satisfied its
obligations as set forth in the first sentence of this Section
3.12(a), it being
understood and agreed that such policy may contain a deductible
clause, in which
case the 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
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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.
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption
and
Modification Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor,
the 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 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
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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
applicable 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 such
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 and 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 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.
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
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Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of
the Certificateholders. The Trustee's name shall be placed on
the title to such
REO Property 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
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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 applicable 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.
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(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(R) System of such Mortgage and
to execute and
deliver, on behalf of the Trustee and the Certificateholders or
any of them, any
and all instruments of satisfaction or cancellation or of
partial or full
release. 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 as agent for the
Trustee when the
need therefor by the Servicer no longer exists, unless (i) the
Mortgage Loan has
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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 shall deliver the Request for
Release with
respect thereto to the Servicer upon deposit of the related
Liquidation Proceeds
in the Custodial Account.
(c) The Servicer on the Trustee's behalf shall execute and
deliver to the
Servicer, if necessary, any court pleadings, requests for
trustee's sale or
other documents necessary to the foreclosure or trustee's sale
in respect of a
Mortgaged Property or to any legal action brought to obtain
judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment,
or to enforce any other remedies or rights provided by the
Mortgage Note or
Mortgage or otherwise available at law or in equity. Together
with such
documents or pleadings (if signed by the Trustee), the Servicer
shall deliver to
the Trustee a certificate of a Servicing Officer requesting that
such pleadings
or documents be executed by the Trustee and certifying as to the
reason such
documents or pleadings are required and that the execution and
delivery thereof
by the Trustee will not invalidate any insurance coverage under
any Required
Insurance Policy or invalidate or otherwise affect the lien of
the Mortgage,
except for the termination of such a lien upon completion of the
foreclosure or
trustee's sale.
(d) Notwithstanding any other provisions of this Agreement, the
Servicer shall
account fully to the Trustee for any funds received by the
Servicer or which
otherwise are collected by the Servicer as Liquidation Proceeds
or Insurance
Proceeds in respect of any related Mortgage Loan. All Mortgage
Files and funds
collected or held by, or under the control of, the Servicer in
respect of any
Mortgage Loans, whether from the collection of principal and
interest payments
or from Liquidation Proceeds, including but not limited to, any
funds on deposit
in the Custodial Account(s), shall be held by the Servicer for
and on behalf of
the Trustee and shall be and remain the sole and exclusive
property of the
Trustee, subject to the applicable provisions of this Agreement.
The Servicer
also agrees that it shall not create, incur or subject any
Mortgage File or any
funds that are deposited in the Custodial Account, Payment
Account or any
related Servicing Account, or any funds that otherwise are or
may become due or
payable to the Trustee for the benefit of the
Certificateholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or
other
encumbrance, or assert by legal action or otherwise any claim or
right of setoff
against any Mortgage File or any funds collected on, or in
connection with, a
Mortgage Loan, except, however, that the Servicer shall be
entitled to set off
against and deduct from any such funds any amounts that are
properly due and
payable to the Servicer under this Agreement.
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Section 3.16. Servicing and Other Compensation; Compensating
Interest.
(a) The Servicer, as compensation for its activities hereunder,
shall be
entitled to receive on each Distribution Date the amounts
provided for by
clauses (iii), (iv) and (v) of Section 3.10(a), subject to
clause (e) below. The
amount of servicing compensation provided for in such clauses
shall be accounted
for on a Mortgage Loan-by-Mortgage Loan basis. In the event that
Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of amounts
reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of a Cash
Liquidation or
REO Disposition exceed the unpaid principal balance of such
Mortgage Loan plus
unpaid interest accrued thereon (including REO Imputed Interest)
at a per annum
rate equal to the related Net Mortgage Rate (or the Modified Net
Mortgage Rate
in the case of a Modified Mortgage Loan), the Servicer shall be
entitled to
retain therefrom and to pay to itself and/or the related
Subservicer, any
Foreclosure Profits and any Servicing Fee or Subservicing Fee
considered to be
accrued but unpaid.
(b) Additional servicing compensation in the form of prepayment
charges,
assumption fees, late payment charges, investment income on
amounts in the
Custodial Account or otherwise shall be retained by the Servicer
or the
Subservicer to the extent provided herein, subject to clause (e)
below.
(c) The Servicer shall be required to pay, or cause to be paid,
all expenses
incurred by it in connection with its servicing activities
hereunder (including
payment of premiums for the Primary Insurance Policies, if any,
to the extent
such premiums are not required to be paid by the related
Mortgagors, certain
expenses of the Trustee as provided in Section 8.05, and the
fees and expenses
of any Custodian) and shall not be entitled to reimbursement
therefor except as
specifically provided in Sections 3.01, 3.10 and 3.14.
(d) The Servicer's right to receive servicing compensation may
not be
transferred in whole or in part except in connection with the
transfer of all of
its responsibilities and obligations of the Servicer under this
Agreement.
(e) Notwithstanding any other provision herein, the amount of
the Servicing Fee
that the Servicer shall be entitled to receive for its
activities hereunder for
the period ending on each Distribution Date shall be reduced
(but not below
zero) by an amount equal to Compensating Interest (if any) for
such Distribution
Date. In making such reduction, the Servicer will not withdraw
from the
Custodial Account any such amount representing all or a portion
of the Servicing
Fee to which it is entitled pursuant to Section
3.10(a)(iii).
Section 3.17. Periodic Filings with the Securities and
Exchange
Commission; Additional Information.
(a) Within 15 days after each Distribution Date, the Trustee
shall prepare and
file in accordance with industry standards with the Securities
and Exchange
Commission (the "Commission") via the Electronic Data Gathering
and Retrieval
System ("EDGAR"), and the Servicer shall execute, a Form 8-K
with a copy of the
statement to the Certificateholders for such Distribution Date
as an exhibit
thereto. Prior to January 31, 2006, the Trustee shall prepare
and file in
accordance with industry standards, and the Servicer shall
execute, a Form 15
Suspension Notification with respect to the Trust Fund, if
applicable, with the
Commission via EDGAR. Prior to April 30, 2006 and prior to April
30th of each
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succeeding year until the earlier of (i) a Form 15 Suspension
Notification has
been filed with respect to the Trust Fund or (ii) the year
following the
termination of the Trust Fund pursuant to the terms hereof, the
Trustee shall
prepare and file, and the Servicer shall execute, a Form 10-K,
in substance
conforming to industry standards with respect to the Trust Fund
with the
Commission via EDGAR. The Company hereby grants a limited power
of attorney to
execute and file each such document on behalf of the Company to
the Servicer and
the Trustee, respectively. Each such power of attorney shall
continue until
either the earlier of (i) receipt by the Trustee or the
Servicer, as applicable,
from the Company of written termination of such power of
attorney and (ii) the
termination of the Trust Fund. The Company agrees to promptly
furnish to each of
the Trustee and the Servicer, from time to time upon request,
such further
information, reports, and financial statements within its
control related to
this Agreement and the Mortgage Loans as the Trustee or the
Servicer, as
applicable, reasonably deems appropriate to prepare and file all
necessary
reports with the Commission. The Servicer shall have no
responsibility to file
any items other than those specified in this section.
(b) Any Form 10-K filed with the Commission in connection with
this Section
shall include a certification, signed by the senior officer in
charge of the
servicing functions of the Servicer, in the form attached as
Exhibit O-1 hereto
or such other form as may be required or permitted by the
Commission (the "Form
10-K Certification"), in compliance with Rule 13a-14 and 15d-14
under the
Exchange Act and any additional directives of the Commission. In
connection with
the Form 10-K Certification, the Trustee shall provide the
Servicer with (x) a
back-up certification substantially in the form attached hereto
as Exhibit O-2;
and (y) (I) a list of Certificateholders as shown on the
Certificate Register as
of the end of each calendar year, (II) copies of all pleadings,
other legal
process and any other documents relating to any claims, charges
or complaints
involving the Trustee, as trustee, or the Trust Fund that are
received by the
Trustee, (III) notice of all matters that, to the actual
knowledge of a
Responsible Officer of the Trustee, have been submitted to a
vote of the
Certificateholders, other than those matters that have been
submitted to a vote
of the Certificateholders at the request of the Depositor or the
Servicer, and
(IV) notice of any failure of the Trustee to make any
distribution to the
Certificateholders as required pursuant to this Agreement.
Neither the Servicer
nor the Trustee shall have any liability with respect to the
Trustee's failure
to properly prepare or file, or the Servicer's failure to
execute, such periodic
reports resulting from or relating to the Servicer's or the
Trustee's, as the
case may be, inability or failure to obtain any information not
resulting from
the negligence or willful misconduct of such party.
Section 3.18. Annual Statement as to Compliance.
The Servicer shall deliver to the Depositor, the Trustee and
each Rating
Agency on or before 90 days after the end of the Servicer's
fiscal year,
commencing with its fiscal year ending December 31, 2006, an
Officer's
Certificate stating, as to the signer thereof, that (i) a review
of the
activities of the Servicer during the preceding calendar year
and of the
performance of the Servicer under this Agreement has been made
under such
officer's supervision and (ii) to the best of such officer's
knowledge, based on
such review, the Servicer has fulfilled all its obligations
under this Agreement
65
<PAGE>
throughout such year, or, if there has been a default in the
fulfillment of any
such obligation, specifying each such default known to such
officer and the
nature and status thereof except for such defaults as such
officer in his or her
good faith judgment believes to be immaterial.
Section 3.19. Annual Independent Public Accountants' Servicing
Report.
On or before 90 days after the end of the Servicer's fiscal
year,
commencing with its 2006 fiscal year, the Servicer at its
expense shall cause a
firm of independent public accountants (who may also render
other services to
the Servicer, the Depositor or any affiliate thereof) which is a
member of the
American Institute of Certified Public Accountants to furnish a
statement to the
Trustee and the Depo
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