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NOMURA ASSET ACCEPTANCE CORPORATION,
Depositor
NOMURA CREDIT & CAPITAL, INC.,
Seller
GMAC MORTGAGE CORPORATION
a Servicer
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Trustee
--------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
----------------------------------------
NOMURA ASSET ACCEPTANCE CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AP1
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Defined
Terms...................................................5
Section 1.02. Allocation of Certain Interest
Shortfalls......................55
ARTICLE II
CONVEYANCE OF TRUST FUND REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Trust
Fund.......................................57
Section 2.02. Acceptance of the Mortgage
Loans...............................58
Section 2.03. Representations, Warranties and Covenants of GMACM
and
the
Seller.....................................................60
Section 2.04. Representations and Warranties of the
Depositor................65
Section 2.05. Delivery of Opinion of Counsel in Connection
with
Substitutions and
Repurchases..................................67
Section 2.06. Issuance of the Group I
Certificates...........................67
Section 2.07. Issuance of the REMIC II Regular Interests and
the
Class R-1
Interest.............................................68
Section 2.08. Conveyance of the REMIC II Regular Interests;
Acceptance of
REMIC III by the
Trustee.......................................68
Section 2.09. Conveyance of the REMIC III Regular Interests;
Acceptance of
REMIC IV by the
Trustee........................................68
Section 2.10. Issuance of Class II-R
Certificates............................69
Section 2.11. Establishment of
Trust.........................................69
ARTICLE III
ADMINISTRATION AND SERVICING OF THE GMACM MORTGAGE LOANS
Section 3.01. GMACM to act as Servicer of the GMACM Mortgage
Loans...........70
Section 3.02. Due-on-Sale Clauses; Assumption
Agreements.....................71
Section 3.03.
Subservicers...................................................73
Section 3.04. Documents, Records and Funds in Possession of
GMACM To Be
Held for
Trustee...............................................73
Section 3.05. Maintenance of Hazard
Insurance................................74
Section 3.06. Presentment of Claims and Collection of
Proceeds...............75
Section 3.07. Maintenance of Insurance
Policies..............................76
Section 3.08.
Reserved.......................................................76
<PAGE>
Section 3.09. Realization Upon Defaulted GMACM Mortgage
Loans;
Determination of Excess Liquidation Proceeds and Realized
Losses; Repurchases of Certain GMACM Mortgage
Loans............76
Section 3.10. Servicing
Compensation.........................................78
Section 3.11. REO
Property...................................................79
Section 3.12. Liquidation
Reports............................................79
Section 3.13. Annual Certificate as to
Compliance............................79
Section 3.14. Annual Independent Certified Public Accountants'
Servicing
Report.........................................................80
Section 3.15. Books and
Records..............................................81
Section 3.16. The
Trustee....................................................81
Section 3.17. REMIC-Related
Covenants........................................82
Section 3.18. Reimbursement of Costs and
Expenses............................82
Section 3.19. Release of Mortgage
Files......................................82
Section 3.20. Documents, Records and Funds in Possession of
GMACM to be
held for
Trustee...............................................83
Section 3.21. Possession of Certain Insurance Policies and
Documents.........84
Section 3.22. SEC
Filings....................................................84
Section 3.23.
UCC............................................................85
Section 3.24. Optional Purchase of Defaulted Mortgage
Loans..................85
Section 3.25. Enforcing Obligations of the
Servicers.........................86
ARTICLE IV
ACCOUNTS
Section 4.01. Collection of Mortgage Loan Payments; Custodial
Account........87
Section 4.02. Permitted Withdrawals From the Custodial
Accounts..............89
Section 4.03. Reports to
Trustee.............................................91
Section 4.04. Collection of Taxes; Assessments and Similar
Items;
Escrow
Accounts................................................92
Section 4.05. M&T Custodial Accounts and GreenPoint
Custodial Accounts.......92
Section 4.06. Distribution
Accounts..........................................93
Section 4.07. Permitted Withdrawals and Transfers from the
Distribution
Accounts.......................................................95
Section 4.08. Duties of the Credit Risk Manager;
Termination.................96
Section 4.09. Limitation Upon Liability of the Credit Risk
Manager...........97
ARTICLE V
ADVANCES AND DISTRIBUTIONS
Section 5.01. Advances; Advance
Facility.....................................99
Section 5.02. Compensating Interest
Payments................................102
Section 5.03. REMIC
Distributions...........................................103
Section 5.04.
Distributions.................................................103
Section 5.05. Allocation of Group I Realized
Losses.........................108
Section 5.06. Allocation of Group II Realized
Losses........................109
Section 5.07. Monthly Statements to
Certificateholders......................111
Section 5.08. REMIC Designations and REMIC II
Allocations...................114
Section 5.09. REMIC III
Allocations.........................................115
Section 5.10. Class I-P Certificate Account; Class II-P
Certificate
Account.......................................................116
Section 5.11. Net WAC Reserve
Fund..........................................117
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<PAGE>
ARTICLE VI
THE CERTIFICATES
Section 6.01. The
Certificates..............................................119
Section 6.02. Certificate Register; Registration of Transfer
and
Exchange of
Certificates......................................120
Section 6.03. Mutilated, Destroyed, Lost or Stolen
Certificates.............123
Section 6.04. Persons Deemed
Owners.........................................124
Section 6.05. Access to List of Certificateholders' Names and
Addresses.....124
Section 6.06. Book-Entry
Certificates.......................................124
Section 6.07. Notices to
Depository.........................................125
Section 6.08. Definitive
Certificates.......................................125
Section 6.09. Maintenance of Office or
Agency...............................126
ARTICLE VII
THE DEPOSITOR AND GMACM
Section 7.01. Liabilities of the Depositor and
GMACM........................127
Section 7.02. Merger or Consolidation of the Depositor or
GMACM.............127
Section 7.03. Indemnification of Depositor and
GMACM........................127
Section 7.04. Limitations on Liability of the Depositor, GMACM
and Others...128
Section 7.05. GMACM Not to
Resign...........................................129
Section 7.06. Termination of GMACM Without Cause; Appointment
of
Special
Servicer..............................................129
ARTICLE VIII
DEFAULT; TERMINATION OF SERVICER
Section 8.01. Servicer
Default..............................................131
Section 8.02. Trustee to Act; Appointment of
Successor......................133
Section 8.03. Notification to
Certificateholders............................134
Section 8.04. Waiver of Servicer
Defaults...................................135
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01. Duties of
Trustee.............................................136
Section 9.02. Certain Matters Affecting the
Trustee.........................137
Section 9.03. Trustee Not Liable for Certificates or Mortgage
Loans.........139
Section 9.04. Trustee May Own
Certificates..................................140
Section 9.05. Trustee's Compensation and Expenses;
Indemnification..........140
Section 9.06. Eligibility Requirements for
Trustee..........................141
Section 9.07.
Insurance.....................................................142
Section 9.08. Resignation and Removal of
Trustee............................142
Section 9.09. Successor
Trustee.............................................142
Section 9.10. Merger or Consolidation of
Trustee............................143
Section 9.11. Appointment of Co-Trustee or Separate
Trustee.................143
Section 9.12. Tax
Matters...................................................144
ARTICLE X
TERMINATION
Section 10.01. Termination upon Liquidation or Repurchase of
all
Mortgage
Loans................................................148
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<PAGE>
Section 10.02. Final Distribution on the
Certificates........................148
Section 10.03. Additional Termination
Requirements...........................150
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01.
Amendment.....................................................151
Section 11.02. Recordation of Agreement;
Counterparts........................152
Section 11.03. Governing
Law.................................................152
Section 11.04. Intention of
Parties..........................................153
Section 11.05.
Notices.......................................................153
Section 11.06. Severability of
Provisions....................................154
Section 11.07.
Assignment....................................................154
Section 11.08. Limitation on Rights of
Certificateholders....................154
Section 11.09. Certificates Nonassessable and Fully
Paid.....................155
EXHIBITS
Exhibit A-1 Form of Class I-A-1 Certificates
Exhibit A-2 Form of Class II-A-[1][2][3][4][5] Certificates
Exhibit A-3 Form of Class II-A-IO Certificates
Exhibit A-4 Form of Class I-B-[1][2][3][4][5][6]
Certificates
Exhi it A-5 Form of Class II-M-[1][2][3] Certificates
Exhibit A-5 Form of Class II-C Certificates
Exhibit A-6 Form of Class I-P Certificates and Class II-P
Certificates
Exhibit A-7 Form of Class I-R Certificates and Class II-R
Certificates
Exhibit A-8 Form of Class I-X Certificates
Exhibit B Mortgage Loan Schedule
Exhibit C Reserved
Exhibit D Form of Transfer Affidavit
Exhibit E Form of Transferor Certificate
Exhibit F Form of Investment Letter (Non-Rule 144A)
Exhibit G Form of Rule 144A Investment Letter
Exhibit H Reserved
Exhibit I DTC Letter of Representations
Exhibit J Schedule of Mortgage Loans with Lost Notes
Exhibit K Prepayment Charge Schedule
Exhibit L Form of Servicer's Certification
Exhibit M Form of Trustee's Certification
Exhibit N Appendix E of the Standard & Poor's Glossary For
File
Format For LEVELS(R) Version 5.6 Revised
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<PAGE>
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2005,
among
NOMURA ASSET ACCEPTANCE CORPORATION, a Delaware corporation, as
depositor (the
"Depositor"), NOMURA CREDIT & CAPITAL, INC., a Delaware
corporation, as seller
(in such capacity, the "Seller"), GMAC MORTGAGE CORPORATION, a
Pennsylvania
corporation, as a servicer ("GMACM") and WELLS FARGO BANK,
NATIONAL ASSOCIATION,
a national banking association, not in its individual capacity,
but solely as
trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby
conveyed to
the Trustee in return for the Certificates.
REMIC I
-------
As provided herein, the Trustee will make an election to treat
the
segregated pool of assets consisting of the Group I Mortgage
Loans and certain
other related assets as set forth in the definition of REMIC I
subject to this
Agreement as a real estate mortgage investment conduit (a
"REMIC") for federal
income tax purposes, and such segregated pool of assets will be
designated as
"REMIC I." The Class I-R 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
Class designation, Pass-Through Rate and Initial Certificate
Principal Balance
for each Class of Certificates that represents one or more of
the "regular
interests" in REMIC I created hereunder:
<TABLE>
<CAPTION>
Class Initial Certificate Assumed Final
Designation Principal Balance Pass-Through Rate Maturity
Date(1)
----------- ------------------- -----------------------------
-----------------
<S> <C> <C> <C>
Class I-A-1 $ 121,247,000 Class I-A-1 Pass-Through Rate February
25, 2035
Class I-B-1 $ 4,758,000 Class I-B-1 Pass-Through Rate February
25, 2035
Class I-B-2 $ 2,180,000 Class I-B-2 Pass-Through Rate February
25, 2035
Class I-B-3 $ 1,189,000 Class I-B-3 Pass-Through Rate February
25, 2035
Class I-B-4 $ 1,189,000 Class I-B-4 Pass-Through Rate February
25, 2035
Class I-B-5 $ 925,000 Class I-B-5 Pass-Through Rate February 25,
2035
Class I-B-6 $ 661,446 Class I-B-6 Pass-Through Rate February 25,
2035
Class I-X N/A(2) Class I-X Pass-Through Rate February 25,
2035
Class I-P $ 100 N/A February 25, 2035
</TABLE>
-------------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date in the month following the
maturity
date for the Group I Mortgage Loan with the latest maturity date
has
been designated as the "latest possible maturity date" for each
Class
of Certificates.
(2) The Class I-X Certificates will accrue interest at the Class
I-X
Pass-Through Rate on the Certificate Notional Balance of the
Class I-X
Certificates calculated in accordance with the definition of
"Certificate Notional Balance" herein. The Class I-X
Certificates will
not be entitled to distributions in respect of principal.
-1-
<PAGE>
REMIC II
--------
As provided herein, the Trustee will make an election to treat
the
segregated pool of assets consisting of the Group II Mortgage
Loans and certain
other related assets as set forth in the definition of REMIC II
(and exclusive
of the Cap Contract and the Net WAC Reserve Fund) subject to
this Agreement as a
real estate mortgage investment conduit (a "REMIC") for federal
income tax
purposes, and such segregated pool of assets will be designated
as "REMIC II".
The Class R-1 Interest will be the sole class of "residual
interests" in REMIC
II for purposes of the REMIC Provisions. The following table
irrevocably sets
forth the designation, the Uncertificated REMIC II Pass-Through
Rate, the
Initial Uncertificated Principal Balance and, for purposes of
satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest
possible maturity
date" for each of the REMIC II Regular Interests (as defined
herein). None of
the REMIC II Regular Interests will be certificated.
Initial Uncertificated
Uncertificated REMIC II Assumed Final
Designation Principal Balance Pass-Through Rate Maturity
Date(1)
----------- ----------------- -----------------
----------------
LTII-2 $193,360,313.30 Variable(2) February 25, 2035
LTII-IO-A $ 5,525,000.00 Variable(2) February 25, 2035
LTII-IO-B $ 2,210,000.00 Variable(2) February 25, 2035
LTII-IO-C $ 3,314,000.00 Variable(2) February 25, 2035
LTII-IO-D $ 3,315,000.00 Variable(2) February 25, 2035
LTII-IO-E $ 2,210,000.00 Variable(2) February 25, 2035
LTII-IO-F $ 2,210,000.00 Variable(2) February 25, 2035
LTII-IO-G $ 3,085,000.00 Variable(2) February 25, 2035
LTII-IO-H $ 5,754,000.00 Variable(2) February 25, 2035
LTII-P $ 100.00 N/A February 25, 2035
-------------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date in the month following the
maturity
date for the Mortgage Loan with the latest maturity date has
been
designated as the "latest possible maturity date" for each Class
of
Certificates that represents one or more of the "regular
interests" in
REMIC II.
(2) Calculated in accordance with the definition of
"Uncertificated REMIC
II Pass-Through Rate" herein.
REMIC III
---------
As provided herein, the Trustee will make an election 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-2 Interest will
represent the sole
class of "residual interests" in REMIC III for purposes of the
REMIC Provisions.
The following table irrevocably sets forth the designation, the
Uncertificated
REMIC III Pass-Through Rate, the Initial Uncertificated
Principal Balance and,
for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC III
Regular Interests (as
defined herein). None of the REMIC III Regular Interests will be
certificated.
-2-
<PAGE>
Initial Uncertificated
Uncertificated REMIC III Assumed Final
Designation Principal Balance Pass-Through Rate Maturity
Date(1)
----------- ----------------- -----------------
----------------
LTIII-AA $216,563,547.03 Variable(2) February 25, 2035
LTIII-IIA1 $ 992,940.00 Variable(2) February 25, 2035
LTIII-IIA2 $ 497,720.00 Variable(2) February 25, 2035
LTIII-IIA3 $ 167,550.00 Variable(2) February 25, 2035
LTIII-IIA4 $ 205,780.00 Variable(2) February 25, 2035
LTIII-IIA5 $ 220,980.00 Variable(2) February 25, 2035
LTIII-IIM1 $ 48,610.00 Variable(2) February 25, 2035
LTIII-IIM2 $ 43,090.00 Variable(2) February 25, 2035
LTIII-IIM3 $ 33,140.00 Variable(2) February 25, 2035
LTIII-IIZZ $ 2,209,856.27 Variable(2) February 25, 2035
LTIII-IO-A N/A(3) 1.00%(4) February 25, 2035
LTIII-IO-B N/A(5) 3.50%(6) February 25, 2035
LTIII-IIP $ 100.00 Variable(2) February 25, 2035
-------------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date in the month following the
maturity
date for the Group II Mortgage Loan with the latest maturity
date has
been designated as the "latest possible maturity date" for each
REMIC
III Regular Interest.
(2) Calculated in accordance with the definition of
"Uncertificated REMIC
III Pass-Through Rate" herein. (3) REMIC III Regular
Interest
LTIII-IO-A will not have an Uncertificated Principal Balance,
but will
accrue
interest on its Uncertificated Notional Amount, as defined
herein.
(4) REMIC III Regular Interest LTIII-IO-A will accrue interest
at a rate of
(i) for the first eight Distribution Dates, 1.00% and (ii)
thereafter,
0.00%.
(5) REMIC III Regular Interest LTIII-IO-B will not have an
Uncertificated
Principal Balance, but will accrue interest on its
Uncertificated
Notional Amount, as defined herein.
(6) REMIC III Regular Interest LTIII-IO-B will accrue interest
at a rate of
(i) for the first twenty-four Distribution Dates, 3.50% and
(ii)
thereafter, 0.00%.
REMIC IV
--------
As provided herein, the Trustee will make an election to treat
the
segregated pool of assets consisting of the REMIC III Regular
Interests as a
REMIC for federal income tax purposes, and such segregated pool
of assets will
be designated as "REMIC IV". The Class R-3 Interest will
represent the sole
class of "residual interests" in REMIC IV for purposes of the
REMIC Provisions.
The following table irrevocably sets forth the Class
designation, Pass-Through
Rate and Initial Certificate Principal Balance for each Class of
Certificates
that represents one or more of the "regular interests" in REMIC
IV created
hereunder:
<TABLE>
<CAPTION>
Initial
Class Certificate Assumed Final
Designation Principal Balance Pass-Through Rate Maturity
Date(1)
----------- ----------------- -----------------
----------------
<S> <C> <C> <C>
Class II-A-1 $99,294,000.00 Class II-A-1 Pass-Through Rate
February 25, 2035
Class II-A-2 $49,772,000.00 Class II-A-2 Pass-Through Rate
February 25, 2035
Class II-A-3 $16,755,000.00 Class II-A-3 Pass-Through Rate
February 25, 2035
Class II-A-4 $20,578,000.00 Class II-A-4 Pass-Through Rate
February 25, 2035
Class II-A-5 $22,098,000.00 Class II-A-5 Pass-Through Rate
February 25, 2035
Class II-A-IO N/A(2) Class A-IO Pass-Through Rate February 25,
2035
Class II-M-1 $ 4,861,000.00 Class II-M-1 Pass-Through Rate
February 25, 2035
-3-
<PAGE>
<CAPTION>
<S> <C> <C> <C>
Class II-M-2 $ 4,309,000.00 Class II-M-2 Pass-Through Rate
February 25, 2035
Class II-M-3 $ 3,314,000.00 Class II-M-3 Pass-Through Rate
February 25, 2035
Class II-C $ 2,313.30(3) Class II-C Pass-Through Rate February
25, 2035
Class II-P $ 100.00 N/A(4) February 25, 2035
</TABLE>
-------------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury
regulations, the Distribution Date in the month following the
maturity
date for the Group II Mortgage Loan with the latest maturity
date has
been designated as the "latest possible maturity date" for each
Class
of Certificates.
(2) The Class II-A-IO Certificates will accrue interest at the
Class
II-A-IO Pass-Through Rate on the Certificate Notional Balance of
the
Class II-A-IO Certificates calculated in accordance with the
definition
of "Certificate Notional Balance" herein. The Class II-A-IO
Certificates will not be entitled to distributions in respect
of
principal. For federal income tax purposes, the Class
II-A-IO
Certificates will not have a Notional Amount, but will be
entitled to
100% of amounts distributed on REMIC II Regular Interest
LTIII-IO-A and
REMIC III Regular Interest LTIII-IO-B.
(3) The Class II-C Certificates will not accrue interest on
their
Certificate Principal Balance, but will accrue interest at the
Class
II-C Pass-Through Rate on the Certificate Notional Balance of
the Class
II-C Certificates outstanding from time to time which shall
equal the
aggregate of the Uncertificated Principal Balances of the REMIC
III
Regular Interests (other than REMIC III Regular Interest
LTIII-IO-A,
REMIC III Regular Interest LTIII-IO-B and REMIC III Regular
Interest
LTIII-IIP). The Class II-C Certificates will not accrue interest
on
their Certificate Principal Balance.
(4) The Class II-P Certificates are not entitled to
distributions in
respect of interest.
In consideration of the mutual agreements herein contained,
the
Depositor, GMACM, the Seller and the Trustee agree as
follows:
-4-
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01. DEFINED TERMS.
In addition to those terms defined in Section 1.02, whenever
used in
this Agreement, the following words and phrases, unless the
context otherwise
requires, shall have the following meanings:
ACCOUNT: Any of the Distribution Accounts or Custodial
Accounts.
ACCRUAL PERIOD: With respect to the Certificates (other than the
Class
I-P, Class II-A-1, Class II-P, Class I-R and Class II-R
Certificates) and any
Distribution Date, the calendar month immediately preceding the
calendar month
in which such Distribution Date occurs. With respect to the
Class II-A-1
Certificates and any Distribution Date, the period from and
including the 25th
day of the calendar month preceding the calendar month in which
such
Distribution Date occurs (or with respect to the first Accrual
Period, the
Closing Date) to and including the 24th day of the calendar
month in which such
Distribution Date occurs. All calculations of interest on the
Certificates
(other than the Class I-P, Class II-A-1, Class II-P, Class I-R
and Class II-R
Certificates) will be based on a 360-day year consisting of
twelve 30-day
months. All calculations of interest on the Class II-A-1
Certificates will be
made based on a 360-day year and the actual number of days
elapsed in the
related Accrual Period.
ADJUSTMENT AMOUNT: With respect to each anniversary of the
Cut-off
Date, the amount, if any, by which the Special Hazard Loss
Coverage Amount
(without giving effect to the deduction of the Adjustment Amount
for such
anniversary) exceeds the greatest of (x) the product of 1% and
the Stated
Principal Balance of all the Group I Mortgage Loans on the
Distribution Date
immediately preceding such anniversary, (y) the outstanding
principal balance of
the Group I Mortgage Loans secured by Mortgaged Properties in
the highest
California zip code concentration on the distribution date
immediately preceding
such anniversary, and (z) twice the Stated Principal Balance of
the Group I
Mortgage Loan which has the largest Stated Principal Balance on
the Distribution
Date immediately preceding such anniversary.
ADVANCE: An advance of delinquent payments of principal or
interest in
respect of a Mortgage Loan required to be made by GMACM pursuant
to Section
5.01, by M&T pursuant to the M&T Servicing Agreement, by
GreenPoint pursuant to
the GreenPoint Servicing Agreement or by the Trustee in its
capacity as
Successor Servicer pursuant to Section 5.01.
ADVANCE FACILITY: As defined in Section 5.01(b)(i).
ADVANCE FACILITY NOTICE: As defined in Section 5.01(b)(ii).
ADVANCE FINANCING PERSON: As defined in Section 5.01(b)(i).
ADVANCE REIMBURSEMENT AMOUNT: As defined in Section
5.01(b)(ii).
-5-
<PAGE>
AGREEMENT: This Pooling and Servicing Agreement and any and
all
amendments or supplements hereto made in accordance with the
terms herein.
ALLOCABLE SHARE: With respect to each Class of Group I
Subordinate
Certificates and any Distribution Date, an amount equal to such
Class's pro rata
share (based on the Certificate Principal Balance of each Class
entitled
thereto) of the sum of each of the components of the definition
of Subordinate
Optimal Principal Amount; provided that no Class of Group I
Subordinate
Certificates shall be entitled on any Distribution Date to
receive distributions
pursuant to clauses (ii) and (iii) of the definition of
Subordinate Optimal
Principal Amount unless the Class Prepayment Distribution
Trigger for the
related Class is satisfied for such Distribution Date.
AMOUNT HELD FOR FUTURE DISTRIBUTION: As to any Distribution
Date, the
aggregate amount held in the related Servicer's Custodial
Account at the close
of business on the immediately preceding Determination Date on
account of (i)
all Scheduled Payments or portions thereof received in respect
of the related
Mortgage Loans due after the related Due Period and (ii)
Principal Prepayments
and Liquidation Proceeds received in respect of the related
Mortgage Loans after
the last day of the related Prepayment Period.
APPRAISED VALUE: With respect to any Mortgage Loan originated
in
connection with a refinancing, the appraised value of the
Mortgaged Property
based upon the appraisal made at the time of such refinancing
or, with respect
to any other Mortgage Loan, the lesser of (x) the appraised
value of the
Mortgaged Property based upon the appraisal made by a fee
appraiser at the time
of the origination of the Mortgage Loan, and (y) the sales price
of the
Mortgaged Property at the time of such origination.
AUTHORIZED SERVICER REPRESENTATIVE: Any officer of any
Servicer
involved in, or responsible for, the administration and
servicing of the
Mortgage Loans (i) in the case of GMACM, whose name and
facsimile signature
appear on a list of servicing officers furnished to the Trustee
by GMACM on the
Closing Date pursuant to this Agreement, as such list may from
time to time be
amended, (ii) in the case of M&T, as to which evidence
reasonably acceptable to
the Trustee of due authorization by such party has been
furnished from time to
time to the Trustee and (iii) in the case of GreenPoint, as to
which evidence
reasonably acceptable to the Trustee of due authorization by
such party has been
furnished from time to time to the Trustee.
BANKRUPTCY CODE: Title 11 of the United States Code.
BANKRUPTCY LOSS COVERAGE AMOUNT: With respect to any
Distribution Date,
an amount equal to $150,000 (approximately 0.11% of the
aggregate principal
balance of the Group I Mortgage Loans as of the Cut-off Date),
minus the
aggregate amount of previous Deficient Valuations and Debt
Service Reductions.
As of any Distribution Date on or after the Cross-Over Date, the
related
Bankruptcy Loss Coverage Amount will be zero. The Bankruptcy
Loss Coverage
Amount may be further reduced by the Trustee (including
accelerating the manner
in which such coverage is reduced) at the direction of the
Depositor provided
that prior to any such reduction, the Trustee shall obtain, at
the expense of
the Depositor, written confirmation from each Rating Agency that
such reduction
shall not reduce the rating assigned to any Class of
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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.
BOOK-ENTRY CERTIFICATES: Any of the Certificates that shall
be
registered in the name of the Depository or its nominee, the
ownership of which
is reflected on the books of the Depository or on the books of a
person
maintaining an account with the Depository (directly, as a
"Depository
Participant", or indirectly, as an indirect participant in
accordance with the
rules of the Depository and as described in Section 6.06). As of
the Closing
Date, each Class of Publicly Offered Certificates constitutes a
Class of
Book-Entry Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or
(ii) a
day on which banking institutions in The City of New York, New
York, the
Commonwealth of Pennsylvania, the State of Maryland, the State
of Minnesota, the
city in which any Corporate Trust Office of the Trustee is
located or the States
in which GMACM's servicing operations are located are authorized
or obligated by
law or executive order to be closed.
CAP CONTRACT: The cap contract between the Trustee and the
Cap
Provider, for the benefit of the Holders of the Class II-A-1
Certificates.
CAP PROVIDER: Nomura Global Financial Products, Inc., or any
successor
thereto.
CERTIFICATE: Any one of the certificates of any Class executed
and
authenticated by the Trustee in substantially the forms attached
hereto as
Exhibits A-1 through A-8.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the
Person
that is the beneficial owner of such Book-Entry Certificate.
CERTIFICATE NOTIONAL BALANCE: With respect to the Class I-X
Certificates, the aggregate Stated Principal Balance of the
Group I Mortgage
Loans. With respect to the Class II-A-IO Certificates, the
lesser of (a) (i)
$27,623,000 for each Distribution Date from and including the
Distribution Date
in March 2005 to and including the Distribution Date in August
2005, (ii)
$22,098,000 for each Distribution Date from and including the
Distribution Date
in September 2005 to and including the Distribution Date in
December 2005, (iii)
$19,888,000 for each Distribution Date from and including the
Distribution Date
in January 2006 to and including the Distribution Date in March
2006, (iv)
$16,574,000 for the Distribution Date in April 2006 and the
Distribution Date in
May 2006, (v) $13,259,000 from and including the Distribution
Date in June 2006
to and including the Distribution Date in September 2006, (vi)
$11,049,000 for
the Distribution Date in October 2006 and the Distribution Date
in November
2006, (vii) $8,839,000 for the Distribution Date in December
2006 and the
Distribution Date in January 2007 and (viii) $5,754,000 for the
Distribution
Date in February 2007 and (ix) for each Distribution Date
thereafter, $0 and (b)
the aggregate Stated Principal Balance of the Group II Mortgage
Loans. For
United States federal income tax purposes, the Class II-A-IO
Certificates will
not have a Certificate Notional Balance, but will be entitled to
100% of amounts
distributed on REMIC III Regular Interest LTIII-IO-A and REMIC
III Regular
Interest LTIII-IO-B. With respect to the Class II-C
Certificates, immediately
prior to any Distribution Date, the aggregate of the
Uncertificated Principal
Balances of the REMIC III Regular Interests (other than REMIC
III
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Regular Interest LTIII-IO-A, REMIC III Regular Interest
LTII-IO-B and REMIC III
Regular Interest LTII-P).
CERTIFICATE PRINCIPAL BALANCE: With respect to any Group I
Certificate
(other than any Class I-X Certificate or Class I-R Certificate)
and as of any
Distribution Date, the Initial Certificate Principal Balance of
such Certificate
less the sum of (i) all amounts distributed with respect to such
Certificate in
reduction of the Certificate Principal Balance thereof on
previous Distribution
Dates pursuant to Section 5.04(a), and (ii) any Realized Losses
and Subordinate
Certificate Writedown Amounts allocated to such Certificate on
previous
Distribution Dates. References herein to the Certificate
Principal Balance of a
Class of Group I Certificates shall mean the Certificate
Principal Balances of
all Group I Certificates in such Class; provided, however that
the Certificate
Principal Balance of a Certificate will be adjusted, in reverse
order of
priority, on each Distribution Date by the amount of any
Subsequent Recoveries
received during the related Due Period as provided in Section
5.05(i).
With respect to any Group II Certificate (other than any Class
II-A-IO,
Class II-C or Class II-R Certificate) and as of any Distribution
Date, the
Initial Certificate Principal Balance of such Certificate plus
in the case of
the Group II Mezzanine Certificates, any Subsequent Recoveries
added to the
Certificate Principal Balance of such Certificate pursuant to
Section 5.06(f)
less the sum of (i) all amounts distributed with respect to such
Certificate in
reduction of the Certificate Principal Balance thereof on
previous Distribution
Dates pursuant to Section 5.04(b), and (ii) with respect to the
Group II
Mezzanine Certificates, any reductions in the Certificate
Principal Balance of
such Certificate deemed to have occurred in connection with the
allocations of
Realized Losses with respect to the Group II Mortgage Loans, if
any. References
herein to the Certificate Principal Balance of a Class of Group
II Certificates
shall mean the Certificate Principal Balances of all Group II
Certificates in
such Class.
With respect to the Class II-C Certificates and as of any
Distribution
Date, an amount equal to the excess, if any, of (i) the then
aggregate principal
balance of the Group II Mortgage Loans over (ii) the then
aggregate Certificate
Principal Balance of the Group II Senior Certificates and the
Group II Mezzanine
Certificates.
CERTIFICATE REGISTER: The register maintained pursuant to
Section 6.02.
CERTIFICATEHOLDER OR HOLDER: The person in whose name a
Certificate is
registered in the Certificate Register (initially, Cede &
Co., as nominee for
the Depository, in the case of any Book-Entry Certificates).
CLASS: All Certificates bearing the same Class designation as
set forth
in Section 6.01.
CLASS I-A-1 CERTIFICATE: Any Certificate designated as a "Class
I-A-1
Certificate" on the face thereof, in the form of Exhibit A-1
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-A-1 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC I.
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CLASS I-A-1 PASS-THROUGH RATE: With respect to any Distribution
Date, a
per annum rate equal to the weighted average Net Mortgage Rate
of the Group I
Mortgage Loans minus 0.01% per annum.
CLASS I-B-1 CERTIFICATE: Any Certificate designated as a "Class
I-B-1
Certificate" on the face thereof, in the form of Exhibit A-4
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-B-1 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC I.
CLASS I-B-1 PASS-THROUGH RATE: With respect to any Distribution
Date, a
per annum rate equal to the weighted average Net Mortgage Rate
of the Group I
Mortgage Loans minus 0.01% per annum.
CLASS I-B-2 CERTIFICATE: Any Certificate designated as a "Class
I-B-2
Certificate" on the face thereof, in the form of Exhibit A-4
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-B-2 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC I.
CLASS I-B-2 PASS-THROUGH RATE: With respect to any Distribution
Date, a
per annum rate equal to the weighted average Net Mortgage Rate
of the Group I
Mortgage Loans minus 0.01% per annum.
CLASS I-B-3 CERTIFICATE: Any Certificate designated as a "Class
I-B-3
Certificate" on the face thereof, in the form of Exhibit A-4
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-B-3 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC I.
CLASS I-B-3 PASS-THROUGH RATE: With respect to any Distribution
Date, a
per annum rate equal to the weighted average Net Mortgage Rate
of the Group I
Mortgage Loans minus 0.01% per annum.
CLASS I-B-4 CERTIFICATE: Any Certificate designated as a "Class
I-B-4
Certificate" on the face thereof, in the form of Exhibit A-4
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-B-4 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC I.
CLASS I-B-4 PASS-THROUGH RATE: With respect to any Distribution
Date, a
per annum rate equal to the weighted average Net Mortgage Rate
of the Group I
Mortgage Loans minus 0.01% per annum.
CLASS I-B-5 CERTIFICATE: Any Certificate designated as a "Class
I-B-5
Certificate" on the face thereof, in the form of Exhibit A-4
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-B-5 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC I.
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<PAGE>
CLASS I-B-5 PASS-THROUGH RATE: With respect to any Distribution
Date, a
per annum rate equal to the weighted average Net Mortgage Rate
of the Group I
Mortgage Loans minus 0.01% per annum.
CLASS I-B-6 CERTIFICATE: Any Certificate designated as a "Class
I-B-6
Certificate" on the face thereof, in the form of Exhibit A-4
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-B-6 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC I.
CLASS I-B-6 PASS-THROUGH RATE: With respect to any Distribution
Date, a
per annum rate equal to the weighted average Net Mortgage Rate
of the Group I
Mortgage Loans minus 0.01% per annum.
CLASS I-P CERTIFICATE: Any Certificate designated as a "Class
I-P
Certificate" on the face thereof, in the form of Exhibit A-6
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class I-P Certificates as set forth herein and evidencing a
Regular Interest
in REMIC I.
CLASS I-P CERTIFICATE ACCOUNT: The Eligible Account established
and
maintained by the Trustee pursuant to Section 5.10.
CLASS I-R CERTIFICATE: Any Certificate designated a "Class
I-R
Certificate" on the face thereof, in substantially the form set
forth in Exhibit
A-7 hereto, evidencing the residual interest in REMIC I.
CLASS I-X CERTIFICATE: Any Certificate designated as a "Class
I-X
Certificate" on the face thereof, in the form of Exhibit A-8
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class I-X Certificates as set forth herein and evidencing a
Regular Interest
in REMIC I.
CLASS I-X PASS-THROUGH RATE: With respect to any Distribution
Date,
0.01% per annum.
CLASS II-A-1 CERTIFICATE: Any Certificate designated as a "Class
II-A-1
Certificate" on the face thereof, in the form of Exhibit A-1
hereto,
representing the right to the Percentage Interest of
distributions provided for
the Class II-A-1 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC IV.
CLASS II-A-1 PASS-THROUGH RATE: With respect to any Distribution
Date,
One-Month LIBOR plus 0.15% per annum, subject to a cap equal to
the Net WAC Rate
Cap for such Distribution Date.
CLASS II-A-2 CERTIFICATE: Any Certificate designated as a "Class
II-A-2
Certificate" on the face thereof, in the form of Exhibit A-2
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-A-2 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC IV.
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<PAGE>
CLASS II-A-2 PASS-THROUGH RATE: With respect to any Distribution
Date,
4.386% per annum, subject to a cap equal to the Net WAC Rate Cap
for such
Distribution Date.
CLASS II-A-3 CERTIFICATE: Any Certificate designated as a "Class
II-A-3
Certificate" on the face thereof, in the form of Exhibit A-2
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-A-3 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC IV.
CLASS II-A-3 PASS-THROUGH RATE: With respect to any Distribution
Date,
4.840% per annum, subject to a cap equal to the Net WAC Rate Cap
for such
Distribution Date.
CLASS II-A-4 CERTIFICATE: Any Certificate designated as a "Class
II-A-4
Certificate" on the face thereof, in the form of Exhibit A-2
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-A-4 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC IV.
CLASS II-A-4 PASS-THROUGH RATE: Shall mean (i) with respect to
any
Distribution Date which occurs on or prior to the related
Optional Termination
Date, 5.546% per annum and (ii) with respect to each
Distribution Date which
occurs thereafter, 6.046% per annum, in each case, subject to a
cap equal to the
Net WAC Rate Cap for such Distribution Date.
CLASS II-A-5 CERTIFICATE: Any Certificate designated as a "Class
II-A-5
Certificate" on the face thereof, in the form of Exhibit A-2
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-A-5 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC III.
CLASS II-A-5 PASS-THROUGH RATE: Shall mean (i) with respect to
any
Distribution Date which occurs on or prior to the related
Optional Termination
Date, 4.855% per annum and (ii) with respect to each
Distribution Date which
occurs thereafter, 5.355% per annum, in each case, subject to a
cap equal to the
Net WAC Rate Cap for such Distribution Date.
CLASS II-A-5 LOCKOUT PRINCIPAL DISTRIBUTION AMOUNT: With respect
to any
Distribution Date will be an amount equal to the lesser of (i)
the Senior
Principal Distribution Amount for such Distribution Date and
(ii) the Class
II-A-5 Lockout Distribution Percentage for that Distribution
Date multiplied by
the product of (x) a fraction, the numerator of which is the
Certificate
Principal Balance of the Class II-A-5 Certificates and the
denominator of which
is the aggregate Certificate Principal Balance of all of the
Group II Senior
Certificates (other than the Class II-A-IO Certificates), in
each case
immediately prior to such Distribution Date and (y) the Senior
Principal
Distribution Amount for such Distribution Date.
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<PAGE>
CLASS II-A-5 LOCKOUT DISTRIBUTION PERCENTAGE: With respect to
each
Distribution Date, the applicable percentage set forth
below:
CLASS II-A-5 LOCKOUT
DISTRIBUTION
DISTRIBUTION DATES PERCENTAGE
----------------------------------------------------------
--------------------
March 2005 through and including February 2008............
0%
March 2008 through and including February 2010............
45%
March 2010 through and including February 2011............
80%
March 2011 through and including February 2012............
100%
March 2012 and thereafter.................................
300%
CLASS II-A-IO CERTIFICATE: Any Certificate designated as a
"Class
II-A-IO Certificate" on the face thereof, in the form of Exhibit
A-3 hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-A-IO Certificates as set forth herein and
evidencing a Regular
Interest in REMIC IV.
CLASS II-A-IO PASS-THROUGH RATE: Shall mean (i) for the first
eight
Distribution Dates, 4.50% per annum, subject to a cap equal to
the weighted
average of the Net Mortgage Rates on the Group II Mortgage
Loans, (ii) for the
next sixteen Distribution Dates, 3.50% per annum, subject to a
cap equal to the
weighted average of the Net Mortgage Rates on the Group II
Mortgage Loans and
(iii) for any Distribution Date thereafter, 0.00%. For federal
income tax
purposes, however, the Class II-A-IO Certificates will not have
a Class II-A-IO
Pass-Through Rate, and the Interest Distribution Amount for the
Class II-A-IO
Certificates and any Distribution Date will be deemed to be 100%
of the amount
distributed on REMIC III Regular Interest LTIII-IO-A and REMIC
III Regular
Interest LTIII-IO-B for such Distribution Date.
CLASS II-C CERTIFICATE: Any Certificate designated as a "Class
II-C
Certificate" on the face thereof, in the form of Exhibit A-5
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-C Certificates herein and evidencing a Regular
Interest in REMIC
IV.
CLASS II-C DISTRIBUTION AMOUNT: With respect to any Distribution
Date,
the sum of (i) the Excess Cap Payment, (ii) the Interest
Distribution Amount for
the Class II-C Certificates for such Distribution Date and (iii)
any
Overcollateralization Reduction Amount for such Distribution
Date remaining
after payments pursuant to items 1 though 7 of clause THIRD of
Section 5.04(b);
provided, however that on and after the Distribution Date on
which the
Certificate Principal Balance of the Certificates has been
reduced to zero, the
Class II-C Distribution Amount shall include the
Overcollateralization Amount.
CLASS II-C PASS-THROUGH RATE: On any Distribution Date, a per
annum
rate equal to the percentage equivalent of a fraction, the
numerator of which is
the sum of the amounts calculated pursuant to clauses (A)
through (J) below, and
the denominator of which is the aggregate of the Uncertificated
Principal
Balances of the REMIC III Regular Interests (other than REMIC
III Regular
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<PAGE>
Interest LTIII-IO-A, REMIC III Regular Interest LTIII-IO-B and
REMIC III Regular
Interest LTIII-IIP). For purposes of calculating the
Pass-Through Rate for the
Class II-C Certificates, the numerator is equal to the sum of
the following
components:
(A) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-AA minus the Marker Rate, applied to
an amount equal
to the Uncertificated Principal Balance of REMIC III Regular
Interest LTIII-AA;
(B) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIA1 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIA1;
(C) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIA2 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIA2;
(D) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIA3 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIA3;
(E) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIA4 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIA4;
(F) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIA5 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-A5;
(G) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIM1 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIM1;
(H) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIM2 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIM2;
(I) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIM3 minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIM3; and
(J) the Uncertificated REMIC III Pass-Through Rate for REMIC
III Regular Interest LTIII-IIZZ minus the Marker Rate, applied
to an amount
equal to the Uncertificated Principal Balance of REMIC III
Regular Interest
LTIII-IIZZ.
CLASS II-M-1 CERTIFICATE: Any Certificate designated as a "Class
II-M-1
Certificate" on the face thereof, in the form of Exhibit A-5
hereto,
representing the right to its Percentage
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<PAGE>
Interest of distributions provided for the Class II-M-1
Certificates as set
forth herein and evidencing a Regular Interest in REMIC IV.
CLASS II-M-1 PASS-THROUGH RATE: Shall mean (i) with respect to
each
Distribution Date which occurs on or prior to the related
Optional Termination
Date, 5.313% per annum and (ii) with respect to each
Distribution Date which
occurs thereafter, 5.813% per annum, in each case subject to a
cap equal to the
Net WAC Rate Cap for such Distribution Date.
CLASS II-M-1 PRINCIPAL DISTRIBUTION AMOUNT: With respect to
any
Distribution Date which occurs (i) prior to the Stepdown Date or
on or after the
Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the
Principal Distribution Amount for that Distribution Date
remaining after
distribution of the Senior Principal Distribution Amount or (ii)
on or after the
Stepdown Date if a Trigger Event is not in effect for that
Distribution Date,
the lesser of:
o the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal
Distribution Amount; and
o the excess, if any, of (A) the aggregate Certificate
Principal
Balance of the Class II-M-1 Certificates immediately prior
to
that Distribution Date over (B) the positive difference
between (i) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related
Due
Period (after reduction for Group II Realized Losses
incurred
during the related Prepayment Period) and (ii) the sum of
(x)
the aggregate Certificate Principal Balance of the Group II
Senior Certificates (other than the Class II-A-IO
Certificates
and after taking into account the payment of the Senior
Principal Distribution Amount for such Distribution Date)
and
(y) the product of (a) the aggregate Stated Principal
Balance
of the Group II Mortgage Loans as of the last day of the
related Due Period (after reduction for Group II Realized
Losses incurred during the related Prepayment Period) and
(b)
the sum of 6.90% and the Required Overcollateralization
Percentage.
CLASS II-M-2 CERTIFICATE: Any Certificate designated as a "Class
II-M-2
Certificate" on the face thereof, in the form of Exhibit A-5
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-M-2 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC IV.
CLASS II-M-2 PASS-THROUGH RATE: Shall mean (i) with respect to
each
Distribution Date which occurs on or prior to the related
Optional Termination
Date, 5.710% per annum and (ii) with respect to each
Distribution Date which
occurs thereafter, 6.210% per annum, in each case subject to a
cap equal to the
Net WAC Rate Cap for such Distribution Date.
CLASS II-M-2 PRINCIPAL DISTRIBUTION AMOUNT: With respect to
any
Distribution Date which occurs (i) prior to the Stepdown Date or
on or after the
Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the
Principal Distribution Amount for that Distribution Date
remaining after
distribution of the Senior Principal Distribution Amount and the
Class II-M-1
Principal Distribution Amount or (ii) on or after the Stepdown
Date if a Trigger
Event is not in effect for that Distribution Date, the lesser
of:
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o the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal
Distribution Amount and the Class II-M-1 Principal
Distribution Amount; and
o the excess, if any, of (A) the aggregate Certificate
Principal
Balance of the Class II-M-2 Certificates immediately prior
to
that Distribution Date over (B) the positive difference
between (i) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related
Due
Period (after reduction for Group II Realized Losses
incurred
during the related Prepayment Period) and (ii) the sum of
(x)
the aggregate Certificate Principal Balance of the Group II
Senior Certificates (other than the Class II-A-IO
Certificates) and the Class II-M-1 Certificates (after
taking
into account the payment of the Senior Principal
Distribution
Amount and the Class II-M-1 Principal Distribution Amount
for
such Distribution Date) and (y) the product of (a) the
aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period (after
reduction for Group II Realized Losses incurred during the
related Prepayment Period) and (b) the sum of 3.00% and the
Required Overcollateralization Percentage.
CLASS II-M-3 CERTIFICATE: Any Certificate designated as a "Class
II-M-3
Certificate" on the face thereof, in the form of Exhibit A-5
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-M-3 Certificates as set forth herein and evidencing
a Regular
Interest in REMIC IV.
CLASS II-M-3 PASS-THROUGH RATE: Shall mean (i) with respect to
each
Distribution Date which occurs on or prior to the related
Optional Termination
Date, 6.008% per annum and (ii) with respect to each
Distribution Date which
occurs thereafter, 6.508% per annum, in each case subject to a
cap equal to the
Net WAC Rate Cap for such Distribution Date.
CLASS II-M-3 PRINCIPAL DISTRIBUTION AMOUNT: With respect to
any
Distribution Date which occurs (i) prior to the Stepdown Date or
on or after the
Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the
Principal Distribution Amount for that Distribution Date
remaining after
distribution of the Senior Principal Distribution Amount, the
Class II-M-1
Principal Distribution Amount and the Class II-M-2 Principal
Distribution Amount
or (ii) on or after the Stepdown Date if a Trigger Event is not
in effect for
that Distribution Date, the lesser of:
o the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal
Distribution Amount, the Class II-M-1 Principal Distribution
Amount and the Class II-M-2 Principal Distribution Amount;
and
o the excess, if any, of (A) the aggregate Certificate
Principal
Balance of the Class II-M-3 Certificates immediately prior
to
that Distribution Date over (B) the positive difference
between (i) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related
Due
Period (after reduction for Group II Realized Losses
incurred
during the related Prepayment Period) and (ii)
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<PAGE>
the sum of (x) the aggregate Certificate Principal Balance
of
the Senior Certificates (other than the Class II-A-IO
Certificates), the Class II-M-1 Certificates and the Class
II-M-2 Certificates (after taking into account the payment
of
the Senior Principal Distribution Amount, the Class II-M-1
Principal Distribution Amount and the Class II-M-2 Principal
Distribution Amount for such Distribution Date) and (y) the
product of (a) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related
Due
Period (after reduction for Group II Realized Losses
incurred
during the related Prepayment Period) and (b) the Required
Overcollateralization Percentage.
CLASS II-P CERTIFICATE: Any Certificate designated as a "Class
II-P
Certificate" on the face thereof, in the form of Exhibit A-6
hereto,
representing the right to its Percentage Interest of
distributions provided for
the Class II-P Certificates as set forth herein and evidencing a
Regular
Interest in REMIC IV.
CLASS II-P CERTIFICATE ACCOUNT: The Eligible Account established
and
maintained by the Trustee pursuant to Section 5.10.
CLASS II-R CERTIFICATE: Any Certificate designated a "Class
II-R
Certificate" on the face thereof, in substantially the form set
forth in Exhibit
A-6 hereto, evidencing the Class R-1 Interest, Class R-2
Interest and Class R-3
Interest.
CLASS PREPAYMENT DISTRIBUTION TRIGGER: With respect to any Class
of
Group I Subordinate Certificates shall be satisfied on the
Distribution Date on
which the fraction (expressed as a percentage), the numerator of
which is the
aggregate Certificate Principal Balance of such Class and each
Class subordinate
to such Class, if any, and the denominator of which is the
aggregate Scheduled
Principal Balance of the Group I Mortgage Loans as of the
related Due Date,
equals or exceeds such percentage calculated as of the Closing
Date.
CLASS R-1 INTEREST: The uncertificated residual interest in
REMIC II.
CLASS R-2 INTEREST: The uncertificated residual interest in
REMIC III.
CLASS R-3 INTEREST: The uncertificated residual interest in
REMIC IV.
CLOSING DATE: February 28, 2005.
CODE: The Internal Revenue Code of 1986, including any successor
or
amendatory provisions.
COMPENSATING INTEREST: An amount to be deposited in the
related
Distribution Account by the related Servicer to offset a
Prepayment Interest
Shortfall on a Mortgage Loan subject to this Agreement;
provided, however that
the amount of Compensating Interest required to be paid in
respect of any M&T
Mortgage Loan or GreenPoint Mortgage Loan shall not exceed the
Servicing Fee
payable to M&T or GreenPoint, as applicable, and the amount
of Compensating
Interest required to be paid in respect of any GMACM Mortgage
Loan shall not
exceed one-half of the Servicing Fee payable to GMACM.
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CORPORATE TRUST OFFICE: The designated office of the Trustee
where 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
Agreement for purposes of transfer and exchange and of
presentment and surrender
of the Certificates and for payment thereof is located at Sixth
Street and
Marquette Avenue, Minneapolis, Minnesota 55479, Attention:
Nomura Asset
Acceptance Corporation, Alternative Loan Trust, Series 2005-AP1,
and for all
other purposes is located at 9062 Old Annapolis Road, Columbia,
Maryland 21045
Attention: Nomura Asset Acceptance Corporation, Alternative Loan
Trust, Series
2005-AP1 or at such other address as the Trustee may designate
from time to
time.
CORRESPONDING CERTIFICATE: With respect to:
(i) REMIC III Regular Interest LTIIII-IIA1, the Class
II-A-1 Certificates,
(ii) REMIC III Regular Interest LTIII-IIA2, the Class
II-A-2 Certificates;
(iii) REMIC III Regular Interest LTIII-IIA3, the Class
II-A-3 Certificates;
(iv) REMIC III Regular Interest LTIII-IIA4, the Class
II-A-4 Certificates;
(v) REMIC III Regular Interest LTIII-IIA5, the Class
II-A-5 Certificates;
(vi) REMIC III Regular Interest LTIII-IIM1, the Class
II-M-1 Certificates;
(vii) REMIC III Regular Interest LTIII-IIM2, the Class
II-M-2 Certificates;
(viii) REMIC III Regular Interest LTIII-IIM3, the Class
II-M-3 Certificates; and
(ix) REMIC III Regular Interest LTII-IIP, the Class II-P
Certificates.
CREDIT ENHANCEMENT PERCENTAGE: With respect to any Distribution
Date
and any Class of Group II Offered Certificates, the percentage
obtained by
dividing (x) the sum of (i) the aggregate Certificate Principal
Balance of the
Class or Classes of Group II Mezzanine Certificates subordinate
thereto and (ii)
the Overcollateralization Amount by (y) the aggregate Stated
Principal Balance
of the Group II Mortgage Loans, calculated after taking into
account
distributions of principal on the Group II Mortgage Loans and
distribution of
the Principal Distribution Amount to the holders of the Group II
Certificates
then entitled to distributions of principal on such Distribution
Date.
CREDIT RISK MANAGEMENT AGREEMENT: Each agreement between the
Credit
Risk Manager and a Servicer, dated as of February 28, 2005.
CREDIT RISK MANAGEMENT FEE: As to each Mortgage Loan and any
Distribution Date, an amount equal to 1/12th of the Credit Risk
Management Fee
Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the
last day of the related Due Period. The Credit Risk Management
Fee shall be
payable to the Credit Risk Manager and/or the Seller pursuant to
Section
4.07(a)(vii) and 4.08(b).
CREDIT RISK MANAGEMENT FEE RATE: 0.015% per annum.
CREDIT RISK MANAGER: The Murrayhill Company, a Colorado
corporation.
CROSS-OVER DATE: The first Distribution Date on which the
aggregate
Certificate Principal Balance of the Group I Subordinate
Certificates has been
reduced to zero (giving effect to all distributions on such
Distribution Date).
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CUSTODIAL ACCOUNT: Each account established and maintained by
GMACM
with respect to receipts on the GMACM Mortgage Loans and related
REO Property in
accordance with Section 4.01, by M&T with respect to
receipts on the M&T
Mortgage Loans and related REO Property in accordance with the
M&T Servicing
Agreement or by GreenPoint with respect to receipts on the
GreenPoint Mortgage
Loans and the related REO Property in accordance with the
GreenPoint Servicing
Agreement.
CUSTODIAL AGREEMENT: The Custodial Agreement dated as of
Feburary 1,
2005 among the Custodian, the Servicers and the Trustee.
CUSTODIAN: JPMorgan Chase Bank, N.A., a national banking
association.
CUT-OFF DATE: February 1, 2005.
CUT-OFF DATE PRINCIPAL BALANCE: As to any Mortgage Loan, the
unpaid
principal balance thereof as of the close of business on the
Cut-off Date after
application of all Principal Prepayments received prior to the
Cut-off Date and
scheduled payments of principal due on or before the Cut-off
Date, whether or
not received, but without giving effect to any installments of
principal
received in respect of Due Dates after the Cut-off Date.
DEBT SERVICE REDUCTION: With respect to any Mortgage Loan, a
reduction
by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan that became
final and
non-appealable, except such a reduction resulting from a
Deficient Valuation or
any other 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 such Mortgage Loan,
or any
reduction in the amount of principal to be paid in connection
with any Scheduled
Payment that results in a permanent forgiveness of principal,
which valuation or
reduction results from an order of such court that is final and
non-appealable
in a proceeding under the Bankruptcy Code.
DEFINITIVE CERTIFICATES: As defined in Section 6.06.
DELETED MORTGAGE LOAN: A Mortgage Loan replaced or to be
replaced by a
Replacement Mortgage Loan.
DELINQUENT: A Mortgage Loan is "delinquent" if any payment due
thereon
is not made pursuant to the terms of such Mortgage Loan by the
close of business
on the day such payment is scheduled to be due. A Mortgage Loan
is "30 days
delinquent" if such payment has not been received by the close
of business on
the corresponding day of the month immediately succeeding the
month in which
such payment was due, or, if there is no such corresponding day
(e.g., as when a
30-day month follows a 31-day month in which a payment was due
on the 31st day
of such month), then on the last day of such immediately
succeeding month.
Similarly for "60 days delinquent," "90 days delinquent" and so
on.
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DENOMINATION: With respect to each Certificate, the amount set
forth on
the face thereof as the "Initial Certificate Principal Balance
of this
Certificate".
DEPOSITOR: Nomura Asset Acceptance Corporation, a Delaware
corporation,
or its successor in interest.
DEPOSITORY: The initial Depository shall be The Depository
Trust
Company ("DTC"), the nominee of which is Cede & Co., or any
other organization
registered as a "clearing agency" pursuant to Section 17A of the
Securities
Exchange Act of 1934, as amended. The Depository shall initially
be the
registered Holder of the Book-Entry Certificates. 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.
DEPOSITORY AGREEMENT: With respect to the Class of
Book-Entry
Certificates, the agreement among the Depositor, the Trustee and
the initial
Depository, dated as of the Closing Date, substantially in the
form of Exhibit
I.
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
of the month of such Distribution Date or, if such 15th day is
not a Business
Day, the immediately preceding Business Day.
DISTRIBUTION ACCOUNT: The separate Eligible Accounts created
and
maintained by the Trustee pursuant to Section 4.06 in the name
of the Trustee
for the benefit of the Certificateholders and designated "Wells
Fargo Bank,
National Association, in trust for registered holders of Nomura
Asset Acceptance
Corp., Mortgage Pass-Through Certificates, Series 2005-AP1,
Group I
Certificates" and "Wells Fargo Bank, National Association, in
trust for
registered holders of Nomura Asset Acceptance Corp., Mortgage
Pass-Through
Certificates, Series 2005-AP1, Group II Certificates". Funds in
the Distribution
Accounts shall be held in trust for the related
Certificateholders for the uses
and purposes set forth in this Agreement.
DISTRIBUTION DATE: The 25th day of each calendar month after
the
initial issuance of the Certificates, or if such 25th day is not
a Business Day,
the next succeeding Business Day, commencing in March 2005.
DUE DATE: As to any Mortgage Loan, the date in each month on
which the
related Scheduled Payment is due, as set forth in the related
Mortgage Note.
DUE PERIOD: For any Distribution Date, (i) with respect to the
GMACM
Mortgage Loans and GreenPoint Mortgage Loans, the period from
the second day of
the calendar month preceding the calendar month in which such
Distribution Date
occurs through the close of business on the first day of the
calendar month in
which such Distribution Date occurs, and (ii) with respect to
the M&T Mortgage
Loans, the calendar month preceding the calendar month in which
such
Distribution Date occurs.
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<PAGE>
ELIGIBLE ACCOUNT: Any of (i) an account or accounts maintained
with a
federal or state chartered depository institution or trust
company, the
long-term unsecured debt obligations and short-term unsecured
debt obligations
of which are rated by each Rating Agency in one of its two
highest long-term and
its highest short-term rating categories respectively, at the
time any amounts
are held on deposit therein, or (ii) an account or accounts in a
depository
institution or trust company in which such accounts are insured
by the FDIC (to
the limits established by the FDIC) and the uninsured deposits
in which accounts
are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered
to the Trustee and to each Rating Agency, the Certificateholders
have a claim
with respect to the funds in such account or a perfected first
priority security
interest against any collateral (which shall be limited to
Permitted
Investments) securing such funds that is superior to claims of
any other
depositors or creditors of the depository institution or trust
company in which
such account is maintained, or (iii) a segregated, non-interest
bearing trust
account or accounts maintained with the corporate trust
department of a federal
or state chartered depository institution or trust company
having capital and
surplus of not less than $50,000,000, acting in its fiduciary
capacity or (iv)
any other account acceptable to the Rating Agencies as evidenced
in writing by
the Rating Agencies. Eligible Accounts may bear interest, and
may include, if
otherwise qualified under this definition, accounts maintained
with the Trustee.
ESCROW ACCOUNT: Shall mean an account maintained by GMACM
pursuant to
Section 4.04. The Escrow Account shall be an Eligible
Account.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA RESTRICTED CERTIFICATE: Each of the Class I-P, Class I-X,
Class
II-C, Class II-P and Residual Certificates.
EXCESS CAP PAYMENT: With respect to any Distribution Date, the
excess,
if any, of (1) the cap payments made by the Cap Provider under
the Cap Contract
with respect to the Class II-A-1 Certificates over (2) the
amount of the unpaid
Net WAC Rate Carryover Amounts attributable to the Class II-A-1
Certificates for
such Distribution Date.
EXCESS LIQUIDATION PROCEEDS: To the extent not required by law
to be
paid to the related Mortgagor, the excess, if any, of any
Liquidation Proceeds
with respect to a Mortgage Loan over the Stated Principal
Balance of such
Mortgage Loan and accrued and unpaid interest at the related
Mortgage Rate
through the last day of the month in which the Mortgage Loan has
been
liquidated.
EXCESS LOSS: A Deficient Valuation, Fraud Loss or Special Hazard
Loss
or any part thereof, occurring after the Bankruptcy Loss
Coverage Amount, Fraud
Loss Coverage Amount or Special Hazard Loss Coverage Amount,
respectively, has
been reduced to zero.
EXEMPTION: Prohibited Transaction Exemption 93-32, as amended
from time
to time.
EXTRA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution
Date, the lesser of (x) the Net Monthly Excess Cashflow for such
Distribution
Date and (y) the Overcollateralization Increase Amount for such
Distribution
Date.
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FANNIE MAE: Fannie Mae (formerly, Federal National Mortgage
Association), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FINAL RECOVERY DETERMINATION: With respect to any defaulted
Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO
Property purchased
by the Seller, the Depositor or the Terminator pursuant to or as
contemplated by
Section 2.03(c) or Section 10.01), a determination made by GMACM
pursuant to
this Agreement, or M&T pursuant to the M&T Servicing
Agreement or GreenPoint
pursuant to the GreenPoint Servicing Agreement that all
Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which
GMACM, M&T or
GreenPoint, as applicable, in its reasonable good faith
judgment, expects to be
finally recoverable in respect thereof have been so
recovered.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement
Act of 1989, as amended.
FRAUD LOSS: A Loss on a Mortgage Loan as to which there was
fraud in
the origination thereof.
FRAUD LOSS COVERAGE AMOUNT: With respect to the period beginning
(i) on
the Closing Date and ending on December 31, 2005, $3,965,000,
(ii) on January 1,
2006 and ending on December 31, 2006, $2,643,000 minus the
aggregate amount of
Fraud Losses that would have been allocated to the Group I
Subordinate
Certificates in the absence of the Loss Allocation Limitation
since the Cut Off
Date, (iii) on January 1, 2007 and ending on December 31, 2009,
$1,322,000 minus
the aggregate amount of Fraud Losses that would have been
allocated to the Group
II Subordinate Certificates in the absence of the Loss
Allocation Limitation
since the Cut Off Date and (iv) after the earlier to occur of
January 1, 2010
and the Cross Over Date, $0.
FREDDIE MAC: Federal Home Loan Mortgage Corporation, or any
successor
thereto.
GMACM: GMAC Mortgage Corporation or any successor thereto
appointed
hereunder in connection with the servicing and administration of
the GMACM
Mortgage Loans.
GMACM'S ASSIGNEE: As defined in Section 5.01(b)(ii).
GMACM MORTGAGE LOANS: Shall mean those Mortgage Loans serviced
by GMACM
pursuant to the terms of this Agreement.
GREENPOINT: GreenPoint Mortgage Funding, Inc., or any successor
thereto
appointed under the GreenPoint Servicing Agreement.
GREENPOINT ASSIGNMENT AGREEMENT: The Assignment, Assumption
and
Recognition Agreement, dated as of February 28, 2005, by and
among and the
Seller, GreenPoint and the Depositor evidencing the assignment
of the GreenPoint
Servicing Agreement to the Depositor.
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GREENPOINT MORTGAGE LOANS: Those Mortgage Loans subject to
this
Agreement which were purchased by the Seller and serviced
pursuant to the
GreenPoint Servicing Agreement.
GREENPOINT SERVICING AGREEMENT: Shall mean the Master Loan
Purchase and
Servicing Agreement, dated as of March 1, 2003, by and between
the Seller and
GreenPoint, as modified by the GreenPoint Assignment
Agreement.
GROUP I AVAILABLE FUNDS: The sum of the Interest Funds and
Principal
Funds with respect to the Group I Mortgage Loans, exclusive of
amounts pursuant
to Section 5.10.
GROUP I CERTIFICATES: The Class I-A-1, Class I-B-1, Class I-B-2,
Class
I-B-3, Class I-B-4, Class I-B-5, Class I-B-6, Class I-X, Class
I-P and Class I-R
Certificates.
GROUP I MORTGAGE LOANS: The Mortgage Loans identified as such on
the
Mortgage Loan Schedule.
GROUP I NON-OFFERED CERTIFICATES: The Class I-B-4, Class I-B-5
and
Class I-B-6 Certificates.
GROUP I OFFERED CERTIFICATES: The Class I-A-1, Class I-B-1,
Class I-B-2
and Class I-B-3 Certificates.
GROUP I REALIZED LOSS: A Realized Loss with respect to a Group
I
Mortgage Loan.
GROUP I SENIOR CERTIFICATES: The Class I-A-1 Certificates.
GROUP I SUBORDINATE CERTIFICATES: The Class I-B-1, Class I-B-2,
Class
I-B-3, Class I-B-4, Class I-B-5 and Class I-B-6
Certificates.
GROUP II AVAILABLE DISTRIBUTION AMOUNT: Shall mean the sum of
the
Interest Remittance Amount and Principal Funds relating to the
Group II Mortgage
Loans.
GROUP II CERTIFICATES: The Class II-A-1, Class II-A-2, Class
II-A-3,
Class II-A-4, Class II-A-5, Class II-A-IO, Class II-M-1, Class
II-M-2, Class
II-M-3, Class II-C, Class II-P and Class II-R Certificates.
GROUP II MEZZAINE CERTIFICATES: The Class II-M-1, Class II-M-2
and
Class II-M-3 Certificates.
GROUP II MORTGAGE LOANS: The Mortgage Loans identified as such
on the
Mortgage Loan Schedule.
GROUP II OFFERED CERTIFICATES: The Class II-A-1, Class II-A-2,
Class
II-A-3, Class II-A-4, Class II-A-5, Class II-A-IO, Class II-M-1,
Class II-M-2
and Class II-M-3 Certificates.
GROUP II PRINCIPAL REMITTANCE AMOUNT: With respect to each
Distribution
Date, is equal to Principal Funds for such Distribution
Date.
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GROUP II REALIZED LOSS: A Realized Loss with respect to a Group
II
Mortgage Loan.
GROUP II SENIOR CERTIFICATES: The Class II-A-1, Class II-A-2,
Class
II-A-3, Class II-A-4, Class II-A-5 and Class II-A-IO
Certificates.
INDEMNIFIED PERSONS: The Trustee, GMACM (including any successor
to
GMACM), the Custodian, the Trust Fund and their officers,
directors, agents and
employees and, with respect to the Trustee, any separate
co-trustee and its
officers, directors, agents and employees.
INITIAL CERTIFICATE PRINCIPAL BALANCE: With respect to any
Certificate,
the Certificate Principal Balance of such Certificate or any
predecessor
Certificate on the Closing Date.
INSURANCE POLICY: With respect to any Mortgage Loan included in
the
Trust Fund, any insurance policy, including all riders and
endorsements thereto
in effect with respect to such Mortgage Loan, including any
replacement policy
or policies for any Insurance Policies.
INSURANCE PROCEEDS: Proceeds paid in respect of the Mortgage
Loans
pursuant to any Insurance Policy or any other insurance policy
covering a
Mortgage Loan, to the extent such proceeds are payable to the
mortgagee under
the Mortgage, GMACM, M&T, GreenPoint or the trustee under
the deed of trust and
are not applied to the restoration of the related Mortgaged
Property or released
to the Mortgagor in accordance with the servicing standard set
forth in Section
3.01 hereof or pursuant to the M&T Servicing Agreement or
the GreenPoint
Servicing Agreement, as applicable, other than any amount
included in such
Insurance Proceeds in respect of Insured Expenses.
INSURED EXPENSES: Expenses covered by any Insurance Policy with
respect
to the Mortgage Loans.
INTEREST CARRY FORWARD AMOUNT: With respect to any Class of
Group II
Certificates (other than the Class II-P, Class II-C and Class
II-R Certificates)
and any Distribution Date, the amount, if any, by which the
Interest
Distribution Amount for that Class of Certificates for the
immediately preceding
Distribution Date exceeded the actual amount distributed on such
Class in
respect of interest on the immediately preceding Distribution
Date, together
with any Interest Carry Forward Amount with respect to such
Class remaining
unpaid from the previous Distribution Date.
INTEREST DETERMINATION DATE: Shall mean the second LIBOR
Business Day
preceding the commencement of each Accrual Period.
INTEREST DISTRIBUTION AMOUNT: With respect to any Class of Group
II
Certificates (other than the Class II-P Certificates and Class
II-R
Certificates) and any Distribution Date, an amount equal to the
interest accrued
during the related Accrual Period at the applicable Pass-Through
Rate on the
Certificate Principal Balance (or Certificate Notional Balance)
of such
Certificate immediately prior to such Distribution Date less
such Certificate's
share of any Net Interest Shortfall and the interest portion of
any Realized
Losses on the Mortgage Loans allocated to such Certificate
pursuant to Section
1.02. The Interest Distribution Amount with respect to each
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class of Certificates (other than the Class II-A-1 Certificates)
is calculated
on the basis of a 360-day year consisting of twelve 30-day
months. The Interest
Distribution Amount with respect to the Class II-A-1
Certificates is calculated
on the basis of a 360-day year and the actual number of days
elapsed in the
related Accrual Period. No Interest Distribution Amount will be
payable with
respect to any Class of Group II Certificates after the
Distribution Date on
which the outstanding Certificate Principal Balance of such
Certificate has been
reduced to zero.
INTEREST FUNDS: With respect to any Distribution Date and the
Group I
Mortgage Loans generally are equal to the sum, without
duplication, of (a) all
scheduled interest during the related Due Period with respect to
the Group I
Mortgage Loans less the Servicing Fee, the Credit Risk
Management Fee and the
fee payable to any provider of lender-paid mortgage insurance,
if any, (b) all
Advances relating to interest with respect to the Group I
Mortgage Loans made on
or prior to the related Remittance Date, (c) all Compensating
Interest with
respect to the Group I Mortgage Loans and required to be
remitted by the related
Servicer pursuant to this Agreement, the M&T Servicing
Agreement or the
GreenPoint Servicing Agreement with respect to such Distribution
Date, (d)
Liquidation Proceeds and Subsequent Recoveries with respect to
the Group I
Mortgage Loans collected during the related Prepayment Period
(to the extent
such Liquidation Proceeds and Subsequent Recoveries relate to
interest), (e) all
amounts relating to interest with respect to each Mortgage Loan
repurchased by
the Seller pursuant to Sections 2.02 and 2.03 and (f) all
amounts in respect of
interest paid by the Terminator pursuant to Section 10.01 to the
extent remitted
by the related Servicer to the related Distribution Account
pursuant to this
Agreement, the M&T Servicing Agreement or the GreenPoint
Servicing Agreement
minus (ii) all amounts required to be reimbursed pursuant to
Sections 4.02,
4.04, 4.06, 4.07 and 9.05 or as otherwise set forth in this
Agreement.
INTEREST REMITTANCE AMOUNT: With respect to any Distribution
Date, that
portion of the Group II Available Distribution Amount for such
Distribution Date
generally equal to (i) the sum, without duplication, of (a) all
scheduled
interest during the related Due Period with respect to the Group
II Mortgage
Loans less the Servicing Fee, the Credit Risk Management Fee and
the fee payable
to any provider of lender-paid mortgage insurance, if any, (b)
all Advances
relating to interest with respect to the Group II Mortgage Loans
made on or
prior to the related Remittance Date, (c) all Compensating
Interest with respect
to the Group II Mortgage Loans and required to be remitted by
the related
Servicer pursuant to this Agreement, the M&T Servicing
Agreement or the
GreenPoint Servicing Agreement with respect to such Distribution
Date, (d)
Liquidation Proceeds and Subsequent Recoveries with respect to
the Group II
Mortgage Loans collected during the related Prepayment Period
(to the extent
such Liquidation Proceeds and Subsequent Recoveries relate to
interest), (e) all
amounts relating to interest with respect to each Mortgage Loan
repurchased by
the Seller pursuant to Sections 2.02 and 2.03 and (f) all
amounts in respect of
interest paid by the Terminator pursuant to Section 10.01 to the
extent remitted
by the related Servicer to the related Distribution Account
pursuant to this
Agreement, the M&T Servicing Agreement or the GreenPoint
Servicing Agreement
minus (ii) all amounts required to be reimbursed pursuant to
Sections 4.02,
4.04, 4.06, 4.07 and 9.05 or as otherwise set forth in this
Agreement.
INTEREST SHORTFALL: With respect to any Distribution Date,
the
aggregate shortfall, if any, in collections of interest
(adjusted to the related
Net Mortgage Rates) on Group I Mortgage Loans
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<PAGE>
resulting from (a) Principal Prepayments in full received during
the related
Prepayment Period, (b) partial Principal Prepayments received
during the related
Prepayment Period to the extent applied prior to the Due Date in
the month of
the Distribution Date and (c) interest payments on certain of
the Group I
Mortgage Loans being limited pursuant to the provisions of the
Relief Act.
LAST SCHEDULED DISTRIBUTION DATE: With respect to the
Certificates
(other than the Class II-A-IO Certificates), the Distribution
Date in February
2035 and with respect to the Class II-A-IO Certificates, the
Distribution Date
in February 2007.
LATEST POSSIBLE MATURITY DATE: The Distribution Date following
the
final scheduled maturity date of the Group I Mortgage Loan or
Group II Mortgage
Loan, as applicable, in the Trust Fund having the latest
scheduled maturity date
as of the Cut-off Date. For purposes of the Treasury Regulations
under Code
section 860A through 860G, the latest possible maturity date of
each regular
interest issued by REMIC I, REMIC II, REMIC III and REMIC IV
shall be the Latest
Possible Maturity Date.
LIBOR BUSINESS DAY: Shall mean a day on which banks are open
for
dealing in foreign currency and exchange in London.
LIQUIDATED LOAN: With respect to any Distribution Date, a
defaulted
Mortgage Loan that has been liquidated through deed-in-lieu of
foreclosure,
foreclosure sale, trustee's sale or other realization as
provided by applicable
law governing the real property subject to the related Mortgage
and any security
agreements and as to which the related Servicer has certified in
the related
Prepayment Period that it has received all amounts it expects to
receive in
connection with such liquidation.
LIQUIDATION PROCEEDS: Amounts, other than Insurance Proceeds,
received
in connection with the partial or complete liquidation of a
Mortgage Loan,
whether through trustee's sale, foreclosure sale or otherwise,
or in connection
with any condemnation or partial release of a Mortgaged Property
and any other
proceeds received with respect to an REO Property, less the sum
of related
unreimbursed Advances, Servicing Fees and Servicing Advances and
all expenses of
liquidation, including property protection expenses and
foreclosure and sale
costs, including court and reasonable attorneys fees.
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage,
the
numerator of which is the original principal balance of the
Mortgage Loan and
the denominator of which is the Appraised Value of the related
Mortgaged
Property.
LOSS ALLOCATION LIMITATION: Means the limitation on reduction of
the
Certificate Principal Balance of any class of Group I
Certificates on any
Distribution Date on account of any Group I Realized Loss to the
extent that the
reduction would have the effect of reducing the aggregate
Certificate Principal
Balance of all of the Group I Certificates as of that
Distribution Date to an
amount less than the aggregate Stated Principal Balance of the
Group I Mortgage
Loans as of the following Distribution Date, less any Deficient
Valuations
occurring before the Bankruptcy Loss Coverage Amount has been
reduced to zero.
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M&T: M&T Mortgage Corporation, or any successor thereto
appointed under
the M&T Servicing Agreement.
M&T ASSIGNMENT AGREEMENT: The Assignment, Assumption and
Recognition
Agreement, dated as of February 28, 2005, by and among and the
Seller, M&T and
the Depositor evidencing the assignment of the M&T Servicing
Agreement to the
Depositor.
M&T MORTGAGE LOANS: Those Mortgage Loans subject to this
Agreement
which were purchased by the Seller from First National Bank of
Nevada and
serviced pursuant to the M&T Servicing Agreement.
M&T SERVICING AGREEMENT: Shall mean the Servicing Agreement,
dated as
of October 1, 2004, by and between the Seller and M&T, as
modified by the M&T
Assignment Agreement.
MAJORITY CLASS II-C CERTIFICATEHOLDER: The Holder of a 50.01%
or
greater Percentage Interest in the Class II-C Certificates.
MARKER RATE: With respect to the Class II-C Certificates and
any
Distribution Date, a per annum rate equal to two (2) times the
weighted average
of the Uncertificated REMIC III Pass-Through Rates for REMIC III
Regular
Interest LTIII-IIA1, REMIC III Regular Interest LTIII-IIA2,
REMIC III Regular
Interest LTIII-IIA3, REMIC III Regular Interest LTIII-IIA4,
REMIC III Regular
Interest LTIII-A5, REMIC III Regular Interest LTIII-IIM1, REMIC
III Regular
Interest LTIII-IIM2, REMIC III Regular Interest LTIII-IIM3 and
REMIC III Regular
Interest LTIII-IIZZ, with the rate on REMIC III Regular Interest
LTIII-IIA1
subject to a cap equal to the lesser of (x) One-Month LIBOR plus
0.15% per annum
and (y) the Net WAC Rate Cap for the purpose of this
calculation; with the rate
on REMIC III Regular Interest LTIII-IIA2 subject to a cap equal
to the lesser of
(x) 4.386% per annum and (y) the Net WAC Rate Cap for the
purpose of this
calculation; with the rate on REMIC III Regular Interest
LTIII-IIA3 subject to a
cap equal to the lesser of (x) 4.840% per annum and (y) the Net
WAC Rate Cap for
the purpose of this calculation; with the rate on REMIC III
Regular Interest
LTIII-IIA4 subject to a cap equal to the lesser of (A) in the
case of any
Distribution Date up to and including the related Optional
Termination Date, the
lesser of (x) 5.546% per annum and (y) the Net WAC Rate Cap and
(B) in the case
of any Distribution Date after the related Optional Termination
Date, the lesser
of (x) 6.046% per annum and (y) the Net WAC Rate Cap for the
purpose of this
calculation; with the rate on REMIC III Regular Interest
LTIII-IIA5 subject to a
cap equal to (A) in the case of any Distribution Date up to and
including the
related Optional Termination Date, the lesser of (x) 4.855% per
annum and (y)
the Net WAC Rate Cap and (B) in the case of any
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Distribution Date after the related Optional Termination Date,
the lesser of (x)
5.355% per annum and (y) the Net WAC Rate Cap for the purpose of
this
calculation; with the rate on REMIC III Regular Interest
LTIII-IIM1 subject to a
cap equal to (A) in the case of any Distribution Date up to and
including the
related Optional Termination Date, the lesser of (x) 5.313% per
annum and (y)
the Net WAC Rate Cap and (B) in the case of any Distribution
Date after the
related Optional Termination Date, the lesser of (x) 5.813% per
annum and (y)
the Net WAC Rate Cap for the purpose of this calculation; with
the rate on REMIC
III Regular Interest LTIII-M2 subject to a cap equal to (A) in
the case of any
Distribution Date up to and including the related Optional
Termination Date, the
lesser of (x) 5.710% per annum and (y) the Net WAC Rate Cap and
(B) in the case
of any Distribution Date after the related Optional Termination
Date, the lesser
of (x) 6.210% per annum and (y) the Net WAC Rate Cap for the
purpose of this
calculation; with the rate on REMIC III Regular Interest
LTIII-M3 subject to a
cap equal to (A) in the case of any Distribution Date up to and
including the
related Optional Termination Date, the lesser of (x) 6.008% per
annum and (y)
the Net WAC Rate Cap and (B) in the case of any Distribution
Date after the
related Optional Termination Date, the lesser of (x) 6.508% per
annum and (y)
the Net WAC Rate Cap for the purpose of this calculation; and
with the rate on
REMIC III Regular Interest LTIII-IIZZ subject to a cap of zero
for the purpose
of this calculation; provided, however, that for this purpose,
the calculation
of the Uncertificated REMIC III Pass-Through Rate and the
related cap with
respect to REMIC III Regular Interest LTIII-IIA1 shall be
multiplied by a
fraction, the numerator of which is the actual number of days in
the Accrual
Period and the denominator of which is 30.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation
organized and existing under the laws of the State of Delaware,
or any successor
thereto.
MERS(R) SYSTEM: The system of recording transfers of
Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans
registered
with MERS on the MERS(R) System.
MOM LOAN: Any Mortgage Loan as to which MERS is 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 STATEMENT: The statement delivered to the
Certificateholders
pursuant to Section 5.06.
MOODY'S: Moody's Investors Service, Inc. or its successor in
interest.
MORTGAGE: The mortgage, deed of trust or other instrument
creating a
first lien on or first priority ownership interest in an estate
in fee simple in
real property securing a Mortgage Note.
MORTGAGE FILE: The Mortgage Loan Documents pertaining to a
particular
Mortgage Loan.
MORTGAGE LOAN DOCUMENTS: As defined in Section 2.01.
MORTGAGE LOANS: Such of the Mortgage Loans transferred and
assigned to
the Trustee pursuant to the provisions hereof, as from time to
time are held as
a part of the Trust Fund (including any REO Property), the
mortgage loans so
held being identified in the Mortgage Loan Schedule,
notwithstanding foreclosure
or other acquisition of title of the related Mortgaged
Property.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase
Agreement
dated as of February 28, 2005, between the Seller, as seller and
the Depositor,
as purchaser.
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MORTGAGE LOAN PURCHASE PRICE: The price, calculated as set forth
in
Section 10.01, to be paid in connection with the purchase of the
Group I
Mortgage Loans or Group II Mortgage Loans, as applicable,
pursuant to Section
10.01.
MORTGAGE LOAN SCHEDULE: The list of Mortgage Loans (as from time
to
time amended by the related Servicer to reflect the deletion of
Deleted Mortgage
Loans and the addition of Replacement Mortgage Loans pursuant to
the provisions
of this Agreement, the M&T Servicing Agreement or the
GreenPoint Servicing
Agreement, as applicable) transferred to the Trustee as part of
the Trust Fund
and from time to time subject to this Agreement, the initial
Mortgage Loan
Schedule being attached hereto as Exhibit B-1, setting forth the
following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgage Rate in effect as of the Cut-off Date;
(iii) the Servicing Fee Rate;
(iv) the Net Mortgage Rate in effect as of the Cut-off
Date;
(v) the maturity date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the original term;
(ix) the remaining term;
(x) the property type;
(xi) with respect to each MOM Loan, the related MIN;
(xii) the Servicer; and
(xiii) a code indicating whether the Mortgage Loan is
subject to a Prepayment Charge, the term of such
Prepayment Charge and the amount of such Prepayment
Charge.
Such schedule shall also set forth the aggregate Cut-off Date
Principal Balance
for all of the Mortgage Loans.
MORTGAGE NOTE: The original executed note or other evidence
of
indebtedness of a Mortgagor under a Mortgage Loan.
MORTGAGE RATE: The annual rate of interest borne by a Mortgage
Note.
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MORTGAGED PROPERTY: The underlying property securing a Mortgage
Loan.
MORTGAGOR: The obligors on a Mortgage Note.
NET INTEREST SHORTFALLS: Shall mean Interest Shortfalls net of
payments
by the related Servicer in respect of Compensating Interest.
NET MONTHLY EXCESS CASHFLOW: With respect to any Distribution
Date, the
sum of (a) any Overcollateralization Reduction Amount and (b)
the excess of (x)
the Group II Available Distribution Amount for such Distribution
Date over (y)
the sum for such Distribution Date of (A) the aggregate amount
of Senior
Interest Distribution Amounts payable to the Group II Senior
Certificates and
the Interest Distribution Amounts payable to the Group II
Mezzanine Certificates
and (B) the Group II Principal Remittance Amount.
NET MORTGAGE RATE: As to each Mortgage Loan, and at any time,
the per
annum rate equal to the related Mortgage Rate less the sum of
(i) the Servicing
Fee Rate, (ii) the Credit Risk Management Fee Rate and (iii) the
rate at which
the fee payable to any provider of lender-paid mortgage
insurance is calculated,
if applicable.
NET WAC RATE CAP: With respect to the Group II Senior
Certificates
(other than the Class II-A-IO Certificates) and the Group II
Mezzanine
Certificates, (i) from and including the Distribution Date in
March 2005 through
and including the Distribution Date in October 2005, (a) the
weighted average of
the Net Mortgage Rates of the Group II Mortgage Loans, weighted
based on their
Stated Principal Balances as of the first day of the calendar
month preceding
the month in which the Distribution Date occurs minus 4.50% per
annum times (b)
a fraction, the numerator of which is the Certificate Notional
Balance of the
Class II-A-IO Certificates and the denominator of which is the
aggregate Stated
Principal Balance of the Group II Mortgage Loans as of the first
day of the
calendar month preceding the month in which the Distribution
Date occurs, (ii)
from and including the Distribution Date in November 2005
through and including
the Distribution Date in February 2007, (a) the weighted average
of the Net
Mortgage Rates of the Mortgage Loans, weighted based on their
Stated Principal
Balances as of the first day of the calendar month preceding the
month in which
the Distribution Date occurs minus 3.50% per annum times (b) a
fraction, the
numerator of which is the Certificate Notional Balance of the
Class II-A-IO
Certificates and the denominator of which is the aggregate
Stated Principal
Balance of the Group II Mortgage Loans as of the first day of
the calendar month
preceding the month in which the Distribution Date occurs and
(iii) thereafter,
the weighted average of the Net Mortgage Rates of the Group II
Mortgage Loans,
weighted based on their Stated Principal Balances as of the
first day of the
calendar month preceding the month in which the Distribution
Date occurs;
provided that the Net WAC Rate Cap with respect to the Class
II-A-1 Certificates
shall be multiplied by a fraction, the numerator of which is 30
and the
denominator of which is the actual number of days in the Accrual
Period.
For federal income tax purposes, the Net WAC Rate Cap, with
respect to
any Distribution Date, shall be expressed as the weighted
average of the
Uncertificated REMIC III Pass-Through Rates on each REMIC III
Regular Interest
(other than REMIC III Regular Interest LTIII-IO-A and REMIC III
Regular Interest
LTIII-IO-B) weighted on the basis of the Uncertificated
Principal Balance of the
REMIC III Regular Interests.
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NET WAC RATE CARRYOVER AMOUNT: With respect the Group II
Senior
Certificates (other than the Class II-A-IO Certificates) and the
Group II
Mezzanine Certificates and any Distribution Date on which the
related
Pass-Through Rate is reduced by the Net WAC Rate Cap, an amount
equal to the sum
of (i) the excess of (x) the amount of interest such Class would
have been
entitled to receive on such Distribution Date if the
Pass-Through Rate
applicable to such Class would not have been reduced by the Net
WAC Rate Cap on
such Distribution Date over (y) the amount of interest paid on
such Distribution
Date plus (ii) the related Net WAC Rate Carryover Amount for the
previous
Distribution Date not previously distributed.
NET WAC RESERVE FUND: Shall mean the segregated non-interest
bearing
trust account created and maintained by the Trustee pursuant to
Section 5.10
hereof.
NON-BOOK-ENTRY CERTIFICATE: Any Certificate other than a
Book-Entry
Certificate.
NONRECOVERABLE ADVANCE: Any portion of an Advance or Servicing
Advance
previously made or proposed to be made by the related Servicer
pursuant to this
Agreement, the M&T Servicing Agreement or the GreenPoint
Servicing Agreement, as
applicable, or the Trustee as Successor Servicer, that, in the
good faith
judgment of the related Servicer or the Trustee as Successor
Servicer, will not
or, in the case of a proposed Advance or Servicing Advance,
would not, be
ultimately recoverable by it from the related Mortgagor, related
Liquidation
Proceeds, Insurance Proceeds or otherwise.
OFFICER'S CERTIFICATE: A certificate (i) signed by the Chairman
of the
Board, the Vice Chairman of the Board, the President, a Vice
President (however
denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one
of the assistant treasurers or assistant secretaries of the
Depositor or the
Trustee (or any other officer customarily performing functions
similar to those
performed by any of the above designated officers and also to
whom, with respect
to a particular matter, such matter is referred because of such
officer's
knowledge of and familiarity with a particular subject) or (ii),
if provided for
in this Agreement, signed by a Authorized Servicer
Representative, as the case
may be, and delivered to the Depositor, the Seller and/or the
Trustee, as the
case may be, as required by this Agreement.
ONE-MONTH LIBOR: With respect to any Accrual Period (other than
the
first Accrual Period), the rate determined by the Trustee on the
related
Interest Determination Date on the basis of the rate for U.S.
dollar deposits
for one month that appears on Telerate Screen Page 3750 as of
11:00 a.m. (London
time) on such Interest Determination Date. If such rate does not
appear on such
page (or such other page as may replace that page on that
service, or if such
service is no longer offered, such other service for displaying
One-Month LIBOR
or comparable rates as may be reasonably selected by the
Trustee), One-Month
LIBOR for the applicable Accrual Period will be the Reference
Bank Rate. If no
such quotations can be obtained by the Trustee and no Reference
Bank Rate is
available, One-Month LIBOR will be One-Month LIBOR applicable to
the preceding
Accrual Period. The establishment of One-Month LIBOR on each
Interest
Determination Date by the Trustee and the Trustee's calculation
of the rate of
interest applicable to the Class II-A-1 Certificates for the
related Accrual
Period shall, in the absence of manifest error, be final and
binding. With
respect to the first Accrual period, One-Month LIBOR shall equal
2.67000% per
annum.
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OPINION OF COUNSEL: A written opinion of counsel, who may be
counsel
for the Seller, the Depositor or the related Servicer,
reasonably acceptable to
each addressee of such opinion; provided that with respect to
Section 2.05, 7.05
or 11.01, or the interpretation or application of the REMIC
Provisions, such
counsel must (i) in fact be independent of the Seller, Depositor
and the related
Servicer, (ii) not have any direct financial interest in the
Seller, Depositor
or the related Servicer or in any affiliate of either, and (iii)
not be
connected with the Seller, Depositor or the related Servicer as
an officer,
employee, promoter, underwriter, trustee, partner, director or
person performing
similar functions.
OPTIONAL TERMINATION: The purchase of all of the Group I
Mortgage Loans
and any related REO Property or Group II Mortgage Loans and any
related REO
Property pursuant to the last sentence of Section 10.01.
OPTIONAL TERMINATION DATE: The first Distribution Date on which
the the
Group I Mortgage Loans and related REO Property or Group II
Mortgage Loans and
related REO Property may be purchased at the option of the
Terminator as
described in Section 10.01.
OTS: The Office of Thrift Supervision or any successor
thereto.
OUTSTANDING: With respect to the Certificates as of any date
of
determination, all Certificates theretofore executed and
authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the
Trustee pursuant to
this Agreement.
OUTSTANDING MORTGAGE LOAN: As of any date of determination, a
Mortgage
Loan with a Stated Principal Balance greater than zero that was
not the subject
of a Principal Prepayment in full, and that did not become a
Liquidated Loan,
prior to the end of the related Prepayment Period.
OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution
Date,
the excess, if any, of (a) the aggregate Stated Principal
Balances of the Group
II Mortgage Loans as of the last day of the related Due Period
over (b) the
aggregate Certificate Principal Balance of the Group II Senior
Certificates
(other than the Class II-A-IO Certificates) and the Group II
Mezzanine
Certificates on such Distribution Date (after taking into
account the payment of
100% of the Group II Principal Remittance Amount on such
Distribution Date).
OVERCOLLATERALIZATION INCREASE AMOUNT: With respect to any
Distribution
Date, the excess, if any, of (a) the Required
Overcollateralization Amount over
(b) the Overcollateralization Amount on such Distribution
Date.
OVERCOLLATERALIZATION REDUCTION AMOUNT: With respect to any
Distribution Date, the lesser of (x) the Group II Principal
Remittance Amount
for such Distribution Date and (y) the
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excess, if any, of (i) the Overcollateralization Amount for such
Distribution
Date over (ii) the Required Overcollateralization Amount for
such Distribution
Date.
OWNERSHIP INTEREST: As to any Certificate, any ownership
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.
PASS-THROUGH RATE: With respect to each Class of Certificates,
the
applicable Pass-Through Rate for each Class as set forth in the
Preliminary
Statement.
PERCENTAGE INTEREST: With respect to any Certificate of a
specified
Class, the Percentage Interest set forth on the face thereof or
the percentage
obtained by dividing the Denomination of such Certificate by the
aggregate of
the Denominations of all Certificates of such Class.
PERMITTED INVESTMENTS: At any time, any one or more of the
following
obligations and securities:
(i) direct obligations of, or obligations fully guaranteed
as
to timely payment of principal and interest by, the United
States or
any agency thereof, provided such obligations are
unconditionally
backed by the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving
the
highest long-term debt rating of each Rating Agency, or such
lower
rating as will not result in the downgrading or withdrawal of
the
ratings then assigned to the Certificates by each Rating Agency,
as
evidenced by a signed writing delivered by each Rating
Agency;
(iii) [Reserved];
(iv) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating
of
each Rating Agency, or such lower rating as will not result in
the
downgrading or withdrawal of the ratings then assigned to
the
Certificates by each Rating Agency, as evidenced by a signed
writing
delivered by each Rating Agency;
(v) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or
trust
company incorporated under the laws of the United States or of
any
state thereof and subject to supervision and examination by
federal
and/or state banking authorities (including the Trustee in
its
commercial banking capacity), provided that the commercial paper
and/or
long term unsecured debt obligations of such depository
institution or
trust company are then rated one of the two highest long-term
and the
highest short-term ratings of each such Rating Agency for
such
securities, or such lower ratings as will not result in the
downgrading
or withdrawal of the rating then assigned to the Certificates by
any
Rating Agency, as evidenced by a signed writing delivered by
each
Rating Agency;
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(vi) demand or time deposits or certificates of deposit
issued
by any bank or trust company or savings institution to the
extent that
such deposits are fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time
of the
issuance of such agreements, such terms and conditions as will
not
result in the downgrading or withdrawal of the rating then
assigned to
the Certificates by any such Rating Agency, as evidenced by a
signed
writing delivered by each Rating Agency;
(viii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered
into
with a depository institution or trust company (acting as
principal)
described in clause (v) above;
(ix) securities (other than stripped bonds, stripped coupons
or instruments sold at a purchase price in excess of 115% of the
face
amount thereof) bearing interest or sold at a discount issued by
any
corporation incorporated under the laws of the United States or
any
state thereof which, at the time of such investment, have one of
the
two highest long term ratings of each Rating Agency, or such
lower
rating as will not result in the downgrading or withdrawal of
the
rating then assigned to the Certificates by any Rating Agency,
as
evidenced by a signed writing delivered by each Rating
Agency;
(x) units of money market funds registered under the
Investment Company Act of 1940 including funds managed or
advised by
the Trustee or an affiliate thereof having a rating by S&P
of AAAm-G,
AAA-m, or AA-m, and if rated by Moody's, rated Aaa, Aa1 or
Aa2;
(xi) short term investment funds sponsored by any trust
company or banking association incorporated under the laws of
the
United States or any state thereof (including any such fund
managed or
advised by the Trustee or any affiliate thereof) which on the
date of
acquisition has been rated by each Rating Agency in their
respective
highest applicable rating category or such lower rating as will
not
result in the downgrading or withdrawal of the ratings then
assigned to
the Certificates by each Rating Agency, as evidenced by a
signed
writing delivered by each Rating Agency; and
(xii) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable
to each
Rating Agency as will not result in the downgrading or
withdrawal of
the rating then assigned to the Certificates by any Rating
Agency, as
evidenced by a signed writing delivered by each Rating Agency,
as
evidenced by a signed writing delivered by each Rating
Agency;
provided, however, that no instrument described hereunder shall
evidence either
the right to receive (a) only interest with respect to the
obligations
underlying such instrument or (b) both principal and interest
payments derived
from obligations underlying such instrument and the interest and
principal
payments with respect to such instrument provide a yield to
maturity at par
greater than 120% of the yield to maturity at par of the
underlying obligations.
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PERMITTED TRANSFEREE: Any person other than (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, (ii) a
foreign
government, International Organization or any agency or
instrumentality of
either of the foregoing, (iii) an organization (except certain
farmers'
cooperatives described in section 521 of the Code) that is
exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by
section 511 of
the Code on unrelated business taxable income) on any excess
inclusions (as
defined in section 860E(c)(1) of the Code) with respect to any
Residual
Certificate, (iv) rural electric and telephone cooperatives
described in section
1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or
resident of the
United States, a corporation, partnership (other than a
partnership that has any
direct or indirect foreign partners) or other entity (treated as
a corporation
or a partnership for federal income tax purposes), created or
organized in or
under the laws of the United States, any state thereof or the
District of
Columbia, an estate whose income from sources without the United
States is
includible in gross income for United States federal income tax
purposes
regardless of its connection with the conduct of a trade or
business within the
United States, or 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 trustor and (vi) any other Person based upon an Opinion
of Counsel (which
shall not be an expense of the Trustee) that states that the
Transfer of an
Ownership Interest in a Residual Certificate to such Person may
cause REMIC I,
REMIC II, REMIC III or REMIC IV to fail to qualify as a REMIC at
any time that
any Certificates are Outstanding. The terms "United States,"
"State" and
"International Organization" shall have the meanings set forth
in section 7701
of the Code or successor provisions. A corporation will not be
treated as an
instrumentality of the United States or of any State or
political subdivision
thereof for these purposes if all of its activities are subject
to tax and, with
the exception of Freddie Mac, a majority of its board of
directors is not
selected by such government unit.
PERSON: Any individual, corporation, partnership, joint
venture,
association, joint-stock company, limited liability company,
trust,
unincorporated organization or government, or any agency or
political
subdivision thereof.
PREPAYMENT ASSUMPTION: The assumed rate of prepayment, as
described in
the Prospectus Supplement relating to each Group I Offered
Certificates and
Group II Offered Certificates.
PREPAYMENT CHARGE: With respect to any Principal Prepayment,
any
prepayment premium, penalty or charge payable by a Mortgagor in
connection with
any Principal Prepayment on a Mortgage Loan pursuant to the
terms of the related
Mortgage Note (other than any Servicer Prepayment Charge Payment
Amount).
PREPAYMENT CHARGE SCHEDULE: As of any date, the list of Mortgage
Loans
providing for a Prepayment Charge included in the Trust Fund on
such date,
attached hereto as Exhibit K (including the prepayment charge
summary attached
thereto). The Depositor shall deliver or cause the delivery of
the Prepayment
Charge Schedule to each Servicer on the Closing Date. The
Prepayment Charge
Schedule shall set forth the following information with respect
to each
Prepayment Charge:
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(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the date on which the first Monthly Payment was due
on the related Mortgage Loan;
(iv) the term of the related Prepayment Charge;
(v) the original Stated Principal Balance of the related
Mortgage Loan; and
(vi) the Stated Principal Balance of the related Mortgage
Loan as of the Cut-off Date.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution
Date,
for each Mortgage Loan that was the subject of a Principal
Prepayment in full
during the related Prepayment Period, (other than a Principal
Prepayment in full
resulting from the purchase of a Mortgage Loan pursuant to
Section 2.02, 2.03,
3.26 or 10.01 hereof), the amount, if any, by which (i) one
month's interest at
the applicable Net Mortgage Rate on the Stated Principal Balance
of such
Mortgage Loan immediately prior to such prepayment exceeds (ii)
the amount of
interest paid or collected in connection with such Principal
Prepayment less the
sum of (a) the related Servicing Fee, (b) the Credit Risk
Management Fee and (c)
the fee payable to any provider of lender-paid mortgage
insurance, if any.
PREPAYMENT PERIOD: For any Distribution Date, (i) with respect
to the
GMACM Mortgage Loans and GreenPoint Mortgage Loans, the calendar
month preceding
the month in which the related Distribution Date occurs and (ii)
with respect to
the M&T Mortgage Loans, the period beginning on the
sixteenth day of the month
preceding the month of the related Distribution Date and ending
on the fifteenth
day of the month of such Distribution Date with respect to
Principal Prepayments
in full, and the calendar month preceding the month in which the
related
Distribution Date occurs with respect to Principal Prepayments
in part.
PRINCIPAL DISTRIBUTION AMOUNT: With respect to each Distribution
Date,
the sum of (i) Principal Funds, plus (ii) the Extra Principal
Distribution
Amount for such Distribution Date MINUS (iii) the amount of
any
Overcollateralization Reduction Amount for such Distribution
Date. In no event
will the Principal Distribution Amount with respect to any
Distribution Date be
(x) less than zero or (y) greater than the then outstanding
aggregate
Certificate Principal Balance of the Group II Offered
Certificates.
PRINCIPAL FUNDS: With respect to any Distribution Date, (i) the
sum,
without duplication, of (a) all scheduled principal collected
during the related
Due Period, (b) all Advances relating to principal made on or
prior to the
Remittance Date or, with respect to the Trustee on the
Distribution Date, (c)
Principal Prepayments exclusive of prepayment charges or
penalties collected
during the related Prepayment Period, (iii) the Stated Principal
Balance of each
Group II Mortgage Loan that was repurchased by the Seller
pursuant to Sections
2.02, 2.03 and 3.26, (d) the aggregate of all Substitution
Adjustment Amounts
for the related Determination Date in
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connection with the substitution of Group II Mortgage Loans
pursuant to Section
2.03(b), (e) amounts in respect of principal paid by the
Terminator pursuant to
Section 10.01, (f) all Liquidation Proceeds and Subsequent
Recoveries collected
during the related Prepayment Period (to the extent such
Liquidation Proceeds
and Subsequent Recoveries relate to principal), in each case to
the extent
remitted by the related Servicer to the related Distribution
Account pursuant to
this Agreement, the M&T Servicing Agreement or GreenPoint
Servicing Agreement,
as applicable and (g) all Subsequent Recoveries minus (ii) all
amounts required
to be reimbursed pursuant to Sections 4.02, 4.05, 4.07, 5.08 and
9.05 or as
otherwise set forth in this Agreement to the extent not
reimbursed from the
Interest Remittance Amount.
PRINCIPAL PREPAYMENT: Any Mortgagor payment or other recovery of
(or
proceeds with respect to) principal on a Mortgage Loan
(including loans
purchased or repurchased under Sections 2.02, 2.03, 3.26 and
10.01 hereof) that
is received in advance of its scheduled Due Date and is not
accompanied by an
amount as to interest representing scheduled interest due on any
Due Date in any
month or months subsequent to the month of prepayment. Partial
Principal
Prepayments shall be applied by the related Servicer in
accordance with the
terms of the related Mortgage Note.
PRIVATE CERTIFICATE: Each of the Class I-B-4, Class I-B-5, Class
I-B-6,
Class I-X, Class I-P, Class I-R, Class II-C, Class II-P and
Class II-R
Certificates.
PROSPECTUS SUPPLEMENT: The Prospectus Supplement dated February
23,
2005 relating to the offering of the Group I Offered
Certificates and Group II
Offered Certificates.
PUD: A planned unit development.
PURCHASE PRICE: With respect to any Mortgage Loan required to
be
repurchased by the Seller pursuant to Section 2.02 or 2.03
hereof and as
confirmed by an Officer's Certificate from the Seller to the
Trustee, an amount
equal to the sum of (i) 100% of the outstanding principal
balance of the
Mortgage Loan as of the date of such purchase plus (ii) 30 days
interest thereon
at the applicable Net Mortgage Rate, plus any portion of the
Servicing Fee,
Servicing Advances and Advances payable to the related Servicer
of the Mortgage
Loan plus (iii) any costs and damages of the Trust Fund in
connection with any
violation by such Mortgage Loan of any abusive or predatory
lending law,
including any expenses incurred by the Trustee with respect to
such Mortgage
Loan prior to the purchase thereof.
RATING AGENCY: Each of S&P and Moody's. If any such
organization or its
successor is no longer in existence, "Rating Agency" shall be a
nationally
recognized statistical rating organization, or other comparable
Person,
designated by the Depositor, notice of which designation shall
be given to the
Trustee. References herein to a given rating category of a
Rating Agency shall
mean such rating category without giving effect to any
modifiers.
REALIZED LOSS: With respect to each Mortgage Loan as to which a
Final
Recovery Determination has been made, an amount (not less than
zero) equal to
(i) the Stated Principal Balance of such Mortgage Loan as of the
commencement of
the calendar month in which the Final Recovery Determination was
made, plus (ii)
accrued interest from the Due Date as to which interest was last
paid by the
Mortgagor through the end of the calendar month in which
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such Final Recovery Determination was made, calculated in the
case of each
calendar month during such period (A) at an annual rate equal to
the annual rate
at which interest was then accruing on such Mortgage Loan and
(B) on a principal
amount equal to the Stated Principal Balance of such Mortgage
Loan as of the
close of business on the Distribution Date during such calendar
month, minus
(iii) the proceeds, if any, received in respect of such Mortgage
Loan during the
calendar month in which such Final Recovery Determination was
made, net of
amounts that are payable therefrom to the related Servicer
pursuant to this
Agreement, the M&T Servicing Agreement or the GreenPoint
Servicing Agreement, as
applicable.
With respect to any REO Property as to which a Final
Recovery
Determination has been made, an amount (not less than zero)
equal to (i) the
Stated Principal Balance of the related Mortgage Loan as of the
date of
acquisition of such REO Property on behalf of REMIC I or REMIC
II, as
applicable, plus (ii) accrued interest from the Due Date as to
which interest
was last paid by the Mortgagor in respect of the related
Mortgage Loan through
the end of the calendar month immediately preceding the calendar
month in which
such REO Property was acquired, calculated in the case of each
calendar month
during such period (A) at an annual rate equal to the annual
rate at which
interest was then accruing on the related Mortgage Loan and (B)
on a principal
amount equal to the Stated Principal Balance of the related
Mortgage Loan as of
the close of business on the Distribution Date during such
calendar month, minus
(iii) the aggregate of all unreimbursed Advances and Servicing
Advances.
With respect to each Mortgage Loan which has become the subject
of a
Deficient Valuation, the difference between the principal
balance of the
Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the
principal balance of the Mortgage Loan as reduced by the
Deficient Valuation.
With respect to each Mortgage Loan which has become the subject
of a
Debt Service Reduction, the portion, if any, of the reduction in
each affected
Monthly Payment attributable to a reduction in the Mortgage Rate
imposed by a
court of competent jurisdiction. Each such Realized Loss shall
be deemed to have
been incurred on the Due Date for each affected Monthly
Payment.
In addition, to the extent a Servicer receives Subsequent
Recoveries
with respect to any Mortgage Loan, the amount of the Realized
Loss with respect
to that Mortgage Loan will be reduced to the extent such
Subsequent Recoveries
are applied to reduce the Certificate Principal Balance of any
Class of
Certificates on any Distribution Date.
RECORD DATE: With respect to the Certificates (other than the
Class
II-A-1 Certificates) and any Distribution Date, the close of
business on the
last Business Day of the month preceding the month in which such
Distribution
Date occurs. With respect to the Class II-A-1 Certificates and
any Distribution
Date, so long as the Class II-A-1 Certificates are Book-Entry
Certificates, the
Business Day preceding such Distribution Date, and otherwise,
the close of
business on the last Business Day of the month preceding the
month in which such
Distribution Date occurs.
REFERENCE BANKS: Shall mean leading banks selected by the
Trustee and
engaged in transactions in Eurodollar deposits in the
international Eurocurrency
market (i) with an established place of business in London, (ii)
which have been
designated as such by the Trustee
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and (iii) which are not controlling, controlled by, or under
common control
with, the Depositor, the Seller or the Servicers.
REFERENCE BANK RATE: With respect to any Accrual Period shall
mean the
arithmetic mean, rounded upwards, if necessary, to the nearest
whole multiple of
0.03125%, of the offered rates for United States dollar deposits
for one month
that are quoted by the Reference Banks as of 11:00 a.m., New
York City time, on
the related Interest Determination Date to prime banks in the
London interbank
market for a period of one month in an amount approximately
equal to the
aggregate Certificate Principal Balance of the Class II-A-1
Certificates for
such Accrual Period, provided that at least two such Reference
Banks provide
such rate. If fewer than two offered rates appear, the Reference
Bank Rate will
be the arithmetic mean, rounded upwards, if necessary, to the
nearest whole
multiple of 0.03125%, of the rates quoted by one or more major
banks in New York
City, selected by the Trustee, as of 11:00 a.m., New York City
time, on such
date for loans in United States dollars to leading European
banks for a period
of one month in amounts approximately equal to the aggregate
Certificate
Principal Balance of the Class II-A-1 Certificates for such
Accrual Period.
REGULAR CERTIFICATE: Any Certificate other than a Residual
Certificate.
RELIEF ACT: The Servicemembers Civil Relief Act of 2003, as
amended
from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning
of section 860D of the Code.
REMIC I: The segregated pool of assets subject hereto,
constituting the
primary trust created hereby and to be administered hereunder,
with respect to
which a REMIC election is to be made, consisting of (i) the
Group I Mortgage
Loans and all interest accruing and principal due with respect
thereto after the
Cut-off Date to the extent not applied in computing the Cut-off
Date Principal
Balance thereof and all Prepayment Charges; (ii) the Mortgage
Files relating to
the Group I Mortgage Loans, (iii) the related Custodial Account
(other than any
amounts representing any Servicer Prepayment Charge Payment
Amount), the related
Distribution Account, the Class I-P Certificate Account and such
assets that are
deposited therein from time to time, together with any and all
income, proceeds
and payments with respect thereto; (iv) property that secured a
Group I Mortgage
Loan and has been acquired by foreclosure, deed in lieu of
foreclosure or
otherwise; (v) the mortgagee's rights under the Insurance
Policies with respect
to the Group I Mortgage Loans; (vi) the rights under the
Mortgage Loan Purchase
Agreement in respect of the Group I Mortgage Loans, and (vii)
all proceeds of
the foregoing, including proceeds of conversion, voluntary or
involuntary, of
any of the foregoing into cash or other liquid property.
Notwithstanding the
foregoing, however, REMIC I specifically excludes all payments
and other
collections of principal and interest due on the Group I
Mortgage Loans on or
before the Cut-off Date and all Prepayment Charges payable in
connection with
Principal Prepayments made before the Cut-off Date.
REMIC II: The segregated pool of assets subject hereto,
constituting
the primary trust created hereby and to be administered
hereunder, with respect
to which a REMIC election is to be made, consisting of (i) the
Group II Mortgage
Loans and all interest accruing and principal due with respect
thereto after the
Cut-off Date to the extent not applied in computing the
Cut-off
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Date Principal Balance thereof and all Prepayment Charges; (ii)
the Mortgage
Files relating to the Group II Mortgage Loans, (iii) the related
Custodial
Account (other than any amounts representing any Servicer
Prepayment Charge
Payment Amount), the related Distribution Account, the Class
II-P Certificate
Account and such assets that are deposited therein from time to
time, together
with any and all income, proceeds and payments with respect
thereto; (iv)
property that secured a Group II Mortgage Loan and has been
acquired by
foreclosure, deed in lieu of foreclosure or otherwise; (v) the
mortgagee's
rights under the Insurance Policies with respect to the Group II
Mortgage Loans;
(vi) the rights under the Mortgage Loan Purchase Agreement in
respect of the
Group II Mortgage Loans, and (vii) all proceeds of the
foregoing, including
proceeds of conversion, voluntary or involuntary, of any of the
foregoing into
cash or other liquid property. Notwithstanding the foregoing,
however, REMIC II
specifically excludes all payments and other collections of
principal and
interest due on the Group II Mortgage Loans on or before the
Cut-off Date and
all Prepayment Charges payable in connection with Principal
Prepayments made
before the Cut-off Date, the Net WAC Reserve Fund and the Cap
Contract.
REMIC II REGULAR INTEREST LTII-2: One of the separate
non-certificated
beneficial ownership interests in REMIC II issued hereunder and
designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-2
shall accrue
interest at the related Uncertificated REMIC II Pass-Through
Rate in effect from
time to time, and shall be entitled to distributions of
principal, subject to
the terms and conditions hereof, in an aggregate amount equal to
its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement
hereto.
REMIC II REGULAR INTEREST LTII-IO-A: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest
LTII-IO-A shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IO-B: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC I Regular
Interest LTII-IO-B
shall accrue interest at the related Uncertificated REMIC II
Pass-Through Rate
in effect from time to time, and shall be entitled to
distributions of
principal, subject to the terms and conditions hereof, in an
aggregate amount
equal to its initial Uncertificated Principal Balance as set
forth in the
Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IO-C: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest
LTII-IO-C shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
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REMIC II REGULAR INTEREST LTII-IO-D: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest
LTII-IO-D shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IO-E: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest
LTII-IO-E shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IO-F: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest
LTII-IO-F shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IO-G: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest
LTII-IO-G shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IO-H: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest
LTII-IO-H shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC II REGULAR INTEREST LTII-IIP: One of the separate
non-certificated beneficial ownership interests in REMIC II
issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular
Interest LTII-IIP
shall be entitled to distributions of principal, subject to the
terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
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REMIC II REGULAR INTERESTS: REMIC II Regular Interest LTII-2,
REMIC II
Regular Interest LTII-IO-A, REMIC II Regular Interest LTII-IO-B,
REMIC II
Regular Interest LTII-IO-C, REMIC II Regular Interest LTII-IO-D,
REMIC I Regular
Interest LTII-IO-E, REMIC II Regular Interest LTII-IO-F, REMIC
II Regular
Interest LTII-IO-G, REMIC II Regular Interest LTII-IO-H and
REMIC II Regular
Interest LTII-IIP.
REMIC III: The segregated pool of assets consisting of all of
the REMIC
II Regular Interests conveyed in trust to the Trustee, for the
benefit of REMIC
III, as holder of the REMIC II Regular Interests, and the Class
R-2 Interest
pursuant to Section 2.07, and all amounts deposited therein,
with respect to
which a separate REMIC election is to be made.
REMIC III INTEREST LOSS ALLOCATION AMOUNT: With respect to
any
Distribution Date, an amount equal to (a) the product of (i) the
aggregate
Stated Principal Balance of the Group II Mortgage Loans and REO
Properties then
outstanding and (ii) the REMIC III Remittance Rate for REMIC III
Regular
Interest LTII-AA minus the Marker Rate, divided by (b) 12.
REMIC III OVERCOLLATERALIZATION AMOUNT: With respect to any date
of
determination, (i) 1% of the aggregate Uncertificated Principal
Balances of the
REMIC III Regular Interests minus (ii) the aggregate of the
Uncertificated
Principal Balances of REMIC III Regular Interest LTIII-IIA1,
REMIC III Regular
Interest LTIII-IIA2, REMIC III Regular Interest LTIII-IIA3,
REMIC III Regular
Interest LTIII-IIA4, REMIC III Regular Interest LTIII-IIA5,
REMIC III Regular
Interest LTIII-IIM1, REMIC III Regular Interest LTIII-IIM2,
REMIC III Regular
Interest LTIII-IIM3 and REMIC III Regular Interest LTIII-IIP, in
each case as of
such date of determination.
REMIC III PRINCIPAL LOSS ALLOCATION AMOUNT: With respect to
any
Distribution Date, an amount equal to (a) the product of (i) the
aggregate
Stated Principal Balance of the Group II Mortgage Loans and REO
Properties
relating to the Group II Mortgage Loans then outstanding and
(ii) 1 minus a
fraction, the numerator of which is two times the aggregate of
the
Uncertificated Principal Balances of REMIC III Regular Interest
LTIII-IIA1,
REMIC III Regular Interest LTIII-IIA2, REMIC III Regular
Interest LTIII-IIA3,
REMIC III Regular Interest LTIII-IIA4, REMIC III Regular
Interest LTIII-IIA5,
REMIC III Regular Interest LTIII-IIM1, REMIC III Regular
Interest LTIII-IIM2 and
REMIC III Regular Interest LTIII-IIM3 and the denominator of
which is the
aggregate of the Uncertificated Principal Balances of REMIC III
Regular Interest
LTIII-IIA1, REMIC III Regular Interest LTIII-IIA2, REMIC III
Regular Interest
LTIII-IIA3, REMIC III Regular Interest LTIII-IIA4, REMIC III
Regular Interest
LTIII-IIA5, REMIC III Regular Interest LTIII-IIM1, REMIC III
Regular Interest
LTIII-IIM2, REMIC III Regular Interest LTIII-IIM3 and REMIC III
Regular Interest
LTIII-IIZZ.
REMIC III REGULAR INTERESTS: REMIC III Regular Interest
LTIII-AA, REMIC
III Regular Interest LTIII-IIA1, REMIC III Regular Interest
LTIII-IIA2, REMIC
III Regular Interest LTIII-IIA3, REMIC III Regular Interest
LTIII-IIA4, REMIC
III Regular Interest LTIII-IIA5, REMIC III Regular Interest
LTIII-IIM1, REMIC
III Regular Interest LTIII-IIM2, REMIC III Regular Interest
LTIII-IIM3, REMIC
III Regular Interest LTIII-IO-A, REMIC III Regular Interest
LTIII-IO-B, REMIC
III Regular Interest LTIII-IIZZ and REMIC III Regular Interest
LTIII-IIP.
REMIC III REGULAR INTEREST LTIII-AA: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in
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REMIC III. REMIC III Regular Interest LTII-AA shall accrue
interest at the
related Uncertificated REMIC III Pass-Through Rate in effect
from time to time,
and shall be entitled to distributions of principal, subject to
the terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC III REGULAR INTEREST LTIII-IIA1: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIA1 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC III REGULAR INTEREST LTIII-IIA2: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIA2 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC III REGULAR INTEREST LTIII-IIA3: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIA3 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC III REGULAR INTEREST LTIII-IIA4: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIA4 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC III REGULAR INTEREST LTIII-IIA5: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIA5 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
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REMIC II REGULAR INTEREST LTIII-IO-A: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IO-A shall accrue interest as provided herein and shall
not be entitled to
distributions of principal.
REMIC III REGULAR INTEREST LTIII-IO-B: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTII-IO-B shall accrue interest as provided herein and shall not
be entitled to
distributions of principal.
REMIC III REGULAR INTEREST LTIII-IIM1: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIM1 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC III REGULAR INTEREST LTIII-IIM2: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIM2 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC III REGULAR INTEREST LTIII-IIM3: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIM3 shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
REMIC III REGULAR INTEREST LTIII-IIP: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIP shall be entitled to distributions of principal,
subject to the terms
and conditions hereof, in an aggregate amount equal to its
initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement
hereto.
REMIC III REGULAR INTEREST LTIII-IIZZ: One of the separate
non-certificated beneficial ownership interests in REMIC III
issued hereunder
and designated as a Regular Interest in REMIC III. REMIC III
Regular Interest
LTIII-IIZZ shall accrue interest at the related Uncertificated
REMIC III
Pass-Through Rate in effect from time to time, and shall be
entitled to
distributions of principal, subject to the terms and conditions
hereof, in an
aggregate amount equal to its initial Uncertificated Principal
Balance as set
forth in the Preliminary Statement hereto.
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REMIC III REGULAR INTEREST LTIII-IIZZ MAXIMUM INTEREST DEFERRAL
AMOUNT:
With respect to any Distribution Date, the excess of (i) accrued
interest at the
Uncertificated REMIC III Pass-Through Rate applicable to REMIC
III Regular
Interest LTIII-IIZZ for such Distribution Date on a balance
equal to the
Uncertificated Principal Balance of REMIC III Regular Interest
LTIII-IIZZ minus
the REMIC III Overcollateralization Amount, in each case for
such Distribution
Date, over (ii) Uncertificated Accrued Interest on REMIC III
Regular Interest
LTIII-IIA1, REMIC III Regular Interest LTIII-IIA2, REMIC III
Regular Interest
LTIII-IIA3, REMIC III Regular Interest LTIII-IIA4, REMIC III
Regular Interest
LTIII-IIA5, REMIC III Regular Interest LTIII-IIM1, REMIC III
Regular Interest
LTIII-IIM2 and REMIC III Regular Interest LTIII-IIM3 for such
Distribution Date,
with the rate on each such REMIC III Regular Interest subject to
a cap equal to
the related Pass-Through Rate.
REMIC III REQUIRED OVERCOLLATERALIZATION AMOUNT: 1% of the
Required
Overcollateralization Amount.
REMIC IV: The segregated pool of assets consisting of all of the
REMIC
III Regular Interests conveyed in trust to the Trustee, for the
benefit of the
REMIC IV, the Net WAC Reserve Fund and the Cap Contract
Certificateholders
pursuant to Section 2.09, and all amounts deposited therein,
with respect to
which a separate REMIC election is to be made.
REMIC IV CERTIFICATE: Any Class II-A-1, Class II-A-2, Class
II-A-3,
Class II-A-4, Class II-A-5, Class II-A-IO, Class II-M-1, Class
II-M-2, Class
II-M-3, Class II-C, Class II-P or Class II-R Certificate.
REMIC IV CERTIFICATEHOLDER: The Holder of any REMIC IV
Certificate.
REMIC OPINION: Shall mean an Opinion of Counsel to the effect
that the
proposed action will not have an adverse affect on any REMIC
created hereunder.
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
proposed, temporary and final regulations and published rulings,
notices and
announcements promulgated thereunder, as the foregoing may be in
effect from
time to time as well as provisions of applicable state laws.
REMIC REGULAR INTEREST: A REMIC II Regular Interest, REMIC III
Regular
Interest or a Regular Certificate.
REMITTANCE DATE: Shall mean the 18th day of the month and if
such day
is not a Business Day, the immediately succeeding Business
Day.
REO PROPERTY: A Mortgaged Property acquired by the related
Servicer
through foreclosure or deed-in-lieu of foreclosure in connection
with a
defaulted Mortgage Loan.
REPLACEMENT MORTGAGE LOAN: A Mortgage Loan or Mortgage Loans in
the
aggregate substituted by the Seller for a Deleted Mortgage Loan,
which must, on
the date of such substitution, as confirmed in a request for
release in
accordance with the terms of the Custodial
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<PAGE>
Agreement, (i) have a Stated Principal Balance, after deduction
of the principal
portion of the Scheduled Payment due in the month of
substitution, not in excess
of, and not less than 90% of, the Stated Principal Balance of
the Deleted
Mortgage Loan; (ii) have a fixed Mortgage Rate not less than or
more than 1% per
annum higher than the Mortgage Rate of the Deleted Mortgage
Loan; (iii) have the
same or higher credit quality characteristics than that of the
Deleted Mortgage
Loan; (iv) have a Loan-to-Value Ratio no higher than that of the
Deleted
Mortgage Loan; (v) have a remaining term to maturity no greater
than (and not
more than one year less than) that of the Deleted Mortgage Loan;
(vi) not permit
conversion of the Mortgage Rate from a fixed rate to a variable
rate; (vii) be
secured by a first lien on the related Mortgaged Property;
(viii) constitute the
same occupancy type as the Deleted Mortgage Loan or be owner
occupied; and (ix)
comply with each representation and warranty set forth in the
Mortgage Loan
Purchase Agreement.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan,
any
insurance policy that is required to be maintained from time to
time under this
Agreement, the M&T Servicing Agreement or the GreenPoint
Servicing Agreement.
REQUIRED OVERCOLLATERALIZATION AMOUNT: With respect to any
Distribution
Date prior to the Stepdown Date, 0.55% of the Stated Principal
Balance of the
Group II Mortgage Loans as of the Cut-off Date, and with respect
to any
Distribution Date thereafter, the greater of (i) 1.10% of the
Stated Principal
Balance of the Group II Mortgage Loans as of the last day of the
related Due
Period and (ii) 0.35% of the Stated Principal Balance of the
Group II Mortgage
Loans as of the Cut-off Date.
REQUIRED OVERCOLLATERALIZATION PERCENTAGE: With respect to
any
Distribution Date, a percentage equal to (a) the Required
Overcollateralization
Amount divided by (b) the aggregate Stated Principal Balance of
the Group II
Mortgage Loans as of the last day of the related Due Period
(after giving effect
to scheduled payments of principal due during the related Due
Period, to the
extent received or advanced, and unscheduled collections of
principal received
during the related Prepayment Period, and after reduction for
Group II Realized
Losses incurred during the related Prepayment Period).
RESIDUAL CERTIFICATES: Any one of the Class I-R Certificates or
Class
II-R Certificates.
RESPONSIBLE OFFICER: With respect to the Trustee, any Vice
President,
any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust
Officer, any other officer customarily performing functions
similar to those
performed by any of the above designated officers or other
officers of the
Trustee specified by the Trustee having direct responsibility
over this
Agreement and customarily performing functions similar to those
performed by any
one of the designated officers, as to whom, with respect to a
particular matter,
such matter is referred because of such officer's knowledge of
and familiarity
with the particular subject.
S&P: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
or its successor in interest.
SCHEDULED PAYMENT: The scheduled monthly payment on a Mortgage
Loan due
on any Due Date allocable to principal and/or interest on such
Mortgage Loan.
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<PAGE>
SECURITIES ACT: The Securities Act of 1933, as amended.
SELLER: Nomura Credit & Capital, Inc., a Delaware
corporation, and its
successors and assigns, in its capacity as seller of the
Mortgage Loans to the
Depositor.
SENIOR INTEREST DISTRIBUTION AMOUNT: With respect to any
Distribution
Date and any Class of Group II Senior Certificates will be equal
to the Interest
Distribution Amount for such Distribution Date for such Class
and the Interest
Carry Forward Amount, if any, for such Distribution Date for
such Class.
SENIOR OPTIMAL PRINCIPAL AMOUNT: With respect to each
Distribution
Date, means an amount equal to the sum of the following (but in
no event greater
than the Certificate Principal Balance of the Class I-A-1
Certificates
immediately prior to such Distribution Date):
(i) the Senior Percentage of the principal portion of all
monthly payments due on the Group I Mortgage Loans on
the related Due Date, as specified in the
amortization schedule at the time applicable thereto
(after adjustment for previous principal prepayments
but before giving effect to any Deficient Valuation
or Debt Service Reduction that occurred prior to the
reduction of the Bankruptcy Loss Coverage Amount to
zero);
(ii) the Senior Prepayment Percentage of the Stated
Principal Balance of each Group I Mortgage Loan which
was the subject of a prepayment in full received by
the related servicer during the applicable Prepayment
Period;
(iii) the Senior Prepayment Percentage of all partial
prepayments allocated to principal received during
the applicable Prepayment Period with respect to any
Group I Mortgage Loan;
(iv) the lesser of (a) the Senior Prepayment Percentage of
the sum of (A) all Net Liquidation Proceeds allocable
to principal received in respect of each Group I
Mortgage Loan which became a defaulted Group I
Mortgage Loan during the related Prepayment Period
(other than Group I Mortgage Loans described in the
immediately following clause (B)) and (B) the Stated
Principal Balance of each such Group I Mortgage Loan
purchased by an insurer from the Trustee during the
related Prepayment Period pursuant to the related
Insurance Policy, if any, or otherwise; and (b) the
Senior Percentage of the sum of (A) the Stated
Principal Balance of each Group I Mortgage Loan which
became a defaulted Group I Mortgage Loan during the
related Prepayment Period (other than the Group I
Mortgage Loans described in the immediately following
clause (B)) and (B) the Stated Principal Balance of
each such Group I Mortgage Loan that was purchased by
an insurer from the Trustee during the related
Prepayment Period pursuant to the Insurance Policy,
if any or otherwise; and
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<PAGE>
(v) the Senior Prepayment Percentage of the sum of (a)
the Stated Principal Balance of each Group I Mortgage
Loan which was repurchased by the Seller or the
related Servicer in connection with such istribution
date and (b) the excess, if any, of the Stated
Principal Balance of a Group I Mortgage Loan that has
been replaced by the Seller or the related Servicer
with a substitute Group I Mortgage Loan pursuant to
this Agreement in connection with such Distribution
Date over the Stated Principal Balance of such
substitute Group I Mortgage Loan;
provided, however that if a Deficient Valuation or Debt Service
Reduction is
sustained with respect to a Group I Mortgage Loan that is not a
Liquidated Loan
after the Bankruptcy Loss Coverage Amount has been reduced to
zero, the Senior
Optimal Principal Amount will be reduced on the related
Distribution Date by the
Senior Percentage of the principal portion of such Deficient
Valuation or Debt
Service Reduction.
SENIOR PERCENTAGE: With respect to any Distribution Date will
equal the
lesser of (i) 100% and (ii) the percentage obtained by dividing
the Certificate
Principal Balance of the Class I-A-1 Certificates immediately
preceding such
Distribution Date by the aggregate Stated Principal Balance of
the Group I
Mortgage Loans as of the beginning of the related Due Period.
The initial Senior
Percentage for the Group I Mortgage Loans will be equal to
approximately 91.75%.
SENIOR PREPAYMENT PERCENTAGE: With respect to any Distribution
Date
occurring during the periods set forth below will be as
follows:
<TABLE>
<CAPTION>
PERIOD (DATES INCLUSIVE) SENIOR PREPAYMENT PERCENTAGE
------------------------ ----------------------------
<S> <C>
March 25, 2005 - February 25, 2010 100%
March 25, 2010 - February 25, 2011 Senior Percentage plus 70% of
the Subordinate Percentage.
March 25, 2011 - February 25, 2012 Senior Percentage plus 60% of
the Subordinate Percentage.
March 25, 2012 - February 25, 2013 Senior Percentage plus 40% of
the Subordinate Percentage.
March 25, 2013 - February 25, 2014 Senior Percentage plus 20% of
the Subordinate Percentage.
March 25, 2014 and thereafter Senior Percentage.
</TABLE>
Notwithstanding the foregoing, however, no reduction of the
Senior Prepayment Percentage shall occur on any Distribution
Date unless, as of
the last day of the month preceding such Distribution Date, (A)
the aggregate
Stated Principal Balance of the Group I Mortgage Loans
delinquent 60 days or
more (including for this purpose any such Group I Mortgage Loans
in foreclosure
and REO Property), as a percentage of the sum of the aggregate
Certificate
Principal Balance of the Group I Subordinate Certificates does
not exceed 50%;
and (B)
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<PAGE>
cumulative Group I Realized Losses on the Group I Mortgage Loans
do not exceed
(a) 30% of the aggregate Certificate Principal Balance of the
Group I
Subordinate Certificates as of the Cut-off Date (the "Original
Subordinate
Principal Balance") if such Distribution Date occurs between and
including March
2010 and February 2011, (b) 35% of the Original Subordinate
Principal Balance if
such Distribution Date occurs between and including March 2011
and February
2012, (c) 40% of the Original Subordinate Principal Balance if
such Distribution
Date occurs between and including March 2012 and February 2013,
(d) 45% of the
Original Subordinate Principal Balance if such Distribution Date
occurs between
and including March 2013 and February 2014, and (e) 50% of the
Original
Subordinate Principal Balance if such Distribution Date occurs
during or after
March 2014.
Notwithstanding the foregoing, if on any Distribution Date,
the percentage, the numerator of which is the Certificate
Principal Balance of
the Class I-A-1 Certificates immediately preceding such
Distribution Date, and
the denominator of which is the aggregate Stated Principal
Balance of the Group
I Mortgage Loans as of the beginning of the related Due Period,
exceeds such
percentage as of the Closing Date, then the Senior Prepayment
Percentage with
respect to the Class I-A-1 Certificates for such Distribution
Date will equal
100%.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution
Date which occurs (i) prior to the Stepdown Date or on or after
the Stepdown
Date if a Trigger Event is in effect, the Principal Distribution
Amount or (ii)
on or after the Stepdown Date if a Trigger Event is not in
effect for that
Distribution Date, the lesser of:
o the Principal Distribution Amount for that Distribution
Date;
and
o the excess, if any, of (A) the aggregate Certificate
Principal
Balance of the Group II Senior Certificates (other than the
Class II-A-IO Certificates) immediately prior to that
Distribution Date over (B) the positive difference between
(i)
the aggregate Stated Principal Balance of the Group II
Mortgage Loans as of the last day of the related Due Period
(after reduction for Group II Realized Losses incurred
during
the related Prepayment Period) and (ii) the product of (x)
the
aggregate Stated Principal Balance of the Group II Mortgage
Loans as of the last day of the related Due Period (after
reduction for Group II Realized Losses incurred during the
related Prepayment Period) and (y) the sum of 11.30% and the
Required Overcollateralization Percentage.
SERVICER: Shall mean either GMACM, M&T or GreenPoint.
SERVICER DEFAULT: As defined in Section 8.01.
SERVICER PREPAYMENT CHARGE PAYMENT AMOUNT: The amount payable by
GMACM
in respect of any waived Prepayment Charges pursuant to Section
3.01.
SERVICING ADVANCES: All customary, reasonable and necessary "out
of
pocket" costs and expenses (including reasonable legal fees)
incurred in the
performance by a Servicer of its servicing obligations
hereunder, including, but
not limited to, the cost of (i) the preservation, restoration,
inspection,
valuation and protection of a Mortgaged Property, (ii) any
enforcement or
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<PAGE>
judicial proceedings, including foreclosures, and including any
expenses
incurred in relation to any such proceedings that result from
the Mortgage Loan
being registered in the MERS(R) System, (iii) the management and
liquidation of
any REO Property (including, without limitation, realtor's
commissions), (iv)
compliance with any obligations under Section 3.07 hereof to
cause insurance to
be maintained and (v) payment of taxes.
SERVICING FEE: As to each Mortgage Loan and any Distribution
Date, an
amount equal to 1/12th of the Servicing Fee Rate multiplied by
the Stated
Principal Balance of such Mortgage Loan as of the last day of
the related Due
Period or, in the event of any payment of interest that
accompanies a Principal
Prepayment in full during the related Due Period made by the
Mortgagor
immediately prior to such prepayment, interest at the Servicing
Fee Rate on the
same Stated Principal Balance of such Mortgage Loan used to
calculate the
payment of interest on such Mortgage Loan.
SERVICING FEE RATE: 0.25% per annum.
SPECIAL HAZARD LOSS: Means a Group I Realized Loss, as reported
by the
related Servicer to the Trustee, attributable to damage or a
direct physical
loss suffered by a Mortgaged Property-including any Group I
Realized Loss due to
the presence or suspected presence of hazardous wastes or
substances on a
Mortgaged Property other than any such damage or loss covered by
a hazard policy
or a flood insurance policy required to be maintained in respect
of the
Mortgaged Property under this Agreement, the M&T Servicing
Agreement or the
GreenPoint Servicing Agreement, as applicable or any loss due to
normal wear and
tear or certain other causes.
SPECIAL HAZARD LOSS COVERAGE AMOUNT: Means $1,321,495.46
(approximately
1.00% of the Group I Mortgage Loans by aggregate Stated
Principal Balance as of
the Cut-off Date) less, on each Distribution Date, the sum of
(1) the aggregate
amount of Special Hazard Losses that would have been previously
allocated to the
Group I Subordinate Certificates in the absence of the Loss
Allocation
Limitation and (2) the Adjustment Amount. As of any Distribution
Date on or
after the Cross-Over Date, the Special Hazard Loss Coverage
Amount will be zero.
STARTUP DAY: The Startup Day for each REMIC formed hereunder
shall be
the Closing Date.
STATED PRINCIPAL BALANCE: With respect to any Mortgage Loan or
related
REO Property and any Distribution Date, the Cut-off Date
Principal Balance
thereof minus the sum of (i) the principal portion of the
Scheduled Payments due
with respect to such Mortgage Loan during each Due Period ending
prior to such
Distribution Date (and irrespective of any delinquency in their
payment), (ii)
all Principal Prepayments with respect to such Mortgage Loan
received prior to
or during the related Prepayment Period, and all Liquidation
Proceeds to the
extent applied by the related Servicer as recoveries of
principal in accordance
with Section 3.09 of this Agreement or in accordance with the
M&T Servicing
Agreement or GreenPoint Servicing Agreement, as applicable, with
respect to such
Mortgage Loan, that were received by the related Servicer as of
the close of
business on the last day of the Prepayment Period related to
such Distribution
Date and (iii) any Realized Losses on such Mortgage Loan
incurred during the
related Prepayment Period. The Stated Principal Balance of a
Liquidated Loan
equals zero.
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<PAGE>
STEPDOWN DATE: The earlier to occur of (1) the Distribution Date
on
which the aggregate Certificate Principal Balance of the Group
II Senior
Certificates (other than the Class II-A-IO Certificates) has
been reduced to
zero and (2) the later to occur of (x) the Distribution Date in
March 2008 and
(y) the first Distribution Date on which the Credit Enhancement
Percentage of
the Group II Senior Certificates (calculated for this purpose
only after taking
into account distributions of principal on the Group II Mortgage
Loans, but
prior to any distribution of the Principal Distribution Amount
to the holders of
the Group II Certificates then entitled to distributions of
principal on the
Distribution Date) is greater than or equal to approximately
12.40%.
SUBORDINATE CERTIFICATE WRITEDOWN AMOUNT: Means, as of any
Distribution
Date, the amount by which (a) the sum of the Certificate
Principal Balances of
all of the Group I Certificates, after giving effect to the
distribution of
principal and the allocation of Group I Realized Losses in
reduction of the
Certificate Principal Balances of the Group I Certificates on
that Distribution
Date, exceeds (b) the aggregate principal balance of all the
Group I Mortgage
Loans as of the last day of the related Due Period, less any
Deficient
Valuations occurring before the Bankruptcy Loss Coverage Amount
has been reduced
to zero
SUBORDINATE OPTIMAL PRINCIPAL AMOUNT: With respect to each
Distribution
Date means an amount equal to the sum of the following (but in
no event greater
than the aggregate Certificate Principal Balance of the Group I
Subordinate
Certificates immediately prior to such Distribution Date):
(i) the Subordinate Percentage of the principal portion
of all monthly payments due on each Group I Mortgage
Loan the on related Due Date, as specified in the
amortization schedule at the time applicable thereto
(after adjustment for previous principal prepayments
but before giving effect to any Deficient Valuation
or Debt Service Reduction that occurred prior to the
reduction of the Bankruptcy Loss Coverage Amount to
zero);
(ii) the Subordinate Prepayment Percentage of the Stated
Principal Balance of each Group I Mortgage Loan which
was the subject of a prepayment in full received by
the related servicer during the applicable Prepayment
Period;
(iii) the Subordinate Prepayment Percentage of all partial
prepayments of principal received during the
applicable Prepayment Period for each Group I
Mortgage Loan;
(iv) the excess, if any, of (a) the Group I Net
Liquidation Proceeds allocable to principal received
during the related Prepayment Period in respect of
each defaulted Group I Mortgage Loan over (b) the sum
of the amounts distributable to the holders of the
Class I-A-1 Certificates pursuant to clause (iv) of
the definition of "Senior Optimal Principal Amount"
on such Distribution Date;
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<PAGE>
(v) the Subordinate Prepayment Percentage of the sum of
(a) the Stated Principal Balance of each Group I
Mortgage Loan which was repurchased by the Seller or
the related Servicer in connection with such
Distribution Date and (b) the difference, if any,
between the Stated Principal Balance of a Group I
Mortgage Loan that has been replaced by the Seller or
the related Servicer with a substitute Group I
Mortgage Loan pursuant to this Agreement, the M&T
Servicing Agreement or the GreenPont Servicing
Agreement in connection with such Distribution Date
and the Stated Principal Balance of such substitute
Group I Mortgage Loan; and
(vi) on the Distribution Date on which the Certificate
Principal Balance of the Class I-A-1 Certificates has
been reduced to zero, 100% of any remaining Senior
Optimal Principal Amount;
provided, however that if a Deficient Valuation or Debt Service
Reduction is
sustained with respect to a Group I Mortgage Loan that is not a
Liquidated Loan
after the Bankruptcy Loss Coverage Amount has been reduced to
zero, the
Subordinate Optimal Principal Amount will be reduced on the
related distribution
date by the Subordinate Percentage of the principal portion of
such Deficient
Valuation or Debt Service Reduction.
SUBORDINATE PERCENTAGE: With respect to any Distribution Date,
means
100% minus the Senior Percentage. The initial Subordinate
Percentage will be
equal to approximately 8.25%.
SUBORDINATE PREPAYMENT PERCENTAGE: With respect to any
Distribution
Date will equal 100% minus the Senior Prepayment Percentage,
except that on any
Distribution Date after the Certificate Principal Balance of the
Group I Senior
Certificates has been reduced to zero, the Subordinate
Prepayment Percentage for
the Group I Subordinate Certificates will equal 100%.
SUBSEQUENT RECOVERIES: Shall mean all amounts in respect of
principal
received by a Servicer on a Mortgage Loan for which a Realized
Loss was
previously incurred.
SUBSERVICING AGREEMENT: Any agreement entered into between a
Servicer
and a subservicer with respect to the subservicing of any
Mortgage Loan subject
to this Agreement by such subservicer.
SUBSTITUTION ADJUSTMENT AMOUNT: The meaning ascribed to such
term
pursuant to Section 2.03(d).
SUCCESSOR SERVICER: The Trustee or any successor to a
Servicer
appointed pursuant to Section 8.02 of this Agreement, the
M&T Servicing
Agreement or the GreenPoint Servicing Agreement, as applicable,
after the
occurrence of a Servicer Default or upon the resignation of the
related Servicer
pursuant to this Agreement, the M&T Servicing Agreement or
the GreenPoint
Servicing Agreement, as applicable.
TAX MATTERS PERSON: The person designated as "tax matters
person" in
the manner provided under Treasury regulation ss. 1.860F-4(d)
and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. The holder of the
greatest Percentage
Interest in a Class of Residual
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<PAGE>
Certificates shall be the Tax Matters Person for the related
REMIC. The Trustee,
or any successor thereto or assignee thereof shall serve as tax
administrator
hereunder and as agent for the related Tax Matters Person.
TRANSFER AFFIDAVIT: As defined in Section 6.02(c).
TRANSFER: Any direct or indirect transfer or sale of any
Ownership
Interest in a Certificate.
TRIGGER EVENT: With respect to any Distribution Date, a Trigger
Event
is in effect if (x) the percentage obtained by dividing (i) the
aggregate Stated
Principal Balance of Group II Mortgage Loans delinquent 60 days
or more
(including Group II Mortgage Loans in foreclosure or discharged
in bankruptcy or
any REO Property) by (ii) the aggregate Stated Principal Balance
of the Group II
Mortgage Loans, in each case, as of the last day of the previous
calendar month,
exceeds 50% of the Credit Enhancement Percentage of the Group II
Senior
Certificates for the prior Distribution Date, or (y) the
aggregate amount of
Realized Losses incurred since the Cut-off Date through the last
day of the
related Due Period divided by the aggregate Stated Principal
Balance of the
Mortgage Loans as of the Cut-off Date exceeds the applicable
percentages set
forth below with respect to such Distribution Date:
Distribution Date Percentage
------------------------------------------- ----------
March 2008 to February 2009................ 1.00%
March 2009 to February 2010................ 1.75%
March 2010 to February 2011................ 2.00%
March 2011 to February 2012................ 2.25%
March 2012 and thereafter.................. 2.40%
TRUST FUND: Collectively, the assets of REMIC I, REMIC II, REMIC
III,
REMIC IV, the Net WAC Reserve Fund and the Cap Contract.
TRUSTEE: Wells Fargo Bank, National Association, a national
banking
association, not in its individual capacity, but solely in its
capacity as
trustee for the benefit of the Certificateholders under this
Agreement, and any
successor thereto, and any corporation or national banking
association resulting
from or surviving any consolidation or merger to which it or its
successors may
be a party and any successor trustee as may from time to time be
serving as
successor trustee hereunder.
UNCERTIFICATED ACCRUED INTEREST: With respect to each
Uncertificated
REMIC Regular Interest on each Distribution Date, an amount
equal to one month's
interest at the related Uncertificated Pass-Through Rate on the
Uncertificated
Principal Balance or Uncertificated Notional Amount, as
applicable, of such
REMIC Regular Interest. In each case, Uncertificated Accrued
Interest will be
reduced by any Prepayment Interest Shortfalls and shortfalls
resulting from
application of the Relief Act (allocated to such REMIC Regular
Interests as set
forth in Sections 1.02 and 5.07).
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UNCERTIFICATED NOTIONAL AMOUNT: With respect to REMIC III
Regular
Interest LTIII-IO-A and REMIC III Regular Interest LTIII-IO-B
and (i) each
Distribution Date from and including the 1st Distribution Date
to and including
the 6th Distribution Date, the aggregate Uncertificated
Principal Balances of
REMIC III Regular Interest LTII-IO-A through REMIC II Regular
Interest
LTII-IO-H, (ii) each Distribution Date from and including the
7th Distribution
Date to and including the 10th Distribution Date, the aggregate
Uncertificated
Principal Balances of REMIC II Regular Interest LTII-IO-B
through REMIC II
Regular Interest LTII-IO-H, (iii) each Distribution Date from
and including the
11th Distribution Date to and including the 13th Distribution
Date, the
aggregate Uncertificated Principal Balances of REMIC II Regular
Interest
LTII-IO-C through REMIC II Regular Interest LTII-IO-H, (iv) each
Distribution
Date from and including the 14th Distribution Date to and
including the 15th
Distribution Date, the aggregate Uncertificated Principal
Balances of REMIC II
Regular Interest LTII-IO-D through REMIC I Regular Interest
LTII-IO-H, (v) each
Distribution Date from and including the 16th Distribution Date
to and including
the 19th Distribution Date, the aggregate Uncertificated
Principal Balances of
REMIC II Regular Interest LTII-IO-E through REMIC II Regular
Interest LTI-IO-H,
(vi) each Distribution Date from and including the 20th
Distribution Date to and
including the 21st Distribution Date, the aggregate
Uncertificated Principal
Balances of REMIC II Regular Interest LTII-IO-F through REMIC II
Regular
Interest LTII-IO-H, (vii) each Distribution Date from and
including the 22nd
Distribution Date to and including the 23rd Distribution Date,
the aggregate
Uncertificated Principal Balances of REMIC II Regular Interest
LTII-IO-G and
REMIC II Regular Interest LTII-IO-H, and (viii) the 24th
Distribution Date, the
aggregate Uncertificated Principal Balance of REMIC II Regular
Interest
LTII-IO-H, and (ix) each Distribution Date thereafter, $0.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to each REMIC
Regular
Interest (other than REMIC III Regular Interest LTIII-IO-A and
REMIC III Regular
Interest LTIII-IO-B), the principal amount of such REMIC Regular
Interest
outstanding as of any date of determination. As of the Closing
Date, the
Uncertificated Principal Balance of each REMIC Regular Interest
(other than
REMIC III Regular Interest LTIII-IO-A and REMIC III Regular
Interest LTIII-IO-B)
shall equal the amount set forth in the Preliminary Statement
hereto as its
initial Uncertificated Principal Balance. On each Distribution
Date, the
Uncertificated Principal Balance of each REMIC Regular Interest
shall be reduced
by all distributions of principal made on such REMIC Regular
Interest on such
Distribution Date pursuant to Sections 5.08 and 5.09 and, if and
to the extent
necessary and appropriate, shall be further reduced on such
Distribution Date by
Realized Losses as provided in Sections 5.08 and 5.09. The
Uncertificated
Principal Balance of each REMIC Regular Interest shall never be
less than zero.
REMIC II Regular Interest LTII-IO will not have an
Uncertificated Principal
Balance.
UNCERTIFICATED REMIC II PASS-THROUGH RATE: A per annum rate
equal to
the average of the Net Mortgage Rates of the Group II Mortgage
Loans as of the
first day of the related Due Period, weighted on the basis of
the Stated
Principal Balances as of the first day of the related Due
Period.
UNCERTIFICATED REMIC III PASS-THROUGH RATE: With respect to
REMIC III
Regular Interest LTIII-AA, REMIC III Regular Interest
LTIII-IIA1, REMIC III
Regular Interest LTIII-IIA2, REMIC III Regular Interest
LTIII-IIA3, REMIC III
Regular Interest LTIII-IIA4,
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<PAGE>
REMIC III Regular Interest LTIII-IIA5, REMIC III Regular
Interest LTIII-IIM1,
REMIC III Regular Interest LTIII-IIM2, REMIC III Regular
Interest LTIII-IIM3 and
REMIC III Regular Interest LTII-IIZZ, a per annum rate (but not
less than zero)
equal to the weighted average of: (x) with respect to REMIC II
Regular Interest
LTII-2, the Uncertificated REMIC II Pass-Through Rate for such
REMIC II Regular
Interest for each such Distribution Date, and (y) with respect
to REMIC II
Regular Interest LTII-IO-A through REMIC II Regular Interest
LTII-IO-H for each
Distribution Date listed below, the weighted average of the
rates listed below
for each such REMIC II Regular Interest listed below, weighted
on the basis of
the Uncertificated Principal Balance of each such REMIC II
Regular Interest:
<TABLE>
<CAPTION>
DISTRIBUTION DATE REMIC I REGULAR INTERESTS RATE
----------------- ------------------------- ----
<S> <C> <C>
1 LTII-IO-A through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
2 LTII-IO-A through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
3 LTII-IO-A through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
4 LTII-IO-A through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
5 LTII-IO-A through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
6 LTII-IO-A through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
7 LTII-IO-B through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
LTII-IO-A Uncertificated REMIC II Pass-Through Rate
8 LTII-IO-B through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 4.50%
LTII-IO-A Uncertificated REMIC II Pass-Through Rate
9 LTII-IO-B through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A Uncertificated REMIC II Pass-Through Rate
10 LTII-IO-B through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A Uncertificated REMIC II Pass-Through Rate
11 LTII-IO-C through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A and LTI-IO-B Uncertificated REMIC II Pass-Through
Rate
12 LTII-IO-C through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A and LTI-IO-B Uncertificated REMIC II Pass-Through
Rate
13 LTII-IO-C through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A and LTI-IO-B Uncertificated REMIC II Pass-Through
Rate
14 LTII-IO-D through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-C Uncertificated REMIC II Pass-Through
Rate
15 LTII-IO-D through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-C Uncertificated REMIC II Pass-Through
Rate
16 LTII-IO-E through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-D Uncertificated REMIC II Pass-Through
Rate
17 LTII-IO-B5 through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-D Uncertificated REMIC II Pass-Through
Rate
18 LTII-IO-E through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-D Uncertificated REMIC II Pass-Through
Rate
19 LTII-IO-F through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-E Uncertificated REMIC II Pass-Through
Rate
20 LTII-IO-F through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-E Uncertificated REMIC II Pass-Through
Rate
21 LTII-IO-F through LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-E Uncertificated REMIC II Pass-Through
Rate
22 LTII-IO-G and LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-F Uncertificated REMIC II Pass-Through
Rate
23 LTII-IO-G and LTI-IO-H (a) Uncertificated REMIC II
Pass-Through Rate over (b) 3.50%
LTII-IO-A through LTI-IO-F Uncertificated REMIC II Pass-Through
Rate
24 LTII-IO-H (a) Uncertificated REMIC II Pass-Through Rate over
(b) 3.50%
LTII-IO-A through LTI-IO-G Uncertificated REMIC II Pass-Through
Rate
25 and thereafter LTII-IO-A through LTI-IO-H Uncertificated
REMIC II Pass-Through Rate
</TABLE>
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<PAGE>
With respect to REMIC III Regular Interest LTIII-IO-A, (i) for
the first eight
distribution dates, 1.00% and (ii) thereafter, 0.00%. With
respect to REMIC III
Regular Interest LTIII-IO-B, (i) for the first twenty-four
distribution dates,
3.50% and (ii) thereafter, 0.00%.
UNCERTIFICATED REMIC REGULAR INTEREST: The REMIC II Regular
Interests
and the REMIC III Regular Interests.
VOTING RIGHTS: The portion of the voting rights of all the
Certificates
that is allocated to any Certificate for purposes of the voting
provisions
hereunder. Voting Rights shall be allocated (i) 90% to the
Certificates (other
than the Class I-P, Class I-X, Class I-R, Class II-A-IO, Class
II-C, Class II-P
and the Class II-R Certificates), (ii) 3% to the Class II-C
Certificates, (iii)
1% to the Class II-P Certificates, (iv) 1% to the Class I-R
Certificates, (v) 1%
to the Class II-R Certificates, (vi) 1% each of the Class I-X
Certificates and
the Class I-P Certificates and (vii) 2% to the Class II-A-IO
Certificates until
the Distribution Date in February 2007 and thereafter such
percentage of voting
rights shall be allocated to the remaining Classes of Group I
Offered
Certificates and Group II Offered Certificates with the
allocation among the
Certificates other than the Class I-P, Class I-X, Class I-R,
Class II-A-IO,
Class II-C, Class II-P and Class II-R Certificates to be in
proportion to the
Certificate Principal Balance of each Class relative to the
Certificate
Principal Balance of all other such Classes. Voting Rights will
be allocated
among the Certificates of each such Class in accordance with
their respective
Percentage Interests.
Section 1.02. ALLOCATION OF CERTAIN INTEREST SHORTFALLS.
For purposes of calculating the amount of the Accrued
Certificate
Interest for the Group I Certificates (other than the Class I-X,
Class I-P and
Class I-R Certificates) for any Distribution Date, the aggregate
amount of any
Prepayment Interest Shortfalls (to the extent not covered by
payments by the
Servicers pursuant to this Agreement, the M&T Servicing
Agreement or the
GreenPoint Servicing Agreement) and any shortfalls resulting
from application of
the Relief Act in respect of the Group I Mortgage Loans for any
Distribution
Date shall be allocated among the Classes of Certificates in
proportion to the
respective amounts of Accrued Certificate Interest that would
have been
allocated thereto in the absence of such interest
shortfalls.
For purposes of calculating the amount of the Interest
Distribution
Amount for the Group II Senior Certificates, Group II Mezzanine
Certificates and
Class II-C Certificates for any Distribution Date, (1) the
aggregate amount of
any Net Interest Shortfalls in respect of the Group II Mortgage
Loans for any
Distribution Date shall first reduce the Interest Distribution
Amount payable to
the Class II-C Certificates, second, reduce the Interest
Distribution Amount
payable to the Class II-M-3 Certificates, third, reduce the
Interest
Distribution Amount payable to the Class II-M-2 Certificates,
fourth, reduce the
Interest Distribution Amount payable to the Class II-M-1
Certificates and fifth,
reduce the Interest Distribution Amount payable to the Senior
Certificates, on a
PRO RATA basis based on, and to the extent of, one month's
interest at the then
applicable respective Pass-Through Rate on the respective
Certificate Principal
Balance or Notional Amount, as applicable of each such
Certificate and (2) the
aggregate amount of any Realized Losses allocated to the Group
II Mezzanine
Certificates and Net WAC Rate Carryover Amount paid to the Group
II Senior
Certificates (other than the Class II-A-IO Certificates) and the
Group II
Mezzanine Certificates incurred for any Distribution Date shall
be allocated to
the Class II-C
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<PAGE>
Certificates based on, and to the extent of, one month's
interest at the then
applicable Pass-Through Rate on the Certificate Principal
Balance thereof on any
Distribution Date.
For purposes of calculating the amount of Uncertificated
Accrued
Interest for the REMIC II Regular Interests for any Distribution
Date, the
aggregate amount of any Net Interest Shortfalls incurred in
respect of the Group
II Mortgage Loans for any Distribution Date shall be allocated
first, to REMIC I
Regular Interest LTII-2 and REMIC II Regular Interest LTII-IIP,
to the extent of
one month's interest at the then applicable respective
Uncertificated REMIC I
Pass-Through Rate on the Uncertificated Principal Balance of
each such REMIC II
Regular Interest; and then, to REMIC II Regular Interest
LTII-IO-A, REMIC II
Regular Interest LTII-IO-B, REMIC II Regular Interest LTII-IO-C,
REMIC II
Regular Interest LTII-IO-D, REMIC II Regular Interest LTII-IO-E,
REMIC II
Regular Interest LTII-IO-F, REMIC II Regular Interest LTII-IO-G
and REMIC II
Regular Interest LTII-IO-H, in each case to the extent of one
month's interest
at the then applicable respective Uncertificated REMIC II
Pass-Through Rate on
the respective Uncertificated Principal Balance of each such
REMIC II Regular
Interest.
For purposes of calculating the amount of Uncertificated
Accrued
Interest for the REMIC III Regular Interests for any
Distribution Date, the
aggregate amount of any Net Interest Shortfalls incurred in
respect of the Group
II Mortgage Loans for any Distribution Date shall be allocated
among REMIC III
Regular Interest LTIII-AA, REMIC III Regular Interest
LTIII-IIA1, REMIC III
Regular Interest LTIII-IIA2, REMIC III Regular Interest
LTIII-IIA3, REMIC III
Regular Interest LTIII-IIA4, REMIC III Regular Interest
LTIII-IIA5, REMIC III
Regular Interest LTIII-IIM1, REMIC III Regular Interest
LTIII-IIM2, REMIC III
Regular Interest LTIII-IIM3 and REMIC III Regular Interest
LTIII-IIZZ, pro rata
based on, and to the extent of, one month's interest at the then
applicable
respective Uncertificated REMIC III Pass-Through Rate on the
respective
Uncertificated Principal Balance of each such REMIC III Regular
Interest.
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<PAGE>
ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
Section 2.01. CONVEYANCE OF TRUST FUND.
The Seller hereby sells, transfers, assigns, sets over and
otherwise
conveys to the Depositor, without recourse, all the right, title
and interest of
the Seller in and to the assets in the Trust Fund.
The Seller has entered into this Agreement in consideration for
the
purchase of the Mortgage Loans by the Depositor and has agreed
to take the
actions specified herein.
The Depositor, concurrently with the execution and delivery
hereof,
hereby sells, transfers, assigns, sets over and otherwise
conveys to the Trustee
for the use and benefit of the Certificateholders, without
recourse, all the
right, title and interest of the Depositor in and to the Trust
Fund.
Concurrently with the execution and delivery of this Agreement,
the
Depositor does hereby assign to the Trustee all of its rights
and interest under
the Mortgage Loan Purchase Agreement, and all rights of the
Seller and the
Depositor under the M&T Servicing Agreement and the
GreenPoint Servicing
Agreement to the extent of the Mortgage Loans sold under the
Mortgage Loan
Purchase Agreement. The Trustee hereby accepts such assignment,
and shall be
entitled to exercise all rights of the Depositor under the
Mortgage Loan
Purchase Agreement as if, for such purpose, it were the
Depositor. The foregoing
sale, transfer, assignment, set-over, deposit and conveyance
does not and is not
intended to result in creation or assumption by the Trustee of
any obligation of
the Depositor, the Seller or any other Person in connection with
the Mortgage
Loans, the M&T Servicing Agreement, the GreenPoint Servicing
Agreement or any
other agreement or instrument relating thereto except as
specifically set forth
herein. Any monetary obligation of the Seller as the purchaser
or owner under
the M&T Servicing Agreement to M&T as Servicer and any
monetary obligation of
the Seller as the purchaser or owner under the GreenPoint
Servicing Agreement to
GreenPoint as Servicer following the Closing Date shall be
satisfied by the
Trustee, as assignee of the Seller, only from funds then on
deposit in the
Distribution Accounts.
In connection with such sale, the Depositor does hereby deliver
to, and
deposit with the Custodian pursuant to the Custodial Agreement
the documents
with respect to each Mortgage Loan as described under Section 2
of the Custodial
Agreement (the "Mortgage Loan Documents"). In connection with
such delivery and
as further described in the Custodial Agreement, the Custodian
will be required
to review such Mortgage Loan Documents and deliver to the
Trustee, the
Depositor, the Servicers and the Seller certifications (in the
forms attached to
the Custodial Agreement) with respect to such review with
exceptions noted
thereon. In addition, under the Custodial Agreement the
Depositor will be
required to cure certain defects with respect to the Mortgage
Loan Documents for
the related Mortgage Loans after the delivery thereof by the
Depositor to the
Custodian as more particularly set forth therein.
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<PAGE>
Notwithstanding anything to the contrary contained herein, the
parties
hereto acknowledge that the functions of the Trustee with
respect to the
custody, acceptance, inspection and release of the Mortgage
Files and
preparation and delivery of the certifications shall be
performed by the
Custodian pursuant to the terms and conditions of the Custodial
Agreement.
The Depositor shall deliver or cause to be delivered to the
Servicers
copies of all trailing documents required to be included in the
related Mortgage
File at the same time the originals or certified copies thereof
are delivered to
the Custodian, such documents including the mortgagee policy of
title insurance
and any Mortgage Loan Documents upon return from the recording
office. The
Servicers shall not be responsible for any custodian fees or
other costs
incurred in obtaining such documents and the Depositor shall
cause the Servicers
to be reimbursed for any such costs the Servicers may incur in
connection with
performing its obligations under this Agreement, the M&T
Servicing Agreement and
the GreenPoint Servicing Agreement.
Section 2.02. ACCEPTANCE OF THE MORTGAGE LOANS.
(a) Based on the initial trust receipt received by it from
the
Custodian pursuant to the Custodial Agreement, the Trustee
acknowledges receipt,
subject to the provisions of Section 2.01 hereof and Section 2
of the Custodial
Agreement, of the Mortgage Loan Documents and all other assets
included in the
definition of "REMIC I" and "REMIC II"under clauses (i), (ii)
(iii), (v) and
(vi) (to the extent of amounts deposited into the related
Distribution Account)
and declares that it holds (or the Custodian on its behalf
holds) and will hold
such documents and the other documents delivered to it
constituting a Mortgage
Loan Document, and that it holds (or the Custodian on its behalf
holds) or will
hold all such assets and such other assets included in the
definition of "REMIC
I" and "REMIC II" in trust for the exclusive use and benefit of
all present and
future Group I Certificateholders and Group II
Certificateholders.
(b) In conducting the review of the Mortgage Files in accordance
with
the Custodial Agreement, the Custodian on the Trustee's behalf
will ascertain
whether all required documents have been executed and received
and whether those
documents relate to the Mortgage Loans identified in Exhibit B
to this
Agreement, as supplemented. If the Custodian finds any document
constituting
part of the Mortgage File not to have been executed or received,
or to be
unrelated to the Mortgage Loans identified in Exhibit B, the
Seller shall
correct or cure any such defect or, if prior to the end of the
second
anniversary of the Closing Date, the Seller may substitute for
the related
Mortgage Loan a Replacement Mortgage Loan, which substitution
shall be
accomplished in the manner and subject to the conditions set
forth in Section
2.03 or shall deliver to the Trustee an Opinion of Counsel to
the effect that
such defect does not materially or adversely affect the
interests of the
Certificateholders in such Mortgage Loan within 60 days from the
date of notice
from the Trustee of the defect and if the Seller fails to
correct or cure the
defect or deliver such opinion within such period, the Seller
will, subject to
Section 2.03, within 90 days from the notification of the
Trustee purchase such
Mortgage Loan at the Purchase Price; provided, however, that if
such defect
relates solely to the inability of the Seller to deliver the
Mortgage,
assignment thereof to the Trustee, or intervening assignments
thereof with
evidence of recording thereon because such documents have been
submitted for
recording and have not been returned by the applicable
jurisdiction, the Seller
shall not be required to purchase such
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<PAGE>
Mortgage Loan if the Seller delivers such documents promptly
upon receipt, but
in no event later than 360 days after the Closing Date.
(c) No later than 180 days after the Closing Date, the Custodian
on the
Trustee's behalf will review, for the benefit of the
Certificateholders, the
Mortgage Files and will execute and deliver or cause to be
executed and
delivered to the Seller and the Trustee, a final trust receipt
substantially in
the form annexed to the Custodial Agreement. In conducting such
review, the
Custodian on the Trustee's behalf and in accordance with the
terms of the
Custodial Agreement will ascertain whether each document
required to be recorded
has been returned from the recording office with evidence of
recording thereon
and the Custodian on the Trustee's behalf has received either an
original or a
copy thereof, as required in the Custodial Agreement. If the
Custodian finds
that any document with respect to a Mortgage Loan has not been
received, or is
unrelated to the Mortgage Loans identified in Exhibit B or
appears to be
defective on its face, the Custodian shall note such defect in
the exception
report attached the final trust receipt issued pursuant to the
Custodial
Agreement and the Seller shall correct or cure any such defect
or, if prior to
the end of the second anniversary of the Closing Date, the
Seller may substitute
for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution
shall be accomplished in the manner and subject to the
conditions set forth in
Section 2.03 or shall deliver to the Trustee an Opinion of
Counsel to the effect
that such defect does not materially or adversely affect the
interests of
Certificateholders in such Mortgage Loan within 60 days from the
date of notice
from the Trustee of the defect and if the Seller is unable
within such period to
correct or cure such defect, or to substitute the related
Mortgage Loan with a
Replacement Mortgage Loan or to deliver such opinion, the Seller
shall, subject
to Section 2.03, within 90 days from the notification of the
Trustee, purchase
such Mortgage Loan at the Purchase Price; provided, however,
that if such defect
relates solely to the inability of the Seller to deliver the
Mortgage,
assignment thereof to the Trustee or intervening assignments
thereof with
evidence of recording thereon, because such documents have not
been returned by
the applicable jurisdiction, the Seller shall not be required to
purchase such
Mortgage Loan, if the Seller delivers such documents promptly
upon receipt, but
in no event later than 360 days after the Closing Date.
(d) In the event that a Mortgage Loan is purchased by the Seller
in
accordance with subsections 2.02(a) or (b) above or Section
2.03, the Seller
shall remit the applicable Purchase Price to the Trustee for
deposit in the
related Distribution Account and shall provide written notice to
the Trustee
detailing the components of the Purchase Price, signed by an
authorized officer.
Upon deposit of the Purchase Price in the related Distribution
Account and upon
receipt of a request for release (in the form attached to the
Custodial
Agreement) with respect to such Mortgage Loan, the Custodian, on
behalf of the
Trustee, will release to the Seller the related Mortgage File
and the Trustee
shall execute and deliver all instruments of transfer or
assignment, without
recourse, furnished to it by the Seller, as are necessary to
vest in the Seller
title to and rights under the Mortgage Loan. Such purchase shall
be deemed to
have occurred on the date on which the deposit into the
Distribution Account was
made. The Trustee shall promptly notify the Rating Agencies of
such repurchase.
The obligation of the Seller to cure, repurchase or substitute
for any Mortgage
Loan as to which a defect in a constituent document exists shall
be the sole
remedies respecting such defect available to the
Certificateholders or to the
Trustee on their behalf. The Seller shall promptly reimburse the
Trustee for any
expenses incurred by the Trustee in respect of enforcing the
remedies for such
breach.
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<PAGE>
(e) The Seller shall deliver to the Custodian the Mortgage Note
and
other documents constituting the Mortgage File with respect to
any Replacement
Mortgage Loan, which the Custodian will review as provided in
the Custodial
Agreement, provided, that the Closing Date referred to therein
shall instead be
the date of delivery of the Mortgage File with respect to each
Replacement
Mortgage Loan.
Section 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GMACM
AND
THE SELLER.
(a) GMACM hereby represents and warrants to, and covenants with,
the
Seller, the Depositor and the Trustee as follows, as of the
Closing Date:
(i) It is duly organized and is validly existing and
in good standing under the laws of the Commonwealth of
Pennsylvania and
is duly authorized and qualified to transact any and all
business
contemplated by this Agreement to be conducted by it in any
state in
which a Mortgaged Property relating to a GMACM Mortgage Loan is
located
or is otherwise not required under applicable law to effect
such
qualification and, in any event, is in compliance with the
doing
business laws of any such state, to the extent necessary to
ensure its
ability to service the GMACM Mortgage Loans in accordance with
the
terms of this Agreement and to perform any of its other
obligations
under this Agreement in accordance with the terms hereof.
(ii) It has the full corporate power and authority to
service each GMACM Mortgage Loan, and to execute, deliver and
perform,
and to enter into and consummate the transactions contemplated
by this
Agreement and has duly authorized by all necessary corporate
action on
its part the execution, delivery and performance of this
Agreement; and
this Agreement, assuming the due authorization, execution and
delivery
hereof by the other parties hereto, constitutes its legal, valid
and
binding obligation, enforceable against it in accordance with
its
terms, except that (a) the enforceability hereof may be limited
by
bankruptcy, insolvency, moratorium, receivership and other
similar laws
relating to creditors' rights generally and (b) the remedy of
specific
performance and injunctive and other forms of equitable relief
may be
subject to equitable defenses and to the discretion of the court
before
which any proceeding therefor may be brought and further subject
to
public policy with respect to indemnity and contribution
under
applicable securities law.
(iii) The execution and delivery of this Agreement by
it, the servicing of the GMACM Mortgage Loans by it under
this
Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or
compliance
with the terms hereof are in its ordinary course of business and
will
not (A) result in a material breach of any term or provision of
its
charter or by-laws or (B) materially conflict with, result in
a
material breach, violation or acceleration of, or result in a
material
default under, the terms of any other material agreement or
instrument
to which it is a party or by which it may be bound, or (C)
constitute a
material violation of any statute, order or regulation
applicable to it
of any court, regulatory body, administrative agency or
governmental
body having jurisdiction over it; and it is not in breach or
violation
of any material indenture or other material agreement or
instrument,
-60-
<PAGE>
or in violation of any statute, order or regulation of any
court,
regulatory body, administrative agency or governmental body
having
jurisdiction over it which breach or violation may materially
impair
its ability to perform or meet any of its obligations under
this
Agreement.
(iv) It is an approved servicer of conventional
mortgage loans for Fannie Mae or Freddie Mac and is a
mortgagee
approved by the Secretary of Housing and Urban Development
pursuant to
sections 203 and 211 of the National Housing Act.
(v) No litigation is pending or, to the best of its
knowledge, threatened in writing, against it that would
materially and
adversely affect the execution, delivery or enforceability of
this
Agreement or its ability to service the GMACM Mortgage Loans or
to
perform any of its other obligations under this Agreement in
accordance
with the terms hereof.
(vi) No consent, approval, authorization or order of
any court or governmental agency or body is required for its
execution,
delivery and performance of, or compliance with, this Agreement
or the
consummation of the transactions contemplated hereby, or if any
such
consent, approval, authorization or order is required, it has
obtained
the same.
(vii) GMACM has accurately and fully reported, and
will continue to accurately and fully report its borrower credit
files
to each of the credit repositories in a timely manner materially
in
accordance with the Fair Credit Reporting Act and its
implementing
legislation.
(viii) GMACM 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 GMACM Mortgage
Loans
that are registered with MERS.
(ix) GMACM will not waive any Prepayment Charge with
respect to a GMACM Mortgage Loan unless it is waived in
accordance with
the standard set forth in Section 3.01.
If the covenant of GMACM set forth in Section 2.03(a)(ix) above
is breached by
GMACM, GMACM will pay the amount of such waived Prepayment
Charge, for the
benefit of the Holders of the Class I-P Certificates if such
breach is related
to a Group I Mortgage Loan or the Class II-P Certificates if
such breach is
related to a Group II Mortgage Loan, by depositing such amount
into the
Custodial Account within 90 days of the earlier of discovery by
GMACM or receipt
of notice by GMACM of such breach. Notwithstanding the
foregoing, or anything to
the contrary contained in this Agreement, GMACM shall have no
liability for a
waiver of any Prepayment Charge in the event that GMACM's
determination to make
such a waiver was made by GMACM in reliance on information
properly received by
GMACM from any Person in accordance with the terms of this
Agreement.
(b) The Seller hereby represents and warrants to and
covenants
with, the Depositor, GMACM and the Trustee as follows, as of the
Closing Date:
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(i) The Seller is duly organized, validly existing
and in good standing under the laws of the State of Delaware and
is
duly authorized and qualified to transact any and all
business
contemplated by this Agreement to be conducted by the Seller in
any
state in which a Mortgaged Property is located or is otherwise
not
required under applicable law to effect such qualification and,
in any
event, is in compliance with the doing business laws of any such
state,
to the extent necessary to ensure its ability to enforce each
Mortgage
Loan, to sell the Mortgage Loans in accordance with the terms of
this
Agreement and to perform any of its other obligations under
this
Agreement in accordance with the terms hereof.
(ii) The Seller has the full corporate power and
authority to sell each Mortgage Loan, and to execute, deliver
and
perform, and to enter into and consummate the transactions
contemplated
by this Agreement and has duly authorized by all necessary
corporate
action on the part of the Seller the execution, delivery and
performance of this Agreement; and this Agreement, assuming the
due
authorization, execution and delivery hereof by the other
parties
hereto, constitutes a legal, valid and binding obligation of
the
Seller, enforceable against the Seller in accordance with its
terms,
except that (a) the enforceability hereof may be limited by
bankruptcy,
insolvency, moratorium, receivership and other similar laws
relating to
creditors' rights generally and (b) the remedy of specific
performance
and injunctive and other forms of equitable relief may be
subject to
equitable defenses and to the discretion of the court before
which any
proceeding therefor may be brought and further subject to public
policy
with respect to indemnity and contribution under applicable
securities
law.
(iii) The execution and delivery of this Agreement by
the Seller, the sale of the Mortgage Loans by the Seller under
this
Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or
compliance
with the terms hereof are in the ordinary course of business of
the
Seller and will not (A) result in a material breach of any term
or
provision of the charter or by-laws of the Seller or (B)
materially
conflict with, result in a material breach, violation or
acceleration
of, or result in a material default under, the terms of any
other
material agreement or instrument to which the Seller is a party
or by
which it may be bound, or (C) constitute a material violation of
any
statute, order or regulation applicable to the Seller of any
court,
regulatory body, administrative agency or governmental body
having
jurisdiction over the Seller; and the Seller is not in breach
or
violation of any material indenture or other material agreement
or
instrument, or in violation of any statute, order or regulation
of any
court, regulatory body, administrative agency or governmental
body
having jurisdiction over it which breach or violation may
materially
impair the Seller's ability to perform or meet any of its
obligations
under this Agreement.
(iv) The Seller is an approved seller of conventional
mortgage loans for Fannie Mae or Freddie Mac and is a
mortgagee
approved by the Secretary of Housing and Urban Development
pursuant to
sections 203 and 211 of the National Housing Act.
(v) No litigation is pending or, to the best of the
Seller's knowledge, threatened, against the Seller that
would
materially and adversely affect the execution,
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delivery or enforceability of this Agreement or the ability of
the
Seller to sell the Mortgage Loans or to perform any of its
other
obligations under this Agreement in accordance with the terms
hereof.
(vi) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution,
delivery and performance by the Seller of, or compliance by the
Seller
with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval,
authorization or
order is required, the Seller has obtained the same.
(vii) The representations and warranties set forth in
Section 8 of the Mortgage Loan Purchase Agreement are true and
correct
as of the Closing Date.
(viii) No Mortgage Loan is subject to the Home
Ownership and Equity Protection Act of 1994 or any comparable
law and
no Mortgage Loan is classified and/or defined as a "high
cost",
"covered", "high risk home" or "predatory" loan under any other
state,
federal or local law or regulation or ordinance (or a
similarly
classified loan using different terminology under a law
imposing
heightened regulatory scrutiny or additional legal liability
for
residential mortgage loans having high interest rates, points
and/or
fees).
(ix) No loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in Appendix E of the
Standard &
Poor's Glossary For File Format For LEVELS(R) Version 5.6
Revised
(attached hereto as Exhibit N) and no mortgage loan originated
on or
after October 1, 2002 through March 6, 2003 is governed by the
Georgia
Fair Lending Act.
(x) Any and all requirements of any federal, state or
local law including, without limitation, usury, truth in
lending, real
estate settlement procedures, consumer credit protection, equal
credit
opportunity, fair housing, predatory, abusive lending or
disclosure
laws applicable to the origination and servicing of the Mortgage
Loans
have been complied with in all material respects.
(c) Upon discovery by any of the parties hereto of a breach of
a
representation or warranty set forth in Section 2.03(b)(viii),
(ix) and (x) and
Section 8 of the Mortgage Loan Purchase Agreement that
materially and adversely
affects the interests of the Certificateholders in any Mortgage
Loan, the party
discovering such breach shall give prompt written notice thereof
to the other
parties. The Seller hereby covenants with respect to the
representations and
warranties set forth in Section 2.03(b)(viii), (ix) and (x) and
Section 8 of the
Mortgage Loan Purchase Agreement, that within 90 days of the
discovery of a
breach of any representation or warranty set forth therein that
materially and
adversely affects the interests of the Certificateholders in any
Mortgage Loan,
it shall cure such breach in all material respects and, if such
breach is not so
cured, (i) prior to the second anniversary of the Closing Date,
remove such
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund
and substitute in
its place a Replacement Mortgage Loan, in the manner and subject
to the
conditions set forth in this Section; or (ii) repurchase the
affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in
the manner set
forth below; provided that any such substitution pursuant to
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(i) above or repurchase pursuant to (ii) above shall not be
effected prior to
the delivery to the Trustee of an Opinion of Counsel if required
by Section 2.05
and any such substitution pursuant to (i) above shall not be
effected prior to
the additional delivery to the Custodian of a request for
release in accordance
with the Custodial Agreement. The Seller shall promptly
reimburse the Trustee
for any expenses reasonably incurred by the Trustee in respect
of enforcing the
remedies for such breach. To enable the related Servicer to
amend the Mortgage
Loan Schedule, the Seller shall, unless it cures such breach in
a timely fashion
pursuant to this Section 2.03, promptly notify the Trustee
whether it intends
either to repurchase, or to substitute for, the Mortgage Loan
affected by such
breach. With respect to the representations and warranties in
Section 8 of the
Mortgage Loan Purchase Agreement that are made to the best of
the Seller's
knowledge, if it is discovered by any of the Depositor, the
Seller or the
Trustee that the substance of such representation and warranty
is inaccurate and
such inaccuracy materially and adversely affects the value of
the related
Mortgage Loan, notwithstanding the Seller's lack of knowledge
with respect to
the substance of such representation or warranty, the Seller
shall nevertheless
be required to cure, substitute for or repurchase the affected
Mortgage Loan in
accordance with the foregoing. Notwithstanding the foregoing,
any breach of a
representation or warranty contained in clauses (xxxvii),
(xxxviii), (xxxix),
(xl) and/or (xlv) of Section 8 of the Mortgage Loan Purchase
Agreement shall be
automatically deemed to materially and adversely affect the
interests of the
Certificateholders.
With respect to any Replacement Mortgage Loan or Loans, the
Seller
shall deliver to the Custodian for the benefit of the
Certificateholders such
documents and agreements as are required by Section 2 of the
Custodial
Agreement. No substitution will be made in any calendar month
after the
Determination Date for such month. Scheduled Payments due with
respect to
Replacement Mortgage Loans in the Due Period related to the
Distribution Date on
which such proceeds are to be distributed shall not be part of
the Trust Fund
and will be retained by the Seller. For the month of
substitution, distributions
to Certificateholders will include the Scheduled Payment due on
any Deleted
Mortgage Loan for the related Due Period and thereafter the
Seller shall be
entitled to retain all amounts received in respect of such
Deleted Mortgage
Loan. The related Servicer shall amend the Mortgage Loan
Schedule for the
benefit of the Certificateholders to reflect the removal of such
Deleted
Mortgage Loan and the substitution of the Replacement Mortgage
Loan or Loans and
shall deliver the amended Mortgage Loan Schedule to the Trustee.
Upon such
substitution, the Replacement Mortgage Loan or Loans shall be
subject to the
terms of this Agreement in all respects, and the Seller shall be
deemed to have
made with respect to such Replacement Mortgage Loan or Loans, as
of the date of
substitution, the representations and warranties set forth in
Section 8 of the
Mortgage Loan Purchase Agreement with respect to such Mortgage
Loan. Upon any
such substitution and the deposit into the Distribution Account
of the amount
required to be deposited therein in connection with such
substitution as
described in the following paragraph and receipt by the
Custodian of a request
for release for such Mortgage Loan in accordance with the
Custodial Agreement,
the Custodian on behalf of the Trustee shall release to the
Seller the Mortgage
File relating to such Deleted Mortgage Loan and held for the
benefit of the
Certificateholders and the Trustee shall execute and deliver at
the Seller's
direction such instruments of transfer or assignment as have
been prepared by
the Seller, in each case without recourse, as shall be necessary
to vest in the
Seller, or its respective designee, title to the Trustee's
interest in any
Deleted Mortgage Loan substituted
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for pursuant to this Section 2.03. Neither the Trustee nor the
Custodian shall
have any further responsibility with regard to such Mortgage
File.
For any month in which the Seller substitutes one or more
Replacement
Mortgage Loans for a Deleted Mortgage Loan, the Trustee will
determine the
amount (if any) by which the aggregate principal balance of all
the Replacement
Mortgage Loans as of the date of substitution is less than the
Stated Principal
Balance (after application of the principal portion of the
Scheduled Payment due
in the month of substitution) of such Deleted Mortgage Loan. An
amount equal to
the aggregate of such deficiencies, described in the preceding
sentence for any
Distribution Date (such amount, the "Substitution Adjustment
Amount") shall be
remitted to GMACM for deposit in the related Custodial Account
if the Deleted
Mortgage Loan was serviced by GMACM or deposited into the
related Distribution
Account if the Deleted Mortgage Loan was serviced by M&T or
GreenPoint, by the
Seller delivering such Replacement Mortgage Loan on or before
the Determination
Date for the Distribution Date relating to the Prepayment Period
during which
the related Mortgage Loan was required to be purchased or
replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage
Loan,
the Purchase Price therefor shall be remitted to GMACM for
deposit in the
related Custodial Account if the Purchase Price relates to a
GMACM Mortgage Loan
or shall be deposited into the related Distribution Account if
the Purchase
Price relates to an M&T Mortgage Loan or a GreenPoint
Mortgage Loan, on or
before the Determination Date for the Distribution Date in the
month following
the month during which the Seller was required to repurchase or
replace such
Mortgage Loan and upon such deposit of the Purchase Price, the
delivery of an
Officer's Certificate by GMACM to the Trustee certifying that
the Purchase Price
for any GMACM Mortgage Loan repurchased pursuant to this Section
has been
deposited in the related Custodial Account, the delivery of an
Opinion of
Counsel if required by Section 2.05 and the receipt of a request
for release
pursuant to the Custodial Agreement, the Custodian, on behalf of
the Trustee
shall release the related Mortgage File held for the benefit of
the
Certificateholders to the Seller, and the Trustee shall execute
and deliver at
such Person's direction the related instruments of transfer or
assignment
prepared by the Seller, in each case without recourse, as shall
be necessary to
transfer title from the Trustee for the benefit of the
Certificateholders and
transfer the Trustee's interest to the Seller to any Mortgage
Loan purchased
pursuant to this Section 2.03. It is understood and agreed that
the obligation
under this Agreement of the Seller to cure, repurchase or
replace any Mortgage
Loan as to which a breach has occurred and is continuing shall
constitute the
sole remedies against the Seller respecting such breach
available to
Certificateholders, the Depositor or the Trustee.
(d) The representations and warranties set forth in Section 2.03
shall
survive delivery of the respective Mortgage Loans and Mortgage
Files to the
Trustee or the Custodian for the benefit of the
Certificateholders.
Section 2.04. REPRESENTATIONS AND WARRANTIES OF THE
DEPOSITOR.
The Depositor hereby represents and warrants to, and covenants,
with
GMACM, the Seller and the Trustee as follows, as of the date
hereof and as of
the Closing Date:
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(i) The Depositor is duly organized and is validly
existing as a corporation in good standing under the laws of the
State
of Delaware and has full power and authority (corporate and
other)
necessary to own or hold its properties and to conduct its
business as
now conducted by it and to enter into and perform its
obligations under
this Agreement.
(ii) The Depositor has the full corporate power and
authority to execute, deliver and perform, and to enter into
and
consummate the transactions contemplated by, this Agreement and
has
duly authorized, by all necessary corporate action on its part,
the
execution, delivery and performance of this Agreement; and
this
Agreement, assuming the due authorization, execution and
delivery
hereof by the other parties hereto, constitutes a legal, valid
and
binding obligation of the Depositor, enforceable against the
Depositor
in accordance with its terms, subject, as to enforceability, to
(i)
bankruptcy, insolvency, moratorium receivership and other
similar laws
relating to creditors' rights generally and (ii) the remedy of
specific
performance and injunctive and other forms of equitable relief
may be
subject to equitable defenses and to the discretion of the court
before
which any proceeding therefor may be brought and further subject
to
public policy with respect to indemnity and contribution
under
applicable securities law.
(iii) The execution and delivery of this Agreement by
the Depositor, the consummation of the transactions contemplated
by
this Agreement, and the fulfillment of or compliance with the
terms
hereof are in the ordinary course of business of the Depositor
and will
not (A) result in a material breach of any term or provision of
the
charter or by-laws of the Depositor or (B) materially conflict
with,
result in a material breach, violation or acceleration of, or
result in
a material default under, the terms of any other material
agreement or
instrument to which the Depositor is a party or by which it may
be
bound or (C) constitute a material violation of any statute,
order or
regulation applicable to the Depositor of any court, regulatory
body,
administrative agency or governmental body having jurisdiction
over the
Depositor; and the Depositor is not in breach or violation of
any
material indenture or other material agreement or instrument, or
in
violation of any statute, order or regulation of any court,
regulatory
body, administrative agency or governmental body having
jurisdiction
over it which breach or violation may materially impair the
Depositor's
ability to perform or meet any of its obligations under this
Agreement.
(iv) No litigation is pending, or, to the best of the
Depositor's knowledge, threatened, against the Depositor that
would
materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Depositor
to
perform its obligations under this Agreement in accordance with
the
terms hereof.
(v) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution,
delivery and performance by the Depositor of, or compliance by
the
Depositor with, this Agreement or the consummation of the
transactions
contemplated hereby, or if any such consent, approval,
authorization or
order is required, the Depositor has obtained the same.
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The Depositor hereby represents and warrants to the Trustee as
of the
Closing Date, following the transfer of the Mortgage Loans to it
by the Seller,
the Depositor had good title to the Mortgage Loans and the
related Mortgage
Notes were subject to no offsets, claims, defenses or
counterclaims.
It is understood and agreed that the representations and
warranties set
forth in this Section 2.04 shall survive delivery of the
Mortgage Files to the
Trustee or the Custodian for the benefit of the
Certificateholders. Upon
discovery by the Depositor, GMACM or the Trustee of a breach of
such
representations and warranties, the party discovering such
breach shall give
prompt written notice to the others and to each Rating
Agency.
Section 2.05. DELIVERY OF OPINION OF COUNSEL IN CONNECTION
WITH
SUBSTITUTIONS AND REPURCHASES.
(a) Notwithstanding any contrary provision of this Agreement,
with
respect to any Mortgage Loan that is not in default or as to
which default is
not imminent, no repurchase or substitution pursuant to Sections
2.02 or 2.03
shall be made unless the Seller delivers to the Trustee an
Opinion of Counsel,
addressed to the Trustee, to the effect that such repurchase or
substitution
would not (i) result in the imposition of the tax on "prohibited
transactions"
of REMIC I, REMIC II, REMIC III or REMIC IV or contributions
after the Closing
Date, as defined in sections 860F(a)(2) and 860G(d) of the Code,
respectively or
(ii) cause any of REMIC I, REMIC II, REMIC III or REMIC IV to
fail to qualify as
a REMIC at any time that any Certificates are outstanding. Any
Mortgage Loan as
to which repurchase or substitution was delayed pursuant to this
paragraph shall
be repurchased or the substitution therefor shall occur (subject
to compliance
with Sections 2.02 or 2.03) upon the earlier of (a) the
occurrence of a default
or imminent default with respect to such Mortgage Loan and (b)
receipt by the
Trustee of an Opinion of Counsel to the effect that such
repurchase or
substitution, as applicable, will not result in the events
described in clause
(i) or clause (ii) of the preceding sentence.
(b) Upon discovery by the Depositor or the Seller that any
Mortgage
Loan does not constitute a "qualified mortgage" within the
meaning of section
860G(a)(3) of the Code, the party discovering such fact shall
promptly (and in
any event within 5 Business Days of discovery) give written
notice thereof to
the other parties and the Trustee. In connection therewith, the
Seller, at the
its option, shall either (i) substitute, if the conditions in
Section 2.03(c)
with respect to substitutions are satisfied, a Replacement
Mortgage Loan for the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage
Loan within 90
days of such discovery in the same manner as it would a Mortgage
Loan for a
breach of representation or warranty contained in Section 2.03.
The Trustee
shall reconvey to the Seller the Mortgage Loan to be released
pursuant hereto in
the same manner, and on the same terms and conditions, as it
would a Mortgage
Loan repurchased for breach of a representation or warranty
contained in Section
2.03.
Section 2.06. ISSUANCE OF THE GROUP I CERTIFICATES.
The Trustee acknowledges the assignment to it of the Group I
Mortgage
Loans and the delivery to the Custodian on its behalf of the
related Mortgage
Files, subject to the provisions of Section 2.01 and Section
2.02, together with
the assignment to it of all other assets included in REMIC I,
the receipt of
which is hereby acknowledged. The Group I Certificates
constitute the
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entire beneficial ownership interest in REMIC I. The rights of
the Holders of
the Group I Certificates to receive distributions from the
proceeds of REMIC I
and all ownership interests evidenced or constituted by the
Group I Certificates
shall be as set forth in this Agreement.
Section 2.07. ISSUANCE OF THE REMIC II REGULAR INTERESTS AND THE
CLASS
R-1 INTEREST.
The Trustee acknowledges the assignment to it of the Group II
Mortgage
Loans and the delivery to the Custodian on its behalf of the
related Mortgage
Files, subject to the provisions of Section 2.01 and Section
2.02, together with
the assignment to it of all other assets included in REMIC II,
the receipt of
which is hereby acknowledged. The interests evidenced by the
Class R-1 Interest,
together with the REMIC II Regular Interests, constitute the
entire beneficial
ownership interest in REMIC II. The rights of the Holders of the
Class R-1
Interest and REMIC II (as holder of the REMIC II Regular
Interests) to receive
distributions from the proceeds of REMIC II in respect of the
Class R-1 Interest
and the REMIC II Regular Interests, respectively, and all
ownership interests
evidenced or constituted by the Class R-1 Interest and the REMIC
II Regular
Interests, shall be as set forth in this Agreement.
Section 2.08. CONVEYANCE OF THE REMIC II REGULAR INTERESTS;
ACCEPTANCE
OF REMIC III BY THE TRUSTEE.
The Depositor, concurrently with the execution and delivery
hereof,
does hereby transfer, assign, set over and otherwise convey to
the Trustee,
without recourse all the right, title and interest of the
Depositor in and to
the REMIC II Regular Interests for the benefit of the Class R-2
Interest and
REMIC III (as holder of the REMIC II Regular Interests). The
Trustee
acknowledges receipt of the REMIC II Regular Interests and
declares that it
holds and will hold the same in trust for the exclusive use and
benefit of all
present and future Holders of the Class R-2 Interest and REMIC
III (as holder of
the REMIC II Regular Interests). The rights of the Holders of
the Class R-2
Interest and REMIC III (as holder of the REMIC II Regular
Interests) to receive
distributions from the proceeds of REMIC III in respect of the
Class R-2
Interest and REMIC III Regular Interests, respectively, and all
ownership
interests evidenced or constituted by the Class R-2 Interest and
the REMIC III
Regular Interests, shall be as set forth in this Agreement.
Section 2.09. CONVEYANCE OF THE REMIC III REGULAR INTERESTS;
ACCEPTANCE
OF REMIC IV BY THE TRUSTEE.
The Depositor, concurrently with the execution and delivery
hereof,
does hereby transfer, assign, set over and otherwise convey to
the Trustee,
without recourse all the right, title and interest of the
Depositor in and to
the REMIC III Regular Interests for the benefit of the Class R-3
Interest and
REMIC IV (as holder of the REMIC III Regular Interests). The
Trustee
acknowledges receipt of the REMIC III Regular Interests and
declares that it
holds and will hold the same in trust for the exclusive use and
benefit of all
present and future Holders of the Class R-3 Interest and REMIC
IV (as holder of
the REMIC III Regular Interests). The rights of the Holder of
the Class R-3
Interest and REMIC IV (as holder of the REMIC III Regular
Interests) to receive
distributions from the proceeds of REMIC IV in respect of the
Class R-3 Interest
and REMIC IV Regular Interests, respectively, and all ownership
interests
evidenced or constituted by the Class R-3 Interest and the REMIC
IV Regular
Interests, shall be as set forth in this
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Agreement. The Class R-3 Interest and the REMIC IV Regular
Interests shall
constitute the entire beneficial ownership interest in REMIC
IV.
Section 2.10. ISSUANCE OF CLASS II-R CERTIFICATES.
The Trustee acknowledges the assignment to it of the REMIC II
Regular
Interests and the REMIC III Regular Interests and, concurrently
therewith and in
exchange therefor, pursuant to the written request of the
Depositor executed by
an officer of the Depositor, the Trustee has executed,
authenticated and
delivered to or upon the order of the Depositor, the Class II-R
Certificates in
authorized denominations. The Class II-R Certificates evidence
ownership in the
Class R-1 Interest, the Class R-2 Interest and the Class R-3
Interest.
Section 2.11. ESTABLISHMENT OF TRUST.
The Depositor does hereby establish, pursuant to the further
provisions
of this Agreement and the laws of the State of New York, an
express trust to be
known, for convenience, as "Nomura Asset Acceptance Corporation,
Alternative
Loan Trust, Series 2005-AP1" and does hereby appoint Wells Fargo
Bank, National
Association, as Trustee in accordance with the provisions of
this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE GMACM MORTGAGE LOANS
Section 3.01. GMACM TO ACT AS SERVICER OF THE GMACM MORTGAGE
LOANS.
GMACM shall service and administer the GMACM Mortgage Loans on
behalf
of the Trust and in the best interest of and for the benefit of
the
Certificateholders (as determined by GMACM in its reasonable
judgment) in
accordance with the terms of this Agreement and the GMACM
Mortgage Loans and to
the extent consistent with such terms and in accordance with and
exercising the
same care in performing those practices that GMACM customarily
employs and
exercises in servicing and administering mortgage loans for its
own account
(including, compliance with all applicable federal, state and
local laws).
To the extent consistent with the foregoing, GMACM shall seek
the
timely and complete recovery of principal and interest on the
Mortgage Notes
related to the GMACM Mortgage Loans and shall waive a Prepayment
Charge only
under the following circumstances: (i) such waiver is standard
and customary in
servicing similar mortgage loans and (ii) either (A) such waiver
is related to a
default or reasonably foreseeable default and would, in the
reasonable judgment
of GMACM, maximize recovery of total proceeds taking into
account the value of
such Prepayment Charge and the related GMACM Mortgage Loan and,
if such waiver
is made in connection with a refinancing of the related GMACM
Mortgage Loan,
such refinancing is related to a default or a reasonably
foreseeable default or
(B) such waiver is made in connection with a refinancing of the
related GMACM
Mortgage Loan unrelated to a default or a reasonably foreseeable
default where
(x) the related Mortgagor has stated to GMACM an intention to
refinance the
related GMACM Mortgage Loan and (y) GMACM has concluded in its
reasonable
judgment that the waiver of such Prepayment Charge would induce
such Mortgagor
to refinance with GMACM or (iii) GMACM reasonably believes such
Prepayment
Charge is unenforceable in accordance with applicable law or the
collection of
such related Prepayment Charge would otherwise violate
applicable law. If a
Prepayment Charge is waived as permitted by meeting both of the
standards
described in clauses (i) and (ii)(B) above, then GMACM is
required to pay the
amount of such waived Prepayment Charge (the "Servicer
Prepayment Charge Payment
Amount"), for the benefit of the Holders of the Class I-P
Certificates if the
waiver relates to a Group I Mortgage Loan or for the benefit of
the Holders of
the Class II-P Certificates if the waiver relates to a Group II
Mortgage Loan,
by depositing such amount into the Custodial Account within 90
days of notice or
discovery of such waiver meeting the standard set forth in both
clauses (i) and
(ii)(B) above; provided, however, that GMACM shall not waive
more than 5% of the
Prepayment Charges (by number of Prepayment Charges) set forth
on the Prepayment
Charge Schedule in accordance with clauses (i) and (ii)(B)
above.
Notwithstanding any other provisions of this Agreement, any
payments made by
GMACM in respect of any waived Prepayment Charges pursuant to
clauses (i) and
(ii)(B) above and the preceding sentence shall be deemed to be
paid outside of
the Trust Fund.
Subject only to the above-described applicable servicing
standards (the
"Accepted Servicing Practices") and the terms of this Agreement
and of the
respective GMACM Mortgage Loans, GMACM shall have full power and
authority,
acting alone and/or through subservicers as
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provided in Section 3.03, to do or cause to be done any and all
things that it
may deem necessary or desirable in connection with such
servicing and
administration, including but not limited to, the power and
authority, subject
to the terms hereof (i) to execute and deliver, on behalf of
the
Certificateholders and the Trustee, customary consents or
waivers and other
instruments and documents, (ii) to consent to transfers of any
related Mortgaged
Property and assumptions of the Mortgage Notes and related
Mortgages (but only
in the manner provided herein), (iii) to collect any Insurance
Proceeds and
other Liquidation Proceeds, and (iv) subject to Section 3.09, to
effectuate
foreclosure or other conversion of the ownership of the
Mortgaged Property
securing any GMACM Mortgage Loan.
Without limiting the generality of the foregoing, GMACM, in its
own
name or in the name of the Trust, the Depositor or the Trustee,
is hereby
authorized and empowered by the Trust, the Depositor and the
Trustee, when GMACM
believes it appropriate in its reasonable judgment, to execute
and deliver, on
behalf of the Trustee, the Depositor, the Certificateholders or
any of them, any
and all instruments of satisfaction or cancellation, or of
partial or full
release or discharge and all other comparable instruments, with
respect to the
GMACM Mortgage Loans, and with respect to the related Mortgaged
Properties held
for the benefit of the Certificateholders. GMACM shall prepare
and deliver to
the Depositor and/or the Trustee such documents requiring
execution and delivery
by any or all of them as are necessary or appropriate to enable
GMACM to service
and administer the GMACM Mortgage Loans. Upon receipt of such
documents, the
Depositor and/or the Trustee shall execute such documents and
deliver them to
GMACM. In addition, the Trustee shall execute, at the written
request of GMACM,
and furnish to GMACM any special or limited powers of attorney
agreeable to the
Trustee and its counsel for each county in which a Mortgaged
Property is located
and other documents necessary or appropriate to enable GMACM to
carry out its
servicing and administrative duties hereunder, provided such
limited powers of
attorney or other documents shall be prepared by GMACM and
submitted to the
Trustee for review prior to execution.
In accordance with the standards of the first paragraph of this
Section
3.01, GMACM shall advance or cause to be advanced funds as
necessary for the
purpose of effecting the payment of taxes and assessments on the
Mortgaged
Properties relating to the GMACM Mortgage Loans in order to
preserve the lien on
the Mortgaged Property, which advances shall be reimbursable in
the first
instance from related collections from the Mortgagors pursuant
to Section 4.04,
and further as provided in Section 4.02. All costs incurred by
GMACM, if any, in
effecting the payments of such taxes and assessments on the
related Mortgaged
Properties and related insurance premiums shall not, for the
purpose of
calculating monthly distributions to the Certificateholders, be
added to the
Stated Principal Balance under the related GMACM Mortgage Loans,
notwithstanding
that the terms of such GMACM Mortgage Loans so permit.
Section 3.02. DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
(a) Except as otherwise provided in this Section 3.02, when
any
Mortgaged Property relating to a GMACM Mortgage Loan has been or
is about to be
conveyed by the Mortgagor, GMACM shall to the extent that it has
knowledge of
such conveyance, 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
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adversely affect or jeopardize coverage under any Required
Insurance Policy.
Notwithstanding the foregoing, GMACM shall not be required to
exercise such
rights with respect to a GMACM 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 GMACM 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, GMACM is authorized, subject to Section 3.02(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 related GMACM
Mortgage Loan shall continue to be covered (if so covered before
GMACM enters
such agreement) by the applicable Required Insurance Policies.
GMACM, subject to
Section 3.02(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, GMACM
shall not be
deemed to be in default under this Section 3.02(a) by reason of
any transfer or
assumption that GMACM reasonably believes it is restricted by
law from
preventing.
(b) Subject to GMACM's duty to enforce any due-on-sale clause to
the
extent set forth in Section 3.02(a), in any case in which a
Mortgaged Property
related to a GMACM Mortgage Loan has been conveyed to a Person
by a Mortgagor,
and such Person is to enter into an assumption agreement or
modification
agreement or supplement to the Mortgage Note or Mortgage that
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
related GMACM Mortgage
Loan, GMACM shall prepare and deliver or cause to be prepared
and delivered to
the Trustee for signature and shall direct, in writing, the
Trustee to execute
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. In connection with any such assumption, no
material term of the
Mortgage Note (including, but not limited to, the Mortgage Rate,
the amount of
the Scheduled Payment and any other term affecting the amount or
timing of
payment on the related Mortgage Loan) may be changed. In
addition, the
substitute Mortgagor and the Mortgaged Property must be
acceptable to GMACM in
accordance with the servicing standard set forth in Section
3.01. GMACM shall
notify the Trustee that any such substitution or assumption
agreement has been
completed by forwarding to the Custodian the original of such
substitution or
assumption agreement, which in the case of the original shall be
added to the
related Mortgage File and shall, for all purposes, be considered
a part of such
Mortgage File to the same extent as all other documents and
instruments
constituting a part thereof. Any fee collected by GMACM for
entering into an
assumption or substitution of liability agreement will be
retained by GMACM as
additional servicing compensation.
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Section 3.03. SUBSERVICERS.
GMACM shall perform all of its servicing responsibilities
hereunder or
may cause a subservicer to perform any such servicing
responsibilities on its
behalf, but the use by GMACM of a subservicer shall not release
GMACM from any
of its obligations hereunder with respect to the related GMACM
Mortgage Loans.
GMACM shall pay all fees of each of its subservicers from its
own funds, and a
subservicer's fee shall not exceed the Servicing Fee payable to
GMACM hereunder.
At the cost and expense of GMACM, without any right of
reimbursement
from its Custodial Account, GMACM shall be entitled to terminate
the rights and
responsibilities of a subservicer and arrange for any servicing
responsibilities
to be performed by a successor subservicer; provided, however,
that nothing
contained herein shall be deemed to prevent or prohibit GMACM,
at its option,
from electing to service the related GMACM Mortgage Loans
itself. In the event
that GMACM's responsibilities and duties under this Agreement
are terminated
pursuant to Section 8.03, GMACM shall at its own cost and
expense terminate the
rights and responsibilities of each subservicer with respect to
the GMACM
Mortgage Loans effective as of the date of GMACM's termination.
GMACM shall pay
all fees, expenses or penalties necessary in order to terminate
the rights and
responsibilities of each subservicer from GMACM's own funds
without
reimbursement from the Trust Fund.
Notwithstanding the foregoing, GMACM shall not be relieved of
its
obligations hereunder with respect to the Mortgage Loans and
shall be obligated
to the same extent and under the same terms and conditions as if
it alone were
servicing and administering the GMACM Mortgage Loans. GMACM
shall be entitled to
enter into an agreement with a subservicer for indemnification
of GMACM by the
subservicer and nothing contained in this Agreement shall be
deemed to limit or
modify such indemnification.
Any subservicing agreement and any other transactions or
services
relating to the GMACM Mortgage Loans involving a subservicer
shall be deemed to
be between such subservicer and GMACM alone, and the Trustee
shall not have any
obligations, duties or liabilities with respect to such
subservicer including
any obligation, duty or liability of the Trustee to pay such
subservicer's fees
and expenses or any differential in the amount of the servicing
fee paid
hereunder and the amount necessary to induce any successor
servicer to act as
successor servicer under this Agreement and the transactions
provided for in
this Agreement. For purposes of remittances to the Trustee
pursuant to this
Agreement, GMACM shall be deemed to have received a payment on a
GMACM Mortgage
Loan when a subservicer has received such payment.
Section 3.04. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
GMACM TO BE
HELD FOR TRUSTEE.
Notwithstanding any other provisions of this Agreement, GMACM
shall
transmit to the Trustee as required by this Agreement all
documents and
instruments in respect of a GMACM Mortgage Loan coming into the
possession of
GMACM from time to time and shall account fully to the Trustee
for any funds
received by GMACM or that otherwise are collected by GMACM as
Liquidation
Proceeds or Insurance Proceeds in respect of any such Mortgage
Loan.
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All Mortgage Files and funds collected or held by, or under the
control of,
GMACM in respect of any GMACM 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 Accounts
maintained by GMACM,
shall be held by GMACM 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. GMACM also agrees that it shall
not create, incur
or subject any Mortgage File or any funds that are deposited in
the Custodial
Accounts maintained by GMACM, any Distribution Account or in any
Escrow 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 set off against any
Mortgage File or
any funds collected on, or in connection with, a GMACM Mortgage
Loan, except,
however, that GMACM shall be entitled to set off against and
deduct from any
such funds any amounts that are properly due and payable to
GMACM under this
Agreement.
Section 3.05. MAINTENANCE OF HAZARD INSURANCE.
(a) GMACM shall cause to be maintained for each GMACM Mortgage
Loan
hazard insurance with extended coverage on the Mortgaged
Property in an amount
which is at least equal to the lesser of (i) the Stated
Principal Balance of
such GMACM Mortgage Loan and (ii) the amount necessary to fully
compensate for
any damage or loss to the improvements that are a part of such
property on a
replacement cost basis, in each case in an amount not less than
such amount as
is necessary to avoid the application of any coinsurance clause
contained in the
related hazard insurance policy. GMACM shall also cause to be
maintained hazard
insurance with extended coverage on each REO Property related to
a GMACM
Mortgage Loan in an amount which is at least equal to the lesser
of (i) the
maximum insurable value of the improvements which are a part of
such REO
Property and (ii) the Stated Principal Balance of the related
GMACM Mortgage
Loan at the time it became an REO Property. GMACM will comply in
the performance
of this Agreement with all reasonable rules and requirements of
each insurer
under any such hazard policies. Any amounts collected by GMACM
under any such
policies (other than amounts to be applied to the restoration or
repair of the
property subject to the related Mortgage or amounts to be
released to the
Mortgagor in accordance with the procedures that GMACM would
follow in servicing
loans held for its own account, subject to the terms and
conditions of the
related Mortgage and Mortgage Note and in accordance with the
servicing standard
set forth in Section 3.01) shall be deposited in the related
Custodial Account
maintained by GMACM, subject to withdrawal pursuant to Section
4.02. Any cost
incurred by GMACM in maintaining any such insurance shall not,
for the purpose
of calculating distributions to Certificateholders, be added to
the Stated
Principal Balance of the related GMACM Mortgage Loan,
notwithstanding that the
terms of such GMACM Mortgage Loan so permit. It is understood
and agreed that no
earthquake or other additional insurance is to be required of
any Mortgagor
other than pursuant to such applicable laws and regulations as
shall at any time
be in force and as shall require such additional insurance. If
the Mortgaged
Property or REO Property relating to a GMACM Mortgage Loan is at
any time in an
area identified in the Federal Register by the Federal Emergency
Management
Agency as having special flood hazards and flood insurance has
been made
available, GMACM shall cause to be maintained a flood insurance
policy in
respect thereof. Such flood insurance shall be in an amount
equal to the lesser
of (i) the
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Stated Principal Balance of the related GMACM Mortgage Loan and
(ii) the maximum
amount of such insurance available for the related Mortgaged
Property under the
national flood insurance program (assuming that the area in
which such Mortgaged
Property is located is participating in such program).
In the event that GMACM shall obtain and maintain a blanket
policy with
an insurer having a General Policy Rating of B:VI or better in
Best's Key Rating
Guide (or such other rating that is comparable to such rating)
insuring against
hazard losses on all of the GMACM Mortgage Loans, it shall
conclusively be
deemed to have satisfied its obligations as set forth in the
first two sentences
of this Section 3.05, it being understood and agreed that such
policy may
contain a deductible clause, in which case GMACM shall, in the
event that there
shall not have been maintained on the related Mortgaged Property
or REO Property
a policy complying with the first two sentences of this Section
3.05, and there
shall have been one or more losses which would have been covered
by such policy,
deposit to the related Custodial Account maintained by GMACM
from its own funds
the amount not otherwise payable under the blanket policy
because of such
deductible clause. In connection with its activities as
administrator and
servicer of the Mortgage Loans, GMACM agrees to prepare and
present, on behalf
of itself, the Trustee and Certificateholders, claims under any
such blanket
policy in a timely fashion in accordance with the terms of such
policy.
(b) GMACM shall keep in force during the term of this Agreement
a
policy or policies of insurance covering errors and omissions
for failure in the
performance of GMACM's obligations under this Agreement, which
policy or
policies shall be in such form and amount that would meet the
requirements of
Fannie Mae or Freddie Mac if it were the purchaser of the
related GMACM Mortgage
Loans, unless GMACM has obtained a waiver of such requirements
from Fannie Mae
or Freddie Mac. GMACM shall provide the Trustee, upon request,
with copies of
such insurance policies and fidelity bond. GMACM shall also
maintain a fidelity
bond in the form and amount that would meet the requirements of
Fannie Mae or
Freddie Mac, unless GMACM has obtained a waiver of such
requirements from Fannie
Mae or Freddie Mac. GMACM shall be deemed to have complied with
this provision
if an Affiliate of GMACM has such errors and omissions and
fidelity bond
coverage and, by the terms of such insurance policy or fidelity
bond, the
coverage afforded thereunder extends to GMACM. Any such errors
and omissions
policy and fidelity bond shall by its terms not be cancelable
without thirty
days' prior written notice to the Trustee. GMACM shall also
cause its
subservicers to maintain a policy of insurance covering errors
and omissions and
a fidelity bond which would meet such requirements.
Section 3.06. PRESENTMENT OF CLAIMS AND COLLECTION OF
PROCEEDS.
GMACM shall prepare and present on behalf of the Trustee and
the
Certificateholders all claims under the Insurance Policies and
take such actions
(including the negotiation, settlement, compromise or
enforcement of the
insured's claim) as shall be necessary to realize recovery under
such Insurance
Policies. Any proceeds disbursed to GMACM in respect of such
Insurance Policies
shall, within two Business Days of its receipt, be deposited in
the related
Custodial Account maintained by GMACM upon receipt, except that
any amounts
realized that are to be applied to the repair or restoration of
the related
Mortgaged Property as a condition precedent to
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the presentation of claims on the related GMACM Mortgage Loan to
the insurer
under any applicable Insurance Policy need not be so deposited
(or remitted).
Section 3.07. MAINTENANCE OF INSURANCE POLICIES.
GMACM shall not take any action that would result in noncoverage
under
any applicable Insurance Policy of any loss which, but for the
actions of GMACM
would have been covered thereunder. GMACM shall use its best
efforts to keep in
force and effect (to the extent that the related Mortgage Loan
requires the
Mortgagor to maintain such insurance), any applicable Insurance
Policy. GMACM
shall not cancel or refuse to renew any Insurance Policy that is
in effect at
the date of the initial issuance of the Mortgage Note and is
required to be kept
in force hereunder.
Section 3.08. RESERVED.
Section 3.09. REALIZATION UPON DEFAULTED GMACM MORTGAGE
LOANS;
DETERMINATION OF EXCESS LIQUIDATION PROCEEDS AND REALIZED
LOSSES; REPURCHASES OF
CERTAIN GMACM MORTGAGE LOANS.
(a) GMACM shall use reasonable efforts to foreclose upon or
otherwise
comparably convert the ownership of properties securing such of
the GMACM
Mortgage Loans as come into and continue in default and as to
which no
satisfactory arrangements can be made for collection of
delinquent payments. In
connection with such foreclosure or other conversion, GMACM
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 the
requirements of the insurer under any Required Insurance Policy;
provided that
GMACM shall not be required to expend its own funds in
connection with any
foreclosure 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 related GMACM Mortgage Loan after
reimbursement to itself of
such expenses and (ii) that such expenses will be recoverable to
it through
Liquidation Proceeds (respecting which it shall have priority
for purposes of
withdrawals from the related Custodial Account maintained by
GMACM pursuant to
Section 4.02). If GMACM reasonably believes that Liquidation
Proceeds with
respect to any such GMACM Mortgage Loan would not be increased
as a result of
such foreclosure or other action, such GMACM Mortgage Loan will
be charged-off
and will become a Liquidated Loan. GMACM will give notice of any
such charge-off
to the Trustee. GMACM shall be responsible for all other costs
and expenses
incurred by it in any such proceedings; provided that such costs
and expenses
shall be Servicing Advances and that it shall be entitled to
reimbursement
thereof from the proceeds of liquidation of the related
Mortgaged Property, as
contemplated in Section 4.02. If GMACM has knowledge that a
Mortgaged Property
that GMACM is contemplating acquiring in foreclosure or by
deed-in-lieu of
foreclosure is located within a one-mile radius of any site with
environmental
or hazardous waste risks known to GMACM, GMACM shall, prior to
acquiring the
Mortgaged Property, consider such risks and only take action in
accordance with
its established environmental review procedures.
With respect to any REO Property related to a GMACM Mortgage
Loan, the
deed or certificate of sale shall be taken in the name of the
Trustee for the
benefit of the Certificateholders (or the Trustee's nominee on
behalf of the
Certificateholders). The Trustee's
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name shall be placed on the title to such REO Property solely as
the Trustee
hereunder and not in its individual capacity. GMACM shall ensure
that the title
to such REO Property references this Agreement and the Trustee's
capacity
hereunder. Pursuant to its efforts to sell such REO Property,
GMACM shall either
itself or through an agent selected by GMACM protect and
conserve such REO
Property in the same manner and to such extent as is customary
in the locality
where such REO Property is located and may, incident to its
conservation and
protection of the interests of the Certificateholders, rent the
same, or any
part thereof, as GMACM deems to be in the best interest of GMACM
and the
Certificateholders for the period prior to the sale of such REO
Property. GMACM
shall prepare for and deliver to the Trustee a statement with
respect to each
REO Property that has been rented showing the aggregate rental
income received
and all expenses incurred in connection with the management and
maintenance of
such REO Property at such times as is necessary to enable the
Trustee to comply
with the reporting requirements of the REMIC Provisions. The net
monthly rental
income, if any, from such REO Property shall be deposited in the
Custodial
Account maintained by GMACM no later than the close of business
on each
Determination Date. GMACM shall perform the tax reporting and
withholding
related to foreclosures, abandonments and cancellation of
indebtedness income as
specified by Sections 6050H, 6050J and 6050P of the Code by
preparing and filing
such tax and information returns, as may be required.
In the event that the Trust Fund acquires any Mortgaged Property
as
aforesaid or otherwise in connection with a default or imminent
default on a
GMACM Mortgage Loan, GMACM shall dispose of such Mortgaged
Property prior to
three years after its acquisition by the Trust Fund or, at the
expense of the
Trust Fund, request from the Internal Revenue Service more than
60 days prior to
the day on which such three-year period would otherwise expire,
an extension of
the three-year grace period. The Trustee shall be supplied with
an Opinion of
Counsel (such opinion not to be an expense of the Trustee or the
Trust Fund) to
the effect that the holding by the Trust Fund of such Mortgaged
Property
subsequent to such three-year period will not result in the
imposition of taxes
on "prohibited transactions" of REMIC I, REMIC II, REMIC III or
REMIC IV as
defined in section 860F of the Code or cause either REMIC I,
REMIC II, REMIC III
or REMIC IV to fail to qualify as a REMIC at any time that any
Certificates are
outstanding, in which case the Trust Fund may continue to hold
such Mortgaged
Property (subject to any conditions contained in such Opinion of
Counsel).
Notwithstanding any other provision of this Agreement, no
Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to
continue to be rented)
or otherwise used for the production of income by or on behalf
of the Trust Fund
in such a manner or pursuant to any terms that would (i) cause
such Mortgaged
Property to fail to qualify as "foreclosure property" within the
meaning of
section 860G(a)(8) of the Code or (ii) subject any of REMIC I,
REMIC II, REMIC
III or REMIC IV to the imposition of any federal, state or local
income taxes on
the income earned from such Mortgaged Property under section
860G(c) of the Code
or otherwise, unless GMACM has agreed to indemnify and hold
harmless the Trust
Fund with respect to the imposition of any such taxes.
The decision of GMACM to foreclose on a defaulted GMACM Mortgage
Loan
shall be subject to a determination by GMACM that the proceeds
of such
foreclosure would exceed the costs and expenses of bringing such
a proceeding.
The income earned from the management of any Mortgaged
Properties acquired
through foreclosure or other judicial proceeding, net of
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reimbursement to GMACM for expenses incurred (including any
property or other
taxes) in connection with such management and net of
unreimbursed Servicing
Fees, Advances, Servicing Advances and any management fee paid
or to be paid
with respect to the management of such Mortgaged Property, shall
be applied to
the payment of principal of, and interest on, the defaulted
GMACM Mortgage Loans
(with interest accruing as though such GMACM Mortgage Loans were
still current)
and all such income shall be deemed, for all purposes in the
Agreement, to be
payments on account of principal and interest on the related
Mortgage Notes and
shall be deposited into the related Custodial Account. To the
extent the income
received during a Prepayment Period is in excess of the amount
attributable to
amortizing principal and accrued interest at the related
Mortgage Rate on the
related GMACM Mortgage Loan, such excess shall be considered to
be a partial
Principal Prepayment for all purposes hereof.
The Liquidation Proceeds from any liquidation of a GMACM
Mortgage Loan,
net of any payment to GMACM as provided above, shall be
deposited in the related
Custodial Account maintained by GMACM on the next succeeding
Determination Date
following receipt thereof for distribution on the related
Distribution Date,
except that any Excess Liquidation Proceeds shall be retained by
GMACM as
additional servicing compensation.
The proceeds of any Liquidated Loan, as well as any recovery
resulting
from a partial collection of Liquidation Proceeds or any income
from an REO
Property, shall be applied in the following order of priority:
first, to
reimburse GMACM for any related unreimbursed Servicing Advances
and Servicing
Fees, pursuant to Section 4.02 or this Section 3.09; second, to
reimburse GMACM
for any unreimbursed Advances, pursuant to Section 4.02 or this
Section 3.09;
third, to accrued and unpaid interest (to the extent no Advance
has been made
for such amount) on the GMACM Mortgage Loan or related REO
Property, at the Net
Mortgage Rate to the first day of the month in which such
amounts are required
to be distributed; and fourth, as a recovery of principal of the
GMACM Mortgage
Loan.
(b) On each Determination Date, GMACM shall determine the
respective aggregate amounts of Excess Liquidation Proceeds and
Realized Losses,
if any, with respect to any GMACM Mortgage Loan for the related
Prepayment
Period.
(c) GMACM has no intent to foreclose on any GMACM Mortgage
Loan based on the delinquency characteristics as of the Closing
Date; provided,
however, that the foregoing does not prevent GMACM from
initiating foreclosure
proceedings on any date hereafter if the facts and circumstances
of such GMACM
Mortgage Loans including delinquency characteristics in GMACM's
discretion so
warrant such action.
Section 3.10. SERVICING COMPENSATION.
As compensation for its activities hereunder, GMACM shall be
entitled
to retain or withdraw from its Custodial Accounts out of each
payment of
interest on each GMACM Mortgage Loan included in the Trust Fund
an amount equal
to the Servicing Fee. In addition, GMACM shall be entitled to
recover unpaid
Servicing Fees out of Liquidation Proceeds, Insurance Proceeds
or condemnation
proceeds to the extent permitted by Section 4.02.
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Additional servicing compensation with respect to GMACM Mortgage
Loans
in the form of any Excess Liquidation Proceeds, assumption fees,
late payment
charges, insufficient funds charges and ancillary income to the
extent such fees
or charges are received by GMACM, all income and gain net of any
losses realized
from Permitted Investments with respect to funds in or credited
to the Custodial
Account maintained by GMACM shall be retained by GMACM to the
extent not
required to be deposited in the related Custodial Account
pursuant to Section
4.02. GMACM shall be required to pay all expenses incurred by it
in connection
with its servicing activities hereunder (including payment of
any premiums for
hazard insurance, as required by Section 3.05 and maintenance of
the other forms
of insurance coverage required by Section 3.07) and shall not be
entitled to
reimbursement therefor except as specifically provided in
Section 4.02.
Section 3.11. REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any
REO
Property in respect of any related GMACM Mortgage Loan, the deed
or certificate
of sale shall be issued to the Trustee, or to its nominee, on
behalf of the
related Certificateholders. GMACM shall sell any REO Property as
expeditiously
as possible and in accordance with the provisions of this
Agreement. Pursuant to
its efforts to sell such REO Property, GMACM shall protect and
conserve such REO
Property in the manner and to the extent required herein, in
accordance with the
REMIC Provisions.
(b) GMACM shall deposit all funds collected and received in
connection with the operation of any REO Property into the
related Custodial
Account maintained by GMACM.
(c) GMACM, upon the final disposition of any REO Property,
shall be entitled to reimbursement for any related unreimbursed
Advances,
unreimbursed Servicing Advances or Servicing Fees from
Liquidation Proceeds
received in connection with the final disposition of such REO
Property;
provided, that any such unreimbursed Advances or Servicing Fees
as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may
be, prior to
final disposition, out of any net rental income or other net
amounts derived
from such REO Property.
Section 3.12. LIQUIDATION REPORTS.
Upon the foreclosure of any Mortgaged Property or the
acquisition
thereof by the Trust Fund pursuant to a deed-in-lieu of
foreclosure, GMACM shall
submit a liquidation report to the Trustee containing such
information as shall
be mutually acceptable to GMACM and the Trustee with respect to
such Mortgaged
Property.
Section 3.13. ANNUAL CERTIFICATE AS TO COMPLIANCE.
(a) GMACM shall deliver to the Depositor and the Trustee not
later than March 15th of each year commencing in 2006 (or, in
each case, if such
day is not a Business Day, the immediately preceding Business
Day), a
certificate of a Authorized Servicer Representative stating, as
to each
signatory thereof, that (i) a review of the activities of GMACM
during the
preceding calendar year and of performance under this Agreement
has been made
under such
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officers' supervision, and (ii) to the best of such officers'
knowledge, based
on such review, GMACM has fulfilled all of its obligations under
this Agreement
throughout such year, or, if there has been a default in the
fulfillment of any
such obligation, specifying each such default known to such
officers and the
nature and status thereof except for such defaults as such
officer in its good
faith judgment believe to be immaterial.
(b) (i) GMACM shall deliver to the Depositor and the
Trustee,
on or before March 15th of each year commencing in 2006, a
certification
containing the information set forth in Exhibit L. Such
certification shall be
signed by the senior officer in charge of servicing of GMACM. In
addition, GMACM
shall provide such other information with respect to the GMACM
Mortgage Loans
and the servicing and administration thereof within the control
of GMACM which
shall be required to enable the Depositor and the Trustee to
comply with the
reporting requirements of the Securities and Exchange Act of
1934, as amended
(the "Exchange Act").
(ii) GMACM shall indemnify and hold harmless the
Depositor, the Trustee and their respective officers, directors,
agents and
affiliates from and against any losses, damages, penalties,
fines, forfeitures,
reasonable legal fees and related costs, judgments and other
costs and expenses
to the extent arising out of or based upon a breach by GMACM or
any of its
officers, directors, agents or affiliates of its obligations
under this Section
3.13(b), or a breach in any of the representations in the
certification
delivered pursuant to clause (b)(i) above, or GMACM's gross
negligence, bad
faith or willful misconduct in connection therewith. If the
indemnification
provided for herein is unavailable to the Depositor and the
Trustee as a result
of a court of law or other administrative or regulatory body
with authority
holding such indemnification void on the basis of public policy
or similar
reason or insufficient to hold harmless the Depositor or the
Trustee, then GMACM
agrees that it shall contribute to the amount paid or payable by
the Depositor
and the Trustee as a result of the losses, claims, damages or
liabilities of the
Depositor or the Trustee in such proportion as is appropriate to
reflect the
relative fault of the Trustee or the Depositor on the one hand
and GMACM on the
other in connection with a breach of GMACM's obligations under
this Section
3.13(b) or GMACM's gross negligence, bad faith or willful
misconduct in
connection therewith or a breach of any of the representations
in the
certification delivered pursuant to clause (b)(i) above with
respect to the
matters covered by this Section 3.13(b)(ii).
Section 3.14. ANNUAL INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS'
SERVICING REPORT.
Not later than March 15th of each year, commencing in 2006,
GMACM, at
its expense, shall cause a nationally recognized firm of
independent certified
public accountants to furnish to GMACM a report stating that (i)
it has obtained
a letter of representation regarding certain matters from the
management of
GMACM which includes an assertion that GMACM has complied with
certain minimum
residential mortgage loan servicing standards, identified in the
Uniform Single
Attestation Program for Mortgage Bankers established by the
Mortgage Bankers
Association of America, with respect to the servicing of
residential mortgage
loans during the most recently completed fiscal or calendar year
and (ii) on the
basis of an examination conducted by such firm in accordance
with standards
established by the American Institute of Certified Public
Accountants, such
representation is fairly stated in all material respects,
subject to such
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exceptions and other qualifications that may be appropriate. In
rendering its
report such firm may rely, as to matters relating to the direct
servicing of
residential mortgage loans by subservicers, upon comparable
reports of firms of
independent certified public accountants rendered on the basis
of examinations
conducted in accordance with the same standards (rendered within
one year of
such report) with respect to those subservicers. Promptly upon
receipt of such
report, GMACM shall furnish a copy of such report to the
Depositor, the Trustee
and each Rating Agency. Copies of such statement shall be
provided by the
Trustee to any Certificateholder upon request at GMACM's
expense, provided that
such statement is delivered by GMACM to the Trustee.
Section 3.15. BOOKS AND RECORDS.
GMACM shall be responsible for maintaining, and shall maintain,
a
complete set of books and records for the GMACM Mortgage Loans
which shall be
appropriately identified in GMACM's computer system to clearly
reflect the
ownership of the GMACM Mortgage Loans by the Trust. In
particular, GMACM shall
maintain in its possession, available for inspection by the
Trustee and shall
deliver to the Trustee upon reasonable prior request and during
normal business
hours, evidence of compliance with all federal, state and local
laws, rules and
regulations. To the extent that original documents are not
required for purposes
of realization of Liquidation Proceeds or Insurance Proceeds,
documents
maintained by GMACM may be in the form of microfilm or
microfiche or such other
reliable means of recreating original documents, including, but
not limited to,
optical imagery techniques so long as GMACM complies with the
requirements of
Accepted Servicing Practices.
GMACM shall maintain with respect to each GMACM Mortgage Loan
and shall
upon reasonable prior request and during normal business hours
make available
for inspection by the Trustee the related servicing file during
the time such
GMACM Mortgage Loan is subject to this Agreement and thereafter
in accordance
with applicable law.
Section 3.16. THE TRUSTEE.
The Trustee shall furnish the Servicers with any powers of
attorney and
other documents prepared and submitted by the Servicers to the
Trustee in a form
as mutually agreed upon and necessary or appropriate to enable
the Servicers to
service and administer the related Mortgage Loans and REO
Properties.
The Trustee shall provide access to the records and
documentation in
possession of the Trustee regarding the related Mortgage Loans
and REO Property
and the servicing thereof to the Certificateholders, the FDIC,
and the
supervisory agents and examiners of the FDIC, such access being
afforded only
upon reasonable prior written request and during normal business
hours at the
office of the Trustee; provided, however, that, unless otherwise
required by
law, the Trustee shall not be required to provide access to such
records and
documentation if the provision thereof would violate the legal
right to privacy
of any Mortgagor. The Trustee shall allow representatives of the
above entities
to photocopy any of the records and documentation and shall
provide equipment
for that purpose at a charge that covers the Trustee's actual
costs.
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The Trustee shall execute and deliver as directed in writing by
the
Servicers any court pleadings, requests for trustee's sale or
other documents
necessary or desirable to (i) the foreclosure or trustee's sale
with respect to
a Mortgaged Property; (ii) any legal action brought to obtain
judgment against
any Mortgagor on the Mortgage Note or Security Instrument; (iii)
obtain a
deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or
remedies provided by the Mortgage Note or Security Instrument or
otherwise
available at law or equity.
Section 3.17. REMIC-RELATED COVENANTS.
For as long as each REMIC shall exist, the Trustee shall act
in
accordance herewith to treat each REMIC as a REMIC, and the
Trustee shall comply
with any directions of the Seller or the related Servicer
regarding such
treatment. In particular, the Trustee shall not (a) knowingly
sell or permit the
sale of all or any portion of the Mortgage Loans or of any
investment of
deposits in an Account unless such sale is as a result of a
repurchase of the
Mortgage Loans pursuant to this Agreement or the Trustee has
received a REMIC
Opinion prepared at the expense of the Trust Fund; and (b) other
than with
respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement or
Section 2.04 of this Agreement, as applicable, accept any
contribution to any
REMIC after the Startup Day without receipt of a REMIC
Opinion.
Section 3.18. REIMBURSEMENT OF COSTS AND EXPENSES.
(a) To the extent that the costs and expenses of the Trustee
related to any termination of a Servicer, appointment of a
Successor Servicer or
the transfer and assumption of servicing by the Trustee with
respect to this
Agreement, the M&T Servicing Agreement or the GreenPoint
Servicing Agreement
(including, without limitation, (i) all legal costs and expenses
and all due
diligence costs and expenses associated with an evaluation of
the potential
termination of the related Servicer as a result of an event of
default by such
Person and (ii) all costs and expenses associated with the
complete transfer of
servicing, including all servicing files and all servicing data
and the
completion, correction or manipulation of such servicing data as
may be required
by the Successor Servicer to correct any errors or
insufficiencies in the
servicing data or otherwise to enable the successor servicer to
service the
related Mortgage Loans in accordance with this Agreement, the
M&T Servicing
Agreement or the GreenPoint Servicing Agreement) are not fully
and timely
reimbursed by the related Servicer, the Trustee shall be
entitled to
reimbursement of such costs and expenses from the related
Distribution Account.
(b) If the Trustee acts as a Successor Servicer to a
Servicer,
it will not assume liability for the representations and
warranties of GMACM
contained herein, M&T under the M&T Servicing Agreement
or GreenPoint under the
GreenPoint Servicing Agreement.
Section 3.19. RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any GMACM
Mortgage Loan, or the receipt by GMACM of a notification that
payment in full
has been escrowed in a manner customary for such purposes for
payment to
Certificateholders on the next Distribution Date, GMACM will
promptly furnish to
the Trustee and the Custodian, on behalf of the Trustee, two
copies of a request
for release substantially in the form attached to the Custodial
Agreement
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signed by a Authorized Servicer Representative or in a mutually
agreeable
electronic format which will, in lieu of a signature on its
face, originate from
a Authorized Servicer Representative (which certification shall
include a
statement to the effect that all amounts received in connection
with such
payment that are required to be deposited in the Custodial
Account maintained by
GMACM pursuant to Article V have been or will be so deposited)
and shall request
that the Custodian, on behalf of the Trustee, deliver to GMACM
the related
Mortgage File. Within five (5) Business Days of receipt of such
certification
and request, the Custodian, on behalf of the Trustee, shall
release the related
Mortgage File to GMACM and the Trustee and Custodian shall have
no further
responsibility with regard to such Mortgage File. Upon any such
payment in full,
GMACM is authorized, to give, as agent for the Trustee, as the
mortgagee under
the Mortgage that secured the related GMACM Mortgage Loan, an
instrument of
satisfaction (or assignment of mortgage without recourse)
regarding the
Mortgaged Property subject to the Mortgage, which instrument of
satisfaction or
assignment, as the case may be, shall be delivered to the Person
or Persons
entitled thereto against receipt therefor of such payment, it
being understood
and agreed that no expenses incurred in connection with such
instrument of
satisfaction or assignment, as the case may be, shall be
chargeable to the
Custodial Account maintained by GMACM.
(b) From time to time and as appropriate for the servicing
or
foreclosure of any GMACM Mortgage Loan and in accordance with
this Agreement,
the Trustee shall execute such documents as shall be prepared
and furnished to
the Trustee by GMACM (in form reasonably acceptable to the
Trustee) and as are
necessary to the prosecution of any such proceedings. The
Custodian, on behalf
of the Trustee, shall, upon the written request of GMACM, and
delivery to the
Custodian, on behalf of the Trustee, of two copies of a request
for release
signed by a Authorized Servicer Representative substantially in
the form
attached to the Custodial Agreement (or in a mutually agreeable
electronic
format which will, in lieu of a signature on its face, originate
from a
Authorized Servicer Representative), release the related
Mortgage File held in
its possession or control to GMACM. Such request for release
shall obligate
GMACM to return the Mortgage File to the Custodian on behalf of
the Trustee,
when the need therefor by such Person no longer exists unless
the GMACM Mortgage
Loan shall be liquidated, in which case, upon receipt of a
certificate of a
Authorized Servicer Representative similar to that hereinabove
specified, the
Mortgage File shall be released by the Custodian, on behalf of
the Trustee, to
GMACM.
Section 3.20. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
GMACM TO BE
HELD FOR TRUSTEE.
(a) GMACM (to the extent required by this Agreement) shall
transmit to the Trustee or to Custodian such documents and
instruments coming
into the possession of such Person from time to time as are
required by the
terms hereof to be delivered to the Trustee or the Custodian.
Any funds received
by GMACM in respect of any Mortgage Loan or which otherwise are
collected by
GMACM as Liquidation Proceeds or Insurance Proceeds in respect
of any GMACM
Mortgage Loan shall be held for the benefit of the Trustee and
the
Certificateholders subject to the right of GMACM to retain its
Servicing Fee and
other amounts as provided in this Agreement.
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Section 3.21. POSSESSION OF CERTAIN INSURANCE POLICIES AND
DOCUMENTS.
GMACM shall retain possession and custody of the originals (to
the
extent available) of any Insurance Policies, or certificate of
insurance if
applicable, and any certificates of renewal as to the foregoing
as may be issued
from time to time as contemplated by this Agreement. Until all
amounts
distributable in respect of the Certificates have been
distributed in full, the
Trustee (or the Custodian, as directed by the Trustee) shall
retain possession
and custody of each Mortgage File in accordance with and subject
to the terms
and conditions of this Agreement.
Section 3.22. SEC FILINGS.
(a) The Depositor shall prepare and file or caused to be
prepared and filed the initial Form 8-K. Within 15 days after
each Distribution
Date, the Trustee shall, in accordance with industry standards,
file with the
Commission via the Electronic Data Gathering and Retrieval
System ("EDGAR"), a
Form 8-K with a copy of the statement to be furnished by the
Trustee to the
Certificateholders for such Distribution Date as an exhibit
thereto. Prior to
January 30, 2005, the Trustee shall, in accordance with industry
standards, file
a Form 15 Suspension Notice with respect to the Trust Fund.
Prior to March 30,
2006 and annually thereafter, if required, the Trustee shall,
subject to
subsection (d) below, file a Form 10-K, in substance conforming
to industry
standards, with respect to the Trust Fund. Such Form 10K shall
be signed by the
Depositor and shall include, to the extent available, as
exhibits (i) each
Servicer's annual statement of compliance described under
Section 3.13 hereof,
or under the M&T Servicing Agreement or GreenPoint Servicing
Agreement, as
applicable (ii) each Servicer's accountants report described
under Section 3.14
or under the M&T Servicing Agreement or GreenPoint Servicing
Agreement, as
applicable and (iii) the Form 10-K certification signed by the
Depositor. If
items (i), (ii) and (iii) in the preceding sentence are not
timely delivered,
the Trustee shall file an a
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