RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.,
Company,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
JPMORGAN CHASE BANK,
Trustee
SERIES SUPPLEMENT,
DATED AS OF MARCH 1, 2004,
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2004
Mortgage Pass-Through Certificates
Series 2004-S2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................................-5-
Section 1.02 Use of Words and Phrases...................................................-21-
Section 1.03 Determination of LIBOR.....................................................-21-
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (See Section 2.01 of the Standard Terms)
..........................................................................-23-
Section 2.02 Acceptance by Trustee. (See Section 2.02 of the Standard Terms)
..........................................................................-23-
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the Company
..........................................................................-23-
Section 2.04 Representations and Warranties of Sellers.
..........................................................................-25-
Section 2.05 Execution and Authentication of Certificates...............................-28-
Section 2.06 Conveyance of Uncertificated REMIC Regular Interests; Acceptance by the Trustee.
..........................................................................-28-
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Certificate Account. (See Section 4.01 of the Standard Terms)
..........................................................................-30-
Section 4.02 Distributions..............................................................-30-
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies; Exchange Act
Reporting. (See Section 4.03 of the Standard Terms).......................-40-
Section 4.04 Distribution of Reports to the Trustee and the Company; Advances by the Master
Servicer. (See Section 4.04 of the Standard Terms)
..........................................................................-41-
Section 4.05 Allocation of Realized Losses..............................................-41-
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property. (See Section 4.06
of the Standard Terms)
..........................................................................-42-
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See Section 4.07 of the Standard
Terms)
..........................................................................-42-
Section 4.08 Surety Bond. (See Section 4.08 of the Standard Terms)
..........................................................................-42-
Section 4.09 Rounding Account...........................................................-42-
Section 4.10 Principal Distributions on the Insured Certificates........................-43-
Section 4.11 Reserve Fund...............................................................-47-
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates (See Section 5.01(a) and (b) of the Standard Terms).......-48-
Section 5.02 Registration of Transfer and Exchange of Certificates (See Section 5.02(a) through
(d) of the Standard Terms).................................................-48-
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. (See Section 5.03 of the Standard
Terms).....................................................................-50-
Section 5.04 Persons Deemed Owners. (See Section 5.04 of the Standard Terms)...........-50-
Section 5.05 Appointment of Paying Agent. (See Section 5.05 of the Standard Terms)....-50-
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
ARTICLE VIII
CONCERNING THE TRUSTEE
(See Article VIII of the Standard Terms)
ARTICLE IX
TERMINATION
Section 9.01 Optional Purchase by the Master Servicer of All Certificates; Termination Upon
Purchase by the Master Servicer or Liquidation of All Mortgage Loans.......-54-
Section 9.02 Additional Termination Requirements. (See Section 9.02 of the Standard Terms)
..........................................................................-55-
Section 9.03 Termination of Multiple REMICs. (See Section 9.03 of the Standard Terms)
..........................................................................-55-
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard Terms)...........-56-
Section 10.02 Master Servicer; REMIC Administrator and Trustee Indemnification. (See Section
10.02 of the Standard Terms)..............................................-56-
Section 10.03 Designation of REMIC(s)....................................................-56-
Section 10.04 Distributions on the Uncertificated REMIC Regular Interests................-56-
Section 10.05 Distributions on the Uncertificated Class A-V REMIC Regular Interests......-57-
Section 10.06 Compliance with Withholding Requirements...................................-57-
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)
..........................................................................-59-
Section 11.02 Recordation of Agreement. Counterparts. (See Section 11.02 of the Standard
Terms)
..........................................................................-59-
Section 11.03 Limitation on Rights of Certificateholders. (See Section 11.03 of the Standard
Terms)
..........................................................................-59-
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms)
..........................................................................-59-
Section 11.05 Notices....................................................................-59-
Section 11.06 Required Notices to Rating Agency and Subservicer.
..........................................................................-60-
Section 11.07 Severability of Provisions. (See Section 11.07 of the Standard Terms)
..........................................................................-60-
Section 11.08 Supplemental Provisions for Resecuritization. (See Section 11.08 of the Standard
Terms)
..........................................................................-60-
Section 11.09 Allocation of Voting Rights................................................-60-
ARTICLE XII
CERTAIN MATTERS REGARDING THE CERTIFICATE INSURER
Section 12.01. Rights of the Certificate Insurer to Exercise Rights of Insured Certificateholders.
..........................................................................-62-
Section 12.02. Claims Upon the Certificate Policy; Certificate Insurance Account..........-62-
Section 12.03. Effect of Payments by the Certificate Insurer; Subrogation.................-63-
Section 12.04. Notices and Information to the Certificate Insurer.........................-64-
Section 12.05. Trustee to Hold Certificate Policy.........................................-64-
Section 12.06. Insurance Premium Payments.................................................-64-
Section 12.07. Ratings....................................................................-65-
Section 12.08. Third Party Beneficiaries..................................................-65-
EXHIBITS
Exhibit One: Mortgage Loan Schedule
Exhibit Two: Schedule of Discount Fractions
Exhibit Three: Information to be Included in
Monthly Distribution Date Statement
Exhibit Four: Standard Terms of Pooling and Servicing
Agreement dated as of February 1, 2004
Exhibit Five: Certificate Policy of Radian Asset Assurance Inc.
This is a Series Supplement, dated as of March 1, 2004 (the "Series
Supplement"), to the Standard Terms of Pooling and Servicing Agreement, dated as
of February 1, 2004 and attached as Exhibit Four hereto (the "Standard Terms"
and, together with this Series Supplement, the "Pooling and Servicing Agreement"
or "Agreement"), among RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC., as the
company (together with its permitted successors and assigns, the "Company"),
RESIDENTIAL FUNDING CORPORATION, as master servicer (together with its permitted
successors and assigns, the "Master Servicer"), and JPMORGAN CHASE BANK, as
Trustee (together with its permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT
The Company intends to sell Mortgage Pass-Through Certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Trust Fund. As provided herein, the REMIC Administrator will make an
election to treat the entire segregated pool of assets described in the
definition of REMIC I (as defined herein), and subject to this Agreement
(including the Mortgage Loans but excluding the Rounding Account, the Reserve
Fund and the Initial Monthly Payment Fund), 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 Uncertificated REMIC Regular
Interests will be "regular interests" in REMIC I and the Class R-I Certificates
will be the sole class of "residual interests" in REMIC I for purposes of the
REMIC Provisions (as defined herein). A segregated pool of assets consisting of
the Uncertificated REMIC Regular Interests will be designated as "REMIC II," and
the REMIC Administrator will make a separate REMIC election with respect
thereto. The Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-5 Certificates, Class A-6
Certificates, Class A-7 Certificates, Class A-8 Certificates, Class A-9
Certificates, Class A-P Certificates, Class M-1 Certificates, Class M-2
Certificates, Class M-3 Certificates, Class B-1 Certificates, Class B-2
Certificates, Class B-3 Certificates and the Uncertificated Class A-V REMIC
Regular Interests will be "regular interests" in REMIC II and the Class R-II
Certificates will be the sole class of "residual interests" therein for purposes
of the REMIC Provisions. The Class A-V Certificates will represent the entire
beneficial ownership interest in the Uncertificated Class A-V REMIC Regular
Interests.
The terms and provisions of the Standard Terms are hereby incorporated
by reference herein as though set forth in full herein. If any term or provision
contained herein shall conflict with or be inconsistent with any provision
contained in the Standard Terms, the terms and provisions of this Series
Supplement shall govern. Any cross-reference to a section of the Pooling and
Servicing Agreement, to the extent the terms of the Standard Terms and Series
Supplement conflict with respect to that section, shall be a cross-reference to
the related section of the Series Supplement. All capitalized terms not
otherwise defined herein shall have the meanings set forth in the Standard
Terms. The Pooling and Servicing Agreement shall be dated as of the date of the
Series Supplement.
The following table irrevocably sets forth the designation, the REMIC I
Pass-Through Rate, the initial Uncertificated Principal Balance, and solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each of the Uncertificated REMIC Regular
Interests. None of the Uncertificated REMIC Regular Interests will be
certificated.
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REMIC I
PASS-THROUGH INITIAL UNCERTIFICATED LATEST
DESIGNATION RATE PRINCIPAL BALANCE POSSIBLE MATURITY(1)
REMIC I Regular Interest V 5.00% $ 50,000,000.00 March 25, 2034
REMIC I Regular Interest W 5.25% $185,278,182.00 March 25, 2034
REMIC I Regular Interest X 5.50% $ 95,794,000.57 March 25, 2034
REMIC I Regular Interest Y 8.00% $ 28,527,818.00 March 25, 2034
REMIC I Regular Interest Z 0.00% $ 2,386,043.23 March 25, 2034
REMIC I IO Regular Interest (2) (3) March 25, 2034
___________________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC I
Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Pass-Through
Rate" herein.
(3) The REMIC I IO Regular Interests have no Uncertificated Principal
Balance.
-2-
The following table sets forth the designation, type, Pass-Through Rate,
aggregate Initial Certificate Principal Balance, Maturity Date, initial ratings
and certain features for each Class of Certificates comprising the interests in
the Trust Fund created hereunder.
AGGREGATE
INITIAL
CERTIFICATE
PASS-THROUGH PRINCIPAL MATURITY MINIMUM
DESIGNATION RATE BALANCE FEATURES(1) DATE XXXXX'X/S&P DENOMINATIONS(2)
Class A-1 5.25% $ 147,645,182.00 Senior/Accretion Directed Xxxxx 00, 0000 Xxx/XXX $25,000
Class A-2 5.25% $ 7,133,000.00 Senior/Accretion Directed Xxxxx 00, 0000 Xxx/XXX $25,000
Class A-3 5.00% $ 50,000,000.00 Senior/Accretion Directed Xxxxx 00, 0000 Xxx/XXX $25,000
Class A-4 5.50% $ 50,000,000.00 Senior/Accretion Directed Xxxxx 00, 0000 Xxx/XXX $25,000
Class A-5 5.25% $ 13,000,000.00 Senior/Accrual Xxxxx 00, 0000 Xxx/XXX $25,000
17,500,000.00 Senior/Retail
Class A-6 5.20% $ Xxxxxxx/Xxxxxxx Xxxxx 00, 0000 Xxx/XXX $1,000
Class A-7 Adjustable Rat$ 28,527,818.00 Xxxxxx/Xxxxxxx Xxxxx 00, 0000 Xxx/XXX $25,000
Senior/Inverse Floater
Class A-8 Adjustable Rat$ Interest Only Xxxxx 00, 0000 Xxx/XXX $25,000
Class A-9 5.50% $ 36,201,000.00 Xxxxxx/Xxxxxxx Xxxxx 00, 0000 Xxx/XXX $25,000
Class A-P 0.00% $ 2,386,043.23 Senior/Principal Only Xxxxx 00, 0000 Xxx/XXX $25,000
Class A-V Variable Rate $ Senior/Interest Only Xxxxx 00, 0000 Xxx/XXX $2,000,000
Class R-I 5.50% $ 100.00 Senior/Residual Xxxxx 00, 0000 Xxx/XXX 20%
Class R-II 5.50% $ 100.00 Senior/Residual Xxxxx 00, 0000 Xxx/XXX 20%
Class M-1 5.50% $ 5,249,000.00 Mezzanine March 25, 2034 NA/AA $25,000
Class M-2 5.50% $ 1,628,900.00 Mezzanine March 25, 2034 NA/A $250,000
Class M-3 5.50% $ 1,086,000.00 Mezzanine March 25, 2034 NA/BBB $250,000
Class B-1 5.50% $ 724,000.00 Subordinate March 25, 2034 NA/BB $250,000
Class B-2 5.50% $ 543,000.00 Subordinate March 25, 2034 NA/B $250,000
Class B-3 5.50% $ 362,000.57 Subordinate March 25, 2034 NA/NA $250,000
The Mortgage Loans have an aggregate principal balance as of the Cut-off
Date of $361,986,143.80.
--------
1 The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6, Class A-7, Class A-8, Class A-9, Class A-P, Class A-V and
Class M Certificates shall be Book-Entry Certificates. The Class
R Certificates and Class B Certificates shall be delivered to the
holders thereof in physical form.
2 The Certificates, other than the Class R Certificates, shall be
issuable in minimum dollar denominations as indicated above (by
Certificate Principal Balance or Notional Amount, as applicable)
and integral multiples of $1 (or $1,000 in the case of the Class
A-6, Class A-P, Class B-1, Class B-2 and Class B-3 Certificates)
in excess thereof, except that one Certificate of any of the
Class A-P and each Class of Class B Certificates that contains an
uneven multiple of $1,000 shall be issued in a denomination equal
to the sum of the related minimum denomination set forth above
and such uneven multiple for such Class or the sum of such
denomination and an integral multiple of $1,000. The Class R
Certificates shall be issuable in minimum denominations of not
less than a 20% Percentage Interest; provided, however, that one
of each Class of Class R Certificate will be issuable to
Residential Funding as "tax matters person" pursuant to Section
10.01(c) and (e) in a minimum denomination representing a
Percentage Interest of not less than 0.01%.
-3-
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
-4-
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accretion Directed Certificates: Any one of the Class A-1, Class A-2,
Class A-3 or Class A-4 Certificates.
Accretion Termination Date: The earlier to occur of (i) the Distribution
Date on which the Certificate Principal Balances of the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates have been reduced to zero and (ii) the
Credit Support Depletion Date.
Accrual Certificates: Any one of the Class A-5 Certificates.
Accrual Distribution Amount: With respect to each Distribution Date
prior to the Accretion Termination Date, an amount equal to the aggregate amount
of Accrued Certificate Interest on the Class A-5 Certificates for such date, to
the extent added to the amount thereof pursuant to Section 4.02(h); provided
that, with respect to each Distribution Date on or after the Class A-5 Accretion
Termination Date, the Accrued Certificate Interest on the Class A-5 Certificates
for such date remaining after reduction of the Certificate Principal Balance of
the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates will be payable
to the Class A-5 Certificateholders as interest pursuant to Section 4.02(a)(i)
hereof on the Accretion Termination Date; and provided further, that if the
Accretion Termination Date is the Credit Support Depletion Date, the entire
amount of Accrued Certificate Interest on the Class A-5 Certificates for that
date will be payable as interest to the Class A-5 Certificateholders pursuant to
Section 4.02(a)(i) hereof.
Adjustable Rate Certificates: Any one of the Class A-7 Certificates and
Class A-8 Certificates.
Bankruptcy Amount: As of any date of determination prior to the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (A)
$100,000 over (B) the aggregate amount of Bankruptcy Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section 4.05 of
this Series Supplement. As of any date of determination on or after the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of
(1) the lesser of (a) the Bankruptcy Amount calculated as of the
close of business on the Business Day immediately preceding the most
recent anniversary of the Cut-off Date coinciding with or preceding such
date of determination (or, if such date of determination is an
anniversary of the Cut-off Date, the Business Day immediately preceding
such date of
-5-
determination) (for purposes of this definition, the "Relevant
Anniversary") and (b) the greater of
(A) the greater of (i) 0.0006 times the aggregate
principal balance of all the Mortgage Loans in the Mortgage Pool
as of the Relevant Anniversary (other than Additional Collateral
Loans, if any) having a Loan-to-Value Ratio at origination which
exceeds 75% and (ii) $100,000; and
(B) the greater of (i) the product of (x) an amount equal
to the largest difference in the related Monthly Payment for any
Non-Primary Residence Loan remaining in the Mortgage Pool (other
than Additional Collateral Loans, if any) which had an original
Loan-to-Value Ratio of 80% or greater that would result if the
Net Mortgage Rate thereof was equal to the weighted average
(based on the principal balance of the Mortgage Loans as of the
Relevant Anniversary) of the Net Mortgage Rates of all Mortgage
Loans as of the Relevant Anniversary less 1.25% per annum, (y) a
number equal to the weighted average remaining term to maturity,
in months, of all Non-Primary Residence Loans remaining in the
Mortgage Pool as of the Relevant Anniversary, and (z) one plus
the quotient of the number of all Non-Primary Residence Loans
remaining in the Mortgage Pool divided by the total number of
Outstanding Mortgage Loans in the Mortgage Pool as of the
Relevant Anniversary, and (ii) $50,000, over (2) the aggregate
amount of Bankruptcy Losses allocated solely to one or more
specific Classes of Certificates in accordance with Section 4.05
since the Relevant Anniversary.
The Bankruptcy Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency (without
giving effect to the Certificate Policy in the case of the Insured Certificates)
below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a
copy of such written confirmation to the Trustee.
Certificate: Any Class A, Class M, Class B or Class R Certificate.
Certificate Account: The separate account or accounts created and
maintained pursuant to Section 4.01 of the Standard Terms, which shall be
entitled "JPMorgan Chase Bank, as trustee, in trust for the registered holders
of Residential Funding Mortgage Securities I, Inc., Mortgage Pass- Through
Certificates, Series 2004-S2" and which must be an Eligible Account.
Certificate Insurance Account: The account established pursuant to
Section 12.02(b) of this Series Supplement.
Certificate Insurance Payment: Any payment made by the Certificate
Insurer with respect to the Insured Certificates under the Certificate Policy.
-6-
Certificate Insurer: Radian Asset Assurance Inc., a stock insurance company
organized and created under the laws of the State of New York, and any
successors thereto, issuer of the Certificate Policy.
Certificate Insurer Default: The existence and continuance of a failure
by the Certificate Insurer to make a payment required under the Certificate
Policy in accordance with its terms.
Certificate Policy: The financial guaranty insurance policy No.
FANI-0524-04086-NY issued by the Certificate Insurer for the benefit of the
Holders of the Insured Certificates, including any endorsements thereto,
attached hereto as Exhibit Six.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02,
(iii) in the case of the Accrual Certificates, an amount equal to the
aggregate Accrued Certificate Interest added to the Certificate
Principal Balance thereof prior to such date of determination,
minus
(iv) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate), and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(a) and (y) the aggregate
of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously
allocated to such Certificate (or any predecessor Certificate)
pursuant to Section 4.05; provided, however, that solely for
purposes of determining the Certificate Insurer's rights as
subrogee to the Insured Certificateholders, the Certificate
Principal Balance of any Insured Certificate shall be deemed to
not be reduced by any principal amounts paid to the Holder
thereof from Certificate Insurance Payments, unless such amounts
have been reimbursed to the Certificate Insurer pursuant to
Section 4.02(a)(xvi);
provided, that the Certificate Principal Balance of the Class of Subordinate
Certificates with the Lowest Priority at any given time shall be further reduced
by an amount equal to the Percentage Interest evidenced by such Certificate
multiplied by the excess, if any, of (A) the then aggregate Certificate
Principal Balance of all Classes of Certificates then outstanding (not taking
into consideration any reductions in the Certificate Principal Balance of the
Insured Certificates due to a withdrawal of funds from the Rounding Account)
over (B) the then aggregate Stated Principal Balance of the Mortgage Loans.
Class A Certificate: Any one of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-P or
Class A-V Certificates, executed by the
-7-
Trustee and authenticated by the Certificate Registrar substantially in the form
annexed to the Standard Terms as Exhibit A.
Class R Certificate: Any one of the Class R-I Certificates and Class
R-II Certificates executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit D
and evidencing an interest designated as a "residual interest" in each REMIC for
purposes of the REMIC Provisions.
Closing Date: March 26, 2004.
Corporate Trust Office: The principal office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at XX Xxxxxx Xxxxx Bank, 000 Xxxx Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Residential Funding Corporation
Series 2004- S2.
Corresponding Certificates: With respect to REMIC I Regular Interest V,
the Class A-3 Certificates; with respect to REMIC I Regular Interest W, the
Class A-1, Class A-2, Class A-5 and Class A-6 Certificates; with respect to
REMIC I Regular Interest X, the Class X-0, Xxxxx X-0, Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2, Class B-3 and Class R-II Certificates; with
respect to REMIC I Regular Interest Y, the Class A-7 and Class A-8 Certificates;
with respect to REMIC I Regular Interest Z, the Class A-P Certificates; and with
respect to the REMIC I IO Regular Interests, the Class A-V Certificates.
Cumulative Insurance Payments: As of any time of determination, the
aggregate of all Certificate Insurance Payments previously made by the
Certificate Insurer under the Certificate Policy minus the aggregate of all
payments previously made to the Certificate Insurer pursuant to Sections
4.02(a)(xvi) of this Series Supplement as reimbursement for Certificate
Insurance Payments.
Cut-off Date: March 1, 2004.
Deceased Holder: A Certificate Owner of an Insured Certificate who was a
natural person living at the time such interest was acquired and whose
authorized personal representative, surviving tenant by the entirety, surviving
joint tenant or surviving tenant in common or other person empowered to act on
behalf of a deceased Certificate Owner causes to be furnished to the Depository
Participant evidence of death satisfactory to the Depository Participant and any
tax waivers requested by the Depository Participant.
Deficiency Amount: With respect to the Insured Certificates and as of
any Distribution Date, an amount equal to the sum of (1) the excess of (a) the
Accrued Certificate Interest on the Insured Certificates on that Distribution
Date over (b) the Available Distribution Amount available to be distributed in
respect of the Insured Certificates on that Distribution Date pursuant to
Section 4.02(a)(i) hereof, (2) any amount allocated to the Insured Certificates
which reduces the Accrued Certificate Interest distributable to the Insured
Certificateholders with respect to that Distribution Date pursuant to clause
(ii), clause (iii), or, other than in respect of Relief Act Shortfalls, clause
(iv)
-8-
of the definition of Accrued Certificate Interest for the Insured Certificates,
(3) the principal portion of any Realized Losses allocated to the Insured
Certificates with respect to that Distribution Date pursuant to Section 4.05
hereof, and (4) the Certificate Principal Balance of the Insured Certificates,
net of any Subsequent Recoveries added thereto pursuant to clause (ii) of the
definition of Certificate Principal Balance for the Insured Certificates, to the
extent unpaid on the Scheduled Final Distribution Date for the Insured
Certificates after taking into account all distributions of principal and
allocations of Realized Losses to be made on that date pursuant to this
Agreement.
Determination Date: With respect to any Distribution Date, the second
Business Day prior to such Distribution Date.
Discount Net Mortgage Rate: 5.50% per annum.
Due Period: With respect to each Distribution Date and any Mortgage Loan,
the calendar month of such Distribution Date.
Eligible Funds: On any Distribution Date, the portion, if any, of the
Available Distribution Amount remaining after reduction by the sum of (i) the
aggregate amount of Accrued Certificate Interest on the Senior Certificates,
(ii) the Senior Principal Distribution Amount (determined without regard to
Section 4.02(a)(ii)(Y)(D) of this Series Supplement), (iii) the Class A-P
Principal Distribution Amount (determined without regard to Section
4.02(b)(i)(E) of this Series Supplement) and (iv) the aggregate amount of
Accrued Certificate Interest on the Class M, Class B-1 and Class B-2
Certificates.
Floater Certificates: The Class A-7 Certificates.
Fraud Loss Amount: As of any date of determination after the Cut-off
Date, an amount equal to:(X) prior to the second anniversary of the Cut-off Date
an amount equal to 2.00% of the aggregate outstanding principal balance of all
of the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of Certificates in
accordance with Section 4.05 of this Series Supplement since the Cut-off Date up
to such date of determination, (Y) from the second to the third anniversary of
the Cut-off Date, an amount equal to (1) the lesser of (a) the Fraud Loss Amount
as of the most recent anniversary of the Cut-off Date and (b) 1.50% of the
aggregate outstanding principal balance of all of the Mortgage Loans as of the
Cut- off Date minus (2) the aggregate amount of Fraud Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section 4.05 of
this Series Supplement since the Cut-off Date up to such date of determination
and (Z) from the third to the fifth anniversary of the Cut-off Date, an amount
equal to (1) the lesser of (a) the Fraud Loss Amount as of the most recent
anniversary of the Cut-off Date and (b) 1.00% of the aggregate outstanding
principal balance of all of the Mortgage Loans as of the Cut-off Date minus (2)
the aggregate amount of Fraud Losses allocated solely to one or more specific
Classes of Certificates in accordance with Section 4.05 of this Series
Supplement since the Cut-off Date up to such date of determination. On and after
the fifth anniversary of the Cut-off Date, the Fraud Loss Amount shall be zero.
The Fraud Loss Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such
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reduction, the Master Servicer shall (i) obtain written confirmation from each
Rating Agency that such reduction shall not reduce the rating assigned to any
Class of Certificates by such Rating Agency (without giving effect to the
Certificate Policy in the case of the Insured Certificates) below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
Indirect Depository Participant: An institution that is not a Depository
Participant but clears through or maintains a custodial relationship with
Participants and has access to the Depository's clearing system.
Individual Insured Certificate: An Insured Certificate that evidences
$1,000 Initial Certificate Principal Balance.
Initial Monthly Payment Fund: $21,963, representing scheduled principal
amortization and interest at the Net Mortgage Rate during the Due Period ending
in March 2004, for those Mortgage Loans for which the Trustee will not be
entitled to receive such payment in accordance with the definition of "Trust
Fund". The Initial Monthly Payment Fund will not be part of any REMIC.
Initial Notional Amount: With respect to the Class A-8 Certificates,
$28,527,818.00. With respect to the Class A-V Certificates, $361,986,143.80. For
federal tax purposes, with respect to any Class A-V Certificates or Subclass
thereof issued pursuant to Section 5.01(c), the aggregate Cut-off Date Principal
Balance of the Mortgage Loans corresponding to the Uncertificated Class A-V
REMIC Regular Interests represented by such Class or Subclass on such date.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Certificate Principal Balance of such Class of Subordinate Certificates divided
by the aggregate Stated Principal Balance of all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 1.45% Class B-1: 0.20%
Class M-2: 0.45% Class B-2: 0.15%
Class M-3: 0.30% Class B-3: 0.10%
Interest Accrual Period: With respect to any Certificates (other than
the Adjustable Certificates) and any Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs. With respect to the
Adjustable Rate Certificates, the one-month period commencing on the 25th day of
the month preceding the month in which the Distribution Date occurs and ending
on the 24th day of the month in which the Distribution Date occurs.
Insurance Premium: With respect to any Distribution Date, an amount
equal to 1/12th of the product of (a) the Certificate Principal Balance of the
Class A-6 Certificates as of such Distribution Date (prior to giving effect to
any distributions thereon on such Distribution Date) and (b) 0.050% per annum.
Insured Certificates: Any one of the Class A-6 Certificates.
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Insured Payment: With respect to the Insured Certificates, the sum of (a)
as of any Distribution Date, any Deficiency Amount, and (b) any Preference
Amount.
Interest Only Certificates: Any one of the Class A-8 or Class A-V
Certificates. The Interest Only Certificates will have no Certificate Principal
Balance.
Inverse Floater Certificates: The Class A-8 Certificates.
LIBOR Business Day: Any day other than (i) a Saturday or Sunday or (ii)
a day on which banking institutions in London, England are required or
authorized by law to be closed.
LIBOR Rate Adjustment Date: With respect to each Distribution Date and
the Adjustable Rate Certificates, the second LIBOR Business Day immediately
preceding the commencement of the related Interest Accrual Period on which banks
are open for dealing in foreign currency and exchange in London, England.
Living Owner: A Certificate Owner of an Insured Certificate other than a
Deceased Holder.
Lockout Certificates: The Class A-9 Certificates.
Lockout Percentage: For any Distribution Date occurring prior to the
Distribution Date in April 2009, 0%. For any Distribution Date occurring after
the first five years following the Closing Date, a percentage determined as
follows: (i) for any Distribution Date during the sixth year after the Closing
Date, 30%; (ii) for any Distribution Date during the seventh year after the
Closing Date, 40%; (iii) for any Distribution Date during the eighth year after
the Closing Date, 60%; (iv) for any Distribution Date during the ninth year
after the Closing Date, 80%; and (v) for any Distribution Date thereafter, 100%.
Maturity Date: With respect to each Class of Certificates, March 25,
2034, the Distribution Date immediately following the latest scheduled maturity
date of any Mortgage Loan.
Mortgage Loan Schedule: The list or lists of the Mortgage Loans attached
hereto as Exhibit One (as amended from time to time to reflect the addition of
Qualified Substitute Mortgage Loans), which list or lists shall set forth the
following information as to each Mortgage Loan:
(a) the Mortgage Loan identifying number ("RFC LOAN #");
(b) the maturity of the Mortgage Note ("MATURITY DATE");
(c) the Mortgage Rate ("ORIG RATE");
(d) the Subservicer pass-through rate ("CURR NET");
(e) the Net Mortgage Rate ("NET MTG RT");
(f) the Pool Strip Rate ("STRIP");
(g) the initial scheduled monthly payment of principal, if any, and
interest ("ORIGINAL P & I");
(h) the Cut-off Date Principal Balance ("PRINCIPAL BAL"); (i) the
Loan-to-Value Ratio at origination ("LTV");
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(j) the rate at which the Subservicing Fee accrues ("SUBSERV FEE")
and at which the Servicing Fee accrues ("MSTR SERV FEE");
(k) a code "T," "BT" or "CT" under the column "LN FEATURE,"
indicating that the Mortgage Loan is secured by a second or
vacation residence; and
(l) a code "N" under the column "OCCP CODE," indicating that the
Mortgage Loan is secured by a non-owner occupied residence.
Such schedule may consist of multiple reports that collectively set forth all of
the information required.
Non-Discount Mortgage Loan: The mortgage loans other than the Discount
Mortgage Loans.
Notional Amount: As of any Distribution Date, with respect to the Class
A-8 Certificates, an amount equal to the Certificate Principal Balance of the
Class A-7 Certificates. For federal income tax purposes, however, as of any
Distribution Date, with respect to the Class A-8 Certificates, the equivalent of
the foregoing, expressed as the Uncertificated Principal Balance of REMIC I
Regular Interest Y. As of the Closing Date, the Notional Amount of the Class A-8
Certificates is equal to approximately $28,527,818.00. As of any Distribution
Date, with respect to any Class A-V Certificates, the aggregate Stated Principal
Balance of the Mortgage Loans as of the day immediately preceding such
Distribution Date (or with respect to the initial Distribution Date, at the
close of business on the Cut-off Date). For federal income tax purposes,
however, as of any Distribution Date, with respect to any Class A-V Certificates
or Subclass thereof issued pursuant to Section 5.01(c), the aggregate Stated
Principal Balance of the Mortgage Loans corresponding to the Uncertificated
Class A-V REMIC Regular Interests represented by such Class or Subclass as of
the day immediately preceding such Distribution Date (or, with respect to the
initial Distribution Date, at the close of business on the Cut-off Date).
Pass-Through Rate: With respect to the Class A Certificates (other than
the Adjustable Rate Certificates, Class A-V Certificates and Principal Only
Certificates), Class M Certificates, Class B Certificates and Class R
Certificates and any Distribution Date, the per annum rates set forth in the
Preliminary Statement hereto. With respect to the Class A-7 Certificates and the
initial Interest Accrual Period, 1.64875% per annum, and as to any Interest
Accrual Period thereafter, a per annum rate equal to LIBOR plus 0.55%, subject
to a maximum rate of 8.00% per annum and a minimum rate of 0.55% per annum. With
respect to the Class A-8 Certificates and the initial Interest Accrual Period,
6.35125% per annum, and as to any Interest Accrual Period thereafter, a per
annum rate equal to 7.45% minus LIBOR, subject to a maximum rate of 7.45% per
annum and a minimum rate of 0.00% per annum. With respect to the Class A-V
Certificates (other than any Subclass thereof) and any Distribution Date, a rate
equal to the weighted average, expressed as a percentage, of the Pool Strip
Rates of all Mortgage Loans as of the Due Date in the related Due Period,
weighted on the basis of the respective Stated Principal Balances of such
Mortgage Loans as of the day immediately preceding such Distribution Date (or,
with respect to the initial Distribution Date, at the close of business on the
Due Date in the month preceding the month of such Distribution Date). With
respect to the Class A-V Certificates and the initial Distribution Date the
Pass-Through Rate is equal to 0.0845% per annum. With respect to any Subclass of
Class A-V Certificates and any Distribution Date, a rate equal to the weighted
average, expressed as a percentage, of the Pool Strip Rates of all Mortgage
Loans corresponding to the Uncertificated Class A-V REMIC Regular Interests
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represented by such Subclass as of the Due Date in the related Due Period,
weighted on the basis of the respective Stated Principal Balances of such
Mortgage Loans as of the day immediately preceding such Distribution Date (or
with respect to the initial Distribution Date, at the close of business on the
Due Date in the month preceding the month of such Distribution Date). The
Principal Only Certificates have no Pass-Through Rate and are not entitled to
Accrued Certificate Interest.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b)
the Discount Net Mortgage Rate (but not less than 0.00%) per annum.
Preference Amount: Any amount previously distributed to a
Certificateholder on an Insured Certificate that is recoverable and sought to be
recovered as a voidable preference by a trustee in bankruptcy pursuant to the
United States Bankruptcy Code (11 U.S.C.), as amended from time to time, in
accordance with a final nonappealable order of a court having competent
jurisdiction.
Prepayment Assumption: A prepayment assumption of 300% of the prepayment
speed assumption, used for determining the accrual of original issue discount
and market discount and premium on the Certificates for federal income tax
purposes. The prepayment speed assumption assumes a constant rate of prepayment
of mortgage loans of 0.2% per annum of the then outstanding principal balance of
such mortgage loans in the first month of the life of the mortgage loans,
increasing by an additional 0.2% per annum in each succeeding month until the
thirtieth month, and a constant 6% per annum rate of prepayment thereafter for
the life of the mortgage loans.
Prepayment Distribution Percentage: With respect to any Distribution
Date and each Class of Subordinate Certificates, under the applicable
circumstances set forth below, the respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date in
April 2009 (unless the Certificate Principal Balances of the Senior
Certificates (other than the Class A-P Certificates) have been reduced
to zero), 0%.
(ii) For any Distribution Date for which clause (i) above does
not apply, and on which any Class of Subordinate Certificates is
outstanding with a Certificate Principal Balance greater than zero:
(a) in the case of the Class of Subordinate Certificates
then outstanding with the Highest Priority and each other Class
of Subordinate Certificates for which the related Prepayment
Distribution Trigger has been satisfied, a fraction, expressed as
a percentage, the numerator of which is the Certificate Principal
Balance of such Class immediately prior to such date and the
denominator of which is the sum of the Certificate Principal
Balances immediately prior to such date of (1) the Class of
Subordinate Certificates then outstanding with the Highest
Priority and (2) all other Classes of Subordinate Certificates
for which the respective Prepayment Distribution Triggers have
been satisfied; and
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(b) in the case of each other Class of Subordinate
Certificates for which the Prepayment Distribution Triggers have
not been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in Section
4.02 of this Series Supplement (determined without regard to the proviso
to the definition of "Subordinate Principal Distribution Amount") would
result in a distribution in respect of principal of any Class or Classes
of Subordinate Certificates in an amount greater than the remaining
Certificate Principal Balance thereof (any such class, a "Maturing
Class"), then: (a) the Prepayment Distribution Percentage of each
Maturing Class shall be reduced to a level that, when applied as
described above, would exactly reduce the Certificate Principal Balance
of such Class to zero; (b) the Prepayment Distribution Percentage of
each other Class of Subordinate Certificates (any such Class, a
"Non-Maturing Class") shall be recalculated in accordance with the
provisions in paragraph (ii) above, as if the Certificate Principal
Balance of each Maturing Class had been reduced to zero (such percentage
as recalculated, the "Recalculated Percentage"); (c) the total amount of
the reductions in the Prepayment Distribution Percentages of the
Maturing Class or Classes pursuant to clause (a) of this sentence,
expressed as an aggregate percentage, shall be allocated among the
Non-Maturing Classes in proportion to their respective Recalculated
Percentages (the portion of such aggregate reduction so allocated to any
Non-Maturing Class, the "Adjustment Percentage"); and (d) for purposes
of such Distribution Date, the Prepayment Distribution Percentage of
each Non-Maturing Class shall be equal to the sum of (1) the Prepayment
Distribution Percentage thereof, calculated in accordance with the
provisions in paragraph (ii) above as if the Certificate Principal
Balance of each Maturing Class had not been reduced to zero, plus (2)
the related Adjustment Percentage.
Principal Only Certificates: Any one of the Class A-P Certificates.
Random Lot: With respect to any Distribution Date, the method by which
the Depository will determine which Insured Certificates will be paid, using its
established random lot procedures or, if the Insured Certificates are no longer
represented by a Book-Entry Certificate, using the Trustee's procedures.
Record Date: With respect to each Distribution Date and each Class of
Certificates (other than the Adjustable Rate Certificates that are Book-Entry
Certificates), the close of business on the last Business Day of the month next
preceding the month in which the related Distribution Date occurs. With respect
to each Distribution Date and the Adjustable Rate Certificates (so long as they
are Book-Entry Certificates), the close of business on the Business Day prior to
such Distribution Date.
Relief Act: The Service Members Civil Relief Act, formerly known as the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
Relief Act Shortfalls: Shortfalls in interest payable by a Mortgagor
that is not collectable from the Mortgagor pursuant to the Relief Act.
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REMIC I: The segregated pool of assets related to this Series, with
respect to which a REMIC election is to be made (except as provided below)
pursuant to this Agreement, consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral
securing such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans
due after the Cut-off Date (other than Monthly Payments due in
the month of the Cut-off Date) as shall be on deposit in the
Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund, but not including amounts on deposit
in the Initial Monthly Payment Fund,
(iii) property that secured a Mortgage Loan and that has been acquired
for the benefit of the Certificateholders by foreclosure or deed
in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if
any, and
(v) all proceeds of clauses (i) through (iv) above.
Notwithstanding the foregoing, the REMIC election specifically excludes
the Initial Monthly Payment Fund, the Rounding Account and the Reserve Fund.
REMIC I Certificates: The Class R-I Certificates.
REMIC I IO Notional Amount: With respect to each REMIC I IO Regular
Interest, an amount equal to the aggregate Stated Principal Balance of the
related Non-Discount Mortgage Loan.
REMIC I IO Regular Interests: The 523 uncertificated partial undivided
beneficial ownership interests in REMIC I, relating to each Non-Discount
Mortgage Loan, numbered sequentially from 1 through 523, each relating to a
particular Non-Discount Mortgage Loan identified by sequential number on the
Mortgage Loan Schedule, each having no principal balance, and each bearing
interest at the related REMIC I Pass-Through Rate on the related REMIC I IO
Notional Amount.
REMIC I Pass-Through Rate: With respect to REMIC I Regular Interest V,
5.00%. With respect to REMIC I Regular Interest W, 5.25%. With respect to REMIC
I Regular Interest X, 5.50%. With respect to REMIC I Regular Interest Y, 8.00%.
With respect to REMIC I Regular Interest Z, 0.00%. With respect to each REMIC I
IO Regular Interest, the Pool Strip Rate for the related Non- Discount Mortgage
Loan.
REMIC I Regular Interest V: An uncertificated partial undivided
beneficial ownership interest in REMIC I having a principal balance equal to the
aggregate Certificate Principal Balance of the Class A-3 Certificates and which
bears interest at a rate equal to 5.00% per annum.
REMIC I Regular Interest W: An uncertificated partial undivided
beneficial ownership interest in REMIC I having a principal balance equal to the
aggregate Certificate Principal Balance
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of the Class A-1, Class A-2, Class A-5 and Class A-6 Certificates and which
bears interest at a rate equal to 5.25% per annum.
REMIC I Regular Interest X: An uncertificated partial undivided
beneficial ownership interest in REMIC I having a principal balance equal to the
aggregate of the Certificate Principal Balance of the Class A-4, Class A-9,
Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3 and Class R-II
Certificates, and which bears interest at a rate equal to 5.50% per annum.
REMIC I Regular Interest Y: An uncertificated partial undivided
beneficial ownership interest in REMIC I having a principal balance equal to the
amount of the Class A-7 Certificates, and which bears interest at a rate equal
to 8.00% per annum.
REMIC I Regular Interest Z: An uncertificated partial undivided
beneficial ownership interest in REMIC I having a principal balance equal to the
aggregate Certificate Principal Balance of the Class A-P Certificates, and which
bears interest at a rate equal to 0.00% per annum.
REMIC I IO Regular Interest Distribution Amount: With respect to any
Distribution Date, the sum of the amounts deemed to be distributed on the
Uncertificated Class A-V REMIC Regular Interests for such Distribution Date
pursuant to Section 10.04.
REMIC I Regular Interest V Distribution Amount: With respect to any
Distribution Date, the sum of the amounts deemed to be distributed on the REMIC
I Regular Interest V for such Distribution Date pursuant to Section 10.04.
REMIC I Regular Interest W Distribution Amount: With respect to any
Distribution Date, the sum of the amounts deemed to be distributed on the REMIC
I Regular Interest W for such Distribution Date pursuant to Section 10.04.
REMIC I Regular Interest X Distribution Amount: With respect to any
Distribution Date, the sum of the amounts deemed to be distributed on the REMIC
I Regular Interest X for such Distribution Date pursuant to Section 10.04.
REMIC I Regular Interest Y Distribution Amount: With respect to any
Distribution Date, the sum of the amounts deemed to be distributed on the REMIC
I Regular Interest Y for such Distribution Date pursuant to Section 10.04.
REMIC I Regular Interest Z Distribution Amount: With respect to any
Distribution Date, the sum of the amounts deemed to be distributed on the REMIC
I Regular Interest Z for such Distribution Date pursuant to Section 10.04.
REMIC I Regular Interest Distribution Amounts: The REMIC I Regular
Interest V Distribution Amount, the REMIC I Regular Interest W Distribution
Amount, the REMIC I Regular Interest X Distribution Amount, the REMIC I Regular
Interest Y Distribution Amount, the REMIC I Regular Interest Z Distribution
Amount and the REMIC I IO Regular Interest Distribution Amount.
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REMIC II: The segregated pool of assets consisting of the Uncertificated
REMIC Regular Interests conveyed in trust to the Trustee for the benefit of the
holders of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8, Class A-9, Class A-P, Class A-V Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2, Class B-3 and Class R-II Certificates pursuant
to Section 2.06, with respect to which a separate REMIC election is to be made.
The REMIC election with respect to REMIC II specifically excludes the Initial
Monthly Payment Fund, the Rounding Account and the Reserve Fund.
REMIC II Certificates: Any of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-P, Class
A-V, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3 and Class
R-II Certificates.
Reserve Fund: Any one or more segregated trust accounts established
pursuant to Section 4.11 that are Eligible Accounts, which shall be titled
"Reserve Fund, JPMorgan Chase Bank, as trustee for the registered holders of
Residential Funding Mortgage Securities I, Inc., Mortgage Pass-Through
Certificates, Series 2004-S2, Class A-6."
Reserve Fund Deposit: $20,000.
Reserve Fund Withdrawal: As defined in Section 4.11.
Rounding Account: With respect to the Insured Certificates, the account
created and maintained for such Insured Certificates pursuant to Section 4.09.
Rounding Amount: With respect to the Rounding Account, the amount of
funds, if any, needed to be withdrawn and used to round the amount of any
distributions in reduction of the Certificate Principal Balance of the Insured
Certificates upward to the next higher integral multiple of $1,000.
Scheduled Final Distribution Date: March 25, 2034.
Senior Certificate: Any one of the Class A Certificates or Class R
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit A
and Exhibit D, respectively.
Senior Percentage: As of any Distribution Date, the lesser of 100% and a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Senior Certificates (other than the Class
A-P Certificates) immediately prior to such Distribution Date and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of the Stated Principal Balance of each Discount Mortgage Loan)
immediately prior to such Distribution Date.
Senior Principal Distribution Amount: As to any Distribution Date, the
lesser of (a) the balance of the Available Distribution Amount remaining after
the distribution of all amounts required to be distributed pursuant to Section
4.02(a)(i) and Section 4.02(a)(ii)(X) of this Series Supplement and the
distribution of the Insurance Premium, or, after the Credit Support Depletion
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Date, the amount required to be distributed to the Class A-P Certificateholders
pursuant to Section 4.02(c) and Section 4.02 (d) of this Series Supplement and
(b) the sum of the amounts required to be distributed to the Senior
Certificateholders on such Distribution Date pursuant to Section 4.02(a)(ii)(Y)
of this Series Supplement.
Special Hazard Amount: As of any Distribution Date, an amount equal to
$3,619,861 minus the sum of (i) the aggregate amount of Special Hazard Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 4.05 of this Series Supplement and (ii) the Adjustment Amount (as
defined below) as most recently calculated. For each anniversary of the Cut- off
Date, the Adjustment Amount shall be equal to the amount, if any, by which the
amount calculated in accordance with the preceding sentence (without giving
effect to the deduction of the Adjustment Amount for such anniversary) exceeds
the greater of (A) the greatest of (i) twice the outstanding principal balance
of the Mortgage Loan in the Trust Fund which has the largest outstanding
principal balance on the Distribution Date immediately preceding such
anniversary, (ii) the product of 1.00% multiplied by the outstanding principal
balance of all Mortgage Loans on the Distribution Date immediately preceding
such anniversary and (iii) the aggregate outstanding principal balance (as of
the immediately preceding Distribution Date) of the Mortgage Loans in any single
five-digit California zip code area with the largest amount of Mortgage Loans by
aggregate principal balance as of such anniversary and (B) the greater of (i)
the product of 0.50% multiplied by the outstanding principal balance of all
Mortgage Loans on the Distribution Date immediately preceding such anniversary
multiplied by a fraction, the numerator of which is equal to the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of all of the Mortgage Loans secured by Mortgaged Properties located in
the State of California divided by the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of all of the Mortgage
Loans, expressed as a percentage, and the denominator of which is equal to
64.39% (which percentage is equal to the percentage of Mortgage Loans initially
secured by Mortgaged Properties located in the State of California) and (ii) the
aggregate outstanding principal balance (as of the immediately preceding
Distribution Date) of the largest Mortgage Loan secured by a Mortgaged Property
(or, with respect to a Cooperative Loan, the related Cooperative Apartment)
located in the State of California.
The Special Hazard Amount may be further reduced by the Master Servicer
(including accelerating the manner in which coverage is reduced) provided that
prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency (without
giving effect to the Certificate Policy in the case of the Insured Certificates)
below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a
copy of such written confirmation to the Trustee.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and each Class of Subordinate Certificates, (a) the sum of (i)
the product of (x) the related Subordinate Class Percentage for such Class and
(y) the aggregate of the amounts calculated for such Distribution Date under
clauses (1), (2) and (3) of Section 4.02(a)(ii)(Y)(A) of this Series Supplement
(without giving effect to the Senior Percentage) to the extent not payable to
the Senior Certificates; (ii) such Class's pro rata share, based on the
Certificate Principal Balance of each Class of Subordinate Certificates then
outstanding, of the principal collections described in Section
4.02(a)(ii)(Y)(B)(b) of this Series
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Supplement (without giving effect to the Senior Accelerated Distribution
Percentage) to the extent such collections are not otherwise distributed to the
Senior Certificates; (iii) the product of (x) the related Prepayment
Distribution Percentage and (y) the aggregate of all Principal Prepayments in
Full received in the related Prepayment Period and Curtailments received in the
preceding calendar month (other than the related Discount Fraction of such
Principal Prepayments in Full and Curtailments with respect to a Discount
Mortgage Loan) to the extent not payable to the Senior Certificates; (iv) if
such Class is the Class of Subordinate Certificates with the Highest Priority,
any Excess Subordinate Principal Amount for such Distribution Date; and (v) any
amounts described in clauses (i), (ii) and (iii) as determined for any previous
Distribution Date, that remain undistributed to the extent that such amounts are
not attributable to Realized Losses which have been allocated to a Class of
Subordinate Certificates minus (b) the sum of (i) with respect to the Class of
Subordinate Certificates with the Lowest Priority, any Excess Subordinate
Principal Amount for such Distribution Date; and (ii) the Capitalization
Reimbursement Amount for such Distribution Date, other than the related Discount
Fraction of any portion of that amount related to each Discount Mortgage Loan,
multiplied by a fraction, the numerator of which is the Subordinate Principal
Distribution Amount for such Class of Subordinate Certificates, without giving
effect to this clause (b)(ii), and the denominator of which is the sum of the
principal distribution amounts for all Classes of Certificates other than the
Class A-P Certificates, without giving effect to any reductions for the
Capitalization Reimbursement Amount.
Trust Fund: REMIC I, REMIC II, the Rounding Account, the Reserve Fund
and the Initial Monthly Payment Fund.
Uncertificated Accrued Interest: With respect to each Distribution Date,
(i) as to REMIC I Regular Interest V, an amount equal to the aggregate amount of
Accrued Certificate Interest that would result under the terms of the definition
thereof with respect to the Class A-3 Certificates if the Pass-Through Rate on
such Class were equal to the related REMIC I Pass-Through Rate and the related
Uncertificated Principal Balance was the Certificate Principal Balance, (ii) as
to REMIC I Regular Interest W, an amount equal to the aggregate amount of
Accrued Certificate Interest that would result under the terms of the definition
thereof with respect to the Class A-1, Class A-2, Class A-5 and Class A-6
Certificates if the Pass-Through Rate on each such Class were equal to the
related REMIC I Pass-Through Rate and the aggregate related Uncertificated
Principal Balance was the Certificate Principal Balance, (iii) as to REMIC I
Regular Interest X, an amount equal to the aggregate amount of Accrued
Certificate Interest that would result under the terms of the definition thereof
with respect to the Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2, Class B-3 and Class R-II Certificates if the Pass-Through Rate
on each such Class were equal to the related REMIC I Pass-Through Rate and the
aggregate related Uncertificated Principal Balance was the Certificate Principal
Balance, (iv) as to REMIC I Regular Interest Y, an amount equal to the aggregate
amount of Accrued Certificate Interest that would result under the terms of the
definition thereof on the Class A-7 Certificates if the Pass-Through Rate on
such Class were equal to the related REMIC I Pass-Through Rate and the
Uncertificated Principal Balance was the Certificate Principal Balance, and (v)
as to each REMIC I IO Regular Interest, an amount equal to the aggregate amount
of Uncertificated Class A-V REMIC Accrued Interest that would result under the
terms of the definition thereof with respect to the related Uncertificated Class
A-V REMIC Regular Interest, if the Pass-Through Rate on such uncertificated
interest were equal to the related REMIC I Pass-Through Rate and the notional
amount of such uncertificated interest was equal to
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the related REMIC I IO Notional Amount; provided, that any reduction in the
amount of Accrued Certificate Interest resulting from the allocation of
Prepayment Interest Shortfalls, Realized Losses or other amounts to the
Certificates pursuant to Sections 4.02(a) and 4.05 hereof shall be allocated to
the Uncertificated REMIC Regular Interests for which such Certificates are the
Corresponding Certificates.
Uncertificated Class A-V REMIC Accrued Interest: With respect to each
Distribution Date, as to each Uncertificated Class A-V REMIC Regular Interest,
an amount equal to the aggregate amount of Accrued Certificate Interest that
would result under the terms of the definition thereof with respect to the
related Class A-V Certificates or related Subclass, if the Pass-Through Rate on
such Certificate or Subclass were equal to the related Uncertificated Class A-V
REMIC Pass-Through Rate and the notional amount of such Certificate or Subclass
were equal to the related Uncertificated Class A-V REMIC Notional Amount, and
any reduction in the amount of Accrued Certificate Interest resulting from the
allocation of Prepayment Interest Shortfalls, Realized Losses or other amounts
to the Class A-V Certificateholders pursuant to Section 4.05 hereof shall be
allocated to the Uncertificated Class A-V REMIC Regular Interests pro rata in
accordance with the amount of interest accrued with respect to each related
Uncertificated Class A-V REMIC Regular Interest and such Distribution Date.
Uncertificated Class A-V REMIC Notional Amount: With respect to each
Uncertificated Class A-V REMIC Regular Interest, the amount of the related REMIC
I IO Notional Amount.
Uncertificated Class A-V REMIC Pass-Through Rate: With respect to each
Uncertificated Class A-V REMIC Regular Interest, a per annum rate equal to the
Pool Strip Rate with respect to the related Mortgage Loan. For federal income
tax purposes, however, each Uncertificated Class A-V REMIC Regular Interest will
not have a pass through rate and Uncertificated Class A-V REMIC Accrued Interest
therefor will be equal to 100% of the interest distributed with respect to the
related REMIC I IO Regular Interest.
Uncertificated Class A-V REMIC Regular Interest Distribution Amounts:
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated Class A-V REMIC Regular Interests for such
Distribution Date pursuant to Section 4.08(a).
Uncertificated Class A-V REMIC Regular Interests: The 523 uncertificated
partial undivided beneficial ownership interests in the Trust Fund, relating to
each Non-Discount Mortgage Loan, numbered sequentially from 1 through 523, each
relating to the particular Non-Discount Mortgage Loan identified by sequential
number on the Mortgage Loan Schedule, each having no principal balance, and each
bearing interest at a per annum rate equal to the respective Pool Strip Rate on
the Stated Principal Balance of the related Non-Discount Mortgage Loan.
Uncertificated Principal Balance: With respect to each Uncertificated
REMIC Regular Interest on any date of determination, an amount equal to (A)(i)
$50,000,000.00 with respect to REMIC I Regular Interest V, (ii) $185,278,182.00
with respect to REMIC I Regular Interest W, (iii) $95,794,000.57 with respect to
REMIC I Regular Interest X, (iv) $28,527,818.00 with respect to REMIC I Regular
Interest Y, and (v) $2,386,043.23 with respect to REMIC I Regular Interest Z,
minus (B) the sum of (x) the aggregate of all amounts previously deemed
distributed with respect
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to such interest and applied to reduce the Uncertificated Principal Balance
thereof pursuant to Section 10.04(a)(ii) and (y) the aggregate of all reductions
in Uncertificated Principal Balance deemed to have occurred in connection with
Realized Losses that were previously deemed allocated to the Uncertificated
Principal Balance of such Uncertificated REMIC Regular Interest pursuant to
Section 10.04(d).
Uncertificated REMIC Regular Interests: REMIC I Regular Interest V,
REMIC I Regular Interest W, REMIC I Regular Interest X, REMIC I Regular Interest
Y, REMIC I Regular Interest Z and REMIC I IO Regular Interests.
Underwriter: Bear, Xxxxxxx & Co. Inc.
Section 1.02 Use of Words and Phrases.
"Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to the Pooling and Servicing Agreement as a
whole. All references herein to Articles, Sections or Subsections shall mean the
corresponding Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definitions set forth herein include both the singular and the
plural.
Section 1.03 Determination of LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rates on the
Adjustable Rate Certificates, if any, for any Interest Accrual Period (other
than the initial Interest Accrual Period) will be determined on each LIBOR Rate
Adjustment Date.
On each LIBOR Rate Adjustment Date (other than for the initial Interest
Accrual Period), LIBOR shall be established by the Trustee and, as to any
Interest Accrual Period, will equal the rate for one month United States dollar
deposits that appears on the Telerate Screen Page 3750 as of 11:00 a.m., London
time, on such LIBOR Rate Adjustment Date. "Telerate Screen Page 3750" means the
display designated as page 3750 on the Telerate Service (or such other page as
may replace page 3750 on that service for the purpose of displaying London
interbank offered rates of major banks). If such rate does not appear on such
page (or such other page as may replace that page on that service, or if such
service is no longer offered, LIBOR shall be so established by use of such other
service for displaying LIBOR or comparable rates as may be selected by the
Trustee after consultation with the Master Servicer), the rate will be the
Reference Bank Rate. The "Reference Bank Rate" will be determined on the basis
of the rates at which deposits in U.S. Dollars are offered by the reference
banks (which shall be any three major banks that are engaged in transactions in
the London interbank market, selected by the Trustee after consultation with the
Master Servicer) as of 11:00 a.m., London time, on the LIBOR Rate Adjustment
Date to prime banks in the London interbank market for a period of one month in
amounts approximately equal to the Certificate Principal Balance of the Class
A-7 Certificates then outstanding. The Trustee will request the principal London
office of each of the reference banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate will be the arithmetic mean of
the quotations rounded up to the next multiple of 1/16%. If on such date fewer
than two quotations are provided as requested, the rate will be the arithmetic
mean of the rates quoted by one or more major banks in New York
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City, selected by the Trustee after consultation with the Master Servicer, as of
11:00 a.m., New York City time, on such date for loans in U.S. Dollars to
leading European banks for a period of one month in amounts approximately equal
to the Certificate Principal Balance of the Class A-7 Certificates then
outstanding. If no such quotations can be obtained, the rate will be LIBOR for
the prior Distribution Date, or in the case of the first LIBOR Rate Adjustment
Date, 1.09875%; provided however, if, under the priorities listed previously in
this paragraph, LIBOR for a Distribution Date would be based on LIBOR for the
previous Distribution Date for the third consecutive Distribution Date, the
Trustee, after consultation with the Master Servicer, shall select an
alternative comparable index over which the Trustee has no control, used for
determining one-month Eurodollar lending rates that is calculated and published
or otherwise made available by an independent party.
The establishment of LIBOR by the Trustee on any LIBOR Rate Adjustment
Date and the Master Servicer's subsequent calculation of the Pass-Through Rates
applicable to each of the Adjustable Rate Certificates for the relevant Interest
Accrual Period, in the absence of manifest error, will be final and binding.
Promptly following each LIBOR Rate Adjustment Date the Trustee shall
supply the Master Servicer with the results of its determination of LIBOR on
such date. Furthermore, the Trustee will supply to any Certificateholder so
requesting by telephone the Pass-Through Rates on each of the Adjustable Rate
Certificates for the current and the immediately preceding Interest Accrual
Period.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (See Section 2.01 of the
Standard Terms)
Section 2.02 Acceptance by Trustee. (See Section 2.02 of the Standard
Terms)
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer and the Company.
(a) For representations, warranties and covenants of the Master
Servicer, see Section 2.03(a) of the Standard Terms.
(b) The Company hereby represents and warrants to the Trustee for
the benefit of Certificateholders that as of the Closing Date (or, if
otherwise specified below, as of the date so specified):
(i) No Mortgage Loan is 30 or more days Delinquent in
payment of principal and interest as of the Cut-off Date and no
Mortgage Loan has been so Delinquent more than once in the
12-month period prior to the Cut-off Date;
(ii) The information set forth in Exhibit One hereto with
respect to each Mortgage Loan or the Mortgage Loans, as the case
may be, is true and correct in all material respects at the date
or dates respecting which such information is furnished;
(iii) The Mortgage Loans are fully-amortizing, fixed-rate
mortgage loans with level Monthly Payments due, with respect to a
majority of the Mortgage Loans, on the first day of each month
and terms to maturity at origination or modification of not more
than 30 years;
(iv) To the best of the Company's knowledge, if a Mortgage
Loan is secured by a Mortgaged Property with a Loan-to-Value
Ratio at origination in excess of 80%, such Mortgage Loan is the
subject of a Primary Insurance Policy that insures that (a) at
least 30% of the Stated Principal Balance of the Mortgage Loan at
origination if the Loan-to-Value Ratio is between 95.00% and
90.01%, (b) at least 25% of such balance if the Loan-to-Value
Ratio is between 90.00% and 85.01%, and (c) at least 12% of such
balance if the Loan-to-Value Ratio is between 85.00% and 80.01%.
To the best of the Company's knowledge, each such Primary
Insurance Policy is in full force and effect and the Trustee is
entitled to the benefits thereunder;
(v) The issuers of the Primary Insurance Policies are
insurance companies whose claims-paying abilities are currently
acceptable to each Rating Agency;
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(vi) No more than 1.9% of the Mortgage Loans by aggregate
Cut-off Date Principal Balance as of the Cut-off Date are secured
by Mortgaged Properties located in any one zip code area in
Illinois and no more than 1.0% of the Mortgage Loans by aggregate
Stated Principal Balance as of the Cut-off Date are secured by
Mortgaged Properties located in any one zip code area outside
Illinois;
(vii) The improvements upon the Mortgaged Properties are
insured against loss by fire and other hazards as required by the
Program Guide, including flood insurance if required under the
National Flood Insurance Act of 1968, as amended. The Mortgage
requires the Mortgagor to maintain such casualty insurance at the
Mortgagor's expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(viii) Immediately prior to the assignment of the Mortgage
Loans to the Trustee, the Company had good title to, and was the
sole owner of, each Mortgage Loan free and clear of any pledge,
lien, encumbrance or security interest (other than rights to
servicing and related compensation) and such assignment validly
transfers ownership of the Mortgage Loans to the Trustee free and
clear of any pledge, lien, encumbrance or security interest;
(ix) No more than 16.33% of the Mortgage Loans by
aggregate Cut-off Date Principal Balance were underwritten under
a reduced loan documentation program;
(x) Each Mortgagor represented in its loan application
with respect to the related Mortgage Loan that the Mortgaged
Property would be owner-occupied and therefore would not be an
investor property as of the date of origination of such Mortgage
Loan. No Mortgagor is a corporation or a partnership;
(xi) None of the Mortgage Loans is a Buydown Mortgage
Loan;
(xii) Each Mortgage Loan constitutes a qualified mortgage
under Section 860G(a)(3)(A) of the Code and Treasury Regulations
Section 1.860G-2(a)(1);
(xiii) A policy of title insurance was effective as of the
closing of each Mortgage Loan and is valid and binding and
remains in full force and effect, unless the Mortgaged Properties
are located in the State of Iowa and an attorney's certificate
has been provided as described in the Program Guide;
(xiv) None of the Mortgage Loans are Cooperative Loans;
(xv) With respect to each Mortgage Loan originated under a
"streamlined" Mortgage Loan program (through which no new or
updated appraisals of Mortgaged Properties are obtained in
connection with the refinancing thereof), the related Seller has
represented that either (a) the value of the related Mortgaged
Property as of the
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date the Mortgage Loan was originated was not less than the
appraised value of such property at the time of origination of
the refinanced Mortgage Loan or (b) the Loan- to-Value Ratio of
the Mortgage Loan as of the date of origination of the Mortgage
Loan generally meets the Company's underwriting guidelines;
(xvi) Interest on each Mortgage Loan is calculated on the
basis of a 360-day year consisting of twelve 30-day months;
(xvii) None of the Mortgage Loans contains in the related
Mortgage File a Destroyed Mortgage Note; and
(xviii)None of the Mortgage Loans are Pledged Asset Loans
or Additional Collateral Loans.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the Trustee or any Custodian.
Upon discovery by any of the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any of the representations and warranties set
forth in this Section 2.03(b) that materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); provided, however, that in the
event of a breach of the representation and warranty set forth in Section
2.03(b)(xii), the party discovering such breach shall give such notice within
five days of discovery. Within 90 days of its discovery or its receipt of notice
of breach, the Company shall either (i) cure such breach in all material
respects or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that the Company
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the omission or defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days
from the date such breach was discovered. Any such substitution shall be
effected by the Company under the same terms and conditions as provided in
Section 2.04 for substitutions by Residential Funding. It is understood and
agreed that the obligation of the Company to cure such breach or to so purchase
or substitute for any Mortgage Loan as to which such a breach has occurred and
is continuing shall constitute the sole remedy respecting such breach available
to the Certificateholders or the Trustee on behalf of the Certificateholders.
Notwithstanding the foregoing, the Company shall not be required to cure
breaches or purchase or substitute for Mortgage Loans as provided in this
Section 2.03(b) if the substance of the breach of a representation set forth
above also constitutes fraud in the origination of the Mortgage Loan.
Section 2.04 Representations and Warranties of Sellers.
The Company, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of Certificateholders
all of its right, title and interest in respect of the Assignment Agreement and
each Seller's Agreement (to the extent assigned to the Company pursuant to the
Assignment Agreement) applicable to a Mortgage Loan. Insofar as the Assignment
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Agreement or the Company's rights under such Seller's Agreement relate to the
representations and warranties made by Residential Funding or the related Seller
in respect of such Mortgage Loan and any remedies provided thereunder for any
breach of such representations and warranties, such right, title and interest
may be enforced by the Master Servicer on behalf of the Trustee and the
Certificateholders.
Upon the discovery by the Company, the Master Servicer, the Trustee or
any Custodian of a breach of any of the representations and warranties made in a
Seller's Agreement that have been assigned to the Trustee pursuant to this
Section 2.04 or of a breach of any of the representations and warranties made in
the Assignment Agreement (which, for purposes hereof, will be deemed to include
any other cause giving rise to a repurchase obligation under the Assignment
Agreement) in respect of any Mortgage Loan which materially and adversely
affects the interests of the Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
(any Custodian being so obligated under a Custodial Agreement). The Master
Servicer shall promptly notify the related Seller or Residential Funding, as the
case may be, of such breach and request that such Seller or Residential Funding,
as the case may be, either (i) cure such breach in all material respects within
90 days from the date the Master Servicer was notified of such breach or (ii)
purchase such Mortgage Loan from the Trust Fund at the Purchase Price and in the
manner set forth in Section 2.02; provided that in the case of a breach under
the Assignment Agreement Residential Funding shall have the option to substitute
a Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan if such
substitution occurs within two years following the Closing Date; provided that
if the breach would cause the Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure,
repurchase or substitution must occur within 90 days from the date the breach
was discovered. If the breach of representation and warranty that gave rise to
the obligation to repurchase or substitute a Mortgage Loan pursuant to Section 4
of the Assignment Agreement was the representation and warranty set forth in
clause (xxxii) of Section 4 thereof, then the Master Servicer shall request that
Residential Funding pay to the Trust Fund, concurrently with and in addition to
the remedies provided in the preceding sentence, an amount equal to any
liability, penalty or expense that was actually incurred and paid out of or on
behalf of the Trust Fund, and that directly resulted from such breach, or if
incurred and paid by the Trust Fund thereafter, concurrently with such payment.
In the event that Residential Funding elects to substitute a Qualified
Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant to this
Section 2.04, Residential Funding shall deliver to the Trustee for the benefit
of the Certificateholders with respect to such Qualified Substitute Mortgage
Loan or Loans, the original Mortgage Note, the Mortgage, an Assignment of the
Mortgage in recordable form if required pursuant to Section 2.01, and such other
documents and agreements as are required by Section 2.01, with the Mortgage Note
endorsed as required by Section 2.01. No substitution will be made in any
calendar month after the Determination Date for such month. Monthly Payments due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust Fund and will be retained by the Master Servicer
and remitted by the Master Servicer to Residential Funding on the next
succeeding Distribution Date. For the month of substitution, distributions to
the Certificateholders will include the Monthly Payment due on a Deleted
Mortgage Loan for such month and thereafter Residential Funding shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend or cause to be amended the Mortgage Loan
Schedule, and, if the Deleted Mortgage Loan was a Discount Mortgage Loan, the
Schedule of Discount Fractions, for the benefit of the Certificateholders to
reflect the
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removal of such Deleted Mortgage Loan and the substitution of the Qualified
Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the
amended Mortgage Loan Schedule, and, if the Deleted Mortgage Loan was a Discount
Mortgage Loan, the amended Schedule of Discount Fractions, to the Trustee. Upon
such substitution, the Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement and the related Subservicing Agreement in
all respects, the related Seller shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the related Seller's Agreement as of the date of substitution,
insofar as Residential Funding's rights in respect of such representations and
warranties are assigned to the Company pursuant to the Assignment Agreement, and
the Company and the Master Servicer shall be deemed to have made with respect to
any Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the covenants, representations and warranties set forth in this Section 2.04, in
Section 2.03 hereof and in Section 4 of the Assignment Agreement, and the Master
Servicer shall be obligated to repurchase or substitute for any Qualified
Substitute Mortgage Loan as to which a Repurchase Event (as defined in the
Assignment Agreement) has occurred pursuant to Section 4 of the Assignment
Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to the
Certificateholders in the month of substitution). Residential Funding shall
deposit the amount of such shortfall into the Custodial Account on the day of
substitution, without any reimbursement therefor. Residential Funding shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall
and (subject to Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any portion of any
REMIC to fail to qualify as such at any time that any Certificate is
outstanding.
It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (or in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing and to make any additional
payments required under the Assignment Agreement in connection with a breach of
the representation and warranty in clause (xxxii) of Section 4 thereof shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of Certificateholders. If the Master
Servicer is Residential Funding, then the Trustee shall also have the right to
give the notification and require the purchase or substitution provided for in
the second preceding paragraph in the event of such a breach of a representation
or warranty made by Residential Funding in the Assignment Agreement. In
connection with the purchase of or substitution for any such Mortgage Loan by
Residential Funding, the Trustee shall assign to Residential Funding all of the
Trustee's right, title and interest in respect of the Seller's Agreement and the
Assignment Agreement applicable to such Mortgage Loan.
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Section 2.05 Execution and Authentication of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans and
the delivery of the Mortgage Files to it, or any Custodian on its behalf,
subject to any exceptions noted, together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such delivery and in exchange therefor, the Trustee, pursuant
to the written request of the Company executed by an officer of the Company has
executed and caused to be authenticated and delivered to or upon the order of
the Company the Certificates in authorized denominations which evidence
ownership of the entire Trust Fund.
Section 2.06 Conveyance of Uncertificated REMIC Regular Interests;
Acceptance by the Trustee.
The Company, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Company in and to the Uncertificated REMIC Regular Interests
to the Trustee for the benefit of the Holders of each Class of Certificates
(other than the Class R-I Certificates). The Trustee acknowledges receipt of the
Uncertificated REMIC 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 each Class of Certificates (other than the Class R-I Certificates).
The rights of the Holders of each Class of Certificates (other than the Class
R-I Certificates) to receive distributions from the proceeds of REMIC II in
respect of such Classes, and all ownership interests of the Holders of Classes
in such distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
(SEE ARTICLE III OF THE STANDARD TERMS)
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Certificate Account. (See Section 4.01 of the Standard Terms)
Section 4.02 Distributions.
(a) On each Distribution Date (x) the Master Servicer on behalf
of the Trustee or (y) the Paying Agent appointed by the Trustee, shall
distribute to the Certificate Insurer the Insurance Premium, to the
Master Servicer, in the case of a distribution pursuant to Section
4.02(a)(iii) below, the amount required to be distributed to the Master
Servicer or a Sub-Servicer pursuant to Section 4.02(a)(iii) below, to
the Certificate Insurer, in the case of a distribution pursuant to
Section 4.02(a)(xvi) below, the amount required to be distributed to the
Certificate Insurer pursuant to Section 4.02(a)(xvi) below, and to each
Certificateholder of record on the next preceding Record Date (other
than as provided in Section 9.01 respecting the final distribution),
either (1) in immediately available funds (by wire transfer or
otherwise) to the account of such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder
has so notified the Master Servicer or the Paying Agent, as the case may
be, or (2) if such Certificateholder has not so notified the Master
Servicer or the Paying Agent by the Record Date, by check mailed to such
Certificateholder at the address of such Holder appearing in the
Certificate Register, such Certificateholder's share (which share (A)
with respect to each Class of Certificates (other than any Subclass of
the Class A-V Certificates), shall be based on the aggregate of the
Percentage Interests represented by Certificates of the applicable Class
held by such Holder or (B) with respect to any Subclass of the Class A-V
Certificates, shall be equal to the amount (if any) distributed pursuant
to Section 4.02(a)(i) below to each Holder of a Subclass thereof) of the
following amounts, in the following order of priority (subject to the
provisions of Section 4.02(b) below), in each case to the extent of the
Available Distribution Amount (net of the Insurance Premium) together
with, as to the Insured Certificates, any Reserve Fund Withdrawal
pursuant to Section 4.11 of this Series Supplement and any Insured
Payment pursuant to Section 12.02 of this Series Supplement:
(i) to the Senior Certificates (other than the Principal
Only Certificates and prior to the related Accretion Termination
Date, the Accrual Certificates, to the extent of the related
Accrual Distribution Amount) on a pro rata basis based on Accrued
Certificate Interest payable on such Certificates with respect to
such Distribution Date, Accrued Certificate Interest on such
Classes of Certificates (or Subclasses, if any, with respect to
the Class A-V Certificates) for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date except as provided in the last
paragraph of this Section 4.02(a) (the "Senior Interest
Distribution Amount"); and
(ii) (X) to the Class A-P Certificates, the Class A-P
Principal Distribution Amount (as defined in Section 4.02(b)(i)
herein); and
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(Y) to the Senior Certificates (other than the
Class A-P Certificates), in the priorities and amounts set
forth in Section 4.02(b)(ii) through Section 4.02(h), the
sum of the following (applied to reduce the Certificate
Principal Balances of such Senior Certificates, as
applicable):
(A) the Senior Percentage for such Distribution
Date times the sum of the following:
(1) the principal portion of each Monthly
Payment due during the related Due Period on each
Outstanding Mortgage Loan (other than the related
Discount Fraction of the principal portion of such
payment with respect to a Discount Mortgage Loan),
whether or not received on or prior to the related
Determination Date, minus the principal portion of
any Debt Service Reduction (other than the related
Discount Fraction of the principal portion of such
Debt Service Reductions with respect to each
Discount Mortgage Loan) which together with other
Bankruptcy Losses exceeds the Bankruptcy Amount;
(2) the Stated Principal Balance of any
Mortgage Loan repurchased during the preceding
calendar month (or deemed to have been so
repurchased in accordance with Section 3.07(b) of
the Standard Terms) pursuant to Sections 2.02, 2.04
or 4.07 of the Standard Terms and Section 2.03 of
the Standard Terms and this Series Supplement, and
the amount of any shortfall deposited in the
Custodial Account in connection with the
substitution of a Deleted Mortgage Loan pursuant to
Section 2.04 of the Standard Terms or Section 2.03
of the Standard Terms and this Series Supplement,
during the preceding calendar month (other than the
related Discount Fraction of such Stated Principal
Balance or shortfall with respect to each Discount
Mortgage Loan); and
(3) the principal portion of all other
unscheduled collections (other than Principal
Prepayments in Full and Curtailments and amounts
received in connection with a Cash Liquidation or
REO Disposition of a Mortgage Loan described in
Section 4.02(a)(ii)(Y)(B) of this Series
Supplement, including without limitation Insurance
Proceeds, Liquidation Proceeds and REO Proceeds)
including Subsequent Recoveries, received during
the preceding calendar month (or deemed to have
been so received in accordance with Section 3.07(b)
of the Standard Terms) to the extent applied by the
Master Servicer as recoveries of principal of the
related Mortgage Loan pursuant to Section 3.14 of
the Standard Terms (other than the related Discount
Fraction of the principal portion of such
unscheduled collections, with respect to each
Discount Mortgage Loan);
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(B) with respect to each Mortgage Loan for which a
Cash Liquidation or a REO Disposition occurred during the
preceding calendar month (or was deemed to have occurred
during such period in accordance with Section 3.07(b) of
the Standard Terms) and did not result in any Excess
Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, an amount equal
to the lesser of (a) the Senior Percentage for such
Distribution Date times the Stated Principal Balance of
such Mortgage Loan (other than the related Discount
Fraction of such Stated Principal Balance, with respect to
each Discount Mortgage Loan) and (b) the Senior
Accelerated Distribution Percentage for such Distribution
Date times the related unscheduled collections (including
without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) to the extent applied by the
Master Servicer as recoveries of principal of the related
Mortgage Loan pursuant to Section 3.14 of the Standard
Terms (in each case other than the portion of such
unscheduled collections, with respect to a Discount
Mortgage Loan, included in Section 4.02(b)(i)(C) of this
Series Supplement);
(C) the Senior Accelerated Distribution Percentage
for such Distribution Date times the aggregate of all
Principal Prepayments in Full received in the related
Prepayment Period and Curtailments received in the
preceding calendar month (other than the related Discount
Fraction of such Principal Prepayments in Full and
Curtailments, with respect to each Discount Mortgage
Loan);
(D) any Excess Subordinate Principal Amount for
such Distribution Date;
(E) any amounts described in subsection (ii)(Y),
clauses (A), (B) and (C) of this Section 4.02(a), as
determined for any previous Distribution Date, which
remain unpaid after application of amounts previously
distributed pursuant to this clause (E) to the extent that
such amounts are not attributable to Realized Losses which
have been allocated to the Subordinate Certificates; minus
(F) the Capitalization Reimbursement Amount for
such Distribution Date, other than the related Discount
Fraction of any portion of that amount related to each
Discount Mortgage Loan, multiplied by a fraction, the
numerator of which is the Senior Principal Distribution
Amount, without giving effect to this clause (F), and the
denominator of which is the sum of the principal
distribution amounts for all Classes of Certificates other
than the Class A-P Certificates, without giving effect to
any reductions for the Capitalization Reimbursement
Amount;
(iii) if the Certificate Principal Balances of the
Subordinate Certificates have not been reduced to zero, to the
Master Servicer or a Sub-Servicer, by remitting for deposit to
the Custodial Account, to the extent of and in reimbursement for
any
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Advances or Sub-Servicer Advances previously made with respect to
any Mortgage Loan or REO Property which remain unreimbursed in
whole or in part following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property, minus any such
Advances that were made with respect to delinquencies that
ultimately constituted Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses or Extraordinary Losses;
(iv) to the Holders of the Class M-1 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date,
plus any Accrued Certificate Interest thereon remaining unpaid
from any previous Distribution Date, except as provided below;
(v) to the Holders of the Class M-1 Certificates, an
amount equal to (x) the Subordinate Principal Distribution Amount
for such Class of Certificates for such Distribution Date, minus
(y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available pursuant
to clause (x) of Sections 4.02(a)(vii), (ix), (xi), (xiii), (xiv)
and (xv) of this Series Supplement are insufficient therefor,
applied in reduction of the Certificate Principal Balance of the
Class M-1 Certificates;
(vi) to the Holders of the Class M-2 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date,
plus any Accrued Certificate Interest thereon remaining unpaid
from any previous Distribution Date, except as provided below;
(vii) to the Holders of the Class M-2 Certificates, an
amount equal to (x) the Subordinate Principal Distribution Amount
for such Class of Certificates for such Distribution Date, minus
(y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available pursuant
to clause (x) of Sections 4.02(a)(ix), (xi), (xiii), (xiv) and
(xv) of this Series Supplement are insufficient therefor, applied
in reduction of the Certificate Principal Balance of the Class
M-2 Certificates;
(viii) to the Holders of the Class M-3 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date,
plus any Accrued Certificate Interest thereon remaining unpaid
from any previous Distribution Date, except as provided below;
(ix) to the Holders of the Class M-3 Certificates, an
amount equal to (x) the Subordinate Principal Distribution Amount
for such Class of Certificates for such Distribution Date minus
(y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available pursuant
to clause (x) of Sections 4.02(a)(xi), (xiii), (xiv) and (xv) of
this Series Supplement are insufficient therefor, applied in
reduction of the Certificate Principal Balance of the Class M-3
Certificates;
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(x) to the Holders of the Class B-1 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date,
plus any Accrued Certificate Interest thereon remaining unpaid
from any previous Distribution Date, except as provided below;
(xi) to the Holders of the Class B-1 Certificates, an
amount equal to (x) the Subordinate Principal Distribution Amount
for such Class of Certificates for such Distribution Date minus
(y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available pursuant
to clause (x) of Sections 4.02(a)(xiii), (xiv) and (xv) of this
Series Supplement are insufficient therefor, applied in reduction
of the Certificate Principal Balance of the Class B-1
Certificates;
(xii) to the Holders of the Class B-2 Certificates, the
Accrued Certificate Interest thereon for such Distribution Date,
plus any Accrued Certificate Interest thereon remaining unpaid
from any previous Distribution Date, except as provided below;
(xiii) to the Holders of the Class B-2 Certificates, an
amount equal to (x) the Subordinate Principal Distribution Amount
for such Class of Certificates for such Distribution Date minus
(y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available pursuant
to clause (x) of Sections 4.02(a)(xiv) and (xv) of this Series
Supplement are insufficient therefor, applied in reduction of the
Certificate Principal Balance of the Class B-2 Certificates;
(xiv) to the Holders of the Class B-3 Certificates, an
amount equal to (x) the Accrued Certificate Interest thereon for
such Distribution Date, plus any Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date,
except as provided below, minus (y) the amount of any Class A-P
Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Section 4.02(a) (xv)
of this Series Supplement are insufficient therefor;
(xv) to the Holders of the Class B-3 Certificates, an
amount equal to (x) the Subordinate Principal Distribution Amount
for such Class of Certificates for such Distribution Date minus
(y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous
Distribution Dates applied in reduction of the Certificate
Principal Balance of the Class B-3 Certificates;
(xvi) only with respect to the Available Distribution
Amount, to the Certificate Insurer, as subrogee of the Insured
Certificateholders, an amount necessary to reimburse the
Certificate Insurer for claims paid under the Certificate Policy,
to the extent of Cumulative Insurance Payments on the Insured
Certificates;
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(xvii) to the Senior Certificates, in the priority set
forth in Section 4.02(b) of this Series Supplement, the portion,
if any, of the Available Distribution Amount remaining after the
foregoing distributions, together with Insured Payments pursuant
to Section 12.02 herein and any Reserve Fund Withdrawals pursuant
to Section 4.11 herein each with respect to the Insured
Certificates and Rounding Account withdrawals with respect to the
Insured Certificates, applied to reduce the Certificate Principal
Balances of such Senior Certificates, but in no event more than
the aggregate of the outstanding Certificate Principal Balances
of each such Class of Senior Certificates, and thereafter, to
each Class of Subordinate Certificates then outstanding beginning
with such Class with the Highest Priority, any portion of the
Available Distribution Amount remaining after the Senior
Certificates have been retired, applied to reduce the Certificate
Principal Balance of each such Class of Subordinate Certificates,
but in no event more than the outstanding Certificate Principal
Balance of each such Class of Subordinate Certificates; and; and
(xviii)to the Class R-II Certificates, the balance, if
any, of the Available Distribution Amount.
Notwithstanding the foregoing, on any Distribution Date, with respect to
the Class of Subordinate Certificates outstanding on such Distribution Date with
the Lowest Priority, or in the event the Subordinate Certificates are no longer
outstanding, the Senior Certificates, Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date will be distributable only
to the extent that (1) a shortfall in the amounts available to pay Accrued
Certificate Interest on any Class of Certificates results from an interest rate
reduction in connection with a Servicing Modification, or (2) such unpaid
Accrued Certificate Interest was attributable to interest shortfalls relating to
the failure of the Master Servicer to make any required Advance, or the
determination by the Master Servicer that any proposed Advance would be a
Nonrecoverable Advance with respect to the related Mortgage Loan where such
Mortgage Loan has not yet been the subject of a Cash Liquidation or REO
Disposition or the related Liquidation Proceeds, Insurance Proceeds and REO
Proceeds have not yet been distributed to the Certificateholders.
(b) Distributions of principal on the Senior Certificates on each
Distribution Date occurring prior to the Credit Support Depletion Date
will be made as follows:
(i) to the Class A-P Certificates, until the Certificate
Principal Balance thereof is reduced to zero, an amount (the
"Class A-P Principal Distribution Amount") equal to the aggregate
of:
(A) the related Discount Fraction of the principal
portion of each Monthly Payment on each Discount Mortgage
Loan due during the related Due Period, whether or not
received on or prior to the related Determination Date,
minus the Discount Fraction of the principal portion of
any related Debt Service Reduction which together with
other Bankruptcy Losses exceeds the Bankruptcy Amount;
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(B) the related Discount Fraction of the principal
portion of all unscheduled collections on each Discount
Mortgage Loan received during the preceding calendar month
or, in the case of Principal Prepayments in Full, during
the related Prepayment Period (other than amounts received
in connection with a Cash Liquidation or REO Disposition
of a Discount Mortgage Loan described in clause (C)
below), including Principal Prepayments in Full,
Curtailments, Subsequent Recoveries and repurchases
(including deemed repurchases under Section 3.07(b) of the
Standard Terms) of Discount Mortgage Loans (or, in the
case of a substitution of a Deleted Mortgage Loan, the
Discount Fraction of the amount of any shortfall deposited
in the Custodial Account in connection with such
substitution);
(C) in connection with the Cash Liquidation or REO
Disposition of a Discount Mortgage Loan that did not
result in any Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses or Extraordinary Losses,
an amount equal to the lesser of (1) the applicable
Discount Fraction of the Stated Principal Balance of such
Discount Mortgage Loan immediately prior to such
Distribution Date and (2) the aggregate amount of the
collections on such Discount Mortgage Loan to the extent
applied as recoveries of principal;
(D) any amounts allocable to principal for any
previous Distribution Date (calculated pursuant to clauses
(A) through (C) above) that remain undistributed; and
(E) the amount of any Class A-P Collection
Shortfalls for such Distribution Date and the amount of
any Class A-P Collection Shortfalls remaining unpaid for
all previous Distribution Dates, but only to the extent of
the Eligible Funds for such Distribution Date; minus
(F) the related Discount Fraction of the portion of
the Capitalization Reimbursement Amount for such
Distribution Date, if any, related to each Discount
Mortgage Loan; and
(ii) an amount equal to the Accrual Distribution Amount
shall be distributed to the following Classes of Certificates
concurrently as follows:
(A) 57.9504810188% to the Class A-1 Certificates,
until the Certificate Principal Balance thereof has been
reduced to zero; and
(B) 42.0495189812% to the following Classes of
Certificates in the following manner and order of
priority:
(1) first, to the Class A-2 Certificates,
until the Certificate Principal Balance
thereof has been reduced zero; and
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(2) second, to the Class A-3 Certificates
and Class A-4 Certificates, concurrently on
a pro rata basis, until the Certificate
Principal Balances thereof have been reduced
to zero;
(iii) the Senior Principal Distribution Amount shall be
distributed to the Class R-I Certificates and Class R-II
Certificates, concurrently on a pro rata basis, until the
Certificate Principal Balances thereof have been reduced to zero;
(iv) the balance of the Senior Principal Distribution
Amount remaining after the distribution, if any, described in
clause (iii) above shall be distributed to the Lockout
Certificates, in reduction of the Certificate Principal Balance
thereof, until the Certificate Principal Balance thereof has been
reduced to zero, in an amount equal to the Lockout Percentage of
the Lockout Certificates' pro rata share (based on the aggregate
Certificate Principal Balance of the Senior Certificates (other
than the Class A-P Certificates and Class R Certificates)) of the
Senior Principal Distribution Amount;
(v) the balance of the Senior Principal Distribution
Amount remaining after the distributions, if any, described in
clauses (iii) and (iv) above, if any, shall be distributed in the
following manner and order of priority:
(A) first, concurrently as follows:
(0) 0.0000000000% to the Class A-7
Certificates, until the Certificate
Principal Balance thereof has been reduced
to zero; and
(0) 00.0000000000% to the following Classes
of Certificates in the following manner and
order of priority:
i) first, the lesser of $17,500 and
the amount available under this clause
(v)(A)(2)(i) shall be distributed for each
distribution date commencing on the
Distribution Date in April 2007, to the
Class A-6 Certificates, until the
Certificate Principal Balance thereof has
been reduced to zero; and
ii) second, concurrently as follows:
a) 57.9504810188% of the
amount available under clause
(v)(A)(2)(ii) to the Class
A-1 Certificates, until the
Certificate Principal Balance
thereof has been reduced to
zero; and
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b) 42.0495189812% of the
amount available under clause
(v)(A)(2)(ii) to the
following Classes of
certificates in the following
manner and order of priority:
1) first, to the Class
A-2 Certificates,
until the Certificate
Principal Balance
thereof has been
reduced to zero; and
2) second, to the
Class A-3 Certificates
and Class A-4
Certificates,
concurrently on a pro
rata basis, until the
Certificate Principal
Balances thereof have
been reduced to zero;
(B) second, to the Class A-5 Certificates, until
the Certificate Principal Balance thereof has been reduced
to zero; and
(C) third, to the Class A-6 Certificates, until the
Certificate Principal Balance thereof has been reduced to
zero; and
(vi) the balance of the Senior Principal Distribution
Amount remaining after the distributions described in clauses
(iii) through (v) above shall be distributed to the Lockout
Certificates, concurrently on a pro rata basis, until the
Certificate Principal Balances thereof have been reduced to zero.
(c) On or after the occurrence of the Credit Support Depletion
Date, all priorities relating to distributions as described in Section
4.02(b) above in respect of principal among the various classes of
Senior Certificates (other than the Class A-P Certificates) will be
disregarded, and (i) an amount equal to the Discount Fraction of the
principal portion of scheduled payments and unscheduled collections
received or advanced in respect of the Discount Mortgage Loans will be
distributed to the Class A-P Certificates, (ii) the Senior Principal
Distribution Amount will be distributed to the remaining Senior
Certificates (other than the Class A-P Certificates) pro rata in
accordance with their respective outstanding Certificate Principal
Balances, and (iii) the amount set forth in Section 4.02(a)(i) will be
distributed as set forth therein.
(d) After the reduction of the Certificate Principal Balances of
the Senior Certificates (other than the Class A-P Certificates) to zero
but prior to the Credit Support Depletion Date, the Senior Certificates
(other than the Class A-P Certificates) will be entitled to no further
distributions of principal thereon and the Available Distribution Amount
will be paid solely to the holders of the Class A-P Certificates, Class
A-V Certificates, Class M Certificates and Class B Certificates, in each
case as described herein.
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(e) In addition to the foregoing distributions, with respect to
any Subsequent Recoveries, the Master Servicer shall deposit such funds
into the Custodial Account pursuant to Section 3.07(b)(iii). If, after
taking into account such Subsequent Recoveries, the amount of a Realized
Loss is reduced, the amount of such Subsequent Recoveries will be
applied to increase the Certificate Principal Balance of the Class of
Subordinate Certificates with the Highest Priority to which Realized
Losses, other than Excess Bankruptcy Losses, Excess Fraud Losses, Excess
Special Hazard Losses and Extraordinary Losses, have been allocated, but
not by more than the amount of Realized Losses previously allocated to
that Class of Certificates pursuant to Section 4.05. The amount of any
remaining Subsequent Recoveries will be applied to increase the
Certificate Principal Balance of the Class of Certificates with the next
Lower Priority, up to the amount of such Realized Losses previously
allocated to that Class of Certificates pursuant to Section 4.05. Any
remaining Subsequent Recoveries will in turn be applied to increase the
Certificate Principal Balance of the Class of Certificates with the next
Lower Priority up to the amount of such Realized Losses previously
allocated to that Class of Certificates pursuant to Section 4.05, and so
on. Holders of such Certificates will not be entitled to any payment in
respect of Accrued Certificate Interest on the amount of such increases
for any Interest Accrual Period preceding the Distribution Date on which
such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in
accordance with its respective Percentage Interest.
(f) On each Distribution Date prior to the Accretion Termination
Date, an amount equal to the Accrued Certificate Interest that would
otherwise be distributed on the Class A-5 Certificates shall be added to
the Certificate Principal Balance of the Class A-5 Certificates to the
extent that such amount is required to be distributed to the Holders of
the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, pursuant
to Section 4.02(b)(ii); the remaining amount of Accrued Certificate
Interest on the Class A-5 Certificates, if any, will be paid to such
Certificates as principal. On or after the Accretion Termination Date,
the entire amount of Accrued Certificate Interest on the Class A-5
Certificates for such Distribution Date shall be payable to the Class
A-5 Certificateholders pursuant to Section 4.02(a)(i) of this Series
Supplement to the extent not required to reduce the Certificate
Principal Balance of the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates to zero on such Accretion Termination Date; provided that
if the Accretion Termination Date is the Credit Support Depletion Date,
the entire amount of Accrued Certificate Interest on the Class A-5
Certificates for such Distribution Date will be paid to the Class A-5
Certificateholders to the extent of Accrued Certificate Interest on such
Class of Certificates for the related Distribution Date. Any such
Accrued Certificate Interest on the Class A-5 Certificates which is
required to be paid to the Holders of the Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates, in reduction of their Certificate
Principal Balances on the Accretion Termination Date will be added to
the Certificate Principal Balance of the Certificates in the manner
described in the first sentence of this Section 4.02(h).
(g) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository
shall be solely responsible for crediting the amount of such
distribution to the accounts of its Depository Participants in
accordance with its normal procedures. Each Depository Participant shall
be responsible for disbursing
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such distribution to the Certificate Owners that it represents and to
each indirect participating brokerage firm (a "brokerage firm") for
which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Company or the Master
Servicer shall have any responsibility therefor.
(h) Except as otherwise provided in Section 9.01, if the Master
Servicer anticipates that a final distribution with respect to any Class
of Certificates will be made on the next Distribution Date, the Master
Servicer shall, no later than the Determination Date in the month of
such final distribution, notify the Trustee and the Trustee shall, no
later than two (2) Business Days after such Determination Date, mail on
such date to each Holder of such Class of Certificates a notice to the
effect that: (i) the Trustee anticipates that the final distribution
with respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Trustee or as otherwise specified
therein, and (ii) no interest shall accrue on such Certificates from and
after the end of the related Interest Accrual Period. In the event that
Certificateholders required to surrender their Certificates pursuant to
Section 9.01(c) do not surrender their Certificates for final
cancellation, the Trustee shall cause funds distributable with respect
to such Certificates to be withdrawn from the Certificate Account and
credited to a separate escrow account for the benefit of such
Certificateholders as provided in Section 9.01(d).
(i) Notwithstanding the priorities relating to distributions of
principal among the Insured Certificates described above, on any
Distribution Date, distributions in respect of principal on the Insured
Certificates will be allocated among the Certificate Owners of the
Insured Certificates as set forth in Section 4.10. On each Distribution
Date on which amounts are available for distributions in reduction of
the Certificate Principal Balance of the Insured Certificates the
aggregate amount available for such distributions will be rounded upward
by the Rounding Amount. Such rounding will be accomplished on the first
Distribution Date on which distributions in reduction of the Certificate
Principal Balance of the Insured Certificates are made by withdrawing
from the Rounding Account the Rounding Amount for deposit into the
Certificate Account, and such Rounding Amount will be added to the
amount that is available for distributions in reduction of the
Certificate Principal Balance of the Insured Certificates. On each
succeeding Distribution Date on which distributions in reduction of the
Certificate Principal Balance of the Insured Certificates are made,
first, the aggregate amount available for distribution in reduction of
the Certificate Principal Balance of the Insured Certificates will be
applied to repay the Rounding Amount withdrawn from the Rounding Account
on the prior Distribution Date and then, the remainder of such allocable
amount, if any, will be similarly rounded upward through another
withdrawal from the Rounding Account and such determined Rounding Amount
will be added to the amount that is available for distribution in
reduction of the Certificate Principal Balance of the Insured
Certificates. Any funds remaining in the Rounding Account after the
Certificate Principal Balance of the Insured Certificates is reduced to
zero shall be distributed to the Class R-II Certificateholders.
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting. (See Section 4.03 of the
Standard Terms)
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Section 4.04 Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer. (See Section 4.04 of the
Standard Terms)
Section 4.05 Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine the
total amount of Realized Losses, if any, that resulted from any Cash
Liquidation, Servicing Modification, Debt Service Reduction, Deficient Valuation
or REO Disposition that occurred during the related Prepayment Period or, in the
case of a Servicing Modification that constitutes a reduction of the interest
rate on a Mortgage Loan, the amount of the reduction in the interest portion of
the Monthly Payment due during the related Due Period. The amount of each
Realized Loss shall be evidenced by an Officers' Certificate. All Realized
Losses, other than Excess Special Hazard Losses, Extraordinary Losses, Excess
Bankruptcy Losses or Excess Fraud Losses, shall be allocated as follows: first,
to the Class B-3 Certificates until the Certificate Principal Balance thereof
has been reduced to zero; second, to the Class B-2 Certificates until the
Certificate Principal Balance thereof has been reduced to zero; third, to the
Class B-1 Certificates until the Certificate Principal Balance thereof has been
reduced to zero; fourth, to the Class M-3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; fifth, to the Class M-2
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; sixth, to the Class M-1 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; and, thereafter, if any such Realized
Losses are on a Discount Mortgage Loan, to the Class A-P Certificates in an
amount equal to the Discount Fraction of the principal portion thereof, and the
remainder of such Realized Losses on the Discount Mortgage Loans and the entire
amount of such Realized Losses on Non-Discount Mortgage Loans will be allocated
among all the Senior Certificates (other than the Class A-V Certificates and
Class A-P Certificates) in the case of the principal portion of such loss on a
pro rata basis and among all of the Senior Certificates (other than the Class
A-P Certificates) in the case of the interest portion of such loss on a pro rata
basis, as described below. Any Excess Special Hazard Losses, Excess Bankruptcy
Losses, Excess Fraud Losses, Extraordinary Losses on Non-Discount Mortgage Loans
will be allocated among the Senior Certificates (other than the Class A-P
Certificates) and Subordinate Certificates, on a pro rata basis, as described
below. The principal portion of such Realized Losses on the Discount Mortgage
Loans will be allocated to the Class A-P Certificates in an amount equal to the
Discount Fraction thereof and the remainder of such Realized Losses on the
Discount Mortgage Loans and the entire amount of such Realized Losses on
Non-Discount Mortgage Loans will be allocated among the Senior Certificates
(other than the Class A-P Certificates) and Subordinate Certificates, on a pro
rata basis, as described below.
As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date in the case of the principal portion of a Realized Loss or based on the
Accrued Certificate Interest thereon payable on such Distribution Date (without
regard to any Compensating Interest for such Distribution Date) in the case of
an interest portion of a Realized Loss; provided that, in determining the
Certificate Principal Balance of the Accrual Certificates for the purpose of
allocating any portion of a Realized Loss thereto, the Certificate Principal
Balance of the Accrual Certificates shall be
-41-
deemed to be equal to the lesser of (a) the original Certificate Principal
Balance of such Certificate and (b) the Certificate Principal Balance of such
Certificate prior to giving effect to distributions made on such Distribution
Date. Except as provided in the following sentence, any allocation of the
principal portion of Realized Losses (other than Debt Service Reductions) to a
Class of Certificates shall be made by reducing the Certificate Principal
Balance thereof by the amount so allocated, which allocation shall be deemed to
have occurred on such Distribution Date; provided that no such reduction shall
reduce the aggregate Certificate Principal Balance of the Certificates below the
aggregate Stated Principal Balance of the Mortgage Loans. Any allocation of the
principal portion of Realized Losses (other than Debt Service Reductions) to the
Subordinate Certificates then outstanding with the Lowest Priority shall be made
by operation of the definition of "Certificate Principal Balance" and by
operation of the provisions of Section 4.02(a). Allocations of the interest
portions of Realized Losses (other than any interest rate reduction resulting
from a Servicing Modification) shall be made in proportion to the amount of
Accrued Certificate Interest and by operation of the definition of "Accrued
Certificate Interest" and by operation of the provisions of Section 4.02(a).
Allocations of the interest portion of a Realized Loss resulting from an
interest rate reduction in connection with a Servicing Modification shall be
made by operation of the provisions of Section 4.02(a). Allocations of the
principal portion of Debt Service Reductions shall be made by operation of the
provisions of Section 4.02(a). All Realized Losses and all other losses
allocated to a Class of Certificates hereunder will be allocated among the
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby; provided that if any Subclasses of the Class A-V Certificates have been
issued pursuant to Section 5.01(c), such Realized Losses and other losses
allocated to the Class A-V Certificates shall be allocated among such Subclasses
in proportion to the respective amounts of Accrued Certificate Interest payable
on such Distribution Date that would have resulted absent such reductions.
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged
Property. (See Section 4.06 of the Standard Terms)
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See
Section 4.07 of the Standard Terms)
Section 4.08 Surety Bond. (See Section 4.08 of the Standard Terms)
Section 4.09 Rounding Account.
No later than the Closing Date, the Trustee will establish and maintain
with itself a segregated trust account that is an Eligible Account, which shall
be titled "Rounding Account, JPMorgan Chase Bank, as trustee for the registered
holders of Residential Funding Mortgage Securities I, Inc., Mortgage
Pass-Through Certificates, Series 2004-S2, Class A-6." On the Closing Date, the
Underwriter shall deposit with the Trustee, and the Trustee shall deposit into
the Rounding Account, cash in an amount equal to $999.99.
The Trustee on each Distribution Date shall, based upon information
provided by the Master Servicer for the related Distribution Date, withdraw
funds from the Rounding Account to pay the Rounding Amount to the Holders of the
Insured Certificates pursuant to Section 4.02(h). In addition, the Trustee on
each Distribution Date shall, based upon information provided by the Master
Servicer
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for the related Distribution Date, withdraw funds from the Certificate Account
to repay to the Rounding Account the Rounding Amount from the prior Distribution
Date as contemplated in Section 4.02(h).
Section 4.10 Principal Distributions on the Insured Certificates.
Distributions in reduction of the Certificate Principal Balance of the
Insured Certificates will be made in integral multiples of $1,000 at the request
of the appropriate representatives of Deceased Holders of such Insured
Certificates and at the request of Living Owners of such Insured Certificates or
by mandatory distributions by Random Lot, pursuant to clauses (a) and (d) below,
or on a pro rata basis pursuant to clause (e) below.
(a) On each Distribution Date on which distributions in reduction of the
Certificate Principal Balance of the Insured Certificates are made, such
distributions will be made in the following priority among the Certificate
Owners of the Insured Certificates:
(i) any request by the personal representatives of a Deceased
Holder or by a surviving tenant by the entirety, by a surviving joint tenant or
by a surviving tenant in common, but not exceeding an aggregate amount of
$100,000 per request; and
(ii) any request by a Living Owner, but not exceeding an
aggregate amount of $10,000 per request.
Thereafter, distributions will be made, with respect to the Insured
Certificates, as provided in clauses (i) and (ii) above up to a second $100,000
and $10,000, respectively. This sequence of priorities will be repeated for each
request for principal distributions made by the Certificate Owners of the
Insured Certificates until all such requests have been honored.
Requests for distributions in reduction of the Certificate Principal
Balance of the Insured Certificates presented on behalf of Deceased Holders in
accordance with the provisions of clause (i) above will be accepted in order of
their receipt by the Depository. Requests for distributions in reduction of the
Certificate Principal Balance of the Insured Certificates presented in
accordance with the provisions of clause (ii) above will be accepted in the
order of their receipt by the Depository after all requests presented in
accordance with clause (i) above have been honored. All requests for
distributions in reduction of the Certificate Principal Balance of the Insured
Certificates will be accepted in accordance with the provisions set forth in
Section 4.10(c). All requests for distributions in reduction of the Certificate
Principal Balance of the Insured Certificates with respect to any Distribution
Date must be received by the Depository and on the Depository's "participant
terminal system" and received by the Trustee no later than the close of business
on the related Record Date. Requests for distributions that are on the
Depository's participant terminal system and received by the Trustee after the
related Record Date and requests, in either case, for distributions not accepted
with respect to any Distribution Date, will be treated as requests for
distributions in reduction of the Certificate Principal Balance of Insured
Certificates on the next succeeding Distribution Date, and each succeeding
Distribution Date thereafter, until such request is accepted or is withdrawn as
provided in Section 4.10(c). Such requests as are not so withdrawn shall retain
their order of priority without the need for any further action on the part of
the appropriate Certificate
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Owner of the related Insured Certificate, all in accordance with the procedures
of the Depository and the Trustee. Upon the transfer of the beneficial ownership
of the Insured Certificate, any distribution request previously submitted with
respect to such Certificate will be deemed to have been withdrawn only upon the
receipt by the Trustee on or before the Record Date for such Distribution Date
of notification of such withdrawal in the manner set forth in Section 4.10(c) on
the Depository's participant terminal system.
Distributions in reduction of the Certificate Principal Balance of the
Insured Certificates will be applied in an amount equal to the Senior Principal
Distribution Amount allocable to such Class pursuant to Section 4.02(b), plus,
with respect to the Insured Certificates, any amounts available for distribution
from the Rounding Account established as provided in Section 4.09, provided that
the aggregate distribution in reduction of the Certificate Principal Balance of
the Insured Certificates on any Distribution Date shall be made in an integral
multiple of $1,000.
To the extent that the portion of the Senior Principal Distribution
Amount allocable to distributions in reduction of the Certificate Principal
Balance of the Insured Certificates on any Distribution Date exceeds the
aggregate Certificate Principal Balance of the Insured Certificates with respect
to which distribution requests, as set forth above, have been received (plus any
amounts required to be distributed pursuant to the Rounding Account with respect
to the Insured Certificates), distributions in reduction of the Certificate
Principal Balance of the Insured Certificates will be made by mandatory
distribution pursuant to Section 4.10(d).
(b) An Insured Certificate shall be deemed to be held by a Deceased
Holder for purposes of this Section 4.10 if the death of the Certificate Owner
thereof is deemed to have occurred. Insured Certificates beneficially owned by
tenants by the entirety, joint tenants or tenants in common will be considered
to be beneficially owned by a single owner. The death of a tenant by the
entirety, joint tenant or tenant in common will be deemed to be the death of the
Certificate Owner, and the Insured Certificates so beneficially owned will be
eligible for priority with respect to distributions in reduction of the
Certificate Principal Balance thereof, subject to the limitations stated above.
Insured Certificates beneficially owned by a trust will be considered to be
beneficially owned by each beneficiary of the trust to the extent of such
beneficiary's beneficial interest therein, but in no event will a trust's
beneficiaries collectively be deemed to be Certificate Owners of a number of
Individual Insured Certificates of which such trust is the owner. The death of a
beneficiary of a trust will be deemed to be the death of a Certificate Owner of
the Insured Certificates, as applicable, owned by the trust to the extent of
such beneficiary's beneficial interest in such trust. The death of an individual
who was a tenant by the entirety, joint tenant or tenant in common in a tenancy
which is the beneficiary of a trust will be deemed to be the death of the
beneficiary of such trust. The death of a person who, during his or her
lifetime, was entitled to substantially all of the beneficial ownership
interests in Individual Insured Certificates will be deemed to be the death of
the Certificate Owner of the Insured Certificates regardless of the registration
of ownership, if such beneficial interest can be established to the satisfaction
of the Depository Participant. Such beneficial interest will be deemed to exist
in typical cases of street name or nominee ownership, ownership by a trustee,
ownership under the Uniform Gifts to Minors Act and community property or other
joint ownership arrangements between a husband and wife. Certificate beneficial
interests shall include the power to sell, transfer or otherwise dispose of an
Insured Certificate and the right to receive the proceeds therefrom, as well as
interest and distributions in reduction of the Certificate Principal
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Balance of the Insured Certificates, as applicable, payable with respect
thereto. The Trustee shall not be under any duty to determine independently the
occurrence of the death of any deceased Certificate Owner. The Trustee may rely
entirely upon documentation delivered to it pursuant to Section 4.10(c) in
establishing the eligibility of any Certificate Owner to receive the priority
accorded Deceased Holders in Section 4.10(a).
(c) Requests for distributions in reduction of the Certificate Principal
Balance of Insured Certificates must be made by delivering a written request
therefor to the Depository Participant or Indirect Depository Participant that
maintains the account evidencing such Certificate Owner's interest in Insured
Certificates. In the case of a request on behalf of a Deceased Holder,
appropriate evidence of death and any tax waivers are required to be forwarded
to the Depository Participant under separate cover. The Depository Participant
shall forward a certification, satisfactory to the Trustee, certifying the death
of the Deceased Holder and the receipt of the appropriate death and tax waivers.
The Depository Participant should in turn make the request of the Depository
(or, in the case of an Indirect Depository Participant, such Indirect Depository
Participant must notify the related Depository Participant of such request,
which Depository Participant should make the request of the Depository) on the
Depository's participant terminal system. The Depository may establish such
procedures as it deems fair and equitable to establish the order of receipt of
requests for such distributions received by it on the same day. None of the
Company, the Master Servicer or the Trustee shall be liable for any delay in
delivery of requests for distributions or withdrawals of such requests by the
Depository, a Depository Participant or any Indirect Depository Participant.
The Depository shall maintain a list of those Depository Participants
representing the appropriate Certificate Owners of Insured Certificates that
have submitted requests for distributions in reduction of the Certificate
Principal Balance of Insured Certificates, together with the order of receipt
and the amounts of such requests on the Depository's participant terminal
system. The Depository will honor requests for distributions in the order of
their receipt (subject to the priorities described in Section 4.10(a) above).
The Trustee shall notify the Depository as to which requests should be honored
on each Distribution Date at least two Business Days prior to such Distribution
Date based on the report received by the Trustee pursuant to Section 4.04 and
shall notify the Depository as to the amount of the Senior Principal
Distribution amount to be distributed to the Insured Certificates by Random Lot
pursuant to Section 4.10(d). Requests shall be honored by the Depository in
accordance with the procedures, and subject to the priorities and limitations,
described in this Section 4.10. The exact procedures to be followed by the
Trustee and the Depository for purposes of determining such priorities and
limitations will be those established from time to time by the Trustee or the
Depository, as the case may be. The decisions of the Trustee and the Depository
concerning such matters will be final and binding on all affected persons.
Individual Insured Certificates that have been accepted for a
distribution shall be due and payable on the applicable Distribution Date. Such
Certificates shall cease to bear interest after the last day of the month
preceding the month in which such Distribution Date occurs.
Any Certificate Owner of an Insured Certificate that has requested a
distribution may withdraw its request by so notifying in writing the Depository
Participant or Indirect Depository Participant that maintains such Certificate
Owner's account. In the event that such account is maintained by an Indirect
Depository Participant, such Indirect Depository Participant must notify
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the related Depository Participant which in turn must forward the withdrawal of
such request on the Depository's participant terminal system. If such withdrawal
of a request for distribution has not been received on the Depository's
participant terminal system on or before the Record Date for the next
Distribution Date, the previously made request for distribution will be
irrevocable with respect to the making of distributions in reduction of the
Certificate Principal Balance of the Insured Certificates on such Distribution
Date.
In the event any requests for distributions in reduction of the
Certificate Principal Balance of the Insured Certificates are rejected by the
Trustee for failure to comply with the requirements of this Section 4.10, the
Trustee shall return such request to the appropriate Depository Participant with
a copy to the Depository with an explanation as to the reason for such
rejection.
(d) To the extent, if any, that distributions in reduction of the
Certificate Principal Balance of the Insured Certificates on a Distribution Date
exceed the outstanding Certificate Principal Balance of the Insured Certificates
with respect to which distribution requests have been received by the related
Record Date, as provided in Section 4.10(a) above, the additional distributions
in reduction of the Certificate Principal Balance of the Insured Certificates
will be made by mandatory distributions in reduction thereof. Such mandatory
distributions on Individual Insured Certificates will be made by Random Lot in
accordance with the then-applicable Random Lot procedures of the Depository, the
Depository Participants and the Indirect Depository Participants representing
the Certificate Owners. The Trustee shall notify the Depository of the aggregate
amount of the mandatory distribution in reduction of the Certificate Principal
Balance of the Insured Certificates to be made on any such Distribution Date.
The Depository shall then allocate such aggregate amount among its Depository
Participants on a Random Lot basis. Each Depository Participant and, in turn,
each Indirect Depository Participant will then select, in accordance with its
own procedures, Individual Insured Certificates from among those held in its
accounts to receive mandatory distributions in reduction of the Certificate
Principal Balance of the Insured Certificates, such that the total amount so
selected is equal to the aggregate amount of such mandatory distributions
allocated to such Depository Participant by the Depository and to such Indirect
Depository Participant by its related Depository Participant, as the case may
be. Depository Participants and Indirect Depository Participants that hold
Insured Certificates selected for mandatory distributions in reduction of the
Certificate Principal Balance thereof are required to provide notice of such
mandatory distributions to the affected Certificate Owners. The Master Servicer
agrees to notify the Trustee of the amount of distributions in reduction of the
Certificate Principal Balance of the Insured Certificates to be made on each
Distribution Date in a timely manner such that the Trustee may fulfill its
obligations pursuant to the letter of representations dated the Closing Date
among the Company, the Trustee and the Depository.
(e) Notwithstanding any provisions herein to the contrary, on any
Distribution Date on which (i) any Realized Losses are allocated to the Insured
Certificates and (ii) a Certificate Insurer Default has occurred and/or is
continuing, distributions in reduction of the Certificate Principal Balance of
the Insured Certificates will be made pro rata on the basis of their respective
Percentage Interests with the respect to the Insured Certificates among the
Certificate Owners of the Insured Certificates and will not be made in integral
multiples of $1,000 nor pursuant to requests for distribution as permitted by
this Section 4.10 or mandatory distributions by Random Lot.
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(f) In the event that Definitive Certificates representing the Insured
Certificates are issued pursuant to Section 5.01 of the Standard Terms, an
amendment to this Agreement, which may be approved without the consent of any
Certificateholders, shall establish procedures relating to the manner in which
distributions in reduction of the Certificate Principal Balance of such Insured
Certificates are to be made; provided that such procedures shall be consistent,
to the extent practicable and customary for certificates similar to the Insured
Certificates, with the provisions of this Section 4.10.
Section 4.11 Reserve Fund.
No later than the Closing Date, the Trustee will establish and maintain
the Reserve Fund. On the Closing Date, the Underwriter shall deposit with the
Trustee, and the Trustee shall deposit into the Reserve Fund, cash in an amount
equal to the Reserve Fund Deposit.
The Master Servicer shall direct the Trustee in writing on each
Distribution Date to withdraw amounts on deposit in the Reserve Fund for deposit
into the Certificate Account, and to pay to the holders of the Insured
Certificates pursuant to Section 4.02(a), the amount of Prepayment Interest
Shortfalls and Relief Act Shortfalls otherwise allocable to the Insured
Certificates pursuant to the definition of Accrued Certificate Interest (to the
extent not offset by the Master Servicer pursuant to Section 3.16(e) of the
Standard Terms), and to the extent of funds on deposit in the Reserve Fund (the
amount of such withdrawal for any Distribution Date, the "Reserve Fund
Withdrawal").
For federal income tax purposes, the Underwriter shall be the owner of
the Reserve Fund and shall report all items of income, deduction, gain or loss
arising therefrom. Notwithstanding anything herein to the contrary, the Reserve
Fund shall not be an asset of any REMIC. The Reserve Fund shall be invested in
Permitted Investments at the written direction of the Underwriter. All income
and gain realized from investment of funds deposited in the Reserve Fund shall
be deposited in the Reserve Fund for the sole use and exclusive benefit of the
Reserve Fund. The amount of any loss incurred in respect of any such investments
shall be deposited in the Reserve Fund by the Underwriter out of its own funds
immediately as realized without any right of reimbursement. The balance, if any,
remaining in the Reserve Fund on the Distribution Date on which the Certificate
Principal Balance of the Insured Certificates is reduced to zero will be
distributed by the Trustee to the Underwriter. To the extent that the Reserve
Fund constitutes a reserve fund for federal income tax purposes, (1) it shall be
an outside reserve fund and not an asset of any REMIC and (2) it shall be owned
by the Underwriter, all within the meaning of Section 1.860G-2(h) of the
Treasury Regulations. The Reserve Fund may not be owned by more than one Person
and for all federal tax purposes, any amounts transferred by any REMIC to the
Reserve Fund will be treated as amounts distributed by any REMIC to the
Underwriter.
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ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates (See Section 5.01(a) and (b) of the
Standard Terms).
(c) From time to time Residential Funding, as the initial Holder
of the Class A-V Certificates, may exchange such Holder's Class A-V
Certificates (only if such Class A-V Certificates are Definitive
Certificates) for Subclasses of Class A-V Certificates to be issued
under this Agreement by delivering a "Request for Exchange"
substantially in the form attached hereto as Exhibit N executed by an
authorized officer, which Subclasses, in the aggregate, will represent
the Uncertificated Class A-V REMIC Regular Interests corresponding to
the Class A-V Certificates so surrendered for exchange. Any Subclass so
issued shall bear a numerical designation commencing with Class A-V-1
and continuing sequentially thereafter, and will evidence ownership of
the Uncertificated Class A-V REMIC Regular Interest or Interests
specified in writing by such initial Holder to the Trustee. The Trustee
may conclusively, without any independent verification, rely on, and
shall be protected in relying on, Residential Funding's determinations
of the Uncertificated Class A-V REMIC Regular Interests corresponding to
any Subclass, the Initial Notional Amount and the initial Pass-Through
Rate on a Subclass as set forth in such Request for Exchange and the
Trustee shall have no duty to determine if any Uncertificated Class A-V
REMIC Regular Interest designated on a Request for Exchange corresponds
to a Subclass which has previously been issued. Each Subclass so issued
shall be substantially in the form set forth in Exhibit A and shall, on
original issue, be executed and delivered by the Trustee to the
Certificate Registrar for authentication and delivery in accordance with
Section 5.01(a). Every Certificate presented or surrendered for exchange
by the initial Holder shall (if so required by the Trustee or the
Certificate Registrar) be duly endorsed by, or be accompanied by a
written instrument of transfer attached to such Certificate and shall be
completed to the satisfaction of the Trustee and the Certificate
Registrar duly executed by, the initial Holder thereof or his attorney
duly authorized in writing. The Certificates of any Subclass of Class
A-V Certificates may be transferred in whole, but not in part, in
accordance with the provisions of Section 5.02.
Section 5.02 Registration of Transfer and Exchange of Certificates
(See Section 5.02(a) through (d) of the Standard Terms).
(e) (i) In the case of any Class B or Class R Certificate presented for
registration in the name of any Person, either (A) the Trustee shall require an
Opinion of Counsel acceptable to and in form and substance satisfactory to the
Trustee, the Company, the Master Servicer and the Certificate Insurer to the
effect that the purchase or holding of such Class B or Class R Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
(or comparable provisions of any subsequent enactments), and will not subject
the Trustee, the Company, the Master Servicer or the Certificate Insurer to any
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obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Company,
the Master Servicer or the Certificate Insurer or (B) the prospective Transferee
shall be required to provide the Trustee, the Company, the Master Servicer and
the Certificate Insurer with a certification to the effect set forth in
paragraph six of Exhibit H (with respect to any Class B Certificate) or
paragraph fifteen of Exhibit G-1 (with respect to any Class R Certificate),
which the Trustee may rely upon without further inquiry or investigation, or
such other certifications as the Trustee may deem desirable or necessary in
order to establish that such Transferee or the Person in whose name such
registration is requested either (a) is not an employee benefit plan or other
plan subject to the prohibited transaction provisions of ERISA or Section 4975
of the Code, or any Person (including an investment manager, a named fiduciary
or a trustee of any such plan) who is using "plan assets" of any such plan to
effect such acquisition (each, a "Plan Investor") or (b) in the case of any
Class B Certificate, the following conditions are satisfied: (i) such Transferee
is an insurance company, (ii) the source of funds used to purchase or hold such
Certificate (or interest therein) is an "insurance company general account" (as
defined in U.S. Department of Labor Prohibited Transaction Class Exemption
("PTCE") 95-60, and (iii) the conditions set forth in Sections I and III of PTCE
95-60 have been satisfied (each entity that satisfies this clause (b), a
"Complying Insurance Company").
(ii) Any Transferee of a Class M Certificate will be
deemed to haverepresented by virtue of its purchase or holding of
such Certificate (or interest therein) that either (a) such
Transferee is not a Plan Investor, (b) it has acquired and is
holding such Certificate in reliance on Prohibited Transaction
Exemption ("PTE") 94-29, 59 Fed. Reg. 14674 (March 29, 1994), as
amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE
2000-58, 65 Fed. Reg. 67765 (November 13, 2000), and PTE 2002-41,
67 Fed. Reg. 54487 (August 22, 2002) (the "RFC Exemption"), and
that it understands that there are certain conditions to the
availability of the RFC Exemption including that such Certificate
must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by Standard & Poor's, Fitch or Moody's or (c)
such Transferee is a Complying Insurance Company.
(iii) (A) If any Class M Certificate (or any interest
therein) is acquired or held by any Person that does not satisfy
the conditions described in paragraph (ii) above, then the last
preceding Transferee that either (i) is not a Plan Investor, (ii)
acquired such Certificate in compliance with the RFC Exemption,
or (iii) is a Complying Insurance Company shall be restored, to
the extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such
Transfer of such Class M Certificate. The Trustee shall be under
no liability to any Person for making any payments due on such
Certificate to such preceding Transferee.
(B) Any purported Certificate Owner whose
acquisition or holding of any Class M Certificate (or
interest therein) was effected in violation of the
restrictions in this Section 5.02(e) shall indemnify and
hold harmless the Company, the Trustee, the Master
Servicer, any Subservicer, the Underwriter, the
Certificate Insurer and the Trust Fund from and against
any and all
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liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. (See
Section 5.03 of the Standard Terms).
Section 5.04 Persons Deemed Owners. (See Section 5.04 of the Standard
Terms).
Section 5.05 Appointment of Paying Agent. (See Section 5.05 of the
Standard Terms).
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ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
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ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
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ARTICLE VIII
CONCERNING THE TRUSTEE
(SEE ARTICLE VIII OF THE STANDARD TERMS)
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ARTICLE IX
TERMINATION
Section 9.01 Optional Purchase by the Master Servicer of All
Certificates; Termination Upon Purchase by the Master
Servicer or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Company, the Master Servicer and the Trustee
created hereby in respect of the Certificates (other than the obligation
of the Trustee to make certain payments after the Final Distribution
Date to Certificateholders and the obligation of the Company to send
certain notices as hereinafter set forth) shall terminate upon the last
action required to be taken by the Trustee on the Final Distribution
Date pursuant to this Article IX following the earlier of:
(i) the later of the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan, or
(ii) the purchase by the Master Servicer of all Mortgage
Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund at a price equal to 100% of the
unpaid principal balance of each Mortgage Loan or, if less than
such unpaid principal balance, the fair market value of the
related underlying property of such Mortgage Loan with respect to
Mortgage Loans as to which title has been acquired if such fair
market value is less than such unpaid principal balance (net of
any unreimbursed Advances attributable to principal) on the day
of repurchase plus accrued interest thereon at the Net Mortgage
Rate (or Modified Net Mortgage Rate in the case of any Modified
Mortgage Loan) to, but not including, the first day of the month
in which such repurchase price is distributed, provided, however,
that in no event shall the trust created hereby continue beyond
the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date
hereof and provided further that the purchase price set forth
above shall be increased as is necessary, as determined by the
Master Servicer, to avoid disqualification of any portion of any
REMIC formed under the Series Supplement as a REMIC. The purchase
price paid by the Master Servicer shall also include any amounts
owed by Residential Funding pursuant to Section 4 of the
Assignment Agreement in respect of any liability, penalty or
expense that resulted from a breach of the representation and
warranty set forth in clause (xxxii) of such Section that remain
unpaid on the date of such purchase.
The right of the Master Servicer to purchase all the assets of the Trust
Fund pursuant to clause (ii) above is conditioned upon the Pool Stated Principal
Balance as of the Final Distribution Date, prior to giving effect to
distributions to be made on such Distribution Date, being less than ten percent
of the Cut-off Date Principal Balance of the Mortgage Loans. If such right is
exercised by
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the Master Servicer, the Master Servicer shall be deemed to have been reimbursed
for the full amount of any unreimbursed Advances theretofore made by it with
respect to the Mortgage Loans. In addition, the Master Servicer shall provide to
the Trustee the certification required by Section 3.15 and the Trustee and any
Custodian shall, promptly following payment of the purchase price, release to
the Master Servicer the Mortgage Files pertaining to the Mortgage Loans being
purchased.
In addition to the foregoing, on any Distribution Date on which the Pool
Stated Principal Balance, prior to giving effect to distributions to be made on
such Distribution Date, is less than ten percent of the Cut-off Date Principal
Balance of the Mortgage Loans, Master Servicer shall have the right, at its
option, to purchase the Certificates in whole, but not in part, at a price equal
to the outstanding Certificate Principal Balance of such Certificates plus the
sum of Accrued Certificate Interest thereon for the related Interest Accrual
Period and any previously unpaid Accrued Certificate Interest. If the Master
Servicer exercises this right to purchase the outstanding Certificates, the
Master Servicer will promptly terminate the respective obligations and
responsibilities created hereby in respect of the Certificates pursuant to this
Article IX.
(b) - (e) (See Section 9.01(b) - (e) of the Standard Terms
Section 9.02 Additional Termination Requirements. (See Section 9.02 of
the Standard Terms)
Section 9.03 Termination of Multiple REMICs. (See Section 9.03 of the
Standard Terms)
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ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard
Terms)
Section 10.02 Master Servicer; REMIC Administrator and Trustee
Indemnification. (See Section 10.02 of the Standard Terms)
Section 10.03 Designation of REMIC(s).
The REMIC Administrator will make elections to treat each of REMIC I and
REMIC II subject to this Agreement (including the Mortgage Loans but excluding
the Initial Monthly Payment Fund, the Reserve Account and the Rounding Account)
as a REMIC for federal income tax purposes.
The Uncertificated REMIC Regular Interests shall be designated as the
"regular interests" and the Class R-I Certificates shall be designated as the
sole class of "residual interests" in REMIC I. The Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class
A-P, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3
Certificates and the rights in and to which will be represented by the Class A-V
Certificates, will be "regular interests" in the REMIC II, and the Class R-II
Certificates will be the sole class of "residual interests" therein for purposes
of the REMIC Provisions (as defined in the Standard Terms) under federal income
tax law. On and after the date of issuance of any Subclass of Class A-V
Certificates pursuant to Section 5.01(c) of the Standard Terms, any such
Subclass will represent the Uncertificated Class A-V REMIC Regular Interest or
Interests specified by the initial Holder of the Class A-V Certificates pursuant
to said Section.
Section 10.04 Distributions on the Uncertificated REMIC Regular
Interests.
(a) On each Distribution Date the Trustee shall be deemed to distribute
to itself, as the holder of the Uncertificated REMIC Regular Interests, from
REMIC I, the following amounts in the following order of priority to the extent
of the Available Distribution Amount reduced by distributions made to the Class
R-I Certificates pursuant to Section 4.02(a):
(i) Uncertificated Accrued Interest on the Uncertificated REMIC
Regular Interests for such Distribution Date, plus any
Uncertificated Accrued Interest thereon remaining unpaid from any
previous Distribution Date; and
(ii) In accordance with the priority set forth in Section
10.04(b), an amount equal to the sum of the amounts in respect of
principal distributable on the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates,
Class A-5 Certificates, Class A-6 Certificates, Class A-7
Certificates, Class A-9 Certificates, Class A-P Certificates,
Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class B-1 Certificates, Class B-2 Certificates,
Class B-3 Certificates and Class R-II Certificates under Section
4.02(a), as allocated thereto pursuant to Section 4.02(b).
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(b) The amount described in Section 10.04(a)(ii) shall be deemed
distributed to the Uncertificated REMIC Regular Interests, with the amount to be
distributed allocated among such interests in accordance with the priority
assigned to the Corresponding Certificates under Section 4.02(b), until the
Uncertificated Principal Balance of each such interest is reduced to zero.
(c) The portion of the REMIC I Regular Interest Distribution Amounts
described in Section 10.04(a)(i) shall be deemed distributed by REMIC I to REMIC
II in accordance with the priority assigned to the REMIC II Certificates
relative to that assigned to the REMIC II Certificates under Section 4.02(b).
(d) In determining from time to time the REMIC I Regular Interest
Distribution Amounts, Realized Losses allocated to the Certificates shall be
allocated to Uncertificated REMIC Regular Interests in the same amounts and
priorities as allocated to the Corresponding Certificates.
(e) Notwithstanding the deemed distributions on the Uncertificated REMIC
Regular Interests described in this Section 10.04, distributions of funds from
the Certificate Account shall be made only in accordance with Section 4.02.
Section 10.05 Distributions on the Uncertificated Class A-V REMIC
Regular Interests.
(a) On each Distribution Date, the Trustee shall be deemed to distribute
to itself, as the holder of the Uncertificated Class A-V REMIC Regular
Interests, from REMIC II, Uncertificated Class A-V REMIC Accrued Interest on the
Uncertificated Class A-V REMIC Regular Interests for such Distribution Date,
plus any Uncertificated Class A-V REMIC Accrued Interest thereon remaining
unpaid from any previous Distribution Date.
(b) In determining from time to time the Uncertificated Class A-V REMIC
Regular Interest Distribution Amounts, Realized Losses allocated to the Class
A-V Certificates under Section 4.05 shall be deemed allocated to Uncertificated
Class A-V REMIC Regular Interests on a pro rata basis based on the
Uncertificated Class A-V REMIC Accrued Interest for the related Distribution
Date.
(c) On each Distribution Date, the Trustee shall be deemed to distribute
from the Trust Fund, in the priority set forth in Sections 4.02(a), to the Class
A-V Certificates, the amounts distributable thereon from the Uncertificated
Class A-V REMIC Regular Interest Distribution Amounts deemed to have been
received by the Trustee from the Trust Fund under this Section 10.05. The amount
deemed distributable hereunder with respect to the Class A-V Certificates shall
equal 100% of the amounts payable with respect to the Uncertificated Class A-V
REMIC Regular Interests.
(d) Notwithstanding the deemed distributions on the Uncertificated Class
A-V REMIC Regular Interests described in this Section 10.05, distributions of
funds from the Certificate Account shall be made only in accordance with Section
4.02.
Section 10.06 Compliance with Withholding Requirements.
-57-
Notwithstanding any other provision of this Agreement, the Trustee or
any Paying Agent, as applicable, shall comply with all federal withholding
requirements respecting payments to Certificateholders, including interest or
original interest discount payments or advances thereof that the Trustee or any
Paying Agent, as applicable, reasonably believes are applicable under the Code.
The consent of Certificateholders shall not be required for such withholding. In
the event the Trustee or any Paying Agent, as applicable, does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Trustee
or any Paying Agent, as applicable, shall indicate the amount withheld to such
Certificateholder pursuant to the terms of such requirements.
-58-
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)
Section 11.02 Recordation of Agreement. Counterparts. (See Section
11.02 of the Standard Terms)
Section 11.03 Limitation on Rights of Certificateholders. (See Section
11.03 of the Standard Terms)
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms)
Section 11.05 Notices. All demands and notices hereunder shall be in
writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid
(except for notices to the Trustee which shall be deemed to have
been duly given only when received), to the appropriate address
for each recipient listed in the table below or, in each case,
such other address as may hereafter be furnished in writing to
the Master Servicer, the Trustee and the Company, as applicable:
Recipient Address
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Company Attention: President
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000,
Master Servicer Attention: Managing Director/Master Servicing
Trustee for all purposes other than exchange or
transfer of Certificates:
the Corporate Trust Office, and otherwise:
4 Xxx Xxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust
Services/Global Debt
00 Xxxxx Xxxxxx
Standard and Poor's Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
-59-
Section 11.06 Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, shall
notify each Rating Agency and the Subservicer at such time as it is otherwise
required pursuant to this Agreement to give notice of the occurrence of, any of
the events described in clause (a), (b), (c), (d), (g), (h), (i) or (j) below or
provide a copy to each Rating Agency at such time as otherwise required to be
delivered pursuant to this Agreement of any of the statements described in
clauses (e) and (f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) the termination or appointment of a successor Master Servicer
or Trustee or a change in the majority ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket
fidelity bond and the errors and omissions insurance policy required by
Section 3.12 or the cancellation or modification of coverage under any
such instrument,
(e) the statement required to be delivered to the Holders of each
Class of Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections
3.18 and 3.19,
(g) a change in the location of the Custodial Account or the
Certificate Account,
(h) the occurrence of any monthly cash flow shortfall to the
Holders of any Class of Certificates resulting from the failure by the
Master Servicer to make an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date,
(j) the repurchase of or substitution for any Mortgage Loan, and
(k) any Certificate Insurer Default that has not been cured,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer of any such
event known to the Master Servicer.
Section 11.07 Severability of Provisions. (See Section 11.07 of the
Standard Terms)
Section 11.08 Supplemental Provisions for Resecuritization. (See
Section 11.08 of the Standard Terms)
Section 11.09 Allocation of Voting Rights.
-60-
97.0% of all Voting Rights shall be allocated among Holders of
Certificates, other than the Interest Only Certificates and Residual
Certificates, in proportion to the outstanding Certificate Principal Balances of
their respective Certificates, 1.0% of all Voting Rights shall be allocated
among the Holders of the Class A-8 Certificates in accordance with their
respective Percentage Interests; 1.0% of all Voting Rights shall be allocated
among the Holders of the Class A-V Certificates in accordance with their
respective Percentage Interests; and 0.5% and 0.5% of all Voting Rights shall be
allocated among the Holders of the Class R-I Certificates and Class R-II
Certificates, respectively, in accordance with their respective Percentage
Interests. Notwithstanding the foregoing, so long as there does not exist a
failure by the Certificate Insurer to make a required payment under the
Certificate Policy, the Insurer shall have the right to exercise all rights of
the Holders of the Insured Certificates without any consent of such holders, and
such Holders may exercise such rights only with the prior written consent of the
Certificate Insurer.
-61-
ARTICLE XII
CERTAIN MATTERS REGARDING THE CERTIFICATE INSURER
Section 12.01.Rights of the Certificate Insurer to Exercise Rights of Insured
Certificateholders.
By accepting its Certificate, each Insured Certificateholder agrees that
unless a Certificate Insurer Default exists, the Certificate Insurer shall have
the right to exercise all consent, voting, direction and other control rights of
the Insured Certificateholders under this Agreement without any further consent
of the Insured Certificateholders.
Section 00.00.Xxxxxx Upon the Certificate Policy; Certificate
Insurance Account.
(a) If, on the Business Day next succeeding the Determination Date, the
Master Servicer determines that (i) the funds that will be on deposit in the
Certificate Account on the related Certificate Account Deposit Date, to the
extent distributable to the Insured Certificateholders pursuant to Section
4.02(a)(i) are insufficient to pay the Accrued Certificate Interest for such
Distribution Date; provided however, Accrued Certificate Interest on the Insured
Certificates will be deemed to include any portion of the amounts allocated to
such Certificates described in clauses (ii) through (iv) (other than Relief Act
Shortfalls) of the definition thereof (in each case, to the extent such
shortfalls are not covered by the subordination provided by the Class M
Certificates and Class B Certificates) on such Distribution Date, (ii) the
principal portion of any Realized Loss is allocated to the Insured Certificates
on such Distribution Date or (iii) the funds available on the Scheduled Final
Distribution Date will be insufficient to reduce the Certificate Principal
Balance, net of any Subsequent Recoveries added thereto, of the Insured
Certificates to zero, the Master Servicer shall deliver to the Trustee not later
than 11:00 a.m. New York City time on the Business Day next succeeding the
Determination Date a certificate signed by a Servicing Officer directing the
Trustee to draw on the Certificate Policy and stating the amount to be drawn and
stating the Insured Payment for each Insured Certificate, and the Trustee shall
give notice by telephone or telecopy of the aggregate amount of such deficiency,
confirmed in writing in the form set forth as Exhibit A to the Certificate
Policy, to the Certificate Insurer and any fiscal agent appointed by the
Certificate Insurer at or before 12:00 noon, New York City time, on the Business
Day prior to such Distribution Date. If, subsequent to such notice, and prior to
payment by the Certificate Insurer or any fiscal agent on behalf of the Insurer
pursuant to such notice, additional amounts are deposited in the Certificate
Account, the Trustee shall reasonably promptly notify the Certificate Insurer
and any fiscal agent appointed by the Certificate Insurer and withdraw the
notice or reduce the amount claimed, as appropriate.
(b) The Trustee shall establish a separate special purpose trust account
for the benefit of Holders of the Insured Certificates and the Certificate
Insurer referred to herein as the "Certificate Insurance Account" over which the
Trustee shall have exclusive control and sole right of withdrawal. The Trustee
shall deposit any amount paid under the Certificate Policy in the Certificate
Insurance Account and distribute such amount only for purposes of payment to
Holders of Insured Certificates of the Insured Payment for which a claim was
made. Such amount may not be applied to satisfy any costs, expenses or
liabilities of the Master Servicer, the Trustee or the Trust Fund. Amounts paid
-62-
under the Certificate Policy shall be transferred to the Certificate Account in
accordance with the next succeeding paragraph and disbursed by the Trustee to
Holders of Insured Certificates in accordance with Section 4.02 or Section
9.01(c), as applicable. It shall not be necessary for such payments to be made
by checks or wire transfers separate from the checks or wire transfers used to
pay the Insured Payment with other funds available to make such payment.
However, the amount of any payment of principal of or interest on the Insured
Certificates to be paid from funds transferred from the Certificate Insurance
Account shall be noted as provided in paragraph (c) below and in the statement
to be furnished to Holders of the Certificates pursuant to Section 4.03. Funds
held in the Certificate Insurance Account shall not be invested by the Master
Servicer or any other Person.
On any Distribution Date with respect to which a claim has been made
under the Certificate Policy, the amount of any funds received by the Trustee as
a result of any claim under the Certificate Policy, to the extent required to
make the Insured Payment on such Distribution Date, shall be withdrawn from the
Certificate Insurance Account and deposited in the Certificate Account and
applied by the Master Servicer on behalf of the Trustee, together with the other
funds to be distributed to the Insured Certificateholders pursuant to Section
4.02, directly to the payment in full of the Insured Payment due on the Insured
Certificates. Any funds remaining in the Certificate Insurance Account on the
first Business Day following a Distribution Date shall be remitted to the
Certificate Insurer, pursuant to the instructions of the Certificate Insurer, by
the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the amount
of interest and principal paid into the Certificate Insurance Account in respect
of the Insured Certificates from moneys received under the Certificate Policy.
The Certificate Insurer shall have the right to inspect such records at
reasonable times during normal business hours upon two Business Day's prior
notice to the Trustee.
(d) In accordance with the terms of the Certificate Policy, any claim on
the Certificate Policy in respect of a Preference Amount, shall require the
Trustee to obtain a certified copy of the order requiring the return of a
preference payment, an opinion of counsel satisfactory to the Certificate
Insurer that the order is final and not subject to appeal, and other
documentation as required by the Certificate Policy. Any such opinion of counsel
shall be provided at the sole expense of the Underwriter.
Section 12.03.Effect of Payments by the Certificate Insurer;
Subrogation.
Anything herein to the contrary notwithstanding, for purposes of this
Section 12.03, any payment with respect to principal of or interest on the
Insured Certificates which is made with monies received pursuant to the terms of
the Certificate Policy shall not be considered payment of the Insured
Certificates from the Trust Fund. The Master Servicer, the Company and the
Trustee acknowledge, and each Holder by its acceptance of an Insured Certificate
agrees, that without the need for any further action on the part of the
Certificate Insurer, the Master Servicer, the Company, the Trustee or the
Certificate Registrar, to the extent the Certificate Insurer or any fiscal agent
on behalf of the Certificate Insurer makes payments, directly or indirectly, on
account of principal of or interest on the Insured Certificates to the Holders
of such Certificates, the Certificate Insurer will
-63-
be fully subrogated to, and each Insured Certificateholder, the Master Servicer,
the Company and the Trustee hereby delegate and assign to the Certificate
Insurer, to the fullest extent permitted by law, the rights of such Holders to
receive such principal and interest from the Trust Fund; provided that the
Certificate Insurer shall be paid such amounts only from the sources and in the
manner explicitly provided for herein.
The Trustee and the Master Servicer shall cooperate in all respects with
any reasonable request by the Certificate Insurer for action to preserve or
enforce the Certificate Insurer's rights or interests under this Agreement
without limiting the rights or affecting the interests of the Holders as
otherwise set forth herein.
Section 12.04.Notices and Information to the Certificate Insurer.
(a) All notices, statements, reports, certificates or opinions required
by this Agreement to be sent to any other party hereto to the Rating Agencies or
to the Certificateholders shall also be sent to the Certificate Insurer.
(b) The Master Servicer shall designate a Person who shall be available
to the Certificate Insurer to provide reasonable access to information regarding
the Mortgage Loans and to all books, records, accounts, information and other
matters relating to the Certificates or this Agreement.
Section 12.05.Trustee to Hold Certificate Policy.
The Trustee will hold the Certificate Policy in trust as agent for the
Insured Certificateholders for the purpose of making claims thereon and
distributing the proceeds thereof. Neither the Certificate Policy, nor the
amounts paid on the Certificate Policy will constitute part of the Trust Fund or
assets of any REMIC created by this Agreement. Each Insured Certificateholder,
by accepting its Certificate, appoints the Trustee as attorney-in-fact for the
purpose of making claims on the Certificate Policy. The Trustee shall surrender
the Certificate Policy to the Certificate Insurer for cancellation upon the
payment in full of the Insured Certificates. To the extent that the Certificate
Policy constitutes a reserve fund for federal income tax purposes, (1) it shall
be an outside credit support agreement and not an asset of any REMIC and (2) it
shall be owned by the Certificate Insurer, all within the meaning of Section
1.860G-2(h) of the Treasury Regulations.
Section 00.00.Xxxxxxxxx Premium Payments.
(a) The Insurance Premium paid under this Agreement shall be
nonrefundable and the right of the Certificate Insurer to receive any Insurance
Premium payable hereunder shall be absolute and unconditional, in each case
without regard to whether the Certificate Insurer or any fiscal agent on behalf
of the Insurer makes any payment under the Certificate Policy or any other
circumstances relating to the Insured Certificates or the Certificate Policy
(including payment or any provision being made for payment of the Insured
Certificateholders prior to the final date for distribution in respect of the
Insured Certificates under this Agreement.
(b) The Trustee shall pay the Insurance Premium and all other amounts
payable to the Certificate Insurer under the Certificate Policy, this Agreement
or otherwise in immediately available
-64-
funds by wire transfer to such account as the Certificate Insurer shall
designate by notice, and in the lawful currency of the United States of America,
on the dates when due.
Section 12.07.Ratings.
The parties hereto agree that references in this Agreement or in the
Standard Terms to ratings on the Certificates or interests of the
Certificateholders shall be determined without regard to the Certificate Policy.
Section 12.08.Third Party Beneficiaries.
The Certificate Insurer shall be an express third-party beneficiary of
this Agreement to the extent of its express subrogation rights, its rights to
receive the Insurance Premium pursuant to Section 4.02(a) and its express rights
set forth in Article XII of this Agreement and shall have the right to enforce
the related provisions of this Agreement as if it were a party hereto.
-65-
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, duly attested, to be
hereunto affixed, all as of the day and year first above written.
[Seal] RESIDENTIAL FUNDING
MORTGAGE SECURITIES I,
INC.
Attest: By:
Name: Name: Xxx Xxxxxx
Title: Title: Vice President
[Seal]
RESIDENTIAL FUNDING CORPORATION
Attest: By:
Name: Name: Xxxxxx Xxxxxx
Title: Title: Associate
[Seal] JPMORGAN CHASE
BANK as
Trustee
Attest: By:
Name: Name:
Title: Title:
-00-
XXXXX XX XXXXXXXXX )
) ss.:
COUNTY OF HENNEPIN )
On the 26th day of March, 2004 before me, a notary public in and
for said State, personally appeared Xxx Xxxxxx, known to me to be a Vice
President of Residential Funding Mortgage Securities I, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
_________________
[Notarial Seal]
-00-
XXXXX XX XXXXXXXXX )
) ss.:
COUNTY OF HENNEPIN )
On the 26th day of March, 2004 before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxx, known to me to be an
Associate of Residential Funding Corporation, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
__________________
[Notarial Seal]
-00-
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 26th day of March, 2004 before me, a notary public in and
for said State, personally appeared ________________, known to me to be a
________________ of JPMorgan Chase Bank, the entity that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said banking entity and acknowledged to me that such banking entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
___________________
[Notarial Seal]
-69-
EXHIBIT ONE
MORTGAGE LOAN SCHEDULE
(Available Upon Request)
RUN ON : 03/25/04 RFC DISCLOSURE SYSTEM RFFSDFIX-01
AT : 11.37.20 FIXED PASSTHRU REPORT AMORTIZED BALANCE
SERIES : RFMSI 2004-S2 FIXED 30 YEAR CUTOFF : 03/01/04
POOL : 0004806
:
:
POOL STATUS: F
RFC LOAN NUMBER SUB SERV FEE
PRINCIPAL BALANCE MSTR SERV FEE
CURR NOTE RATE ALL EXP
RFC NET RATE MISC EXP
NET MTG RATE(INVSTR RATE) SPREAD
POST STRIP RATE STRIP
---------------------------------------------------------------------
8486292 .2500
210,464.60 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8502374 .2500
264,623.30 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8504126 .2500
644,950.76 .0300
5.5000 .0000
5.2500 .0000
5.2200 .0000
5.2200 .0000
8510056 .2500
526,969.93 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8563956 .2500
253,643.10 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8575722 .2500
258,389.90 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
8579248 .2500
309,776.39 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8596060 .2500
594,714.08 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8607436 .2500
198,348.47 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8607540 .2500
212,047.08 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8618975 .2500
167,691.64 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8620664 .2500
301,012.24 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8641589 .2500
569,733.26 .0800
6.7000 .0000
6.4500 .0000
6.3700 .0000
5.5000 .8700
8644646 .2500
286,989.16 .0300
5.2500 .0000
5.0000 .0000
4.9700 .0000
4.9700 .0000
1
8644924 .2500
304,102.55 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8649632 .2500
117,052.91 .0800
6.5000 .0000
6.2500 .0000
6.1700 .0000
5.5000 .6700
8652188 .2500
242,017.68 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8659152 .2500
337,688.35 .0300
5.3750 .0000
5.1250 .0000
5.0950 .0000
5.0950 .0000
8660734 .2500
174,851.46 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8667530 .2500
308,327.37 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8667698 .2500
160,728.07 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8680974 .2500
230,777.23 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
1
8680984 .2500
332,390.46 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8681000 .2500
208,752.38 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8682254 .2500
329,646.71 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8684248 .2500
244,148.49 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8696222 .2500
255,414.37 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8701144 .2500
310,372.49 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
8704986 .2500
199,839.12 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8707924 .2500
317,874.20 .0300
5.5000 .0000
5.2500 .0000
5.2200 .0000
5.2200 .0000
1
8707934 .2500
450,098.25 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8715058 .2500
162,558.84 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8717274 .2500
65,396.00 .0300
5.3750 .0000
5.1250 .0000
5.0950 .0000
5.0950 .0000
8717422 .2500
243,052.24 .0300
5.3750 .0000
5.1250 .0000
5.0950 .0000
5.0950 .0000
8719164 .2500
123,101.90 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8722194 .2500
150,449.28 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8731272 .2500
477,027.49 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8731326 .2500
582,847.32 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
8732830 .2500
285,082.13 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8733612 .2500
113,965.65 .0800
6.2500 .0000
6.0000 .0000
5.9200 .0000
5.5000 .4200
8733804 .2500
503,866.54 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8733988 .2500
586,080.58 .0300
5.5000 .0000
5.2500 .0000
5.2200 .0000
5.2200 .0000
8734010 .2500
204,541.57 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8734078 .2500
768,756.33 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
8734096 .2500
192,184.54 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8734456 .2500
333,424.38 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
1
8754488 .2500
306,275.34 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
8754584 .2500
418,354.62 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
8754750 .2500
156,875.16 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
8770898 .2500
179,343.81 .0800
6.5000 .0000
6.2500 .0000
6.1700 .0000
5.5000 .6700
8773425 .2500
235,528.32 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
8775846 .2500
155,444.87 .0800
6.6250 .0000
6.3750 .0000
6.2950 .0000
5.5000 .7950
8777028 .2500
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5.4700 .0000
1
9144112 .2500
438,000.00 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
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384,000.00 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
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616,000.00 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
9144118 .2500
357,000.00 .0300
5.5000 .0000
5.2500 .0000
5.2200 .0000
5.2200 .0000
9144122 .2500
344,622.38 .0300
5.5000 .0000
5.2500 .0000
5.2200 .0000
5.2200 .0000
9144124 .2500
455,000.00 .0300
5.5000 .0000
5.2500 .0000
5.2200 .0000
5.2200 .0000
9144126 .2500
365,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9144128 .2500
415,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
9144130 .2500
469,520.81 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9144132 .2500
812,500.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9144134 .2500
512,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9144136 .2500
565,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9144138 .2500
385,500.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9144140 .2500
475,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9144142 .2500
649,337.29 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9144144 .2500
372,401.45 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
1
9144146 .2500
522,866.37 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9144148 .2500
465,524.89 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9144150 .2500
488,000.00 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
9144154 .2500
455,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9146290 .2500
162,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146360 .2500
357,800.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146472 .2500
91,000.00 .0800
6.2500 .0000
6.0000 .0000
5.9200 .0000
5.5000 .4200
9146508 .2500
410,750.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
1
9146522 .2500
408,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146540 .2500
378,500.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9146902 .2500
638,200.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146904 .2500
178,800.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146914 .2500
405,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146916 .2500
172,300.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146920 .2500
417,200.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9146922 .2500
550,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
9147926 .2500
527,050.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9148008 .2500
381,600.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9149820 .2500
702,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9151406 .2500
432,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9151572 .2500
332,700.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9151696 .2500
346,600.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9151698 .2500
380,700.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9151718 .2500
177,900.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
9151730 .2500
384,900.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9151734 .2500
535,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9152008 .2500
396,500.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9152376 .2500
145,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9152402 .2500
255,200.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9152460 .2500
388,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9153142 .2500
365,000.00 .0800
6.2500 .0000
6.0000 .0000
5.9200 .0000
5.5000 .4200
9153562 .2500
445,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
1
9153726 .2500
855,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9153864 .2500
360,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9153934 .2500
165,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9154206 .2500
342,500.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9154474 .2500
460,000.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9155408 .2500
520,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9157174 .2500
519,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9157602 .2500
390,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
9157706 .2500
151,500.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9158078 .2500
650,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9158126 .2500
103,000.00 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
9158128 .2500
395,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9158268 .2500
431,600.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9158632 .2500
466,400.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9158678 .2500
358,545.20 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9158752 .2500
425,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
1
9159682 .2500
280,000.00 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
9159744 .2500
416,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9159784 .2500
342,900.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9159960 .2500
547,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9160004 .2500
318,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9160006 .2500
210,000.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9160268 .2500
422,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9162982 .2500
259,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
9163012 .2500
814,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9164384 .2500
75,600.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9166984 .2500
491,500.00 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
9167202 .2500
398,300.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9167226 .2500
225,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9167306 .2500
416,950.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9167410 .2500
338,800.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9168530 .2500
488,500.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
1
9168566 .2500
487,500.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9168692 .2500
143,000.00 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
9168806 .2500
375,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9168966 .2500
395,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9168968 .2500
640,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9169006 .2500
400,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9169118 .2500
490,000.00 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
9169194 .2500
565,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
9169244 .2500
557,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9169248 .2500
448,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9169262 .2500
103,000.00 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
9169264 .2500
481,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9169280 .2500
370,000.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9169720 .2500
647,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9170168 .2500
387,000.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9170406 .2500
650,000.00 .0800
6.1250 .0000
5.8750 .0000
5.7950 .0000
5.5000 .2950
1
9170690 .2500
536,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9170692 .2500
616,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9170694 .2500
348,050.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
9170890 .2500
270,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9171256 .2500
379,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9171296 .2500
436,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9171356 .2500
341,250.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9171456 .2500
644,200.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
1
9171488 .2500
385,600.00 .0800
6.0000 .0000
5.7500 .0000
5.6700 .0000
5.5000 .1700
9172822 .2500
475,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9173406 .2500
349,600.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9173634 .2500
521,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9173990 .2500
426,100.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9174070 .2500
370,000.00 .0800
5.8750 .0000
5.6250 .0000
5.5450 .0000
5.5000 .0450
9174972 .2500
413,158.00 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
9176766 .2500
434,586.43 .0300
5.5000 .0000
5.2500 .0000
5.2200 .0000
5.2200 .0000
1
9176894 .2500
435,000.00 .0300
5.6250 .0000
5.3750 .0000
5.3450 .0000
5.3450 .0000
9177372 .2500
345,000.00 .0300
5.7500 .0000
5.5000 .0000
5.4700 .0000
5.4700 .0000
TOTAL NUMBER OF LOANS: 832
TOTAL BALANCE........: 361,986,143.80
RUN ON : 03/25/04 RFC DISCLOSURE SYSTEM RFFSDFIX-01
AT : 11.37.20 INITIAL SECURITY FEES AMORTIZED BALANCE
SERIES : RFMSI 2004-S2 30 YR FIXED SUMMARY REPORT CUTOFF : 03/01/04
POOL : 0004806
:
:
POOL STATUS: F
WEIGHTED AVERAGES FROM TO
-----------------------------------------------------------------------------
CURR NOTE RATE 5.8589 5.2500 6.8750
RFC NET RATE 5.6089 5.0000 6.6250
NET MTG RATE(INVSTR RATE) 5.5482 4.9700 6.5450
POST STRIP RATE 5.4637 4.9700 5.5000
SUB SERV FEE .2500 .2500 .2500
MSTR SERV FEE .0607 .0300 .0800
ALL EXP .0000 .0000 .0000
MISC EXP .0000 .0000 .0000
SPREAD .0000 .0000 .0000
STRIP .0845 .0000 1.0450
TOTAL NUMBER OF LOANS: 832
TOTAL BALANCE........: 361,986,143.80
***************************
* END OF REPORT *
***************************
RUN ON : 03/25/04 RFC DISCLOSURE SYSTEM RFFSD177-01
AT : 11.37.20 FIXED RATE LOAN LISTING AMORTIZED BALANCE
SERIES : RFMSI 2004-S2 FIXED 30 YEAR CUTOFF : 03/01/04
POOL : 0004806
:
:
POOL STATUS: F
RFC LOAN # S/S CODE PMT TYPE ORIGINAL BAL LOAN FEATURE
ORIG TERM PRINCIPAL BAL # OF UNITS
ORIG RATE ORIGINAL P+I LTV
CURR NET CURRENT P+I
CITY STATE ZIP LOAN PURP NOTE DATE MI CO CODE
SERVICER LOAN # PROP TYPE 1ST PMT DATE MI CVG
SELLER LOAN # OCCP CODE MATURITY DATE
INVESTOR LOAN #
______________________________________________________________________________
8486292 E22/G01 F 212,000.00 ZZ
360 210,464.60 1
5.875 1,254.06 79
5.625 1,254.06
XXXXXXXXXX XX 00000 2 07/16/03 00
0416624468 05 09/01/03 0
0416624468 O 08/01/33
0
8502374 E22/G01 F 266,600.00 ZZ
360 264,623.30 1
5.750 1,555.81 79
5.500 1,555.81
XXXXXXXXXX XX 00000 2 07/21/03 00
0417395290 05 09/01/03 0
0417395290 O 08/01/33
0
8504126 H58/G01 F 650,000.00 ZZ
360 644,950.76 1
5.500 3,690.63 68
5.250 3,690.63
XXXXXXXX XX 00000 1 06/30/03 00
0436241897 05 09/01/03 0
0000176776 O 08/01/33
0
8510056 E82/G01 F 531,000.00 ZZ
360 526,969.93 1
5.625 3,056.74 69
5.375 3,056.74
XXXX XXXXX XX 00000 2 07/21/03 00
0400854345 03 09/01/03 0
1
0400854345 O 08/01/33
0
8563956 E82/G01 F 255,300.00 ZZ
360 253,643.10 1
5.625 1,469.65 35
5.375 1,469.65
XXX XXXXXXXXX XX 00000 2 08/07/03 00
0400876330 05 10/01/03 0
0400876330 O 09/01/33
0
8575722 E82/G01 F 260,000.00 ZZ
360 258,389.90 1
5.875 1,538.00 46
5.625 1,538.00
XXXX XXXXXXXXX XX 00000 2 08/07/03 00
0400859211 05 10/01/03 0
0400859211 O 09/01/33
0
8579248 E82/G01 F 311,800.00 ZZ
360 309,776.39 1
5.625 1,794.90 80
5.375 1,794.90
XXXXX XXXXXXX XX 00000 2 08/01/03 00
0400865283 05 10/01/03 0
0400865283 O 09/01/33
0
8596060 696/G01 F 600,000.00 ZZ
360 594,714.08 1
5.625 3,453.94 80
5.375 3,453.94
XXXXXXXXXX XX 00000 2 07/02/03 00
0436396782 05 08/01/03 0
10003072 O 07/01/33
0
8607436 E82/G01 F 200,000.00 ZZ
360 198,348.47 1
5.625 1,151.31 73
5.375 1,151.31
XXXX XXXXXXXXX XX 00000 2 08/22/03 00
0400877528 05 10/01/03 0
0400877528 O 09/01/33
0
1
8607540 E82/G01 F 213,400.00 ZZ
360 212,047.08 1
5.750 1,245.34 62
5.500 1,245.34
XXXXXX XXXX XX 00000 2 08/21/03 00
0400880894 05 10/01/03 0
0400880894 O 09/01/33
0
8618975 E22/G01 F 169,500.00 ZZ
360 167,691.64 1
5.750 989.16 74
5.500 989.16
XXXXXX, XX 00000 2 04/10/03 00
0416555852 05 06/01/03 0
0416555852 O 05/01/33
0
8620664 E82/G01 F 304,000.00 ZZ
360 301,012.24 1
5.625 1,750.00 80
5.375 1,750.00
XXXXXXXX XX 00000 2 08/25/03 00
0400880779 05 10/01/03 0
0400880779 O 09/01/33
0
8641589 Y57/Y57 F 574,638.54 ZZ
350 569,733.26 1
6.700 3,741.37 43
6.450 3,741.37
XXXXXXXX XX 00000 2 06/05/03 00
0700225881 05 07/01/03 0
0700225881 O 08/01/32
0
8644646 E22/G01 F 289,000.00 ZZ
360 286,989.16 1
5.250 1,595.87 58
5.000 1,595.87
XXXXXXXX XXXX XX 00000 2 09/03/03 00
0417871720 05 10/01/03 0
0417871720 O 09/01/33
0
8644924 E82/G01 F 308,500.00 ZZ
360 304,102.55 1
5.625 1,775.90 61
5.375 1,775.90
0
XXXXXX XXXXX XX 00000 2 09/04/03 00
0400857835 05 11/01/03 0
0400857835 O 10/01/33
0
8649632 K15/G01 F 117,700.00 ZZ
360 117,052.91 1
6.500 743.94 45
6.250 743.94
XXXXXXXXX XX 00000 5 08/25/03 00
0436524540 05 10/01/03 0
013805519716 O 09/01/33
0
8652188 E82/G01 F 243,300.00 ZZ
360 242,017.68 1
5.750 1,419.83 94
5.500 1,419.83
XXXXXXXX XX 00000 2 09/05/03 04
0400880852 05 11/01/03 30
0400880852 O 10/01/33
0
8659152 998/998 F 340,000.00 ZZ
360 337,688.35 1
5.375 1,903.90 63
5.125 1,903.90
XXXXXXXXX XX 00000 2 08/06/03 00
15787553 05 10/01/03 0
578755 O 09/01/33
0
8660734 E82/G01 F 175,800.00 ZZ
360 174,851.46 1
5.625 1,012.00 41
5.375 1,012.00
XXXXXXX XX 00000 2 09/09/03 00
0400879623 05 11/01/03 0
0400879623 O 10/01/33
0
8667530 E82/G01 F 310,000.00 ZZ
360 308,327.37 1
5.625 1,784.53 74
5.375 1,784.53
XXXX XXXXX XX 00000 2 09/12/03 00
0400880555 05 11/01/03 0
0400880555 O 10/01/33
0
1
8667698 E82/G01 F 161,600.00 ZZ
360 160,728.07 1
5.625 930.26 75
5.375 930.26
XXXXXX XX 00000 2 09/12/03 00
0400878237 05 11/01/03 0
0400878237 O 10/01/33
0
8680974 E82/G01 F 232,000.00 ZZ
360 230,777.23 3
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9121852 E22/G01 F 413,000.00 ZZ
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9122858 U80/U80 F 455,000.00 ZZ
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30010047 03 04/01/04 0
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9122930 356/G01 F 460,000.00 ZZ
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9123780 696/G01 F 450,000.00 ZZ
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9124168 E82/G01 F 388,500.00 ZZ
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9125980 N47/G01 F 775,000.00 ZZ
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9126212 N47/G01 F 650,000.00 ZZ
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0400955761 O 03/01/34
0
9173634 N47/G01 F 521,000.00 ZZ
360 521,000.00 1
5.875 3,081.91 80
5.625 3,081.91
PLEASANTON CA 94588 2 02/18/04 00
0437529597 03 04/01/04 0
20515977 O 03/01/34
0
9173990 N47/G01 F 426,100.00 ZZ
360 426,100.00 1
5.875 2,520.54 61
5.625 2,520.54
DANVILLE CA 94526 5 02/18/04 00
0437531320 03 04/01/04 0
90504531 O 03/01/34
0
9174070 N47/G01 F 370,000.00 ZZ
360 370,000.00 1
5.875 2,188.69 77
5.625 2,188.69
SAN JOSE CA 95139 2 02/17/04 00
0437529795 05 04/01/04 0
20515528 O 03/01/34
0
9174972 227/G01 F 413,158.00 ZZ
360 413,158.00 1
5.625 2,378.38 80
5.375 2,378.38
ASHBURN VA 20147 1 02/26/04 00
0437545643 03 04/01/04 0
2232161 O 03/01/34
0
9176766 E33/G01 F 437,000.00 T
360 434,586.43 1
5.500 2,481.24 35
5.250 2,481.24
NEWPORT BEACH CA 92663 2 09/05/03 00
0437543853 01 11/01/03 0
1 O 10/01/33
0
1
9176894 E22/G01 F 435,000.00 ZZ
360 435,000.00 1
5.625 2,504.11 46
5.375 2,504.11
SAN JUAN CAPIST CA 92675 2 02/25/04 00
0420027005 03 04/01/04 0
0420027005 O 03/01/34
0
9177372 E22/G01 F 345,000.00 ZZ
360 345,000.00 1
5.750 2,013.33 47
5.500 2,013.33
STUDIO CITY(LA) CA 91604 5 02/25/04 00
0419954995 05 04/01/04 0
0419954995 O 03/01/34
0
TOTAL NUMBER OF LOANS : 832
TOTAL ORIGINAL BALANCE : 362,517,928.38
TOTAL PRINCIPAL BALANCE : 361,986,143.80
TOTAL ORIGINAL P+I : 2,142,997.07
TOTAL CURRENT P+I : 2,142,997.07
***************************
* END OF REPORT *
***************************
EXHIBIT TWO
SCHEDULE OF DISCOUNT FRACTIONS
(Available Upon Request)
Schedule of Discount Fractions
Loan Number Current Balance Net Mortgage Rate Discount Fraction PO Balance
8502374 $264,623.30 5.470% 0.5455% $1,443.40
8504126 $644,950.76 5.220% 5.0909% $32,833.86
8510056 $526,969.93 5.345% 2.8182% $14,850.97
8563956 $253,643.10 5.345% 2.8182% $7,148.12
8579248 $309,776.39 5.345% 2.8182% $8,730.06
8596060 $594,714.08 5.345% 2.8182% $16,760.12
8607436 $198,348.47 5.345% 2.8182% $5,589.82
8607540 $212,047.08 5.470% 0.5455% $1,156.62
8618975 $167,691.64 5.470% 0.5455% $914.68
8620664 $301,012.24 5.345% 2.8182% $8,483.07
8644646 $286,989.16 4.970% 9.6364% $27,655.32
8644924 $304,102.55 5.345% 2.8182% $8,570.16
8652188 $242,017.68 5.470% 0.5455% $1,320.10
8659152 $337,688.35 5.095% 7.3636% $24,866.14
8660734 $174,851.46 5.345% 2.8182% $4,927.63
8667530 $308,327.37 5.345% 2.8182% $8,689.23
8667698 $160,728.07 5.345% 2.8182% $4,529.61
8680974 $230,777.23 5.470% 0.5455% $1,258.78
8680984 $332,390.46 5.470% 0.5455% $1,813.04
8681000 $208,752.38 5.470% 0.5455% $1,138.65
8682254 $329,646.71 5.470% 0.5455% $1,798.07
8684248 $244,148.49 5.470% 0.5455% $1,331.72
8696222 $255,414.37 5.345% 2.8182% $7,198.04
8704986 $199,839.12 5.345% 2.8182% $5,631.83
8707924 $317,874.20 5.220% 5.0909% $16,182.69
8717274 $65,396.00 5.095% 7.3636% $4,815.52
8717422 $243,052.24 5.095% 7.3636% $17,897.48
8722194 $150,449.28 5.345% 2.8182% $4,239.93
8733804 $503,866.54 5.345% 2.8182% $14,199.88
8733988 $586,080.58 5.220% 5.0909% $29,836.83
8734078 $768,756.33 5.470% 0.5455% $4,193.22
8734456 $333,424.38 5.470% 0.5455% $1,818.68
8754488 $306,275.34 5.345% 2.8182% $8,631.40
8777028 $325,871.29 5.345% 2.8182% $9,183.65
8777372 $300,731.72 5.470% 0.5455% $1,640.35
8798979 $208,216.30 5.470% 0.5455% $1,135.73
8818028 $284,299.09 5.470% 0.5455% $1,550.72
8818072 $315,634.87 5.345% 2.8182% $8,895.16
8818652 $327,616.13 5.470% 0.5455% $1,787.00
8834508 $231,252.45 5.345% 2.8182% $6,517.11
8873218 $408,997.61 5.470% 0.5455% $2,230.90
8907591 $599,358.56 5.345% 2.8182% $16,891.01
8909973 $309,676.34 5.470% 0.5455% $1,689.14
8910221 $419,561.49 5.470% 0.5455% $2,288.52
8910413 $364,609.79 5.345% 2.8182% $10,275.37
8912485 $479,000.00 5.470% 0.5455% $2,612.73
8912509 $364,618.92 5.470% 0.5455% $1,988.83
8912521 $495,650.00 5.470% 0.5455% $2,703.55
8913307 $600,000.00 5.470% 0.5455% $3,272.73
8916457 $107,200.00 5.470% 0.5455% $584.73
8960446 $316,336.47 5.470% 0.5455% $1,725.47
8985836 $546,513.07 5.470% 0.5455% $2,980.98
9016090 $443,070.66 5.470% 0.5455% $2,416.75
Friday, March 19, 2004 Page 1 of 6
9016094 $454,297.10 5.470% 0.5455% $2,477.98
9016100 $581,720.82 5.220% 5.0909% $29,614.88
9016112 $409,141.81 5.470% 0.5455% $2,231.68
9016116 $424,292.85 5.470% 0.5455% $2,314.32
9016190 $401,657.52 5.470% 0.5455% $2,190.86
9016192 $518,532.32 5.220% 5.0909% $26,398.01
9016292 $616,307.27 5.470% 0.5455% $3,361.68
9016336 $578,357.85 5.345% 2.8182% $16,299.18
9016340 $389,183.69 5.470% 0.5455% $2,122.82
9016348 $498,953.44 5.470% 0.5455% $2,721.56
9016352 $409,341.39 5.470% 0.5455% $2,232.77
9016364 $533,853.42 5.345% 2.8182% $15,044.96
9016378 $391,927.89 5.470% 0.5455% $2,137.79
9016380 $458,937.38 5.470% 0.5455% $2,503.29
9016390 $419,616.40 5.470% 0.5455% $2,288.82
9016422 $399,162.76 5.470% 0.5455% $2,177.25
9016436 $401,457.94 5.470% 0.5455% $2,189.77
9016440 $648,606.96 5.345% 2.8182% $18,278.92
9016444 $435,215.26 5.345% 2.8182% $12,265.16
9016456 $409,121.32 5.345% 2.8182% $11,529.78
9016462 $392,157.75 5.345% 2.8182% $11,051.72
9016488 $474,005.77 5.470% 0.5455% $2,585.49
9016508 $425,906.65 5.470% 0.5455% $2,323.13
9016516 $404,152.29 5.470% 0.5455% $2,204.47
9016524 $598,744.12 5.470% 0.5455% $3,265.88
9016526 $460,961.24 5.095% 7.3636% $33,943.51
9024618 $480,967.02 5.345% 2.8182% $13,554.53
9029166 $589,384.00 5.470% 0.5455% $3,214.82
9043224 $102,783.36 5.470% 0.5455% $560.64
9045862 $648,322.40 5.470% 0.5455% $3,536.30
9053584 $598,744.12 5.470% 0.5455% $3,265.88
9053648 $518,911.58 5.470% 0.5455% $2,830.43
9054588 $399,122.34 5.220% 5.0909% $20,318.96
9056126 $628,681.33 5.470% 0.5455% $3,429.17
9056630 $418,247.95 5.345% 2.8182% $11,786.99
9062606 $577,896.01 5.470% 0.5455% $3,152.16
9075370 $404,063.12 5.345% 2.8182% $11,387.23
9077042 $359,624.14 5.470% 0.5455% $1,961.59
9077304 $354,629.36 5.470% 0.5455% $1,934.34
9081126 $376,582.36 5.470% 0.5455% $2,054.09
9082632 $760,000.00 5.345% 2.8182% $21,418.18
9082932 $457,000.00 5.470% 0.5455% $2,492.73
9087090 $429,950.63 5.470% 0.5455% $2,345.19
9089046 $508,955.31 5.345% 2.8182% $14,343.29
9090010 $414,566.71 5.470% 0.5455% $2,261.27
9090474 $439,540.61 5.470% 0.5455% $2,397.49
9090502 $572,500.00 5.345% 2.8182% $16,134.09
9090692 $445,411.47 5.470% 0.5455% $2,429.52
9090778 $190,733.44 5.470% 0.5455% $1,040.36
9091384 $408,642.87 5.470% 0.5455% $2,228.96
9091390 $334,498.38 5.470% 0.5455% $1,824.54
9091392 $394,173.22 5.470% 0.5455% $2,150.04
9091408 $404,152.29 5.470% 0.5455% $2,204.47
9091412 $438,541.66 5.470% 0.5455% $2,392.05
9091428 $513,463.36 5.470% 0.5455% $2,800.71
9091440 $463,028.78 5.470% 0.5455% $2,525.61
9091526 $448,015.68 5.470% 0.5455% $2,443.72
Friday, March 19, 2004 Page 2 of 6
9091664 $486,491.54 5.470% 0.5455% $2,653.59
9091938 $379,603.25 5.470% 0.5455% $2,070.56
9092762 $531,000.00 5.345% 2.8182% $14,964.55
9093088 $990,939.49 5.345% 2.8182% $27,926.48
9093270 $649,305.11 5.345% 2.8182% $18,298.60
9097730 $485,080.86 5.345% 2.8182% $13,670.46
9099288 $421,100.00 5.470% 0.5455% $2,296.91
9099590 $383,000.00 5.470% 0.5455% $2,089.09
9099762 $629,326.49 5.345% 2.8182% $17,735.56
9099772 $593,879.31 5.470% 0.5455% $3,239.34
9099778 $419,561.49 5.470% 0.5455% $2,288.52
9099784 $649,305.11 5.345% 2.8182% $18,298.60
9100892 $395,000.00 5.345% 2.8182% $11,131.82
9101298 $564,515.99 5.470% 0.5455% $3,079.18
9101306 $599,373.56 5.470% 0.5455% $3,269.31
9101310 $252,735.85 5.470% 0.5455% $1,378.56
9101318 $594,378.78 5.470% 0.5455% $3,242.07
9101320 $432,048.45 5.470% 0.5455% $2,356.63
9101324 $419,561.49 5.470% 0.5455% $2,288.52
9101328 $584,374.60 5.345% 2.8182% $16,468.74
9101330 $347,619.09 5.220% 5.0909% $17,696.97
9101332 $362,121.53 5.470% 0.5455% $1,975.21
9101334 $579,394.45 5.470% 0.5455% $3,160.33
9101338 $457,510.36 5.345% 2.8182% $12,893.47
9101354 $359,615.14 5.345% 2.8182% $10,134.61
9101358 $355,119.95 5.345% 2.8182% $10,007.93
9101360 $367,615.78 5.470% 0.5455% $2,005.18
9101362 $646,807.78 5.345% 2.8182% $18,228.22
9101366 $444,504.38 5.220% 5.0909% $22,629.31
9101372 $524,438.74 5.345% 2.8182% $14,779.64
9101382 $343,620.86 5.470% 0.5455% $1,874.30
9101384 $467,511.38 5.470% 0.5455% $2,550.06
9101388 $448,114.06 5.345% 2.8182% $12,628.67
9101390 $449,530.17 5.470% 0.5455% $2,451.98
9101396 $391,580.93 5.345% 2.8182% $11,035.46
9101398 $564,410.10 5.470% 0.5455% $3,078.60
9101404 $409,551.24 5.220% 5.0909% $20,849.88
9101408 $499,477.97 5.470% 0.5455% $2,724.43
9101410 $565,409.06 5.470% 0.5455% $3,084.05
9101412 $395,576.65 5.345% 2.8182% $11,148.07
9101414 $489,088.83 5.470% 0.5455% $2,667.76
9101418 $651,286.35 5.220% 5.0909% $33,156.40
9101420 $641,009.38 5.345% 2.8182% $18,064.81
9101422 $499,477.97 5.470% 0.5455% $2,724.43
9101424 $395,666.34 5.220% 5.0909% $20,143.01
9101426 $419,561.49 5.470% 0.5455% $2,288.52
9101446 $879,033.33 5.220% 5.0909% $44,750.79
9101458 $394,587.60 5.470% 0.5455% $2,152.30
9101462 $459,519.73 5.470% 0.5455% $2,506.47
9101476 $488,477.23 5.345% 2.8182% $13,766.18
9101488 $607,849.47 5.345% 2.8182% $17,130.30
9101492 $471,507.21 5.470% 0.5455% $2,571.86
9101506 $441,138.94 5.470% 0.5455% $2,406.21
9101518 $399,582.38 5.470% 0.5455% $2,179.54
9101522 $399,488.63 5.470% 0.5455% $2,179.03
9101530 $480,497.80 5.470% 0.5455% $2,620.90
9101538 $422,747.57 5.345% 2.8182% $11,913.80
9101542 $412,568.80 5.470% 0.5455% $2,250.38
9104022 $474,492.19 5.345% 2.8182% $13,372.05
9104756 $447,532.26 5.470% 0.5455% $2,441.09
9105376 $646,500.00 5.470% 0.5455% $3,526.36
9106858 $390,000.00 5.470% 0.5455% $2,127.27
9110646 $446,749.59 5.470% 0.5455% $2,436.82
9111212 $199,000.00 5.470% 0.5455% $1,085.45
9112384 $432,000.00 5.470% 0.5455% $2,356.36
9114556 $386,000.00 5.470% 0.5455% $2,105.45
9115508 $376,000.00 5.470% 0.5455% $2,050.91
9116656 $649,321.36 5.470% 0.5455% $3,541.75
9116658 $371,611.61 5.470% 0.5455% $2,026.97
9116676 $644,876.01 5.470% 0.5455% $3,517.51
9116684 $439,540.61 5.470% 0.5455% $2,397.49
9116708 $459,519.73 5.470% 0.5455% $2,506.47
9116722 $494,483.19 5.470% 0.5455% $2,697.18
9116730 $594,378.78 5.470% 0.5455% $3,242.07
9116734 $484,493.63 5.470% 0.5455% $2,642.69
9116740 $399,582.38 5.470% 0.5455% $2,179.54
9116744 $499,078.39 5.470% 0.5455% $2,722.25
9116750 $370,812.45 5.470% 0.5455% $2,022.61
9116760 $475,000.00 5.470% 0.5455% $2,590.91
9116762 $499,477.97 5.470% 0.5455% $2,724.43
9116764 $481,496.76 5.470% 0.5455% $2,626.35
9116776 $359,624.14 5.470% 0.5455% $1,961.59
9117516 $414,566.71 5.470% 0.5455% $2,261.27
9118320 $484,000.00 5.470% 0.5455% $2,640.00
9118568 $638,880.25 5.095% 7.3636% $47,044.82
9118704 $787,500.00 5.470% 0.5455% $4,295.45
9121612 $156,000.00 5.470% 0.5455% $850.91
9123780 $449,530.17 5.470% 0.5455% $2,451.98
9127288 $585,275.00 5.345% 2.8182% $16,494.11
9127766 $675,000.00 5.470% 0.5455% $3,681.82
9127806 $506,000.00 5.470% 0.5455% $2,760.00
9127852 $424,000.00 5.470% 0.5455% $2,312.73
9127926 $396,750.00 5.345% 2.8182% $11,181.14
9128806 $990,277.63 5.220% 5.0909% $50,414.13
9132402 $196,000.00 5.470% 0.5455% $1,069.09
9135376 $412,900.00 5.470% 0.5455% $2,252.18
9135396 $387,200.00 5.470% 0.5455% $2,112.00
9136378 $509,800.00 5.345% 2.8182% $14,367.09
9136536 $404,000.00 5.470% 0.5455% $2,203.64
9137012 $755,000.00 5.345% 2.8182% $21,277.27
9137070 $631,500.00 5.470% 0.5455% $3,444.55
9137496 $539,000.00 5.470% 0.5455% $2,940.00
9138490 $157,000.00 5.470% 0.5455% $856.36
9138662 $399,000.00 5.470% 0.5455% $2,176.36
9138700 $592,000.00 5.470% 0.5455% $3,229.09
9138722 $450,000.00 5.470% 0.5455% $2,454.55
9138736 $545,000.00 5.470% 0.5455% $2,972.73
9138744 $530,500.00 5.470% 0.5455% $2,893.64
9140376 $645,000.00 5.345% 2.8182% $18,177.27
9140974 $388,500.00 5.470% 0.5455% $2,119.09
9141222 $380,000.00 5.470% 0.5455% $2,072.73
9142862 $444,200.00 5.470% 0.5455% $2,422.91
9143302 $435,000.00 5.470% 0.5455% $2,372.73
9143352 $175,200.00 5.470% 0.5455% $955.64
Friday, March 19, 2004 Page 4 of 6
9143592 $540,000.00 5.470% 0.5455% $2,945.45
9143810 $397,000.00 5.470% 0.5455% $2,165.45
9143928 $507,456.92 5.345% 2.8182% $14,301.06
9143932 $600,000.00 5.470% 0.5455% $3,272.73
9143934 $437,000.00 5.470% 0.5455% $2,383.64
9143936 $480,000.00 5.470% 0.5455% $2,618.18
9143940 $512,000.00 5.470% 0.5455% $2,792.73
9143942 $779,400.00 5.470% 0.5455% $4,251.27
9143944 $383,100.00 5.345% 2.8182% $10,796.45
9143946 $360,000.00 5.345% 2.8182% $10,145.45
9143948 $508,000.00 5.345% 2.8182% $14,316.36
9143950 $490,000.00 5.220% 5.0909% $24,945.45
9143954 $600,000.00 5.220% 5.0909% $30,545.45
9143956 $650,000.00 5.220% 5.0909% $33,090.91
9143958 $437,000.00 5.345% 2.8182% $12,315.45
9143960 $385,000.00 5.220% 5.0909% $19,600.00
9143962 $567,200.00 5.345% 2.8182% $15,984.73
9143966 $549,000.00 5.345% 2.8182% $15,471.82
9143976 $650,000.00 5.345% 2.8182% $18,318.18
9143978 $434,545.84 5.470% 0.5455% $2,370.25
9143980 $512,000.00 5.345% 2.8182% $14,429.09
9143982 $577,382.09 5.345% 2.8182% $16,271.68
9143986 $531,431.26 5.345% 2.8182% $14,976.70
9143994 $540,000.00 5.345% 2.8182% $15,218.18
9143996 $455,000.00 5.220% 5.0909% $23,163.64
9144010 $439,540.61 5.470% 0.5455% $2,397.49
9144012 $535,000.00 5.470% 0.5455% $2,918.18
9144014 $630,000.00 5.345% 2.8182% $17,754.55
9144022 $522,839.81 5.345% 2.8182% $14,734.58
9144030 $574,399.67 5.470% 0.5455% $3,133.09
9144046 $500,976.40 5.470% 0.5455% $2,732.60
9144048 $499,477.97 5.470% 0.5455% $2,724.43
9144064 $526,449.78 5.470% 0.5455% $2,871.54
9144066 $380,000.00 5.345% 2.8182% $10,709.09
9144074 $415,300.00 5.345% 2.8182% $11,703.91
9144078 $475,000.00 5.470% 0.5455% $2,590.91
9144084 $418,000.00 5.470% 0.5455% $2,280.00
9144088 $548,000.00 5.345% 2.8182% $15,443.64
9144090 $335,000.00 5.345% 2.8182% $9,440.91
9144092 $430,000.00 5.345% 2.8182% $12,118.18
9144094 $351,605.57 5.095% 7.3636% $25,890.96
9144096 $374,000.00 5.345% 2.8182% $10,540.00
9144098 $381,000.00 5.470% 0.5455% $2,078.18
9144100 $624,331.84 5.345% 2.8182% $17,594.81
9144104 $554,000.00 5.220% 5.0909% $28,203.64
9144110 $412,000.00 5.470% 0.5455% $2,247.27
9144112 $438,000.00 5.345% 2.8182% $12,343.64
9144114 $384,000.00 5.345% 2.8182% $10,821.82
9144116 $616,000.00 5.345% 2.8182% $17,360.00
9144118 $357,000.00 5.220% 5.0909% $18,174.55
9144122 $344,622.38 5.220% 5.0909% $17,544.41
9144124 $455,000.00 5.220% 5.0909% $23,163.64
9144126 $365,000.00 5.470% 0.5455% $1,990.91
9144134 $512,000.00 5.470% 0.5455% $2,792.73
9144136 $565,000.00 5.470% 0.5455% $3,081.82
9144140 $475,000.00 5.470% 0.5455% $2,590.91
9144144 $372,401.45 5.345% 2.8182% $10,494.95
Friday, March 19, 2004 Page 5 of 6
9144150 $488,000.00 5.345% 2.8182% $13,752.73
9144154 $455,000.00 5.470% 0.5455% $2,481.82
9146508 $410,750.00 5.470% 0.5455% $2,240.45
9146540 $378,500.00 5.470% 0.5455% $2,064.55
9147926 $527,050.00 5.470% 0.5455% $2,874.82
9149820 $702,000.00 5.470% 0.5455% $3,829.09
9152460 $388,000.00 5.470% 0.5455% $2,116.36
9153562 $445,000.00 5.470% 0.5455% $2,427.27
9153726 $855,000.00 5.470% 0.5455% $4,663.64
9158078 $650,000.00 5.470% 0.5455% $3,545.45
9158128 $395,000.00 5.470% 0.5455% $2,154.55
9158678 $358,545.20 5.470% 0.5455% $1,955.70
9158752 $425,000.00 5.470% 0.5455% $2,318.18
9160268 $422,000.00 5.470% 0.5455% $2,301.82
9163012 $814,000.00 5.470% 0.5455% $4,440.00
9167202 $398,300.00 5.470% 0.5455% $2,172.55
9167306 $416,950.00 5.470% 0.5455% $2,274.27
9168530 $488,500.00 5.470% 0.5455% $2,664.55
9168566 $487,500.00 5.470% 0.5455% $2,659.09
9168692 $143,000.00 5.345% 2.8182% $4,030.00
9168968 $640,000.00 5.470% 0.5455% $3,490.91
9169006 $400,000.00 5.470% 0.5455% $2,181.82
9169264 $481,000.00 5.470% 0.5455% $2,623.64
9170694 $348,050.00 5.470% 0.5455% $1,898.45
9174972 $413,158.00 5.345% 2.8182% $11,643.54
9176766 $434,586.43 5.220% 5.0909% $22,124.40
9176894 $435,000.00 5.345% 2.8182% $12,259.09
9177372 $345,000.00 5.470% 0.5455% $1,881.82
Friday, March 19, 2004 Page 6 of 6
EXHIBIT THREE
INFORMATION TO BE INCLUDED IN
MONTHLY DISTRIBUTION DATE STATEMENT
(i) (a) the amount of such distribution to the Certificateholders
of such Class applied to reduce the Certificate Principal Balance
thereof, and (b) the aggregate amount included therein representing
Principal Prepayments;
(ii) the amount of such distribution to Holders of such Class of
Certificates allocable to interest;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall;
(iv) the amount of any Advance by the Master Servicer pursuant to
Section 4.04;
(v) the number and Pool Stated Principal Balance of the Mortgage
Loans after giving effect to the distribution of principal on such
Distribution Date;
(vi) the Insured Payment for such Distribution Date, and the
respective portions thereof allocable to principal and interest for the
Insured Certificates;
(vii) the amount of any Certificate Insurance Payment made on
such Distribution Date, the amount of any reimbursement payment made to
the Certificate Insurer on such Distribution Date pursuant to Section
4.02(a)(xvi) and the amount of Cumulative Insurance Payments after
giving effect to any such Certificate Insurance Payment or any such
reimbursement payment to the Certificate Insurer;
(viii) the aggregate Certificate Principal Balance of each Class
of Certificates and the Senior Percentage, after giving effect to the
amounts distributed on such Distribution Date, separately identifying
any reduction thereof due to Realized Losses other than pursuant to an
actual distribution of principal;
(ix) the related Subordinate Principal Distribution Amount and
Prepayment Distribution Percentage, if applicable;
(x) on the basis of the most recent reports furnished to it by
Sub-Servicers, the number and aggregate principal balances of Mortgage
Loans that are Delinquent (A) 30-59 days, (B) 60-89 days and (C) 90 or
more days and the number and aggregate principal balance of Mortgage
Loans that are in foreclosure;
(xi) the number, aggregate principal balance and book value of
any REO Properties;
-1-
(xii) the aggregate Accrued Certificate Interest remaining
unpaid, if any, for each Class of Certificates, after giving effect to
the distribution made on such Distribution Date;
(xiii) the Special Hazard Amount, Fraud Loss Amount and
Bankruptcy Amount as of the close of business on such Distribution Date
and a description of any change in the calculation of such amounts;
(xiv) the weighted average Pool Strip Rate for such Distribution
Date, the Pass- Through Rate with respect to the Adjustable Rate
Certificates and the Class A-V Certificates and each Subclass, if any,
thereof;
(xv) the Notional Amount with respect to each Class of Interest
Only Certificates and each Subclass;
(xvi) the occurrence of the Credit Support Depletion Date;
(xvii) the related Senior Accelerated Distribution Percentage
applicable to such distribution;
(xviii)the related Senior Percentage for such Distribution Date;
(xix) the aggregate amount of Realized Losses for such
Distribution Date;
(xx) the aggregate amount of any recoveries on previously
foreclosed loans from Sellers due to a breach of representation or
warranty assigned to the Trustee pursuant to Section 2.04;
(xxi) the weighted average remaining term to maturity of the
Mortgage Loans after giving effect to the amounts distributed on such
Distribution Date; and
(xxii) the weighted average Mortgage Rates of the Mortgage Loans
after giving effect to the amounts distributed on such Distribution
Date;
(xxiii)the amount of Reserve Fund Withdrawals for such Distribution Date;
and
(xxiv) the amount of Rounding Account withdrawals for such
Distribution Date.
In the case of information furnished pursuant to clauses (i) and (ii) above, the
amounts shall be expressed as a dollar amount per Certificate with a $1,000
denomination.
The Trustee's internet website will initially be located at
xxxx://xxx.xxxxxxxx.xxx/xxx. To receive this statement via first class mail,
telephone the Trustee at (877) 722-1095.
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EXHIBIT FOUR
STANDARD TERMS OF POOLING AND SERVICING
AGREEMENT DATED AS OF FEBRUARY 1, 2004
EXECUTION COPY
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2004
Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Definitions............................................................................1
Section 1.02 Use of Words and Phrases..............................................................31
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans..........................................................31
Section 2.02 Acceptance by Trustee.................................................................37
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the
Company...............................................................................38
Section 2.04 Representations and Warranties of Sellers.............................................40
Section 2.05 Execution and Authentication of Certificates/Issuance of Certificates
Evidencing Interests in REMIC I.......................................................42
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II Regular Interests;
Acceptance by the Trustee.............................................................42
Section 2.07 Issuance of Certificates Evidencing Interests in REMIC II.............................42
Section 2.08 Purposes and Powers of the Trust......................................................42
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Servicer....................................................43
Section 3.02 Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations.................................44
Section 3.03 Successor Subservicers................................................................45
Section 3.04 Liability of the Master Servicer......................................................46
Section 3.05 No Contractual Relationship Between Subservicer and Trustee or
Certificateholders....................................................................46
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee.......................46
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to Custodial
Account...............................................................................47
Section 3.08 Subservicing Accounts; Servicing Accounts.............................................49
Section 3.09 Access to Certain Documentation and Information Regarding the Mortgage
Loans.................................................................................51
Section 3.10 Permitted Withdrawals from the Custodial Account......................................51
Section 3.11 Maintenance of the Primary Insurance Policies; Collections
Thereunder............................................................................53
i
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity Coverage.....................54
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments.......................................................55
Section 3.14 Realization Upon Defaulted Mortgage Loans.............................................57
Section 3.15 Trustee to Cooperate; Release of Mortgage Files.......................................61
Section 3.16 Servicing and Other Compensation; Compensating Interest...............................62
Section 3.17 Reports to the Trustee and the Company................................................63
Section 3.18 Annual Statement as to Compliance.....................................................63
Section 3.19 Annual Independent Public Accountants' Servicing Report...............................64
Section 3.20 Rights of the Company in Respect of the Master Servicer...............................64
Section 3.21 Administration of Buydown Funds.......................................................64
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Certificate Account...................................................................65
Section 4.02 Distributions.........................................................................66
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting................................................................66
Section 4.04 Distribution of Reports to the Trustee and the Company; Advances by the
Master Servicer.......................................................................68
Section 4.05 Allocation of Realized Losses.........................................................69
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property.........................69
Section 4.07 Optional Purchase of Defaulted Mortgage Loans.........................................69
Section 4.08 Surety Bond...........................................................................70
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates......................................................................70
Section 5.02 Registration of Transfer and Exchange of Certificates.................................72
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................78
Section 5.04 Persons Deemed Owners.................................................................78
Section 5.05 Appointment of Paying Agent...........................................................78
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Company and the Master Servicer.........................80
Section 6.02 Merger or Consolidation of the Company or the Master Servicer; Assignment
of Rights and Delegation of Duties by Master Servicer.................................80
Section 6.03 Limitation on Liability of the Company, the Master Servicer and
Others................................................................................81
Section 6.04 Company and Master Servicer Not to Resign.............................................82
ii
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.....................................................................82
Section 7.02 Trustee or Company to Act; Appointment of Successor...................................84
Section 7.03 Notification to Certificateholders....................................................85
Section 7.04 Waiver of Events of Default...........................................................85
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.....................................................................86
Section 8.02 Certain Matters Affecting the Trustee.................................................87
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.................................89
Section 8.04 Trustee May Own Certificates..........................................................89
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses; Indemnification...................89
Section 8.06 Eligibility Requirements for Trustee..................................................90
Section 8.07 Resignation and Removal of the Trustee................................................91
Section 8.08 Successor Trustee.....................................................................92
Section 8.09 Merger or Consolidation of Trustee....................................................92
Section 8.10 Appointment of Co-Trustee or Separate Trustee.........................................92
Section 8.11 Appointment of Custodians.............................................................93
Section 8.12 Appointment of Office or Agency.......................................................94
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
Section 9.01 Optional Purchase by the Master Servicer of All Certificates; Termination
Upon Purchase by the Master Servicer or Liquidation of All Mortgage
Loans.................................................................................94
Section 9.02 Additional Termination Requirements...................................................97
Section 9.03 Termination of Multiple REMICs........................................................98
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration..................................................................98
Section 10.02 Master Servicer, REMIC Administrator and Trustee Indemnification.....................102
Section 10.03 Designation of REMIC(s)..............................................................102
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment............................................................................103
Section 11.02 Recordation of Agreement; Counterparts...............................................105
iii
Section 11.03 Limitation on Rights of Certificateholders...........................................106
Section 11.04 Governing Law........................................................................106
Section 11.05 Notices..............................................................................106
Section 11.06 Required Notices to Rating Agency and Subservicer....................................107
Section 11.07 Severability of Provisions...........................................................107
Section 11.08 Supplemental Provisions for Resecuritization.........................................108
Section 11.09 Allocation of Voting Rights..........................................................108
EXHIBITS
Exhibit A: Form of Class A Certificate
Exhibit B: Form of Class M Certificate
Exhibit C: Form of Class B Certificate
Exhibit D: Form of Class R Certificate
Exhibit E: Form of Seller/Servicer Contract
Exhibit F: Forms of Request for Release
Exhibit G-1: Form of Transfer Affidavit and Agreement
Exhibit G-2: Form of Transferor Certificate
Exhibit H: Form of Investor Representation Letter
Exhibit I: Form of Transferor Representation Letter
Exhibit J: Form of Rule 144A Investment Representation Letter
Exhibit K: Text of Amendment to Pooling and Servicing Agreement Pursuant to Section
11.01(e) for a Limited Guaranty
Exhibit L: Form of Limited Guaranty
Exhibit M: Form of Lender Certification for Assignment of Mortgage Loan
Exhibit N: Request for Exchange Form
Exhibit O: Form of Form 10-K Certification
Exhibit P: Form of Back-Up Certification to Form 10-K Certificate
Exhibit Q: Information to be Provided by the Master Servicer to the Rating Agencies Relating
to Reportable Modified Mortgage Loans
iv
This is the Standard Terms of Pooling and Servicing Agreement, dated as
of February 1, 2004 (the "Standard Terms", and as incorporated by reference into
a Series Supplement dated as of the Cut-off Date, the "Pooling and Servicing
Agreement" or "Agreement"), among RESIDENTIAL FUNDING MORTGAGE SECURITIES I,
INC., as the company (together with its permitted successors and assigns, the
"Company"), RESIDENTIAL FUNDING CORPORATION, as master servicer (together with
its permitted successors and assigns, the "Master Servicer"), and the trustee
named in the applicable Series Supplement (together with its permitted
successors and assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell certain mortgage pass-through certificates
(collectively, the "Certificates"), to be issued under the Agreement in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Mortgage Loans.
In consideration of the mutual agreements herein contained, the
Company, the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Article.
Accretion Termination Date: As defined in the Series Supplement.
--------------------------
Accrual Certificates: As defined in the Series Supplement.
--------------------
Accrued Certificate Interest: With respect to each Distribution Date,
as to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class or
Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on all Mortgage Loans or, if
the Mortgage Pool is comprised of two or more Loan Groups, on
the Mortgage Loans in the related Loan Group (to the extent
not offset by the Master Servicer with a payment of
Compensating Interest as provided in Section 4.01),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or
the Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan)) of Realized Losses on all Mortgage Loans or,
if the Mortgage Pool is comprised of two or more Loan Groups,
on the Mortgage Loans in the related Loan Group (including
Excess Special Hazard
1
Losses, Excess Fraud Losses, Excess Bankruptcy Losses and
Extraordinary Losses) not allocated solely to one or more
specific Classes of Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on all
Mortgage Loans or, if the Mortgage Pool is comprised of two or
more Loan Groups, on the Mortgage Loans in the related Loan
Group, which remained unreimbursed following the Cash
Liquidation or REO Disposition of such Mortgage Loan or REO
Property or (B) made with respect to delinquencies that were
ultimately determined to be Excess Special Hazard Losses,
Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary
Losses, and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Soldiers' and Sailors' Civil Relief Act of
1940, as amended, or similar legislation or regulations as in
effect from time to time,
with all such reductions allocated (A) among all of the Certificates in
proportion to their respective amounts of Accrued Certificate Interest payable
on such Distribution Date absent such reductions or (B) if the Mortgage Pool is
comprised of two or more Loan Groups, the related Senior Percentage of such
reductions among the related Senior Certificates in proportion to the amounts of
Accrued Certificate Interest payable from the related Loan Group on such
Distribution Date absent such reductions, with the remainder of such reductions
allocated among the holders of the Class M Certificates and Class B Certificates
in proportion to their respective amounts of Accrued Certificate Interest
payable on such Distribution Date absent such reductions. In addition to that
portion of the reductions described in the preceding sentence that are allocated
to any Class of Class B Certificates or any Class of Class M Certificates,
Accrued Certificate Interest on such Class of Class B Certificates or such Class
of Class M Certificates will be reduced by the interest portion (adjusted to the
Net Mortgage Rate) of Realized Losses that are allocated solely to such Class of
Class B Certificates or such Class of Class M Certificates pursuant to Section
4.05.
Addendum and Assignment Agreement: The Addendum and Assignment Agreement,
dated as of January 31, 1995, between MLCC and the Master Servicer.
Additional Collateral: Any of the following held, in addition to the
related Mortgaged Property, as security for a Mortgage Loan: (i) all money,
securities, security entitlements, accounts, general intangibles, payment
rights, instruments, documents, deposit accounts, certificates of deposit,
commodities contracts and other investment property and other property of
whatever kind or description now existing or hereafter acquired which is pledged
as security for the repayment of such Mortgage Loan, (ii) third-party
guarantees, and (A) all money, securities, security entitlements, accounts,
general intangibles, payment rights, instruments, documents, deposit accounts,
certificates of deposit, commodities contracts and other investment property and
other property of whatever kind or description now existing or hereafter
acquired which is pledged as collateral for such guarantee or (B) any mortgaged
property securing the performance of such guarantee, or (iii) such other
collateral as may be set forth in the Series Supplement.
2
Additional Collateral Loan: Each Mortgage Loan that is supported by
Additional Collateral.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date
of determination, the Mortgage Rate borne by the related Mortgage Note, less the
rate at which the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master
Servicer, pursuant to Section 4.04.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Ambac: Ambac Assurance Corporation (formerly known as AMBAC Indemnity
-----
Corporation).
Amount Held for Future Distribution: As to any Distribution Date and,
with respect to any Mortgage Pool that is comprised of two or more Loan Groups,
each Loan Group, the total of the amounts held in the Custodial Account at the
close of business on the preceding Determination Date on account of (i)
Liquidation Proceeds, Subsequent Recoveries, Insurance Proceeds, Curtailments,
Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04 or 4.07 and
Mortgage Loan substitutions made pursuant to Section 2.03 or 2.04 received or
made in the month of such Distribution Date (other than such Liquidation
Proceeds, Insurance Proceeds and purchases of Mortgage Loans that the Master
Servicer has deemed to have been received in the preceding month in accordance
with Section 3.07(b)), and Principal Prepayments in Full made after the related
Prepayment Period, and (ii) payments which represent early receipt of scheduled
payments of principal and interest due on a date or dates subsequent to the
related Due Date.
Appraised Value: As to any Mortgaged Property, the lesser of (i) the
appraised value of such Mortgaged Property based upon the appraisal made at the
time of the origination of the related Mortgage Loan, and (ii) the sales price
of the Mortgaged Property at such time of origination, except in the case of a
Mortgaged Property securing a refinanced or modified Mortgage Loan as to which
it is either the appraised value determined above or the appraised value
determined in an appraisal at the time of refinancing or modification, as the
case may be.
Assigned Contracts: With respect to any Pledged Asset Loan: the Credit
Support Pledge Agreement; the Funding and Pledge Agreement, among GMAC Mortgage
Corporation, National Financial Services Corporation and the Mortgagor or other
person pledging the related Pledged Assets; the Additional Collateral Agreement,
between GMAC Mortgage Corporation and the Mortgagor or other person pledging the
related Pledged Assets; or such other contracts as may be set forth in the
Series Supplement.
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property
3
is located to reflect of record the sale of the Mortgage Loan to the Trustee for
the benefit of Certificateholders, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages secured by Mortgaged Properties located in the same county,
if permitted by law and accompanied by an Opinion of Counsel to that effect.
Assignment Agreement: The Assignment and Assumption Agreement, dated
the Closing Date, between Residential Funding and the Company relating to the
transfer and assignment of the Mortgage Loans.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment of the related Cooperative Lease from the Mortgagor to the
originator of the Cooperative Loan.
Available Distribution Amount: As to any Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, an amount equal to (a) the sum of (i) the amount relating to the Mortgage
Loans on deposit in the Custodial Account as of the close of business on the
immediately preceding Determination Date, including any Subsequent Recoveries,
and amounts deposited in the Custodial Account in connection with the
substitution of Qualified Substitute Mortgage Loans, (ii) the amount of any
Advance made on the immediately preceding Certificate Account Deposit Date,
(iii) any amount deposited in the Certificate Account on the related Certificate
Account Deposit Date pursuant to the second paragraph of Section 3.12(a), (iv)
any amount deposited in the Certificate Account pursuant to Section 4.07, (v)
any amount that the Master Servicer is not permitted to withdraw from the
Custodial Account or the Certificate Account pursuant to Section 3.16(e), (vi)
any amount received by the Trustee pursuant to the Surety Bond in respect of
such Distribution Date and (vii) the proceeds of any Pledged Assets received by
the Master Servicer, reduced by (b) the sum as of the close of business on the
immediately preceding Determination Date of (x) the Amount Held for Future
Distribution, and (y) amounts permitted to be withdrawn by the Master Servicer
from the Custodial Account in respect of the Mortgage Loans pursuant to clauses
(ii)-(x), inclusive, of Section 3.10(a). Such amount shall be determined
separately for each Loan Group. Additionally, with respect to any Mortgage Pool
that is comprised of two or more Loan Groups, if on any Distribution Date
Compensating Interest provided pursuant to Section 3.16(e) is less than
Prepayment Interest Shortfalls incurred on the Mortgage Loans in connection with
Principal Prepayments in Full received during the related Prepayment Period and
Curtailments made in the prior calendar month, such Compensating Interest shall
be allocated on such Distribution Date to the Available Distribution Amount for
each Loan Group on a pro rata basis in accordance with the respective amounts of
such Prepayment Interest Shortfalls incurred on the Mortgage Loans in such Loan
Group in respect of such Distribution Date.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
---------------
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that neither a Deficient
Valuation nor a Debt Service Reduction shall be deemed a Bankruptcy Loss
hereunder so long as the Master Servicer has notified the Trustee in writing
that the Master Servicer is diligently pursuing any remedies that may exist in
connection with the representations and warranties made regarding the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any premiums on any
4
applicable primary hazard insurance policy and any related escrow payments in
respect of such Mortgage Loan are being advanced on a current basis by the
Master Servicer or a Subservicer, in either case without giving effect to any
Debt Service Reduction.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, and designated as such in the Preliminary Statement
to the Series Supplement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York, the State of
Michigan, the State of California or the State of Illinois (and such other state
or states in which the Custodial Account or the Certificate Account are at the
time located) are required or authorized by law or executive order to be closed.
Buydown Funds: Any amount contributed by the seller of a Mortgaged
Property, the Company or other source in order to enable the Mortgagor to reduce
the payments required to be made from the Mortgagor's funds in the early years
of a Mortgage Loan. Buydown Funds are not part of the Trust Fund prior to
deposit into the Custodial or Certificate Account.
Buydown Mortgage Loan: Any Mortgage Loan as to which a specified amount
of interest is paid out of related Buydown Funds in accordance with a related
buydown agreement.
Capitalization Reimbursement Amount: As to any Distribution Date, the
amount of Advances or Servicing Advances that were added to the Stated Principal
Balance of the related Mortgage Loans during the prior calendar month and
reimbursed to the Master Servicer or Subservicer on or prior to such
Distribution Date pursuant to Section 3.10(a)(vii), plus the Capitalization
Reimbursement Shortfall Amount remaining unreimbursed from any prior
Distribution Date and reimbursed to the Master Servicer or Subservicer on or
prior to such Distribution Date.
Capitalization Reimbursement Shortfall Amount: As to any Distribution
Date, the amount, if any, by which the amount of Advances or Servicing Advances
that were added to the Stated Principal Balance of the Mortgage Loans during the
preceding calendar month exceeds the amount of principal payments on the
Mortgage Loans included in the Available Distribution Amount for that
Distribution Date.
Cash Liquidation: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with respect to
such Mortgage Loan.
Certificate Account Deposit Date: As to any Distribution Date, the
Business Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, and, in respect of any Insured
Certificates, the Certificate Insurer to the extent of Cumulative Insurance
Payments, except that neither a Disqualified Organization nor a Non-United
States Person shall be a holder of a Class R Certificate for purposes hereof
and, solely for the
5
purpose of giving any consent or direction pursuant to this Agreement, any
Certificate, other than a Class R Certificate, registered in the name of the
Company, the Master Servicer or any Subservicer or any Affiliate thereof shall
be deemed not to be outstanding and the Percentage Interest or Voting Rights
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests or Voting Rights necessary to effect
any such consent or direction has been obtained. All references herein to
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and
participating members thereof, except as otherwise specified herein; provided,
however, that the Trustee shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
Certificate Insurer: As defined in the Series Supplement.
-------------------
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent, if any, and otherwise on the books of a Depository Participant, if any,
and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate
as specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02, plus
(iii) in the case of each Accrual Certificate, an amount equal to
the aggregate Accrued Certificate Interest added to the
Certificate Principal Balance thereof prior to such date of
determination, minus
(iv) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any
predecessor Certificate) and applied to reduce the Certificate
Principal Balance thereof pursuant to Section 4.02(a) and (y)
the aggregate of all reductions in Certificate Principal
Balance deemed to have occurred in connection with Realized
Losses which were previously allocated to such Certificate (or
any predecessor Certificate) pursuant to Section 4.05;
provided, that the Certificate Principal Balance of the Class of Subordinate
Certificates with the Lowest Priority at any given time shall be further reduced
by an amount equal to the Percentage Interest evidenced by such Certificate
multiplied by the excess, if any, of (A) the then aggregate Certificate
Principal Balance of all Classes of Certificates then outstanding over (B) the
then aggregate Stated Principal Balance of the Mortgage Loans.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 5.02.
6
Class: Collectively, all of the Certificates bearing the same
designation. The initial Class A-V Certificates and any Subclass thereof issued
pursuant to Section 5.01(c) shall be a single Class for purposes of this
Agreement.
Class A-P Certificate: Any one of the Certificates designated as a
Class A-P Certificate.
Class A-P Collection Shortfall: With respect to the Cash Liquidation or
REO Disposition of a Discount Mortgage Loan and any Distribution Date, the
excess of the amount described in Section 4.02(b)(i)(C)(1) over the amount
described in Section 4.02(b)(i)(C)(2).
Class A-P Principal Distribution Amount: As defined in Section 4.02.
Class A-V Certificate: Any one of the Certificates designated as a Class
A-V Certificate, including any Subclass thereof.
Class B Certificate: Any one of the Certificates designated as a Class
B-1 Certificate, Class B-2 Certificate or Class B-3 Certificate.
Class M Certificate: Any one of the Certificates designated as a Class
M-1 Certificate, Class M-2 Certificate or Class M-3 Certificate.
Closing Date: As defined in the Series Supplement.
Code: The Internal Revenue Code of 1986.
Combined Collateral LLC: Combined Collateral LLC, a Delaware limited
liability company.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date, an amount
equal to Prepayment Interest Shortfalls resulting from Principal Prepayments in
Full during the related Prepayment Period and Curtailments during the prior
calendar month and included in the Available Distribution Amount for such
Distribution Date, but not more than the lesser of (a) one-twelfth of 0.125% of
the Stated Principal Balance of the Mortgage Loans immediately preceding such
Distribution Date and (b) the sum of the Servicing Fee and all income and gain
on amounts held in the Custodial Account and the Certificate Account and payable
to the Certificateholders with respect to such Distribution Date; provided that
for purposes of this definition the amount of the Servicing Fee will not be
reduced pursuant to Section 7.02 except as may be required pursuant to the last
sentence of such Section.
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
7
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment of the Cooperative Lease, (iv) financing statements and (v) a stock
power (or other similar instrument), and ancillary thereto, a recognition
agreement between the Cooperative and the originator of the Cooperative Loan,
each of which was transferred and assigned to the Trustee pursuant to Section
2.01 and are from time to time held as part of the Trust Fund.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Credit Repository: Equifax, Transunion and Experian, or their successors in
interest.
Credit Support Depletion Date: The first Distribution Date on which the
Certificate Principal Balances of the Subordinate Certificates have been reduced
to zero.
Credit Support Pledge Agreement: The Credit Support Pledge Agreement,
dated as of November 24, 1998, among the Master Servicer, GMAC Mortgage
Corporation, Combined Collateral LLC and The First National Bank of Chicago (now
known as Bank One, National Association), as custodian.
Cumulative Insurance Payments: As defined in the Series Supplement.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.07 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
8
Custodial Agreement: An agreement that may be entered into among the
Company, the Master Servicer, the Trustee and a Custodian pursuant to which the
Custodian will hold certain documents relating to the Mortgage Loans on behalf
of the Trustee.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
---------
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof at the Cut-off Date after giving effect to all
installments of principal due on or prior thereto (or due during the month of
the Cut-Off Date), whether or not received.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificate: Any Certificate other than a Book-Entry
Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Delinquent: As used herein, a Mortgage Loan is considered to be: "30 to
59 days" or "30 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the next following monthly scheduled due date; "60 to 89
days" or "60 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the second following monthly scheduled due date; and so on.
The determination as to whether a Mortgage Loan falls into these categories is
made as of the close of business on the last business day of each month. For
example, a Mortgage Loan with a payment due on July 1 that remained unpaid as of
the close of business on July 31 would then be considered to be 30 to 59 days
delinquent. Delinquency information as of the Cut-off Date is determined and
prepared as of the close of business on the last business day immediately prior
to the Cut-off Date.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
9
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: As defined in the Series Supplement.
------------------
Discount Fraction: With respect to each Discount Mortgage Loan, the
fraction expressed as a percentage, the numerator of which is the Discount Net
Mortgage Rate minus the Net Mortgage Rate (or the initial Net Mortgage Rate with
respect to any Discount Mortgage Loans as to which the Mortgage Rate is modified
pursuant to 3.07(a)) for such Mortgage Loan and the denominator of which is the
Discount Net Mortgage Rate. The Discount Fraction with respect to each Discount
Mortgage Loan is set forth as an exhibit attached to the Series Supplement.
Discount Mortgage Loan: Any Mortgage Loan having a Net Mortgage Rate
(or the initial Net Mortgage Rate) of less than the Discount Net Mortgage Rate
per annum and any Mortgage Loan deemed to be a Discount Mortgage Loan pursuant
to the definition of Qualified Substitute Mortgage Loan.
Discount Net Mortgage Rate: As defined in the Series Supplement.
--------------------------
Disqualified Organization: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, and if not otherwise
included, any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for
Freddie Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code, (v) any "electing large partnership," as defined in Section 775(a) of
the Code and (vi) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
Distribution Date: The 25th day of any month beginning in the month
immediately following the month of the initial issuance of the Certificates or,
if such 25th day is not a Business Day, the Business Day immediately following
such 25th day.
10
Due Date: With respect to any Distribution Date and any Mortgage Loan, the
day during the related Due Period on which the Monthly Payment is due.
Due Period: With respect to any Distribution Date, the one-month period set
forth in the Series Supplement.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Certificates have a
claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, or (iii) in the case of the Custodial Account, a trust account or
accounts maintained in the corporate trust department of Bank One, National
Association, or (iv) in the case of the Certificate Account, a trust account or
accounts maintained in the corporate trust division of the Trustee, or (v) an
account or accounts of a depository institution acceptable to each Rating Agency
(as evidenced in writing by each Rating Agency that use of any such account as
the Custodial Account or the Certificate Account will not reduce the rating
assigned to any Class of Certificates by such Rating Agency below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency).
Event of Default: As defined in Section 7.01.
Excess Bankruptcy Loss: Any Bankruptcy Loss, or portion thereof, which
exceeds the then applicable Bankruptcy Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, which exceeds the
then applicable Fraud Loss Amount.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion thereof,
that exceeds the then applicable Special Hazard Amount.
Excess Subordinate Principal Amount: With respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the Lowest Priority is to be
reduced to zero and on which Realized Losses are to be allocated to such class
or classes, the excess, if any, of (i) the amount that would otherwise be
distributable in respect of principal on such class or classes of Certificates
on such Distribution Date over (ii) the excess, if any, of the aggregate
Certificate Principal Balance of such class or classes of Certificates
immediately prior to such Distribution Date over the aggregate amount of
Realized Losses to be allocated to such classes of Certificates on such
Distribution Date as reduced by any amount calculated pursuant to Section
4.02(b)(i)(E). With respect to any Mortgage Pool that is comprised of two or
more Loan Groups, the Excess Subordinate Principal Amount will be allocated
between
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each Loan Group on a pro rata basis in accordance with the amount of Realized
Losses attributable to each Loan Group and allocated to the Certificates on such
Distribution Date.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Extraordinary Events: Any of the following conditions with respect to a
Mortgaged Property (or, with respect to a Cooperative Loan, the Cooperative
Apartment) or Mortgage Loan causing or resulting in a loss which causes the
liquidation of such Mortgage Loan:
(a) losses that are of the type that would be covered by the fidelity
bond and the errors and omissions insurance policy required to be maintained
pursuant to Section 3.12(b) but are in excess of the coverage maintained
thereunder;
(b) nuclear reaction or nuclear radiation or radioactive contamination,
all whether controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused by, contributed
to or aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(c) hostile or warlike action in time of peace or war, including action
in hindering, combating or defending against an actual, impending or expected
attack:
1. by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using
military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(d) any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority; or
risks of contraband or illegal transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by or
resulting from an Extraordinary Event.
Fannie Mae: Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
FASIT: A "financial asset securitization investment trust" within the
meaning of Section 860L of the Code.
12
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
----
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
9.01, which Final Distribution Date shall in no event be later than the end of
the 90-day liquidation period described in Section 9.02.
Fitch: Fitch, Inc. or its successor in interest.
-----
Form 10-K Certification: As defined in Section 4.03(e).
Foreclosure Profits: As to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition occurred in the
related Prepayment Period over the sum of the unpaid principal balance of such
Mortgage Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
Fraud Losses: Losses on Mortgage Loans as to which there was fraud in
the origination of such Mortgage Loan.
Freddie Mac: Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Highest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the earliest priority for payments pursuant to Section
4.02(a), in the following order: Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2 and Class B-3 Certificates.
Independent: When used with respect to any specified Person, means such
a Person who (i) is in fact independent of the Company, the Master Servicer and
the Trustee, or any Affiliate thereof, (ii) does not have any direct financial
interest or any material indirect financial interest in the Company, the Master
Servicer or the Trustee or in an Affiliate thereof, and (iii) is not connected
with the Company, the Master Servicer or the Trustee as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
Initial Certificate Principal Balance: With respect to each Class of
Certificates, the Certificate Principal Balance of such Class of Certificates as
of the Cut-off Date, as set forth in the Series Supplement.
Initial Monthly Payment Fund: An amount representing scheduled
principal amortization and interest at the Net Mortgage Rate for the Due Date in
the first Due Period commencing subsequent
13
to the Cut-off Date for those Mortgage Loans for which the Trustee will not be
entitled to receive such payment, and as more specifically defined in the Series
Supplement.
Initial Notional Amount: With respect to any Class or Subclass of
Interest Only Certificates, the amount initially used as the principal basis for
the calculation of any interest payment amount, as more specifically defined in
the Series Supplement.
Initial Subordinate Class Percentage: As defined in the Series Supplement.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan (excluding any Certificate Policy (as defined in the
Series Supplement)), to the extent such proceeds are payable to the mortgagee
under the Mortgage, any Subservicer, the Master Servicer or the Trustee and are
not applied to the restoration of the related Mortgaged Property (or, with
respect to a Cooperative Loan, the related Cooperative Apartment) or released to
the Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing mortgage loans held for its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any
successor thereto or the named insurer in any replacement policy.
Interest Accrual Period: As defined in the Series Supplement.
Interest Only Certificates: A Class or Subclass of Certificates not
entitled to payments of principal, and designated as such in the Series
Supplement. The Interest Only Certificates will have no Certificate Principal
Balance.
Interim Certification: As defined in Section 2.02.
Junior Certificateholder: The Holder of not less than 95% of the Percentage
Interests of the Junior Class of Certificates.
Junior Class of Certificates: The Class of Subordinate Certificates
outstanding as of the date of the repurchase of a Mortgage Loan pursuant to
Section 4.07 herein that has the Lowest Priority.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received
by the Master Servicer in connection with the taking of an entire Mortgaged
Property by exercise of the power of eminent domain or condemnation or in
connection with the liquidation of a defaulted Mortgage Loan through trustee's
sale, foreclosure sale or otherwise, other than REO Proceeds.
14
Loan Group: Any group of Mortgage Loans designated as a separate loan
group in the Series Supplement. The Certificates relating to each Loan Group
will be designated in the Series Supplement.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of which
is the Appraised Value of the related Mortgaged Property.
Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of Subordinate Certificates then
outstanding with a Certificate Principal Balance greater than zero, with later
priority for payments pursuant to Section 4.02(a).
Lowest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the latest priority for payments
pursuant to Section 4.02(a), in the following order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1 Certificates.
Maturity Date: The latest possible maturity date, solely for purposes
of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates which have no Certificate Principal Balance) and each
Uncertificated REMIC Regular Interest would be reduced to zero, as designated in
the Series Supplement.
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.
MLCC: Merrill Lynch Credit Corporation, or its successor in interest.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a
Servicing Modification.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the subject
of a Servicing Modification, the Net Mortgage Rate minus the rate per annum by
which the Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization
15
schedule at the time applicable thereto (after adjustment, if any, for
Curtailments and for Deficient Valuations occurring prior to such Due Date but
before any adjustment to such amortization schedule by reason of any bankruptcy,
other than a Deficient Valuation, or similar proceeding or any moratorium or
similar waiver or grace period and before any Servicing Modification that
constitutes a reduction of the interest rate on such Mortgage Loan).
Moody's: Moody's Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note related to a Mortgage Loan
which is not a Cooperative Loan, the mortgage, deed of trust or other comparable
instrument creating a first lien on an estate in fee simple or leasehold
interest in real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as from time to time are held or deemed to
be held as a part of the Trust Fund, the Mortgage Loans originally so held being
identified in the initial Mortgage Loan Schedule, and Qualified Substitute
Mortgage Loans held or deemed held as part of the Trust Fund including, without
limitation, (i) with respect to each Cooperative Loan, the related Mortgage
Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock
Certificate, Cooperative Lease and Mortgage File and all rights appertaining
thereto, and (ii) with respect to each Mortgage Loan other than a Cooperative
Loan, each related Mortgage Note, Mortgage and Mortgage File and all rights
appertaining thereto.
Mortgage Loan Schedule: As defined in the Series Supplement.
----------------------
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with any modification thereto.
Mortgage Pool: The pool of mortgage loans, including all Loan Groups,
if any, consisting of the Mortgage Loans.
Mortgage Rate: As to any Mortgage Loan, the interest rate borne by the
related Mortgage Note, or any modification thereto other than a Servicing
Modification.
Mortgaged Property: The underlying real property securing a Mortgage
Loan or, with respect to a Cooperative Loan, the related Cooperative Lease and
Cooperative Stock.
Mortgagor: The obligor on a Mortgage Note.
---------
Net Mortgage Rate: As to each Mortgage Loan, a per annum rate of
interest equal to the Adjusted Mortgage Rate less the per annum rate at which
the Servicing Fee is calculated.
Non-Discount Mortgage Loan: A Mortgage Loan that is not a Discount
Mortgage Loan.
16
Non-Primary Residence Loans: The Mortgage Loans designated as secured
by second or vacation residences, or by non-owner occupied residences, on the
Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be
made by the Master Servicer or Subservicer in respect of a Mortgage Loan (other
than a Deleted Mortgage Loan) which, in the good faith judgment of the Master
Servicer, will not, or, in the case of a proposed Advance, would not, be
ultimately recoverable by the Master Servicer from related Late Collections,
Insurance Proceeds, Liquidation Proceeds, REO Proceeds or amounts reimbursable
to the Master Servicer pursuant to Section 4.02(a) hereof. To the extent that
any Mortgagor is not obligated under the related Mortgage documents to pay or
reimburse any portion of any Servicing Advances that are outstanding with
respect to the related Mortgage Loan as a result of a modification of such
Mortgage Loan by the Master Servicer, which forgives amounts which the Master
Servicer or Subservicer had previously advanced, and the Master Servicer
determines that no other source of payment or reimbursement for such advances is
available to it, such Servicing Advances shall be deemed to be Nonrecoverable
Advances. The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate delivered
to the Company, the Trustee and any Certificate Insurer.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Notional Amount: With respect to any Class or Subclass of Interest Only
Certificates, an amount used as the principal basis for the calculation of any
interest payment amount, as more specifically defined in the Series Supplement.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the President or a Vice President or Assistant Vice President, or a
Director or Managing Director, and by the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Company or the Master
Servicer, as the case may be, and delivered to the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Master Servicer, who may be counsel for the Company or the
Master Servicer, provided that any opinion of counsel (i) referred to in the
definition of "Disqualified Organization" or (ii) relating to the qualification
of any REMIC formed under the Series Supplement or compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in Full, Cash Liquidation or REO Disposition and which was not purchased,
deleted or substituted for prior to such Due Date pursuant to Section 2.02,
2.03, 2.04 or 4.07.
17
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As defined in the Series Supplement.
-----------------
Paying Agent: The Trustee or any successor Paying Agent appointed by the
Trustee.
Percentage Interest: With respect to any Certificate (other than a
Class R Certificate), the undivided percentage ownership interest in the related
Class evidenced by such Certificate, which percentage ownership interest shall
be equal to the Initial Certificate Principal Balance thereof or Initial
Notional Amount (in the case of any Interest Only Certificate) thereof divided
by the aggregate Initial Certificate Principal Balance or the aggregate of the
Initial Notional Amounts, as applicable, of all the Certificates of the same
Class. With respect to a Class R Certificate, the interest in distributions to
be made with respect to such Class evidenced thereby, expressed as a percentage,
as stated on the face of each such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest
by the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than one month from the date of acquisition
thereof, provided that the unsecured obligations of the party agreeing
to repurchase such obligations are at the time rated by each Rating
Agency in its highest short-term rating available;
(iii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of bankers'
acceptances, shall in no event have an original maturity of more than
365 days or a remaining maturity of more than 30 days) denominated in
United States dollars of any U.S. depository institution or trust
company incorporated under the laws of the United States or any state
thereof or of any domestic branch of a foreign depository institution
or trust company; provided that the debt obligations of such depository
institution or trust company (or, if the only Rating Agency is Standard
& Poor's, in the case of the principal depository institution in a
depository institution holding company, debt obligations of the
depository institution holding company) at the date of acquisition
thereof have been rated by each Rating Agency in its highest short-term
rating available; and provided further that, if the only Rating Agency
is Standard & Poor's and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations
of such subsidiary are not separately rated, the applicable rating
shall be that of the bank holding company; and, provided further that,
if the original maturity of such short-term obligations of a domestic
branch of a foreign depository institution or trust company shall
exceed 30 days, the short-term rating of such institution shall be A-1+
in the case of Standard & Poor's if Standard & Poor's is the Rating
Agency;
18
(iv) commercial paper and demand notes (having original
maturities of not more than 365 days) of any corporation incorporated
under the laws of the United States or any state thereof which on the
date of acquisition has been rated by each Rating Agency in its highest
short-term rating available; provided that such commercial paper shall
have a remaining maturity of not more than 30 days;
(v) a money market fund or a qualified investment fund rated
by each Rating Agency in its highest long-term rating available; and
(vi) other obligations or securities that are acceptable to
each Rating Agency as a Permitted Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by such Rating
Agency below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date by such Rating
Agency, as evidenced in writing;
provided, however, no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's and Fitch and Aaa
in the case of Moody's, and references herein to the highest rating available on
unsecured commercial paper and short-term debt obligations shall mean A-1 in the
case of Standard & Poor's, P-1 in the case of Moody's and either A-1 by Standard
& Poor's, P-1 by Moody's or F-1 by Fitch in the case of Fitch.
Permitted Transferee: Any Transferee of a Class R Certificate, other
than a Disqualified Organization or Non-United States Person.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pledged Amount: With respect to any Pledged Asset Loan, the amount of
money remitted to Combined Collateral LLC, at the direction of or for the
benefit of the related Mortgagor.
Pledged Asset Loan: Any Mortgage Loan supported by Pledged Assets or
such other collateral, other than the related Mortgaged Property, set forth in
the Series Supplement.
Pledged Assets: With respect to any Mortgage Loan, all money,
securities, security entitlements, accounts, general intangibles, instruments,
documents, certificates of deposit, commodities contracts and other investment
property and other property of whatever kind or description pledged by Combined
Collateral LLC as security in respect of any Realized Losses in connection with
such Mortgage Loan up to the Pledged Amount for such Mortgage Loan, and any
related collateral, or such other collateral as may be set forth in the Series
Supplement.
19
Pledged Asset Mortgage Servicing Agreement: The Pledged Asset Mortgage
Servicing Agreement, dated as of February 28, 1996 between MLCC and the Master
Servicer.
Pooling and Servicing Agreement or Agreement: With respect to any
Series, this Standard Terms together with the related Series Supplement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of each Mortgage Loan.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b)
the Discount Net Mortgage Rate (but not less than 0.00%) per annum.
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such Class
and each Class of Subordinate Certificates with a Lower Priority than such Class
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date is greater than or equal to the sum
of the related Initial Subordinate Class Percentages of such Classes of
Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the portion of the
related Prepayment Period that falls during the prior calendar month, an amount
equal to the excess of one month's interest at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
Stated Principal Balance of such Mortgage Loan over the amount of interest
(adjusted to the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of
a Modified Mortgage Loan)) paid by the Mortgagor for such month to the date of
such Principal Prepayment in Full or (b) a Curtailment during the prior calendar
month, an amount equal to one month's interest at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
amount of such Curtailment.
Prepayment Period: As to any Distribution Date and Principal Prepayment
in Full, the period commencing on the 16th day of the month prior to the month
prior to the month in which that Distribution Date occurs and ending on the 15th
day of the month in which such Distribution Date occurs.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or any replacement policy therefor referred to in Section 2.03(b)(iv)
and (v).
Principal Only Certificates: A Class of Certificates not entitled to
payments of interest, and more specifically designated as such in the Series
Supplement.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is
20
received in advance of its scheduled Due Date and is not accompanied by an
amount as to interest representing scheduled interest on such payment due on any
date or dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan that is made by the Mortgagor.
Program Guide: Collectively, the Client Guide and the Servicer Guide
for Residential Funding's mortgage loan purchase and conduit servicing program
and all supplements and amendments thereto published by Residential Funding from
time to time.
Purchase Price: With respect to any Mortgage Loan (or REO Property)
required to be or otherwise purchased on any date pursuant to Section 2.02,
2.03, 2.04 or 4.07, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof plus the principal portion of any related unreimbursed
Advances and (ii) unpaid accrued interest at the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate plus the rate per annum at which the Servicing Fee is
calculated in the case of a Modified Mortgage Loan) (or at the Net Mortgage Rate
(or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) in the
case of a purchase made by the Master Servicer) on the Stated Principal Balance
thereof to the Due Date in the Due Period related to the Distribution Date
occurring in the month following the month of purchase from the Due Date to
which interest was last paid by the Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
Residential Funding or the Company for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee, with a copy to the Custodian,
(i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than
one Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall to be deposited by
Residential Funding in the Custodial Account in the month of
substitution);
(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than and
not more than 1% per annum higher than the Mortgage Rate and
Net Mortgage Rate, respectively, of the Deleted Mortgage Loan
as of the date of substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no
higher than that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a remaining term to stated maturity not greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan;
(v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment
Agreement; and
21
(vi) have a Pool Strip Rate equal to or greater than that of the
Deleted Mortgage Loan.
Notwithstanding any other provisions herein, (x) with respect to any Qualified
Substitute Mortgage Loan substituted for a Deleted Mortgage Loan which was a
Discount Mortgage Loan, such Qualified Substitute Mortgage Loan shall be deemed
to be a Discount Mortgage Loan and to have a Discount Fraction equal to the
Discount Fraction of the Deleted Mortgage Loan and (y) in the event that the
"Pool Strip Rate" of any Qualified Substitute Mortgage Loan as calculated
pursuant to the definition of "Pool Strip Rate" is greater than the Pool Strip
Rate of the related Deleted Mortgage Loan
(i) the Pool Strip Rate of such Qualified Substitute Mortgage Loan
shall be equal to the Pool Strip Rate of the related Deleted
Mortgage Loan for purposes of calculating the Pass-Through
Rate on the Class A-V Certificates and
(ii) the excess of the Pool Strip Rate on such Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of
"Pool Strip Rate" over the Pool Strip Rate on the related
Deleted Mortgage Loan shall be payable to the Class R
Certificates pursuant to Section 4.02 hereof.
Rating Agency: Each of the statistical credit rating agencies specified
in the Preliminary Statement of the Series Supplement. If any agency or a
successor is no longer in existence, "Rating Agency" shall be such statistical
credit rating agency, or other comparable Person, designated by the Company,
notice of which designation shall be given to the Trustee and the Master
Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property):
-------------
(a) as to which a Cash Liquidation or REO Disposition has occurred,
an amount (not less than zero) equal to (i) the Stated Principal
Balance of the Mortgage Loan (or REO Property) as of the date of
Cash Liquidation or REO Disposition, plus (ii) interest (and REO
Imputed Interest, if any) at the Net Mortgage Rate from the Due
Date as to which interest was last paid or advanced to
Certificateholders up to the Due Date in the Due Period related
to the Distribution Date on which such Realized Loss will be
allocated pursuant to Section 4.05 on the Stated Principal
Balance of such Mortgage Loan (or REO Property) outstanding
during each Due Period that such interest was not paid or
advanced, minus (iii) the proceeds, if any, received during the
month in which such Cash Liquidation (or REO Disposition)
occurred, to the extent applied as recoveries of interest at the
Net Mortgage Rate and to principal of the Mortgage Loan, net of
the portion thereof reimbursable to the Master Servicer or any
Subservicer with respect to related Advances, Servicing Advances
or other expenses as to which the Master Servicer or Subservicer
is entitled to reimbursement thereunder but which have not been
previously reimbursed,
(b) which is the subject of a Servicing Modification, (i) (1) the
amount by which the interest portion of a Monthly Payment or the
principal balance of such Mortgage Loan was reduced or (2) the
sum of any other amounts owing under the Mortgage Loan that were
forgiven and that constitute Servicing Advances that are
reimbursable to the Master Servicer or a Subservicer, and (ii)
any such amount with respect to a
22
Monthly Payment that was or would have been due in the month
immediately following the month in which a Principal
Prepayment or the Purchase Price of such Mortgage Loan is
received or is deemed to have been received,
(c) which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient Valuation, or
(d) which has become the object of a Debt Service Reduction, the
amount of such Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a Debt Service
Reduction shall be deemed a Realized Loss hereunder so long as the Master
Servicer has notified the Trustee in writing that the Master Servicer is
diligently pursuing any remedies that may exist in connection with the
representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by the Master Servicer or a
Subservicer, in either case without giving effect to any Debt Service Reduction.
To the extent the Master Servicer receives Subsequent Recoveries with respect to
any Mortgage Loan, the amount of the Realized Loss with respect to that Mortgage
Loan will be reduced to the extent such recoveries are applied to reduce the
Certificate Principal Balance of any Class of Certificates on any Distribution
Date.
Record Date: With respect to each Distribution Date, the close of
business on the last Business Day of the month next preceding the month in which
the related Distribution Date occurs.
Regular Certificate: Any of the Certificates other than a Class R
Certificate.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Administrator: Residential Funding Corporation. If Residential
Funding Corporation is found by a court of competent jurisdiction to no longer
be able to fulfill its obligations as REMIC Administrator under this Agreement
the Master Servicer or Trustee acting as Master Servicer shall appoint a
successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
23
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Acquisition: The acquisition by the Master Servicer on behalf of
the Trustee for the benefit of the Certificateholders of any REO Property
pursuant to Section 3.14.
REO Disposition: As to any REO Property, a determination by the Master
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds, REO
Proceeds and other payments and recoveries (including proceeds of a final sale)
which the Master Servicer expects to be finally recoverable from the sale or
other disposition of the REO Property.
REO Imputed Interest: As to any REO Property, for any period, an amount
equivalent to interest (at the Net Mortgage Rate that would have been applicable
to the related Mortgage Loan had it been outstanding) on the unpaid principal
balance of the Mortgage Loan as of the date of acquisition thereof for such
period.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO
Property (including, without limitation, proceeds from the rental of the related
Mortgaged Property or, with respect to a Cooperative Loan, the related
Cooperative Apartment) which proceeds are required to be deposited into the
Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed in lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Modified Mortgage Loan: Any Mortgage Loan that (i) has been
subject to an interest rate reduction, (ii) has been subject to a term extension
or (iii) has had amounts owing on such Mortgage Loan capitalized by adding such
amount to the Stated Principal Balance of such Mortgage Loan; provided, however,
that a Mortgage Loan modified in accordance with clause (i) above for a
temporary period shall not be a Reportable Modified Mortgage Loan if such
Mortgage Loan has not been delinquent in payments of principal and interest for
six months since the date of such modification if that interest rate reduction
is not made permanent thereafter.
Request for Release: A request for release, the forms of which are
attached as Exhibit F hereto, or an electronic request in a form acceptable to
the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement, the Program Guide or the related Subservicing Agreement in respect of
such Mortgage Loan.
Required Surety Payment: With respect to any Additional Collateral Loan
that becomes a Liquidated Mortgage Loan, the lesser of (i) the principal portion
of the Realized Loss with respect to such Mortgage Loan and (ii) the excess, if
any, of (a) the amount of Additional Collateral required at origination with
respect to such Mortgage Loan over (b) the net proceeds realized by the
Subservicer from the related Additional Collateral.
24
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Company and
any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Department of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer with particular
responsibility for this transaction, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers to whom, with respect to a particular matter, such matter is
referred.
Retail Certificates: A Senior Certificate, if any, offered in smaller
minimum denominations than other Senior Certificates, and designated as such in
the Series Supplement.
Schedule of Discount Fractions: The schedule setting forth the Discount
Fractions with respect to the Discount Mortgage Loans, attached as an exhibit to
the Series Supplement.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Seller: As to any Mortgage Loan, a Person, including any Subservicer,
that executed a Seller's Agreement applicable to such Mortgage Loan.
Seller's Agreement: An agreement for the origination and sale of
Mortgage Loans generally in the form of the Seller Contract referred to or
contained in the Program Guide, or in such other form as has been approved by
the Master Servicer and the Company, each containing representations and
warranties in respect of one or more Mortgage Loans consistent in all material
respects with those set forth in the Program Guide.
Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, any Loan
Group, 100%. With respect to any Distribution Date thereafter and any such Loan
Group, if applicable, as follows:
(i) for any Distribution Date after the 60th Distribution Date but
on or prior to the 72nd Distribution Date, the related Senior
Percentage for such Distribution Date plus 70% of the related
Subordinate Percentage for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but
on or prior to the 84th Distribution Date, the related Senior
Percentage for such Distribution Date plus 60% of the related
Subordinate Percentage for such Distribution Date;
(iii) for any Distribution Date after the 84th Distribution Date but
on or prior to the 96th Distribution Date, the related Senior
Percentage for such Distribution Date plus 40% of the related
Subordinate Percentage for such Distribution Date;
25
(iv) for any Distribution Date after the 96th Distribution Date but
on or prior to the 108th Distribution Date, the related Senior
Percentage for such Distribution Date plus 20% of the related
Subordinate Percentage for such Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage
for such Distribution Date;
provided, however,
-------- -------
(i) that any scheduled reduction to the Senior Accelerated
Distribution Percentage described above shall not occur as of
any Distribution Date unless either
(a)(1)(X) the outstanding principal balance of the Mortgage
Loans delinquent 60 days or more averaged over the last six months, as
a percentage of the aggregate outstanding Certificate Principal Balance
of the Subordinate Certificates, is less than 50% or (Y) the
outstanding principal balance of Mortgage Loans delinquent 60 days or
more averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged
over the last six months, does not exceed 2% and (2) Realized Losses on
the Mortgage Loans to date for such Distribution Date if occurring
during the sixth, seventh, eighth, ninth or tenth year (or any year
thereafter) after the Closing Date are less than 30%, 35%, 40%, 45% or
50%, respectively, of the sum of the Initial Certificate Principal
Balances of the Subordinate Certificates or
(b)(1) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all
Mortgage Loans averaged over the last six months, does not exceed 4%
and (2) Realized Losses on the Mortgage Loans to date for such
Distribution Date, if occurring during the sixth, seventh, eighth,
ninth or tenth year (or any year thereafter) after the Closing Date are
less than 10%, 15%, 20%, 25% or 30%, respectively, of the sum of the
Initial Certificate Principal Balances of the Subordinate Certificates,
and
(ii) that for any Distribution Date on which the Senior Percentage is
greater than the Percentage as of the Closing Date, the Senior
Accelerated Distribution Percentage for such Distribution Date
shall be 100%, or, if the Mortgage Pool is comprised of two or
more Loan Groups, for any Distribution Date on which the weighted
average of the Senior Percentages for each Loan Group, weighted
on the basis of the Stated Principal Balances of the Mortgage
Loans in the related Loan Group, exceeds the weighted average of
the initial Senior Percentages (calculated on such basis) for
each Loan Group, each of the Senior Accelerated Distribution
Percentages for such Distribution Date will equal 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the Class A-P
Certificates, if any) to zero, the related Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificate: As defined in the Series Supplement.
26
Senior Percentage: As defined in the Series Supplement.
Senior Support Certificate: A Senior Certificate that provides
additional credit enhancement to certain other classes of Senior Certificates
and designated as such in the Preliminary Statement of the Series Supplement.
Series: All of the Certificates issued pursuant to a Pooling and
Servicing Agreement and bearing the same series designation.
Series Supplement: The agreement into which this Standard Terms is
incorporated and pursuant to which, together with this Standard Terms, a Series
of Certificates is issued.
Servicing Accounts: The account or accounts created and maintained
pursuant to Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency or
other unanticipated event by the Master Servicer or a Subservicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged Property
or, with respect to a Cooperative Loan, the related Cooperative Apartment, (ii)
any enforcement or judicial proceedings, including foreclosures, including any
expenses incurred in relation to any such proceedings that result from the
Mortgage Loan being registered on the MERS System, (iii) the management and
liquidation of any REO Property, (iv) any mitigation procedures implemented in
accordance with Section 3.07, and (v) compliance with the obligations under
Sections 3.01, 3.08, 3.12(a) and 3.14, including, if the Master Servicer or any
Affiliate of the Master Servicer provides services such as appraisals and
brokerage services that are customarily provided by Persons other than servicers
of mortgage loans, reasonable compensation for such services.
Servicing Fee: With respect to any Mortgage Loan and Distribution Date,
the fee payable monthly to the Master Servicer in respect of master servicing
compensation that accrues at an annual rate designated on the Mortgage Loan
Schedule as the "MSTR SERV FEE" for such Mortgage Loan, as may be adjusted with
respect to successor Master Servicers as provided in Section 7.02.
Servicing Modification: Any reduction of the interest rate on or the
outstanding principal balance of a Mortgage Loan, any extension of the final
maturity date of a Mortgage Loan, and any increase to the outstanding principal
balance of a Mortgage Loan by adding to the Stated Principal Balance unpaid
principal and interest and other amounts owing under the Mortgage Loan, in each
case pursuant to a modification of a Mortgage Loan that is in default, or for
which, in the judgment of the Master Servicer, default is reasonably
foreseeable, in accordance with Section 3.07(a).
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may from time to time be
amended.
27
Special Hazard Loss: Any Realized Loss not in excess of the cost of the
lesser of repair or replacement of a Mortgaged Property (or, with respect to a
Cooperative Loan, the related Cooperative Apartment) suffered by such Mortgaged
Property (or Cooperative Apartment) on account of direct physical loss,
exclusive of (i) any loss of a type covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged Property
pursuant to Section 3.12(a), except to the extent of the portion of such loss
not covered as a result of any coinsurance provision and (ii) any Extraordinary
Loss.
Standard & Poor's: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc., or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, at any given time, (i) the sum of (a) the Cut-off Date Principal
Balance of the Mortgage Loan plus (b) any amount by which the Stated Principal
Balance of the Mortgage Loan is increased pursuant to a Servicing Modification,
minus (ii) the sum of (a) the principal portion of the Monthly Payments due with
respect to such Mortgage Loan or REO Property during each Due Period ending
prior to the most recent Distribution Date which were received or with respect
to which an Advance was made, and (b) all Principal Prepayments with respect to
such Mortgage Loan or REO Property, and all Insurance Proceeds, Liquidation
Proceeds and REO Proceeds, to the extent applied by the Master Servicer as
recoveries of principal in accordance with Section 3.14 with respect to such
Mortgage Loan or REO Property, in each case which were distributed pursuant to
Section 4.02 on any previous Distribution Date, and (c) any Realized Loss
allocated to Certificateholders with respect thereto for any previous
Distribution Date.
Subclass: With respect to the Class A-V Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent the
Uncertificated Class A-V REMIC Regular Interest or Interests specified by the
initial Holder of the Class A-V Certificates pursuant to Section 5.01(c).
Subordinate Certificate: Any one of the Class M Certificates or Class B
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed hereto as Exhibit B and Exhibit C,
respectively.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, a fraction, expressed as a percentage,
the numerator of which is the aggregate Certificate Principal Balance of such
Class of Subordinate Certificates immediately prior to such date and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of each Discount Mortgage Loan) immediately prior to such Distribution
Date.
Subordinate Percentage: As of any Distribution Date and, with respect
to any Mortgage Pool comprised of two or more Loan Groups, any Loan Group, 100%
minus the related Senior Percentage as of such Distribution Date.
Subsequent Recoveries: As of any Distribution Date, amounts received by
the Master Servicer (net of any related expenses permitted to be reimbursed
pursuant to Section 3.10) or surplus
28
amounts held by the Master Servicer to cover estimated expenses (including, but
not limited to, recoveries in respect of the representations and warranties made
by the related Seller pursuant to the applicable Seller's Agreement and assigned
to the Trustee pursuant to Section 2.04) specifically related to a Mortgage Loan
that was the subject of a Cash Liquidation or an REO Disposition prior to the
related Prepayment Period that resulted in a Realized Loss.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is subject to a Subservicing Agreement.
Subservicer: Any Person with whom the Master Servicer has entered into
a Subservicing Agreement and who generally satisfied the requirements set forth
in the Program Guide in respect of the qualification of a Subservicer as of the
date of its approval as a Subservicer by the Master Servicer.
Subservicer Advance: Any delinquent installment of principal and
interest on a Mortgage Loan which is advanced by the related Subservicer (net of
its Subservicing Fee) pursuant to the Subservicing Agreement.
Subservicing Account: An account established by a Subservicer in
accordance with Section 3.08.
Subservicing Agreement: The written contract between the Master
Servicer and any Subservicer relating to servicing and administration of certain
Mortgage Loans as provided in Section 3.02, generally in the form of the
servicer contract referred to or contained in the Program Guide or in such other
form as has been approved by the Master Servicer and the Company. With respect
to Additional Collateral Loans subserviced by MLCC, the Subservicing Agreement
shall also include the Addendum and Assignment Agreement and the Pledged Asset
Mortgage Servicing Agreement. With respect to any Pledged Asset Loan subserviced
by GMAC Mortgage Corporation, the Addendum and Assignment Agreement, dated as of
November 24, 1998, between the Master Servicer and GMAC Mortgage Corporation, as
such agreement may be amended from time to time.
Subservicing Fee: As to any Mortgage Loan, the fee payable monthly to
the related Subservicer (or, in the case of a Nonsubserviced Mortgage Loan, to
the Master Servicer) in respect of subservicing and other compensation that
accrues at an annual rate equal to the excess of the Mortgage Rate borne by the
related Mortgage Note over the rate per annum designated on the Mortgage Loan
Schedule as the "CURR NET" for such Mortgage Loan.
Surety: Ambac, or its successors in interest, or such other surety as
may be identified in the Series Supplement.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996 in respect to Mortgage Loans originated by MLCC, or the
Surety Bond (Policy No. AB0240BE), dated March 17, 1999 in respect to Mortgage
Loans originated by Novus Financial Corporation, in each case issued by Ambac
for the benefit of certain beneficiaries, including the Trustee for the benefit
of the Holders of the Certificates, but only to the extent that such Surety Bond
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covers any Additional Collateral Loans, or such other Surety Bond as may be
identified in the Series Supplement.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of any REMIC formed under the Series Supplement and under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership Interest
in a Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
Trust Fund: The segregated pool of assets consisting of:
(i) the Mortgage Loans and the related Mortgage Files and
collateral securing such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage
Loans due after the Cut-off Date (other than Monthly Payments
due in the month of the Cut-Off Date) as shall be on deposit
in the Custodial Account or in the Certificate Account and
identified as belonging to the Trust Fund, including the
proceeds from the liquidation of Additional Collateral for any
Additional Collateral Loan or Pledged Assets for any Pledged
Asset Loan, but not including amounts on deposit in the
Initial Monthly Payment Fund,
(iii) property that secured a Mortgage Loan and that has been
acquired for the benefit of the Certificateholders by
foreclosure or deed in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies,
if any, the Pledged Assets with respect to each Pledged Asset
Loan, and the interest in the Surety Bond transferred to the
Trustee pursuant to Section 2.01,
(v) the Initial Monthly Payment Fund, and
(vi) all proceeds of clauses (i) through (v) above.
Underwriter: As defined in the Series Supplement.
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Uniform Single Attestation Program for Mortgage Bankers: The Uniform
Single Attestation Program for Mortgage Bankers, as published by the Mortgage
Bankers Association of America and effective with respect to fiscal periods
ending on or after December 15, 1995.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, provided that, for purposes solely of the
restrictions on the transfer of residual interests, no partnership or other
entity treated as a partnership for United States federal income tax purposes
shall be treated as a United States Person unless all persons that own an
interest in such partnership either directly or through any entity that is not a
corporation for United States federal income tax purposes are required by the
applicable operating agreement to be United States Persons, any state thereof,
or the District of Columbia (except in the case of a partnership, to the extent
provided in Treasury regulations) or any political subdivision thereof, or an
estate that is described in Section 7701(a)(30)(D) of the Code, or a trust that
is described in Section 7701(a)(30)(E) of the Code.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate, and more specifically
designated in Article XI of the Series Supplement.
Section 1.02 Use of Words and Phrases.
"Herein," "hereby," "hereunder," 'hereof," "hereinbefore,"
"hereinafter" and other equivalent words refer to the Pooling and Servicing
Agreement as a whole. All references herein to Articles, Sections or Subsections
shall mean the corresponding Articles, Sections and Subsections in the Pooling
and Servicing Agreement. The definition set forth herein include both the
singular and the plural.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof,
does hereby assign to the Trustee without recourse all the right, title and
interest of the Company in and to the Mortgage Loans, including all interest and
principal received on or with respect to the Mortgage Loans after the Cut-off
Date (other than payments of principal and interest due on the Mortgage Loans in
the month of the Cut-off Date). In connection with such transfer and assignment,
the Company does hereby deliver to the Trustee the Certificate Policy (as
defined in the Series Supplement), if any. The Company, the Master Servicer and
the Trustee agree that it is not intended that any mortgage loan be included in
the Trust that is either (i) a "High-Cost Home Loan" as defined in the New
Jersey Home Ownership Act effective November 27, 2003 or (ii) a "High-Cost Home
Loan" as defined in the New Mexico Home Loan Protection Act effective January 1,
2004.
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(b) In connection with such assignment, except as set forth in Section
2.01(c) and subject to Section 2.01(d) below, the Company does hereby deliver
to, and deposit with, the Trustee, or to and with one or more Custodians, as the
duly appointed agent or agents of the Trustee for such purpose, the following
documents or instruments (or copies thereof as permitted by this Section) (I)
with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without
recourse to the order of the Trustee and showing an unbroken
chain of endorsements from the originator thereof to the
Person endorsing it to the Trustee, or with respect to any
Destroyed Mortgage Note, an original lost note affidavit from
the related Seller or Residential Funding stating that the
original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
(ii) The original Mortgage, noting the presence of
the MIN of the Mortgage Loan and language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan, with evidence of recording indicated thereon or a copy
of the Mortgage with evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the
MERS(R) System, an original Assignment of the Mortgage to the
Trustee with evidence of recording indicated thereon or a copy
of such assignment with evidence of recording indicated
thereon;
(iv) The original recorded assignment or assignments
of the Mortgage showing an unbroken chain of title from the
originator thereof to the Person assigning it to the Trustee
(or to MERS, if the Mortgage Loan is registered on the MERS(R)
System and noting the presence of a MIN) with evidence of
recordation noted thereon or attached thereto, or a copy of
such assignment or assignments of the Mortgage with evidence
of recording indicated thereon; and
(v) The original of each modification, assumption
agreement or preferred loan agreement, if any, relating to
such Mortgage Loan or a copy of each modification, assumption
agreement or preferred loan agreement.
and (II) with respect to each Cooperative Loan so assigned:
(i) The original Mortgage Note, endorsed without
recourse to the order of the Trustee and showing an unbroken
chain of endorsements from the originator thereof to the
Person endorsing it to the Trustee, or with respect to any
Destroyed Mortgage Note, an original lost note affidavit from
the related Seller or Residential Funding stating that the
original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
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(ii) A counterpart of the Cooperative Lease and the
Assignment of Proprietary Lease to the originator of the
Cooperative Loan with intervening assignments showing an
unbroken chain of title from such originator to the Trustee;
(iii) The related Cooperative Stock Certificate,
representing the related Cooperative Stock pledged with
respect to such Cooperative Loan, together with an undated
stock power (or other similar instrument) executed in blank;
(iv) The original recognition agreement by the
Cooperative of the interests of the mortgagee with respect to
the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing
statement, and any continuation statements, filed by the
originator of such Cooperative Loan as secured party, each
with evidence of recording thereof, evidencing the interest of
the originator under the Security Agreement and the Assignment
of Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the
security interest referenced in clause (vi) above showing an
unbroken chain of title from the originator to the Trustee,
each with evidence of recording thereof, evidencing the
interest of the originator under the Security Agreement and
the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the
originator in the Security Agreement, Assignment of
Proprietary Lease and the recognition agreement referenced in
clause (iv) above, showing an unbroken chain of title from the
originator to the Trustee;
(ix) The original of each modification, assumption
agreement or preferred loan agreement, if any, relating to
such Cooperative Loan; and
(x) A duly completed UCC-1 financing statement
showing the Master Servicer as debtor, the Company as secured
party and the Trustee as assignee and a duly completed UCC-1
financing statement showing the Company as debtor and the
Trustee as secured party, each in a form sufficient for
filing, evidencing the interest of such debtors in the
Cooperative Loans.
(c) The Company may, in lieu of delivering the original of the
documents set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section
(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by
Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such
documents to the Master Servicer, and the Master Servicer shall hold such
documents in trust for the use and benefit of all present and future
Certificateholders until such time as is set forth in the next sentence. Within
thirty Business Days following the earlier of (i) the receipt of the original of
all of the documents or instruments set forth in Section 2.01(b)(I)(ii), (iii),
(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies
thereof as permitted by such Section) for any Mortgage Loan and (ii) a written
request by the Trustee to deliver those documents with respect to any or all
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of the Mortgage Loans then being held by the Master Servicer, the Master
Servicer shall deliver a complete set of such documents to the Trustee or the
Custodian or Custodians that are the duly appointed agent or agents of the
Trustee.
(d) Notwithstanding the provisions of Section 2.01(c), in connection
with any Mortgage Loan, if the Company cannot deliver the original of the
Mortgage, any assignment, modification, assumption agreement or preferred loan
agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of
recording thereon concurrently with the execution and delivery of this Agreement
because of (i) a delay caused by the public recording office where such
Mortgage, assignment, modification, assumption agreement or preferred loan
agreement as the case may be, has been delivered for recordation, or (ii) a
delay in the receipt of certain information necessary to prepare the related
assignments, the Company shall deliver or cause to be delivered to the Trustee
or the respective Custodian a copy of such Mortgage, assignment, modification,
assumption agreement or preferred loan agreement.
The Company shall promptly cause to be recorded in the appropriate
public office for real property records the Assignment referred to in clause
(I)(iii) of Section 2.01(b), except (a) in states where, in the opinion of
counsel acceptable to the Trustee and the Master Servicer, such recording is not
required to protect the Trustee's interests in the Mortgage Loan against the
claim of any subsequent transferee or any successor to or creditor of the
Company or the originator of such Mortgage Loan or (b) if MERS is identified on
the Mortgage or on a properly recorded assignment of the Mortgage as the
mortgagee of record solely as nominee for the Seller and its successors and
assigns, and shall promptly cause to be filed the Form UCC-3 assignment and
UCC-1 financing statement referred to in clause (II)(vii) and (x), respectively,
of Section 2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable,
is lost or returned unrecorded to the Company because of any defect therein, the
Company shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as
applicable, or cure such defect, as the case may be, and cause such Assignment
to be recorded in accordance with this paragraph. The Company shall promptly
deliver or cause to be delivered to the Trustee or the respective Custodian such
Mortgage or Assignment or Form UCC-3 or Form UCC-1, as applicable, (or copy
thereof as permitted by Section 2.01(b)) with evidence of recording indicated
thereon at the time specified in Section 2.01(c). In connection with its
servicing of Cooperative Loans, the Master Servicer will use its best efforts to
file timely continuation statements with regard to each financing statement and
assignment relating to Cooperative Loans as to which the related Cooperative
Apartment is located outside of the State of New York.
If the Company delivers to the Trustee or Custodian any Mortgage Note
or Assignment of Mortgage in blank, the Company shall, or shall cause the
Custodian to, complete the endorsement of the Mortgage Note and the Assignment
of Mortgage in the name of the Trustee in conjunction with the Interim
Certification issued by the Custodian, as contemplated by Section 2.02.
Any of the items set forth in Sections 2.01(b)(I)(ii), (iii), (iv) and
(v) and (II)(vi) and (vii) and that may be delivered as a copy rather than the
original may be delivered to the Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on
the MERS(R) System, the Company further agrees that it will cause, at the
Company's own expense, within 30 Business
34
Days after the Closing Date, the MERS(R) System to indicate that such Mortgage
Loans have been assigned by the Company to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files (a) the code in the field which identifies the
specific Trustee and (b) the code in the field "Pool Field" which identifies the
series of the Certificates issued in connection with such Mortgage Loans. The
Company further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the codes referenced
in this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance with
the terms of this Agreement.
(e) Residential Funding hereby assigns to the Trustee its security
interest in and to any Additional Collateral or Pledged Assets, its right to
receive amounts due or to become due in respect of any Additional Collateral or
Pledged Assets pursuant to the related Subservicing Agreement and its rights as
beneficiary under the Surety Bond in respect of any Additional Collateral Loans.
With respect to any Additional Collateral Loan or Pledged Asset Loan,
Residential Funding shall cause to be filed in the appropriate recording office
a UCC-3 statement giving notice of the assignment of the related security
interest to the Trust Fund and shall thereafter cause the timely filing of all
necessary continuation statements with regard to such financing statements.
(f) It is intended that the conveyance by the Company to the Trustee of
the Mortgage Loans as provided for in this Section 2.01 be and the
Uncertificated REMIC Regular Interests, if any (as provided for in Section
2.06), be construed as a sale by the Company to the Trustee of the Mortgage
Loans and any Uncertificated REMIC Regular Interests for the benefit of the
Certificateholders. Further, it is not intended that such conveyance be deemed
to be a pledge of the Mortgage Loans and any Uncertificated REMIC Regular
Interests by the Company to the Trustee to secure a debt or other obligation of
the Company. However, if the Mortgage Loans and any Uncertificated REMIC Regular
Interests are held to be property of the Company or of Residential Funding, or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans and any Uncertificated REMIC Regular Interests, then it is
intended that (a) this Agreement shall be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance
provided for in Section 2.01 shall be deemed to be, and hereby is, (1) a grant
by the Company to the Trustee of a security interest in all of the Company's
right (including the power to convey title thereto), title and interest, whether
now owned or hereafter acquired, in and to any and all general intangibles,
payment intangibles, accounts, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property and other property of whatever kind or
description now existing or hereafter acquired consisting of, arising from or
relating to any of the following: (A) the Mortgage Loans, including (i) with
respect to each Cooperative Loan, the related Mortgage Note, Security Agreement,
Assignment of Proprietary Lease, Cooperative Stock Certificate and Cooperative
Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan,
the related Mortgage Note and Mortgage, and (iii) any insurance policies and all
other documents in the related Mortgage File, (B) all amounts payable pursuant
to the Mortgage Loans in accordance with the terms thereof, (C) any
Uncertificated REMIC Regular Interests and (D) all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without
35
limitation all amounts from time to time held or invested in the Certificate
Account or the Custodial Account, whether in the form of cash, instruments,
securities or other property and (2) an assignment by the Company to the Trustee
of any security interest in any and all of Residential Funding's right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to the property described in the foregoing
clauses (1)(A), (B), (C) and (D) granted by Residential Funding to the Company
pursuant to the Assignment Agreement; (c) the possession by the Trustee, the
Custodian or any other agent of the Trustee of Mortgage Notes or such other
items of property as constitute instruments, money, payment intangibles,
negotiable documents, goods, deposit accounts, letters of credit, advices of
credit, investment property, certificated securities or chattel paper shall be
deemed to be "possession by the secured party," or possession by a purchaser or
a person designated by such secured party, for purposes of perfecting the
security interest pursuant to the Minnesota Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction as in effect
(including, without limitation, Sections 8-106, 9-313 and 9-106 thereof); and
(d) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents of, or persons holding for (as applicable) the
Trustee for the purpose of perfecting such security interest under applicable
law.
The Company and, at the Company's direction, Residential Funding and
the Trustee shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
determined to create a security interest in the Mortgage Loans, any
Uncertificated REMIC Regular Interests and the other property described above,
such security interest would be determined to be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of this Agreement. Without limiting the generality of the foregoing,
the Company shall prepare and deliver to the Trustee not less than 15 days prior
to any filing date and, the Trustee shall forward for filing, or shall cause to
be forwarded for filing, at the expense of the Company, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Mortgage Loans and any Uncertificated REMIC
Regular Interests, as evidenced by an Officers' Certificate of the Company,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of Residential
Funding, the Company or the Trustee (such preparation and filing shall be at the
expense of the Trustee, if occasioned by a change in the Trustee's name), (2)
any change of location of the place of business or the chief executive office of
Residential Funding or the Company, (3) any transfer of any interest of
Residential Funding or the Company in any Mortgage Loan or (4) any transfer of
any interest of Residential Funding or the Company in any Uncertificated REMIC
Regular Interest.
(g) The Master Servicer hereby acknowledges the receipt by it of the
Initial Monthly Payment Fund. The Master Servicer shall hold such Initial
Monthly Payment Fund in the Custodial Account and shall include such Initial
Monthly Payment Fund in the Available Distribution Amount for the initial
Distribution Date. Notwithstanding anything herein to the contrary, the Initial
Monthly Payment Fund shall not be an asset of any REMIC. To the extent that the
Initial Monthly Payment Fund constitutes a reserve fund for federal income tax
purposes, (1) it shall be an outside reserve fund and not an asset of any REMIC,
(2) it shall be owned by the Seller and (3) amounts transferred
36
by any REMIC to the Initial Monthly Payment Fund shall be treated as transferred
to the Seller or any successor, all within the meaning of Section 1.860G-2(h) of
the Treasury Regulations.
(h) The Company agrees that the sale of each Pledged Asset Loan
pursuant to this Agreement will also constitute the assignment, sale,
setting-over, transfer and conveyance to the Trustee, without recourse (but
subject to the Company's covenants, representations and warranties specifically
provided herein), of all of the Company's obligations and all of the Company's
right, title and interest in, to and under, whether now existing or hereafter
acquired as owner of the Mortgage Loan with respect to all money, securities,
security entitlements, accounts, general intangibles, instruments, documents,
certificates of deposit, commodities contracts, and other investment property
and other property of whatever kind or description consisting of, arising from
or related to (i) the Assigned Contracts, (ii) all rights, powers and remedies
of the Company as owner of such Mortgage Loan under or in connection with the
Assigned Contracts, whether arising under the terms of such Assigned Contracts,
by statute, at law or in equity, or otherwise arising out of any default by the
Mortgagor under or in connection with the Assigned Contracts, including all
rights to exercise any election or option or to make any decision or
determination or to give or receive any notice, consent, approval or waiver
thereunder, (iii) all security interests in and lien of the Company as owner of
such Mortgage Loan in the Pledged Amounts and all money, securities, security
entitlements, accounts, general intangibles, instruments, documents,
certificates of deposit, commodities contracts, and other investment property
and other property of whatever kind or description and all cash and non-cash
proceeds of the sale, exchange, or redemption of, and all stock or conversion
rights, rights to subscribe, liquidation dividends or preferences, stock
dividends, rights to interest, dividends, earnings, income, rents, issues,
profits, interest payments or other distributions of cash or other property that
is credited to the Custodial Account, (iv) all documents, books and records
concerning the foregoing (including all computer programs, tapes, disks and
related items containing any such information) and (v) all insurance proceeds
(including proceeds from the Federal Deposit Insurance Corporation or the
Securities Investor Protection Corporation or any other insurance company) of
any of the foregoing or replacements thereof or substitutions therefor, proceeds
of proceeds and the conversion, voluntary or involuntary, of any thereof. The
foregoing transfer, sale, assignment and conveyance does not constitute and is
not intended to result in the creation, or an assumption by the Trustee, of any
obligation of the Company, or any other person in connection with the Pledged
Assets or under any agreement or instrument relating thereto, including any
obligation to the Mortgagor, other than as owner of the Mortgage Loan.
Section 2.02 Acceptance by Trustee.
The Trustee acknowledges receipt (or, with respect to Mortgage Loans
subject to a Custodial Agreement, and based solely upon a receipt or
certification executed by the Custodian, receipt by the respective Custodian as
the duly appointed agent of the Trustee) of the documents referred to in Section
2.01(b)(I)(i) and Section 2.01(b)(II)(i), (iii), (v), (vi) and (viii) above
(except that for purposes of such acknowledgment only, a Mortgage Note may be
endorsed in blank) and declares that it, or a Custodian as its agent, holds and
will hold such documents and the other documents constituting a part of the
Mortgage Files delivered to it, or a Custodian as its agent, and the rights of
Residential Funding with respect to any Pledged Assets, Additional Collateral
and the Surety Bond assigned to the Trustee pursuant to Section 2.01, in trust
for the use and benefit of all present and future Certificateholders. The
Trustee or Custodian (such Custodian being so obligated under
37
a Custodial Agreement) agrees, for the benefit of Certificateholders, to review
each Mortgage File delivered to it pursuant to Section 2.01(b) within 45 days
after the Closing Date to ascertain that all required documents (specifically as
set forth in Section 2.01(b)), have been executed and received, and that such
documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule,
as supplemented, that have been conveyed to it, and to deliver to the Trustee a
certificate (the "Interim Certification") to the effect that all documents
required to be delivered pursuant to Section 2.01(b) above have been executed
and received and that such documents relate to the Mortgage Loans identified on
the Mortgage Loan Schedule, except for any exceptions listed on Schedule A
attached to such Interim Certification. Upon delivery of the Mortgage Files by
the Company or the Master Servicer, the Trustee shall acknowledge receipt (or,
with respect to Mortgage Loans subject to a Custodial Agreement, and based
solely upon a receipt or certification executed by the Custodian, receipt by the
respective Custodian as the duly appointed agent of the Trustee) of the
documents referred to in Section 2.01(c) above.
If the Custodian, as the Trustee's agent, finds any document or
documents constituting a part of a Mortgage File to be missing or defective, the
Trustee shall promptly so notify the Master Servicer and the Company. Pursuant
to Section 2.3 of the Custodial Agreement, the Custodian will notify the Master
Servicer, the Company and the Trustee of any such omission or defect found by it
in respect of any Mortgage File held by it in respect of the items reviewed by
it pursuant to the Custodial Agreement. If such omission or defect materially
and adversely affects the interests of the Certificateholders, the Master
Servicer shall promptly notify the related Subservicer or Seller of such
omission or defect and request that such Subservicer or Seller correct or cure
such omission or defect within 60 days from the date the Master Servicer was
notified of such omission or defect and, if such Subservicer or Seller does not
correct or cure such omission or defect within such period, that such
Subservicer or Seller purchase such Mortgage Loan from the Trust Fund at its
Purchase Price, in either case within 90 days from the date the Master Servicer
was notified of such omission or defect; provided that if the omission or defect
would cause the Mortgage Loan to be other than a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code, any such cure or repurchase must occur within
90 days from the date such breach was discovered. The Purchase Price for any
such Mortgage Loan, whether purchased by the Seller or the Subservicer, shall be
deposited or caused to be deposited by the Master Servicer in the Custodial
Account maintained by it pursuant to Section 3.07 and, upon receipt by the
Trustee of written notification of such deposit signed by a Servicing Officer,
the Trustee or any Custodian, as the case may be, shall release to the Master
Servicer the related Mortgage File and the Trustee shall execute and deliver
such instruments of transfer or assignment prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Seller or its
designee or the Subservicer or its designee, as the case may be, any Mortgage
Loan released pursuant hereto and thereafter such Mortgage Loan shall not be
part of the Trust Fund. In furtherance of the foregoing, if the Subservicer or
Seller that repurchases the Mortgage Loan is not a member of MERS and the
Mortgage is registered on the MERS(R) System, the Master Servicer, at its own
expense and without any right of reimbursement, shall cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to such Subservicer or Seller and shall cause such Mortgage
to be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations. It is understood and agreed that the obligation of the
Seller or the Subservicer, as the case may be, to so cure or purchase any
Mortgage Loan as to which a material and adverse defect in or omission of a
constituent document exists shall
38
constitute the sole remedy respecting such defect or omission available to
Certificateholders or the Trustee on behalf of the Certificateholders.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer and the Company.
(a) The Master Servicer hereby represents and warrants to the Trustee
for the benefit of the Certificateholders that:
(i) The Master Servicer is a corporation duly
organized, validly existing and in good standing under the
laws governing its creation and existence and is or will be in
compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan in accordance with the
terms of this Agreement;
(ii) The execution and delivery of this Agreement by
the Master Servicer and its performance and compliance with
the terms of this Agreement will not violate the Master
Servicer's Certificate of Incorporation or Bylaws or
constitute a material default (or an event which, with notice
or lapse of time, or both, would constitute a material
default) under, or result in the material breach of, any
material contract, agreement or other instrument to which the
Master Servicer is a party or which may be applicable to the
Master Servicer or any of its assets;
(iii) This Agreement, assuming due authorization,
execution and delivery by the Trustee and the Company,
constitutes a valid, legal and binding obligation of the
Master Servicer, enforceable against it in accordance with the
terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general
principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law;
(iv) The Master Servicer is not in default with
respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences
that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or
its properties or might have consequences that would
materially adversely affect its performance hereunder;
(v) No litigation is pending or, to the best of the
Master Servicer's knowledge, threatened against the Master
Servicer which would prohibit its entering into this Agreement
or performing its obligations under this Agreement;
(vi) The Master Servicer will comply in all material
respects in the performance of this Agreement with all
reasonable rules and requirements of each insurer under each
Required Insurance Policy;
39
(vii) No information, certificate of an officer,
statement furnished in writing or report delivered to the
Company, any Affiliate of the Company or the Trustee by the
Master Servicer will, to the knowledge of the Master Servicer,
contain any untrue statement of a material fact or omit a
material fact necessary to make the information, certificate,
statement or report not misleading;
(viii) The Master Servicer has examined each
existing, and will examine each new, Subservicing Agreement
and is or will be familiar with the terms thereof. The terms
of each existing Subservicing Agreement and each designated
Subservicer are acceptable to the Master Servicer and any new
Subservicing Agreements will comply with the provisions of
Section 3.02; and
(ix) The Master Servicer is a member of MERS in good
standing, and will comply in all material respects with the
rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS.
It is understood and agreed that the representations and
warranties set forth in this Section 2.03(a) shall survive
delivery of the respective Mortgage Files to the Trustee or
any Custodian.
Upon discovery by either the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any representation or warranty set forth in this
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties (any Custodian being so
obligated under a Custodial Agreement). Within 90 days of its discovery or its
receipt of notice of such breach, the Master Servicer shall either (i) cure such
breach in all material respects or (ii) to the extent that such breach is with
respect to a Mortgage Loan or a related document, purchase such Mortgage Loan
from the Trust Fund at the Purchase Price and in the manner set forth in Section
2.02; provided that if the omission or defect would cause the Mortgage Loan to
be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or repurchase must occur within 90 days from the date such
breach was discovered. The obligation of the Master Servicer to cure such breach
or to so purchase such Mortgage Loan shall constitute the sole remedy in respect
of a breach of a representation and warranty set forth in this Section 2.03(a)
available to the Certificateholders or the Trustee on behalf of the
Certificateholders.
(b) Representations and warranties relating to the Mortgage Loans are
set forth in Section 2.03(b) of the Series Supplement.
Section 2.04 Representations and Warranties of Sellers.
The Company, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of Certificateholders
all of its right, title and interest in respect of the Assignment Agreement and
each Seller's Agreement (to the extent assigned to the Company pursuant to the
Assignment Agreement) applicable to a Mortgage Loan. Insofar as the Assignment
Agreement or the Company's rights under such Seller's Agreement relate to the
representations and warranties made by Residential Funding or the related Seller
in respect of such Mortgage Loan and
40
any remedies provided thereunder for any breach of such representations and
warranties, such right, title and interest may be enforced by the Master
Servicer on behalf of the Trustee and the Certificateholders. Upon the discovery
by the Company, the Master Servicer, the Trustee or any Custodian of a breach of
any of the representations and warranties made in a Seller's Agreement that have
been assigned to the Trustee pursuant to this Section 2.04 or of a breach of any
of the representations and warranties made in the Assignment Agreement (which,
for purposes hereof, will be deemed to include any other cause giving rise to a
repurchase obligation under the Assignment Agreement) in respect of any Mortgage
Loan which materially and adversely affects the interests of the
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties (any Custodian being so
obligated under a Custodial Agreement). The Master Servicer shall promptly
notify the related Seller or Residential Funding, as the case may be, of such
breach and request that such Seller or Residential Funding, as the case may be,
either (i) cure such breach in all material respects within 90 days from the
date the Master Servicer was notified of such breach or (ii) purchase such
Mortgage Loan from the Trust Fund at the Purchase Price and in the manner set
forth in Section 2.02; provided that in the case of a breach under the
Assignment Agreement Residential Funding shall have the option to substitute a
Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan if such
substitution occurs within two years following the Closing Date; provided that
if the breach would cause the Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure,
repurchase or substitution must occur within 90 days from the date the breach
was discovered. In the event that Residential Funding elects to substitute a
Qualified Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant
to this Section 2.04, Residential Funding shall deliver to the Trustee for the
benefit of the Certificateholders with respect to such Qualified Substitute
Mortgage Loan or Loans, the original Mortgage Note, the Mortgage, an Assignment
of the Mortgage in recordable form if required pursuant to Section 2.01, and
such other documents and agreements as are required by Section 2.01, with the
Mortgage Note endorsed as required by Section 2.01. No substitution will be made
in any calendar month after the Determination Date for such month. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
Master Servicer and remitted by the Master Servicer to Residential Funding on
the next succeeding Distribution Date. For the month of substitution,
distributions to the Certificateholders will include the Monthly Payment due on
a Deleted Mortgage Loan for such month and thereafter Residential Funding shall
be entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend or cause to be amended the Mortgage Loan
Schedule, and, if the Deleted Mortgage Loan was a Discount Mortgage Loan, the
Schedule of Discount Fractions, for the benefit of the Certificateholders to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Qualified Substitute Mortgage Loan or Loans and the Master Servicer shall
deliver the amended Mortgage Loan Schedule, and, if the Deleted Mortgage Loan
was a Discount Mortgage Loan, the amended Schedule of Discount Fractions, to the
Trustee. Upon such substitution, the Qualified Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement and the related Subservicing
Agreement in all respects, the related Seller shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the related Seller's Agreement as of the date of substitution,
insofar as Residential Funding's rights in respect of such representations and
warranties are assigned to the Company pursuant to the Assignment Agreement, and
the Company and the Master Servicer shall be deemed to have made with respect to
any Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the covenants, representations and warranties
41
set forth in this Section 2.04, in Section 2.03 hereof and in Section 4 of the
Assignment Agreement, and the Master Servicer shall be obligated to repurchase
or substitute for any Qualified Substitute Mortgage Loan as to which a
Repurchase Event (as defined in the Assignment Agreement) has occurred pursuant
to Section 4 of the Assignment Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to the
Certificateholders in the month of substitution). Residential Funding shall
deposit the amount of such shortfall into the Custodial Account on the day of
substitution, without any reimbursement therefor. Residential Funding shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall
and (subject to Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any portion of any
REMIC to fail to qualify as such at any time that any Certificate is
outstanding.
It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (or in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing shall constitute the sole
remedy respecting such breach available to the Certificateholders or the Trustee
on behalf of Certificateholders. If the Master Servicer is Residential Funding,
then the Trustee shall also have the right to give the notification and require
the purchase or substitution provided for in the second preceding paragraph in
the event of such a breach of a representation or warranty made by Residential
Funding in the Assignment Agreement. In connection with the purchase of or
substitution for any such Mortgage Loan by Residential Funding, the Trustee
shall assign to Residential Funding all of the Trustee's right, title and
interest in respect of the Seller's Agreement and the Assignment Agreement
applicable to such Mortgage Loan.
Section 2.05 Execution and Authentication of Certificates/Issuance of
Certificates Evidencing Interests in REMIC I.
As provided in Section 2.05 of the Series Supplement.
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II Regular
Interests; Acceptance by the Trustee.
As provided in Section 2.06 of the Series Supplement.
42
Section 2.07 Issuance of Certificates Evidencing Interests in REMIC II.
As provided in Section 2.07 of the Series Supplement.
Section 2.08 Purposes and Powers of the Trust.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Certificates to the Company in exchange for the
Mortgage Loans;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Notwithstanding the provisions of Section 11.01, the trust shall not engage in
any activity other than in connection with the foregoing or other than as
required or authorized by the terms of this Agreement while any Certificate is
outstanding, and this Section 2.08 may not be amended, without the consent of
the Certificateholders evidencing a majority of the aggregate Voting Rights of
the Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans
in accordance with the terms of this Agreement and the respective Mortgage Loans
and shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do any and all things which it may deem necessary
or desirable in connection with such servicing and administration. Without
limiting the generality of the foregoing, the Master Servicer in its own name or
in the name of a Subservicer is hereby authorized and empowered by the Trustee
when the Master Servicer or the Subservicer, as the case may be, believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
consent to assumption or modification in connection with a proposed conveyance,
or of assignment of any Mortgage and Mortgage Note in connection with the
repurchase of a Mortgage Loan and all other comparable instruments, or with
respect to the modification or re-recording of a Mortgage for the purpose of
correcting the Mortgage, the subordination of the lien of the Mortgage in favor
of a public utility
43
company or government agency or unit with powers of eminent domain, the taking
of a deed in lieu of foreclosure, the commencement, prosecution or completion of
judicial or non-judicial foreclosure, the conveyance of a Mortgaged Property to
the related Insurer, the acquisition of any property acquired by foreclosure or
deed in lieu of foreclosure, or the management, marketing and conveyance of any
property acquired by foreclosure or deed in lieu of foreclosure with respect to
the Mortgage Loans and with respect to the Mortgaged Properties. The Master
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Subservicer, when the Master Servicer or the Subservicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re- recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any expenses incurred in connection with the actions
described in the preceding sentence shall be borne by the Master Servicer in
accordance with Section 3.16(c), with no right of reimbursement; provided, that
if, as a result of MERS discontinuing or becoming unable to continue operations
in connection with the MERS System, it becomes necessary to remove any Mortgage
Loan from registration on the MERS System and to arrange for the assignment of
the related Mortgages to the Trustee, then any related expenses shall be
reimbursable to the Master Servicer. Notwithstanding the foregoing, subject to
Section 3.07(a), the Master Servicer shall not permit any modification with
respect to any Mortgage Loan that would both constitute a sale or exchange of
such Mortgage Loan within the meaning of Section 1001 of the Code and any
proposed, temporary or final regulations promulgated thereunder (other than in
connection with a proposed conveyance or assumption of such Mortgage Loan that
is treated as a Principal Prepayment in Full pursuant to Section 3.13(d) hereof)
and cause any REMIC formed under the Series Supplement to fail to qualify as a
REMIC under the Code. The Trustee shall furnish the Master Servicer with any
powers of attorney and other documents necessary or appropriate to enable the
Master Servicer to service and administer the Mortgage Loans. The Trustee shall
not be liable for any action taken by the Master Servicer or any Subservicer
pursuant to such powers of attorney. In servicing and administering any
Nonsubserviced Mortgage Loan, the Master Servicer shall, to the extent not
inconsistent with this Agreement, comply with the Program Guide as if it were
the originator of such Mortgage Loan and had retained the servicing rights and
obligations in respect thereof. In connection with servicing and administering
the Mortgage Loans, the Master Servicer and any Affiliate of the Master Servicer
(i) may perform services such as appraisals and brokerage services that are not
customarily provided by servicers of mortgage loans, and shall be entitled to
reasonable compensation therefor in accordance with Section 3.10 and (ii) may,
at its own discretion and on behalf of the Trustee, obtain credit information in
the form of a "credit score" from a credit repository.
(b) All costs incurred by the Master Servicer or by Subservicers in
effecting the timely payment of taxes and assessments on the properties subject
to the Mortgage Loans shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the amount owing under the
related Mortgage Loans, notwithstanding that the terms of such Mortgage Loan so
permit, and such costs shall be recoverable to the extent permitted by Section
3.10(a)(ii).
(c) The Master Servicer may enter into one or more agreements in
connection with the offering of pass-through certificates evidencing interests
in one or more of the Certificates providing
44
for the payment by the Master Servicer of amounts received by the Master
Servicer as servicing compensation hereunder and required to cover certain
Prepayment Interest Shortfalls on the Mortgage Loans, which payment obligation
will thereafter be an obligation of the Master Servicer hereunder.
Section 3.02 Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements
entered into by Residential Funding and Subservicers prior to the execution and
delivery of this Agreement, and may enter into new Subservicing Agreements with
Subservicers, for the servicing and administration of all or some of the
Mortgage Loans. Each Subservicer of a Mortgage Loan shall be entitled to receive
and retain, as provided in the related Subservicing Agreement and in Section
3.07, the related Subservicing Fee from payments of interest received on such
Mortgage Loan after payment of all amounts required to be remitted to the Master
Servicer in respect of such Mortgage Loan. For any Mortgage Loan that is a
Nonsubserviced Mortgage Loan, the Master Servicer shall be entitled to receive
and retain an amount equal to the Subservicing Fee from payments of interest.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Each Subservicing Agreement will be upon such terms and conditions as
are generally required or permitted by the Program Guide and are not
inconsistent with this Agreement and as the Master Servicer and the Subservicer
have agreed. A representative form of Subservicing Agreement is attached to this
Agreement as Exhibit E. With the approval of the Master Servicer, a Subservicer
may delegate its servicing obligations to third-party servicers, but such
Subservicer will remain obligated under the related Subservicing Agreement. The
Master Servicer and a Subservicer may enter into amendments thereto or a
different form of Subservicing Agreement, and the form referred to or included
in the Program Guide is merely provided for information and shall not be deemed
to limit in any respect the discretion of the Master Servicer to modify or enter
into different Subservicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of either this Agreement or the Program Guide in a manner which would
materially and adversely affect the interests of the Certificateholders. The
Program Guide and any other Subservicing Agreement entered into between the
Master Servicer and any Subservicer shall require the Subservicer to accurately
and fully report its borrower credit files to each of the Credit Repositories in
a timely manner.
(b) As part of its servicing activities hereunder, the Master Servicer,
for the benefit of the Trustee and the Certificateholders, shall use its best
reasonable efforts to enforce the obligations of each Subservicer under the
related Subservicing Agreement and of each Seller under the related Seller's
Agreement insofar as the Company's rights with respect to such obligation has
been assigned to the Trustee hereunder, to the extent that the non-performance
of any such Seller's obligation would have a material and adverse effect on a
Mortgage Loan, including, without limitation, the obligation to purchase a
Mortgage Loan on account of defective documentation, as described in Section
2.02, or on account of a breach of a representation or warranty, as described in
Section 2.04. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements or Seller's
Agreements, as appropriate, and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time
45
as the Master Servicer would employ in its good faith business judgment and
which are normal and usual in its general mortgage servicing activities. The
Master Servicer shall pay the costs of such enforcement at its own expense, and
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loan or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party against whom such
enforcement is directed. For purposes of clarification only, the parties agree
that the foregoing is not intended to, and does not, limit the ability of the
Master Servicer to be reimbursed for expenses that are incurred in connection
with the enforcement of a Seller's obligations (insofar as the Company's rights
with respect to such Seller's obligations have been assigned to the Trustee
hereunder) and are reimbursable pursuant to Section 3.10(a)(viii).
Section 3.03 Successor Subservicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Servicer or any Affiliate of
Residential Funding acts as servicer, it will not assume liability for the
representations and warranties of the Subservicer which it replaces. If the
Master Servicer enters into a Subservicing Agreement with a successor
Subservicer, the Master Servicer shall use reasonable efforts to have the
successor Subservicer assume liability for the representations and warranties
made by the terminated Subservicer in respect of the related Mortgage Loans and,
in the event of any such assumption by the successor Subservicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Subservicer from liability for such representations and warranties.
Section 3.04 Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or reference to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to the Trustee
and the Certificateholders for the servicing and administering of the Mortgage
Loans in accordance with the provisions of Section 3.01 without diminution of
such obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer or the Company
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. The Master
Servicer shall be entitled to enter into any agreement with a Subservicer or
Seller for indemnification of the Master Servicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship Between Subservicer and
Trustee or Certificateholders.
46
Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Master Servicer alone and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer in
its capacity as such except as set forth in Section 3.06. The foregoing
provision shall not in any way limit a Subservicer's obligation to cure an
omission or defect or to repurchase a Mortgage Loan as referred to in Section
2.02 hereof.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee.
(a) If the Master Servicer shall for any reason no longer be the master
servicer (including by reason of an Event of Default), the Trustee, its designee
or its successor shall thereupon assume all of the rights and obligations of the
Master Servicer under each Subservicing Agreement that may have been entered
into. The Trustee, its designee or the successor servicer for the Trustee shall
be deemed to have assumed all of the Master Servicer's interest therein and to
have replaced the Master Servicer as a party to the Subservicing Agreement to
the same extent as if the Subservicing Agreement had been assigned to the
assuming party except that the Master Servicer shall not thereby be relieved of
any liability or obligations under the Subservicing Agreement.
(b) The Master Servicer shall, upon request of the Trustee but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement and the Mortgage Loans then
being serviced and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
each Subservicing Agreement to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account.
(a) The Master Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any related Primary Insurance Policy, follow such
collection procedures as it would employ in its good faith business judgment and
which are normal and usual in its general mortgage servicing activities.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the Due Date
for payments due on a Mortgage Loan in accordance with the Program Guide;
provided, however, that the Master Servicer shall first determine that any such
waiver or extension will not impair the coverage of any related Primary
Insurance Policy or materially adversely affect the lien of the related
Mortgage. Notwithstanding anything in this Section to the contrary, the Master
Servicer or any Subservicer shall not enforce any prepayment charge to the
extent that such enforcement would violate any applicable law. In the event of
any such arrangement, the Master Servicer shall make timely advances on the
related Mortgage Loan during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such arrangements unless otherwise agreed to by the Holders of the
Classes of Certificates affected thereby; provided, however, that no such
extension shall be made
47
if any such advance would be a Nonrecoverable Advance. Consistent with the terms
of this Agreement, the Master Servicer may also waive, modify or vary any term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Master Servicer's determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the Certificateholders
(taking into account any estimated Realized Loss that might result absent such
action); provided, however, that the Master Servicer may not modify materially
or permit any Subservicer to modify any Mortgage Loan, including without
limitation any modification that would change the Mortgage Rate, forgive the
payment of any principal or interest (unless in connection with the liquidation
of the related Mortgage Loan or except in connection with prepayments to the
extent that such reamortization is not inconsistent with the terms of the
Mortgage Loan), capitalize any amounts owing on the Mortgage Loan by adding such
amount to the outstanding principal balance of the Mortgage Loan, or extend the
final maturity date of such Mortgage Loan, unless such Mortgage Loan is in
default or, in the judgment of the Master Servicer, such default is reasonably
foreseeable; provided, further, that (1) no such modification shall reduce the
interest rate on a Mortgage Loan below one-half of the Mortgage Rate as in
effect on the Cut-Off Date, but not less than the sum of the rates at which the
Servicing Fee and the Subservicing Fee with respect to such Mortgage Loan
accrues plus the rate at which the premium paid to the Certificate Insurer, if
any, accrues, (2) the final maturity date for any Mortgage Loan shall not be
extended beyond the Maturity Date, (3) the Stated Principal Balance of all
Reportable Modified Mortgage Loans subject to Servicing Modifications (measured
at the time of the Servicing Modification and after giving effect to any
Servicing Modification) can be no more than five percent of the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date, unless such
limit is increased from time to time with the consent of the Rating Agencies and
the Certificate Insurer, if any. In addition, any amounts owing on a Mortgage
Loan added to the outstanding principal balance of such Mortgage Loan must be
fully amortized over the remaining term of such Mortgage Loan, and such amounts
may be added to the outstanding principal balance of a Mortgage Loan only once
during the life of such Mortgage Loan. Also, the addition of such amounts
described in the preceding sentence shall be implemented in accordance with the
Program Guide and may be implemented only by Subservicers that have been
approved by the Master Servicer for such purpose. In connection with any
Curtailment of a Mortgage Loan, the Master Servicer, to the extent not
inconsistent with the terms of the Mortgage Note and local law and practice, may
permit the Mortgage Loan to be reamortized such that the Monthly Payment is
recalculated as an amount that will fully amortize the remaining Stated
Principal Balance thereof by the original Maturity Date based on the original
Mortgage Rate; provided, that such re-amortization shall not be permitted if it
would constitute a reissuance of the Mortgage Loan for federal income tax
purposes, except if such reissuance is described in Treasury Regulation Section
1.860G-2(b)(3).
(b) The Master Servicer shall establish and maintain a Custodial
Account in which the Master Servicer shall deposit or cause to be deposited on a
daily basis, except as otherwise specifically provided herein, the following
payments and collections remitted by Subservicers or received by it in respect
of the Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due on or before the Cut-off Date):
(i) All payments on account of principal, including
Principal Prepayments made by Mortgagors on the Mortgage Loans
and the principal
48
component of any Subservicer Advance or of any REO Proceeds
received in connection with an REO Property for which an REO
Disposition has occurred;
(ii) All payments on account of interest at the
Adjusted Mortgage Rate on the Mortgage Loans, including
Buydown Funds, if any, and the interest component of any
Subservicer Advance or of any REO Proceeds received in
connection with an REO Property for which an REO Disposition
has occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds (net of any related expenses of the
Subservicer);
(iv) All proceeds of any Mortgage Loans purchased
pursuant to Section 2.02, 2.03, 2.04 or 4.07 and all amounts
required to be deposited in connection with the substitution
of a Qualified Substitute Mortgage Loan pursuant to Section
2.03 or 2.04;
(v) Any amounts required to be deposited pursuant to
Section 3.07(c) or 3.21;
(vi) All amounts transferred from the Certificate
Account to the Custodial Account in accordance with Section
4.02(a);
(vii) Any amounts realized by the Subservicer and
received by the Master Servicer in respect of any Additional
Collateral; and
(viii) Any amounts received by the Master Servicer in
respect of Pledged Assets.
The foregoing requirements for deposit in the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments on the Mortgage Loans which are not part
of the Trust Fund (consisting of payments in respect of principal and interest
on the Mortgage Loans due on or before the Cut-off Date) and payments or
collections in the nature of prepayment charges or late payment charges or
assumption fees may but need not be deposited by the Master Servicer in the
Custodial Account. In the event any amount not required to be deposited in the
Custodial Account is so deposited, the Master Servicer may at any time withdraw
such amount from the Custodial Account, any provision herein to the contrary
notwithstanding. The Custodial Account may contain funds that belong to one or
more trust funds created for mortgage pass-through certificates of other series
and may contain other funds respecting payments on mortgage loans belonging to
the Master Servicer or serviced or master serviced by it on behalf of others.
Notwithstanding such commingling of funds, the Master Servicer shall keep
records that accurately reflect the funds on deposit in the Custodial Account
that have been identified by it as being attributable to the Mortgage Loans.
With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds
and the proceeds of the purchase of any Mortgage Loan pursuant to Sections 2.02,
2.03, 2.04 and 4.07 received in any calendar month, the Master Servicer may
elect to treat such amounts as included in the Available
49
Distribution Amount for the Distribution Date in the month of receipt, but is
not obligated to do so. If the Master Servicer so elects, such amounts will be
deemed to have been received (and any related Realized Loss shall be deemed to
have occurred) on the last day of the month prior to the receipt thereof.
(c) The Master Servicer shall use its best efforts to cause the
institution maintaining the Custodial Account to invest the funds in the
Custodial Account attributable to the Mortgage Loans in Permitted Investments
which shall mature not later than the Certificate Account Deposit Date next
following the date of such investment (with the exception of the Amount Held for
Future Distribution) and which shall not be sold or disposed of prior to their
maturities. All income and gain realized from any such investment shall be for
the benefit of the Master Servicer as additional servicing compensation and
shall be subject to its withdrawal or order from time to time. The amount of any
losses incurred in respect of any such investments attributable to the
investment of amounts in respect of the Mortgage Loans shall be deposited in the
Custodial Account by the Master Servicer out of its own funds immediately as
realized without any right of reimbursement.
(d) The Master Servicer shall give notice to the Trustee and the
Company of any change in the location of the Custodial Account and the location
of the Certificate Account prior to the use thereof.
Section 3.08 Subservicing Accounts; Servicing Accounts.
-----------------------------------------
(a) In those cases where a Subservicer is servicing a Mortgage Loan
pursuant to a Subservicing Agreement, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to establish and maintain
one or more Subservicing Accounts which shall be an Eligible Account or, if such
account is not an Eligible Account, shall generally satisfy the requirements of
the Program Guide and be otherwise acceptable to the Master Servicer and each
Rating Agency. The Subservicer will be required thereby to deposit into the
Subservicing Account on a daily basis all proceeds of Mortgage Loans received by
the Subservicer, less its Subservicing Fees and unreimbursed advances and
expenses, to the extent permitted by the Subservicing Agreement. If the
Subservicing Account is not an Eligible Account, the Master Servicer shall be
deemed to have received such monies upon receipt thereof by the Subservicer. The
Subservicer shall not be required to deposit in the Subservicing Account
payments or collections in the nature of prepayment charges or late charges or
assumption fees. On or before the date specified in the Program Guide, but in no
event later than the Determination Date, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to remit to the Master
Servicer for deposit in the Custodial Account all funds held in the Subservicing
Account with respect to each Mortgage Loan serviced by such Subservicer that are
required to be remitted to the Master Servicer. The Subservicer will also be
required, pursuant to the Subservicing Agreement, to advance on such scheduled
date of remittance amounts equal to any scheduled monthly installments of
principal and interest less its Subservicing Fees on any Mortgage Loans for
which payment was not received by the Subservicer. This obligation to advance
with respect to each Mortgage Loan will continue up to and including the first
of the month following the date on which the related Mortgaged Property is sold
at a foreclosure sale or is acquired by the Trust Fund by deed in lieu of
foreclosure or otherwise. All such advances received by the Master Servicer
shall be deposited promptly by it in the Custodial Account.
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(b) The Subservicer may also be required, pursuant to the Subservicing
Agreement, to remit to the Master Servicer for deposit in the Custodial Account
interest at the Adjusted Mortgage Rate (or Modified Net Mortgage Rate plus the
rate per annum at which the Servicing Fee accrues in the case of a Modified
Mortgage Loan) on any Curtailment received by such Subservicer in respect of a
Mortgage Loan from the related Mortgagor during any month that is to be applied
by the Subservicer to reduce the unpaid principal balance of the related
Mortgage Loan as of the first day of such month, from the date of application of
such Curtailment to the first day of the following month. Any amounts paid by a
Subservicer pursuant to the preceding sentence shall be for the benefit of the
Master Servicer as additional servicing compensation and shall be subject to its
withdrawal or order from time to time pursuant to Sections 3.10(a)(iv) and (v).
(c) In addition to the Custodial Account and the Certificate Account,
the Master Servicer shall for any Nonsubserviced Mortgage Loan, and shall cause
the Subservicers for Subserviced Mortgage Loans to, establish and maintain one
or more Servicing Accounts and deposit and retain therein all collections from
the Mortgagors (or advances from Subservicers) for the payment of taxes,
assessments, hazard insurance premiums, Primary Insurance Policy premiums, if
applicable, or comparable items for the account of the Mortgagors. Each
Servicing Account shall satisfy the requirements for a Subservicing Account and,
to the extent permitted by the Program Guide or as is otherwise acceptable to
the Master Servicer, may also function as a Subservicing Account. Withdrawals of
amounts related to the Mortgage Loans from the Servicing Accounts may be made
only to effect timely payment of taxes, assessments, hazard insurance premiums,
Primary Insurance Policy premiums, if applicable, or comparable items, to
reimburse the Master Servicer or Subservicer out of related collections for any
payments made pursuant to Sections 3.11 (with respect to the Primary Insurance
Policy) and 3.12(a) (with respect to hazard insurance), to refund to any
Mortgagors any sums as may be determined to be overages, to pay interest, if
required, to Mortgagors on balances in the Servicing Account or to clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01 or in accordance with the Program Guide. As part of
its servicing duties, the Master Servicer shall, and the Subservicers will,
pursuant to the Subservicing Agreements, be required to pay to the Mortgagors
interest on funds in this account to the extent required by law.
(d) The Master Servicer shall advance the payments referred to in the
preceding subsection that are not timely paid by the Mortgagors or advanced by
the Subservicers on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of the
Master Servicer, will be recoverable by the Master Servicer out of Insurance
Proceeds, Liquidation Proceeds or otherwise.
51
Section 3.09 Access to Certain Documentation and Information Regarding
the Mortgage Loans.
If compliance with this Section 3.09 shall make any Class of
Certificates legal for investment by federally insured savings and loan
associations, the Master Servicer shall provide, or cause the Subservicers to
provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices designated by the Master
Servicer. The Master Servicer shall permit such representatives to photocopy any
such documentation and shall provide equipment for that purpose at a charge
reasonably approximating the cost of such photocopying to the Master Servicer.
Section 3.10 Permitted Withdrawals from the Custodial Account.
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant to
Section 3.07 that are attributable to the Mortgage Loans for the following
purposes:
(i) to make deposits into the Certificate Account in
the amounts and in the manner provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer
for previously unreimbursed Advances, Servicing Advances or
other expenses made pursuant to Sections 3.01, 3.07(a), 3.08,
3.11, 3.12(a), 3.14 and 4.04 or otherwise reimbursable
pursuant to the terms of this Agreement, such withdrawal right
being limited to amounts received on the related Mortgage
Loans (including, for this purpose, REO Proceeds, Insurance
Proceeds, Liquidation Proceeds and proceeds from the purchase
of a Mortgage Loan pursuant to Section 2.02, 2.03, 2.04 or
4.07) which represent (A) Late Collections of Monthly Payments
for which any such advance was made in the case of Subservicer
Advances or Advances pursuant to Section 4.04 and (B)
recoveries of amounts in respect of which such advances were
made in the case of Servicing Advances;
(iii) to pay to itself or the related Subservicer (if
not previously retained by such Subservicer) out of each
payment received by the Master Servicer on account of interest
on a Mortgage Loan as contemplated by Sections 3.14 and 3.16,
an amount equal to that remaining portion of any such payment
as to interest (but not in excess of the Servicing Fee and the
Subservicing Fee, if not previously retained) which, when
deducted, will result in the remaining amount of such interest
being interest at the Net Mortgage Rate (or Modified Net
Mortgage Rate in the case of a Modified Mortgage Loan) on the
amount specified in the amortization schedule of the related
Mortgage Loan as the principal balance thereof at the
beginning of the period respecting which such interest was
paid after giving effect to any previous Curtailments;
52
(iv) to pay to itself as additional servicing
compensation any interest or investment income earned on funds
and other property deposited in or credited to the Custodial
Account that it is entitled to withdraw pursuant to Section
3.07(c);
(v) to pay to itself as additional servicing
compensation any Foreclosure Profits, any amounts remitted by
Subservicers as interest in respect of Curtailments pursuant
to Section 3.08(b), and any amounts paid by a Mortgagor in
connection with a Principal Prepayment in Full in respect of
interest for any period during the calendar month in which
such Principal Prepayment in Full is to be distributed to the
Certificateholders;
(vi) to pay to itself, a Subservicer, a Seller,
Residential Funding, the Company or any other appropriate
Person, as the case may be, with respect to each Mortgage Loan
or property acquired in respect thereof that has been
purchased or otherwise transferred pursuant to Section 2.02,
2.03, 2.04, 4.07 or 9.01, all amounts received thereon and not
required to be distributed to the Certificateholders as of the
date on which the related Stated Principal Balance or Purchase
Price is determined;
(vii) to reimburse itself or the related Subservicer
for any Nonrecoverable Advance or Advances in the manner and
to the extent provided in subsection (c) below, and any
Advance or Servicing Advance made in connection with a
modified Mortgage Loan that is in default or, in the judgment
of the Master Servicer, default is reasonably foreseeable
pursuant to Section 3.07(a), to the extent the amount of the
Advance or Servicing Advance was added to the Stated Principal
Balance of the Mortgage Loan in a prior calendar month, or any
Advance reimbursable to the Master Servicer pursuant to
Section 4.02(a);
(viii) to reimburse itself or the Company for
expenses incurred by and reimbursable to it or the Company
pursuant to Sections 3.01(a), 3.11, 3.13, 3.14(c), 6.03, 10.01
or otherwise, or in connection with enforcing, in accordance
with this Agreement, any repurchase, substitution or
indemnification obligation of any Seller (other than an
Affiliate of the Company) pursuant to the related Seller's
Agreement;
(ix) to reimburse itself for Servicing Advances
expended by it (a) pursuant to Section 3.14 in good faith in
connection with the restoration of property damaged by an
Uninsured Cause, and (b) in connection with the liquidation of
a Mortgage Loan or disposition of an REO Property to the
extent not otherwise reimbursed pursuant to clause (ii) or
(viii) above; and
(x) to withdraw any amount deposited in the Custodial
Account that was not required to be deposited therein pursuant
to Section 3.07.
(b) Since, in connection with withdrawals pursuant to clauses (ii),
(iii), (v) and (vi), the Master Servicer's entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, the Master
Servicer shall keep and maintain separate accounting, on a Mortgage
53
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Custodial Account pursuant to such clauses.
(c) The Master Servicer shall be entitled to reimburse itself or the
related Subservicer for any advance made in respect of a Mortgage Loan that the
Master Servicer determines to be a Nonrecoverable Advance by withdrawal from the
Custodial Account of amounts on deposit therein attributable to the Mortgage
Loans on any Certificate Account Deposit Date succeeding the date of such
determination. Such right of reimbursement in respect of a Nonrecoverable
Advance relating to an Advance pursuant to Section 4.04 on any such Certificate
Account Deposit Date shall be limited to an amount not exceeding the portion of
such advance previously paid to Certificateholders (and not theretofore
reimbursed to the Master Servicer or the related Subservicer).
Section 3.11 Maintenance of the Primary Insurance Policies;
Collections Thereunder.
(a) The Master Servicer shall not take, or permit any Subservicer to
take, any action which would result in non-coverage under any applicable Primary
Insurance Policy of any loss which, but for the actions of the Master Servicer
or Subservicer, would have been covered thereunder. To the extent coverage is
available, the Master Servicer shall keep or cause to be kept in full force and
effect each such Primary Insurance Policy until the principal balance of the
related Mortgage Loan secured by a Mortgaged Property is reduced to 80% or less
of the Appraised Value in the case of such a Mortgage Loan having a
Loan-to-Value Ratio at origination in excess of 80%, provided that such Primary
Insurance Policy was in place as of the Cut-off Date and the Company had
knowledge of such Primary Insurance Policy. The Master Servicer shall be
entitled to cancel or permit the discontinuation of any Primary Insurance Policy
as to any Mortgage Loan, if the Stated Principal Balance of the Mortgage Loan is
reduced below an amount equal to 80% of the appraised value of the related
Mortgaged Property as determined in any appraisal thereof after the Closing
Date, or if the Loan-to-Value Ratio is reduced below 80% as a result of
principal payments on the Mortgage Loan after the Closing Date. In the event
that the Company gains knowledge that as of the Closing Date, a Mortgage Loan
had a Loan-to-Value Ratio at origination in excess of 80% and is not the subject
of a Primary Insurance Policy (and was not included in any exception to the
representation in Section 2.03(b)(iv)) and that such Mortgage Loan has a current
Loan-to-Value Ratio in excess of 80% then the Master Servicer shall use its
reasonable efforts to obtain and maintain a Primary Insurance Policy to the
extent that such a policy is obtainable at a reasonable price. The Master
Servicer shall not cancel or refuse to renew any such Primary Insurance Policy
applicable to a Nonsubserviced Mortgage Loan, or consent to any Subservicer
canceling or refusing to renew any such Primary Insurance Policy applicable to a
Mortgage Loan subserviced by it, that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
unless the replacement Primary Insurance Policy for such canceled or non-renewed
policy is maintained with an insurer whose claims-paying ability is acceptable
to each Rating Agency for mortgage pass-through certificates having a rating
equal to or better than the lower of the then-current rating or the rating
assigned to the Certificates as of the Closing Date by such Rating Agency.
(b) In connection with its activities as administrator and servicer of
the Mortgage Loans, the Master Servicer agrees to present or to cause the
related Subservicer to present, on behalf of the Master Servicer, the
Subservicer, if any, the Trustee and Certificateholders, claims to the related
54
Insurer under any Primary Insurance Policies, in a timely manner in accordance
with such policies, and, in this regard, to take or cause to be taken such
reasonable action as shall be necessary to permit recovery under any Primary
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Section
3.07, any Insurance Proceeds collected by or remitted to the Master Servicer
under any Primary Insurance Policies shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.10.
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity
Coverage.
(a) The Master Servicer shall cause to be maintained for each Mortgage
Loan (other than a Cooperative Loan) fire insurance with extended coverage in an
amount which is equal to the lesser of the principal balance owing on such
Mortgage Loan or 100 percent of the insurable value of the improvements;
provided, however, that such coverage may not be less than the minimum amount
required to fully compensate for any loss or damage on a replacement cost basis.
To the extent it may do so without breaching the related Subservicing Agreement,
the Master Servicer shall replace any Subservicer that does not cause such
insurance, to the extent it is available, to be maintained. The Master Servicer
shall also cause to be maintained on property acquired upon foreclosure, or deed
in lieu of foreclosure, of any Mortgage Loan (other than a Cooperative Loan),
fire insurance with extended coverage in an amount which is at least equal to
the amount necessary to avoid the application of any co-insurance clause
contained in the related hazard insurance policy. Pursuant to Section 3.07, any
amounts collected by the Master Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or property thus acquired or amounts released to the Mortgagor in
accordance with the Master Servicer's normal servicing procedures) shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
3.10. Any cost incurred by the Master Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the amount owing under the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs shall
be recoverable by the Master Servicer out of related late payments by the
Mortgagor or out of Insurance Proceeds and Liquidation Proceeds to the extent
permitted by Section 3.10. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage Loan other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. Whenever the improvements securing a Mortgage
Loan (other than a Cooperative Loan) are located at the time of origination of
such Mortgage Loan in a federally designated special flood hazard area, the
Master Servicer shall cause flood insurance (to the extent available) to be
maintained in respect thereof. Such flood insurance shall be in an amount equal
to the lesser of (i) the amount required to compensate for any loss or damage to
the Mortgaged Property on a replacement cost basis and (ii) the maximum amount
of such insurance available for the related Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
If the Master Servicer shall obtain and maintain a blanket fire
insurance policy with extended coverage insuring against hazard losses on all of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.12(a), it being
understood and agreed that such policy may contain a deductible clause, in which
case the Master Servicer shall, in the event that there shall not have been
maintained on the related
55
Mortgaged Property a policy complying with the first sentence of this Section
3.12(a) and there shall have been a loss which would have been covered by such
policy, deposit in the Certificate Account the amount not otherwise payable
under the blanket policy because of such deductible clause. Any such deposit by
the Master Servicer shall be made on the Certificate Account Deposit Date next
preceding the Distribution Date which occurs in the month following the month in
which payments under any such policy would have been deposited in the Custodial
Account. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present, on behalf of itself, the
Trustee and the Certificateholders, claims under any such blanket policy.
(b) The Master Servicer shall obtain and maintain at its own expense
and keep in full force and effect throughout the term of this Agreement a
blanket fidelity bond and an errors and omissions insurance policy covering the
Master Servicer's officers and employees and other persons acting on behalf of
the Master Servicer in connection with its activities under this Agreement. The
amount of coverage shall be at least equal to the coverage that would be
required by Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater, with respect to the
Master Servicer if the Master Servicer were servicing and administering the
Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac. In the event that any such bond or
policy ceases to be in effect, the Master Servicer shall obtain a comparable
replacement bond or policy from an issuer or insurer, as the case may be,
meeting the requirements, if any, of the Program Guide and acceptable to the
Company. Coverage of the Master Servicer under a policy or bond obtained by an
Affiliate of the Master Servicer and providing the coverage required by this
Section 3.12(b) shall satisfy the requirements of this Section 3.12(b).
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the
Master Servicer or Subservicer, to the extent it has knowledge of such
conveyance, shall enforce any due-on-sale clause contained in any Mortgage Note
or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing:
(i) the Master Servicer shall not be deemed to be in
default under this Section 3.13(a) by reason of any transfer
or assumption which the Master Servicer is restricted by law
from preventing; and
(ii) if the Master Servicer determines that it is
reasonably likely that any Mortgagor will bring, or if any
Mortgagor does bring, legal action to declare invalid or
otherwise avoid enforcement of a due-on-sale clause contained
in any Mortgage Note or Mortgage, the Master Servicer shall
not be required to enforce the due-on-sale clause or to
contest such action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.13(a), in any case in which a
Mortgaged Property is to be conveyed to a Person by a Mortgagor, and such Person
is to enter into an assumption or modification agreement or supplement to the
Mortgage Note or Mortgage which requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the Mortgagor
from liability on the
56
Mortgage Loan, the Master Servicer is authorized, subject to the requirements of
the sentence next following, to execute and deliver, on behalf of the Trustee,
the assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to such Person; provided, however, none of such terms and requirements shall
either (i) both (A) constitute a "significant modification" effecting an
exchange or reissuance of such Mortgage Loan under the REMIC Provisions and (B)
cause any portion of any REMIC formed under the Series Supplement to fail to
qualify as a REMIC under the Code or (subject to Section 10.01(f)), result in
the imposition of any tax on "prohibited transactions" or (ii) constitute
"contributions" after the start-up date under the REMIC Provisions. The Master
Servicer shall execute and deliver such documents only if it reasonably
determines that (i) its execution and delivery thereof will not conflict with or
violate any terms of this Agreement or cause the unpaid balance and interest on
the Mortgage Loan to be uncollectible in whole or in part, (ii) any required
consents of insurers under any Required Insurance Policies have been obtained
and (iii) subsequent to the closing of the transaction involving the assumption
or transfer (A) the Mortgage Loan will continue to be secured by a first
mortgage lien pursuant to the terms of the Mortgage, (B) such transaction will
not adversely affect the coverage under any Required Insurance Policies, (C) the
Mortgage Loan will fully amortize over the remaining term thereof, (D) no
material term of the Mortgage Loan (including the interest rate on the Mortgage
Loan) will be altered nor will the term of the Mortgage Loan be changed and (E)
if the seller/transferor of the Mortgaged Property is to be released from
liability on the Mortgage Loan, such release will not (based on the Master
Servicer's or Subservicer's good faith determination) adversely affect the
collectability of the Mortgage Loan. Upon receipt of appropriate instructions
from the Master Servicer in accordance with the foregoing, the Trustee shall
execute any necessary instruments for such assumption or substitution of
liability as directed in writing by the Master Servicer. Upon the closing of the
transactions contemplated by such documents, the Master Servicer shall cause the
originals or true and correct copies of the assumption agreement, the release
(if any), or the modification or supplement to the Mortgage Note or Mortgage to
be delivered to the Trustee or the Custodian and deposited with the Mortgage
File for such Mortgage Loan. Any fee collected by the Master Servicer or such
related Subservicer for entering into an assumption or substitution of liability
agreement will be retained by the Master Servicer or such Subservicer as
additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for a partial release of
the related Mortgaged Property, the granting of an easement thereon in favor of
another Person, any alteration or demolition of the related Mortgaged Property
(or, with respect to a Cooperative Loan, the related Cooperative Apartment)
without any right of reimbursement or other similar matters if it has
determined, exercising its good faith business judgment in the same manner as it
would if it were the owner of the related Mortgage Loan, that the security for,
and the timely and full collectability of, such Mortgage Loan would not be
adversely affected thereby and that any portion of any REMIC formed under the
Series Supplement would not fail to continue to qualify as a REMIC under the
Code as a result thereof and (subject to Section 10.01(f)) that no tax on
"prohibited transactions" or "contributions" after the startup day would be
imposed on any such REMIC as a result thereof. Any
57
fee collected by the Master Servicer or the related Subservicer for processing
such a request will be retained by the Master Servicer or such Subservicer as
additional servicing compensation.
(d) Subject to any other applicable terms and conditions of this
Agreement, the Trustee and Master Servicer shall be entitled to approve an
assignment in lieu of satisfaction with respect to any Mortgage Loan, provided
the obligee with respect to such Mortgage Loan following such proposed
assignment provides the Trustee and Master Servicer with a "Lender Certification
for Assignment of Mortgage Loan" in the form attached hereto as Exhibit M, in
form and substance satisfactory to the Trustee and Master Servicer, providing
the following: (i) that the substance of the assignment is, and is intended to
be, a refinancing of such Mortgage; (ii) that the Mortgage Loan following the
proposed assignment will have a rate of interest at least 0.25 percent below or
above the rate of interest on such Mortgage Loan prior to such proposed
assignment; and (iii) that such assignment is at the request of the borrower
under the related Mortgage Loan. Upon approval of an assignment in lieu of
satisfaction with respect to any Mortgage Loan, the Master Servicer shall
receive cash in an amount equal to the unpaid principal balance of and accrued
interest on such Mortgage Loan and the Master Servicer shall treat such amount
as a Principal Prepayment in Full with respect to such Mortgage Loan for all
purposes hereof.
Section 3.14 Realization Upon Defaulted Mortgage Loans.
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(a) The Master Servicer shall foreclose upon or otherwise comparably
convert (which may include an REO Acquisition) the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. Alternatively, the Master Servicer may take
other actions in respect of a defaulted Mortgage Loan, which may include (i)
accepting a short sale (a payoff of the Mortgage Loan for an amount less than
the total amount contractually owed in order to facilitate a sale of the
Mortgaged Property by the Mortgagor) or permitting a short refinancing (a payoff
of the Mortgage Loan for an amount less than the total amount contractually owed
in order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (ii) arranging for a repayment plan or (iii)
agreeing to a modification in accordance with Section 3.07. In connection with
such foreclosure or other conversion, the Master Servicer shall, consistent with
Section 3.11, follow such practices and procedures as it shall deem necessary or
advisable, as shall be normal and usual in its general mortgage servicing
activities and as shall be required or permitted by the Program Guide; provided
that the Master Servicer shall not be liable in any respect hereunder if the
Master Servicer is acting in connection with any such foreclosure or other
conversion in a manner that is consistent with the provisions of this Agreement.
The Master Servicer, however, shall not be required to expend its own funds or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to Holders of
Certificates of one or more Classes after reimbursement to itself for such
expenses or charges and (ii) that such expenses or charges will be recoverable
to it through Liquidation Proceeds, Insurance Proceeds, or REO Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 3.10, whether or not such expenses and
charges are actually recoverable from related Liquidation Proceeds, Insurance
Proceeds or REO Proceeds). In the event of such a determination by the Master
Servicer pursuant to this Section
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3.14(a), the Master Servicer shall be entitled to reimbursement of such amounts
pursuant to Section 3.10.
In addition to the foregoing, the Master Servicer shall use its best
reasonable efforts to realize upon any Additional Collateral for such of the
Additional Collateral Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07; provided that the Master Servicer shall not, on behalf
of the Trustee, obtain title to any such Additional Collateral as a result of or
in lieu of the disposition thereof or otherwise; and provided further that (i)
the Master Servicer shall not proceed with respect to such Additional Collateral
in any manner that would impair the ability to recover against the related
Mortgaged Property, and (ii) the Master Servicer shall proceed with any REO
Acquisition in a manner that preserves the ability to apply the proceeds of such
Additional Collateral against amounts owed under the defaulted Mortgage Loan.
Any proceeds realized from such Additional Collateral (other than amounts to be
released to the Mortgagor or the related guarantor in accordance with procedures
that the Master Servicer would follow in servicing loans held for its own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note and to the terms and conditions of any security agreement,
guarantee agreement, mortgage or other agreement governing the disposition of
the proceeds of such Additional Collateral) shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.10. Any other payment
received by the Master Servicer in respect of such Additional Collateral shall
be deposited in the Custodial Account subject to withdrawal pursuant to Section
3.10.
For so long as the Master Servicer is the Master Servicer under the
Credit Support Pledge Agreement, the Master Servicer shall perform its
obligations under the Credit Support Pledge Agreement in accordance with such
Agreement and in a manner that is in the best interests of the
Certificateholders. Further, the Master Servicer shall use its best reasonable
efforts to realize upon any Pledged Assets for such of the Pledged Asset Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07; provided that the Master Servicer shall not, on behalf of the
Trustee, obtain title to any such Pledged Assets as a result of or in lieu of
the disposition thereof or otherwise; and provided further that (i) the Master
Servicer shall not proceed with respect to such Pledged Assets in any manner
that would impair the ability to recover against the related Mortgaged Property,
and (ii) the Master Servicer shall proceed with any REO Acquisition in a manner
that preserves the ability to apply the proceeds of such Pledged Assets against
amounts owed under the defaulted Mortgage Loan. Any proceeds realized from such
Pledged Assets (other than amounts to be released to the Mortgagor or the
related guarantor in accordance with procedures that the Master Servicer would
follow in servicing loans held for its own account, subject to the terms and
conditions of the related Mortgage and Mortgage Note and to the terms and
conditions of any security agreement, guarantee agreement, mortgage or other
agreement governing the disposition of the proceeds of such Pledged Assets)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 3.10. Any other payment received by the Master Servicer in respect of
such Pledged Assets shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 3.10.
Concurrently with the foregoing, the Master Servicer may pursue any
remedies that may be available in connection with a breach of a representation
and warranty with respect to any such Mortgage Loan in accordance with Sections
2.03 and 2.04. However, the Master Servicer is not
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required to continue to pursue both foreclosure (or similar remedies) with
respect to the Mortgage Loans and remedies in connection with a breach of a
representation and warranty if the Master Servicer determines in its reasonable
discretion that one such remedy is more likely to result in a greater recovery
as to the Mortgage Loan. Upon the occurrence of a Cash Liquidation or REO
Disposition, following the deposit in the Custodial Account of all Insurance
Proceeds, Liquidation Proceeds and other payments and recoveries referred to in
the definition of "Cash Liquidation" or "REO Disposition," as applicable, upon
receipt by the Trustee of written notification of such deposit signed by a
Servicing Officer, the Trustee or any Custodian, as the case may be, shall
release to the Master Servicer the related Mortgage File and the Trustee shall
execute and deliver such instruments of transfer or assignment prepared by the
Master Servicer, in each case without recourse, as shall be necessary to vest in
the Master Servicer or its designee, as the case may be, the related Mortgage
Loan, and thereafter such Mortgage Loan shall not be part of the Trust Fund.
Notwithstanding the foregoing or any other provision of this Agreement, in the
Master Servicer's sole discretion with respect to any defaulted Mortgage Loan or
REO Property as to either of the following provisions, (i) a Cash Liquidation or
REO Disposition may be deemed to have occurred if substantially all amounts
expected by the Master Servicer to be received in connection with the related
defaulted Mortgage Loan or REO Property have been received, and (ii) for
purposes of determining the amount of any Liquidation Proceeds, Insurance
Proceeds, REO Proceeds or any other unscheduled collections or the amount of any
Realized Loss, the Master Servicer may take into account minimal amounts of
additional receipts expected to be received or any estimated additional
liquidation expenses expected to be incurred in connection with the related
defaulted Mortgage Loan or REO Property.
(b) If title to any Mortgaged Property is acquired by the Trust Fund as
an REO Property by foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee or to its nominee on behalf
of Certificateholders. Notwithstanding any such acquisition of title and
cancellation of the related Mortgage Loan, such REO Property shall (except as
otherwise expressly provided herein) be considered to be an Outstanding Mortgage
Loan held in the Trust Fund until such time as the REO Property shall be sold.
Consistent with the foregoing for purposes of all calculations hereunder so long
as such REO Property shall be considered to be an Outstanding Mortgage Loan it
shall be assumed that, notwithstanding that the indebtedness evidenced by the
related Mortgage Note shall have been discharged, such Mortgage Note and the
related amortization schedule in effect at the time of any such acquisition of
title (after giving effect to any previous Curtailments and before any
adjustment thereto by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period) remain in effect.
(c) If the Trust Fund acquires any REO Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the Master Servicer on behalf of the Trust Fund shall dispose of such REO
Property as soon as practicable, giving due consideration to the interests of
the Certificateholders, but in all cases within three full years after the
taxable year of its acquisition by the Trust Fund for purposes of Section
860G(a)(8) of the Code (or such shorter period as may be necessary under
applicable state (including any state in which such property is located) law to
maintain the status of any portion of any REMIC formed under the Series
Supplement as a REMIC under applicable state law and avoid taxes resulting from
such property failing to be foreclosure property under applicable state law) or,
at the expense of the Trust Fund, request, more than 60 days before the day on
which such grace period would otherwise expire, an extension of such
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grace period unless the Master Servicer (subject to Section 10.01(f)) obtains
for the Trustee an Opinion of Counsel, addressed to the Trustee and the Master
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to such period will not result in the imposition of taxes on
"prohibited transactions" as defined in Section 860F of the Code or cause any
REMIC formed under the Series Supplement to fail to qualify as a REMIC (for
federal (or any applicable State or local) income tax purposes) at any time that
any Certificates are outstanding, in which case the Trust Fund may continue to
hold such REO Property (subject to any conditions contained in such Opinion of
Counsel). The Master Servicer shall be entitled to be reimbursed from the
Custodial Account for any costs incurred in obtaining such Opinion of Counsel,
as provided in Section 3.10. Notwithstanding any other provision of this
Agreement, no REO Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) subject the Trust Fund to the imposition
of any federal income taxes on the income earned from such REO Property,
including any taxes imposed by reason of Section 860G(c) of the Code, unless the
Master Servicer has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
(d) The proceeds of any Cash Liquidation, REO Disposition or purchase
or repurchase of any Mortgage Loan pursuant to the terms of this Agreement, as
well as any recovery resulting from a collection of Liquidation Proceeds,
Insurance Proceeds or REO Proceeds, will be applied in the following order of
priority: first, to reimburse the Master Servicer or the related Subservicer in
accordance with Section 3.10(a)(ii); second, to the Certificateholders to the
extent of accrued and unpaid interest on the Mortgage Loan, and any related REO
Imputed Interest, at the Net Mortgage Rate (or the Modified Net Mortgage Rate in
the case of a Modified Mortgage Loan) to the Due Date prior to the Distribution
Date on which such amounts are to be distributed; third, to the
Certificateholders as a recovery of principal on the Mortgage Loan (or REO
Property); fourth, to all Servicing Fees and Subservicing Fees payable therefrom
(and the Master Servicer and the Subservicer shall have no claims for any
deficiencies with respect to such fees which result from the foregoing
allocation); and fifth, to Foreclosure Profits.
(e) In the event of a default on a Mortgage Loan one or more of whose
obligors is not a United States Person, in connection with any foreclosure or
acquisition of a deed in lieu of foreclosure (together, "foreclosure") in
respect of such Mortgage Loan, the Master Servicer will cause compliance with
the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any successor
thereto) necessary to assure that no withholding tax obligation arises with
respect to the proceeds of such foreclosure except to the extent, if any, that
proceeds of such foreclosure are required to be remitted to the obligors on such
Mortgage Loan.
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Section 3.15 Trustee to Cooperate; Release of Mortgage Files.
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(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
upon the receipt by the Master Servicer of a notification that payment in full
will be escrowed in a manner customary for such purposes, the Master Servicer
will immediately notify the Trustee (if it holds the related Mortgage File) or
the Custodian by a certification of a Servicing Officer (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Custodial Account pursuant to Section 3.07 have been or will be so
deposited), substantially in one of the forms attached hereto as Exhibit F, or,
in the case of the Custodian, an electronic request in a form acceptable to the
Custodian, requesting delivery to it of the Mortgage File. Within two Business
Days of receipt of such certification and request, the Trustee shall release, or
cause the Custodian to release, the related Mortgage File to the Master
Servicer. The Master Servicer is authorized to execute and deliver to the
Mortgagor the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage,
together with the Mortgage Note with, as appropriate, written evidence of
cancellation thereon and to cause the removal from the registration on the
MERS(R) System of such Mortgage and to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation or of partial or full release. No expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Custodial Account or the Certificate Account.
(b) From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, the Master Servicer shall deliver to the
Custodian, with a copy to the Trustee, a certificate of a Servicing Officer
substantially in one of the forms attached as Exhibit F hereto, or, in the case
of the Custodian, an electronic request in a form acceptable to the Custodian,
requesting that possession of all, or any document constituting part of, the
Mortgage File be released to the Master Servicer and certifying as to the reason
for such release and that such release will not invalidate any insurance
coverage provided in respect of the Mortgage Loan under any Required Insurance
Policy. Upon receipt of the foregoing, the Trustee shall deliver, or cause the
Custodian to deliver, the Mortgage File or any document therein to the Master
Servicer. The Master Servicer shall cause each Mortgage File or any document
therein so released to be returned to the Trustee, or the Custodian as agent for
the Trustee when the need therefor by the Master Servicer no longer exists,
unless (i) the Mortgage Loan has been liquidated and the Liquidation Proceeds
relating to the Mortgage Loan have been deposited in the Custodial Account or
(ii) the Mortgage File or such document has been delivered directly or through a
Subservicer to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Master Servicer has delivered directly or through a
Subservicer to the Trustee a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery. In the event of the
liquidation of a Mortgage Loan, the Trustee shall deliver the Request for
Release with respect thereto to the Master Servicer upon deposit of the related
Liquidation Proceeds in the Custodial Account.
(c) The Trustee or the Master Servicer on the Trustee's behalf shall
execute and deliver to the Master Servicer, if necessary, any court pleadings,
requests for trustee's sale or other documents necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any
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legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity. Together with such documents or pleadings (if
signed by the Trustee), the Master Servicer shall deliver to the Trustee a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Trustee and certifying as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate any insurance coverage under any Required Insurance
Policy or invalidate or otherwise affect the lien of the Mortgage, except for
the termination of such a lien upon completion of the foreclosure or trustee's
sale.
Section 3.16 Servicing and Other Compensation; Compensating Interest.
(a) The Master Servicer, as compensation for its activities hereunder,
shall be entitled to receive on each Distribution Date the amounts provided for
by clauses (iii), (iv), (v) and (vi) of Section 3.10(a), subject to clause (e)
below. The amount of servicing compensation provided for in such clauses shall
be accounted for on a Mortgage Loan-by-Mortgage Loan basis. In the event that
Liquidation Proceeds, Insurance Proceeds and REO Proceeds (net of amounts
reimbursable therefrom pursuant to Section 3.10(a)(ii)) in respect of a Cash
Liquidation or REO Disposition exceed the unpaid principal balance of such
Mortgage Loan plus unpaid interest accrued thereon (including REO Imputed
Interest) at a per annum rate equal to the related Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), the Master
Servicer shall be entitled to retain therefrom and to pay to itself and/or the
related Subservicer, any Foreclosure Profits and any Servicing Fee or
Subservicing Fee considered to be accrued but unpaid.
(b) Additional servicing compensation in the form of prepayment
charges, assumption fees, late payment charges, investment income on amounts in
the Custodial Account or the Certificate Account or otherwise shall be retained
by the Master Servicer or the Subservicer to the extent provided herein, subject
to clause (e) below.
(c) The Master Servicer shall be required to pay, or cause to be paid,
all expenses incurred by it in connection with its servicing activities
hereunder (including payment of premiums for the Primary Insurance Policies, if
any, to the extent such premiums are not required to be paid by the related
Mortgagors, and the fees and expenses of the Trustee and any Custodian) and
shall not be entitled to reimbursement therefor except as specifically provided
in Sections 3.10 and 3.14.
(d) The Master Servicer's right to receive servicing compensation may
not be transferred in whole or in part except in connection with the transfer of
all of its responsibilities and obligations of the Master Servicer under this
Agreement.
(e) Notwithstanding any other provision herein, the amount of servicing
compensation that the Master Servicer shall be entitled to receive for its
activities hereunder for the period ending on each Distribution Date shall be
reduced (but not below zero) by an amount equal to Compensating Interest (if
any) for such Distribution Date. Such reduction shall be applied during such
period as follows: first, to any Servicing Fee or Subservicing Fee to which the
Master Servicer is entitled pursuant to Section 3.10(a)(iii) and second, to any
income or gain realized from any investment of funds held in the Custodial
Account or the Certificate Account to which the Master Servicer is
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entitled pursuant to Sections 3.07(c) or 4.01(b), respectively. In making such
reduction, the Master Servicer (i) will not withdraw from the Custodial Account
any such amount representing all or a portion of the Servicing Fee to which it
is entitled pursuant to Section 3.10(a)(iii) and (ii) will not withdraw from the
Custodial Account or Certificate Account any such amount to which it is entitled
pursuant to Section 3.07(c) or 4.01(b).
Section 3.17 Reports to the Trustee and the Company.
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Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee and the Company a statement, certified by
a Servicing Officer, setting forth the status of the Custodial Account as of the
close of business on such Distribution Date as it relates to the Mortgage Loans
and showing, for the period covered by such statement, the aggregate of deposits
in or withdrawals from the Custodial Account in respect of the Mortgage Loans
for each category of deposit specified in Section 3.07 and each category of
withdrawal specified in Section 3.10.
Section 3.18 Annual Statement as to Compliance.
The Master Servicer will deliver to the Company, the Trustee and any
Certificate Insurer on or before the earlier of (a) March 31 of each year,
beginning with the first March 31 that occurs at least six months after the
Cut-off Date or (b) with respect to any calendar year during which the Company's
annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, the date on which
the annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, an Officers'
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year related to
its servicing of mortgage loans and its performance under pooling and servicing
agreements, including this Agreement, has been made under such officers'
supervision, (ii) to the best of such officers' knowledge, based on such review,
the Master Servicer has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers and has fulfilled all of its material obligations relating to
this Agreement in all material respects throughout such year, or, if there has
been material noncompliance with such servicing standards or a default in the
fulfillment in all material respects of any such obligation relating to this
Agreement, such statement shall include a description of such noncompliance or
specify each such default, as the case may be, known to such officer and the
nature and status thereof and (iii) to the best of such officers' knowledge,
each Subservicer has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers and has fulfilled all of its material obligations under its
Subservicing Agreement in all material respects throughout such year, or, if
there has been material noncompliance with such servicing standards or a
material default in the fulfillment of such obligations relating to this
Agreement, such statement shall include a description of such noncompliance or
specify each such default, as the case may be, known to such officer and the
nature and status thereof.
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Section 3.19 Annual Independent Public Accountants' Servicing Report.
On or before the earlier of (a) March 31 of each year, beginning with
the first March 31 that occurs at least six months after the Cut-off Date or (b)
with respect to any calendar year during which the Company's annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, the date on which the annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, the Master Servicer at its expense
shall cause a firm of independent public accountants, which shall be members of
the American Institute of Certified Public Accountants, to furnish a report to
the Company and the Trustee stating its opinion that, on the basis of an
examination conducted by such firm substantially in accordance with standards
established by the American Institute of Certified Public Accountants, the
assertions made pursuant to Section 3.18 regarding compliance with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers during the preceding calendar year are fairly stated in all
material respects, subject to such exceptions and other qualifications that, in
the opinion of such firm, such accounting standards require it to report. In
rendering such statement, such firm may rely, as to matters relating to the
direct servicing of mortgage loans by Subservicers, upon comparable statements
for examinations conducted by independent public accountants substantially in
accordance with standards established by the American Institute of Certified
Public Accountants (rendered within one year of such statement) with respect to
such Subservicers.
Section 3.20 Rights of the Company in Respect of the Master Servicer.
The Master Servicer shall afford the Company, upon reasonable notice,
during normal business hours access to all records maintained by the Master
Servicer in respect of its rights and obligations hereunder and access to
officers of the Master Servicer responsible for such obligations. Upon request,
the Master Servicer shall furnish the Company with its most recent financial
statements and such other information as the Master Servicer possesses regarding
its business, affairs, property and condition, financial or otherwise. The
Master Servicer shall also cooperate with all reasonable requests for
information including, but not limited to, notices, tapes and copies of files,
regarding itself, the Mortgage Loans or the Certificates from any Person or
Persons identified by the Company or Residential Funding. The Company may, but
is not obligated to, enforce the obligations of the Master Servicer hereunder
and may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer hereunder or exercise the rights of
the Master Servicer hereunder; provided that the Master Servicer shall not be
relieved of any of its obligations hereunder by virtue of such performance by
the Company or its designee. The Company shall not have any responsibility or
liability for any action or failure to act by the Master Servicer and is not
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
Section 3.21 Administration of Buydown Funds.
(a) With respect to any Buydown Mortgage Loan, the Subservicer has
deposited Buydown Funds in an account that satisfies the requirements for a
Subservicing Account (the "Buydown Account"). The Master Servicer shall cause
the Subservicing Agreement to require that upon receipt from the Mortgagor of
the amount due on a Due Date for each Buydown Mortgage
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Loan, the Subservicer will withdraw from the Buydown Account the predetermined
amount that, when added to the amount due on such date from the Mortgagor,
equals the full Monthly Payment and transmit that amount in accordance with the
terms of the Subservicing Agreement to the Master Servicer together with the
related payment made by the Mortgagor or advanced by the Subservicer.
(b) If the Mortgagor on a Buydown Mortgage Loan prepays such loan in
its entirety during the period (the "Buydown Period") when Buydown Funds are
required to be applied to such Buydown Mortgage Loan, the Subservicer shall be
required to withdraw from the Buydown Account and remit any Buydown Funds
remaining in the Buydown Account in accordance with the related buydown
agreement. The amount of Buydown Funds which may be remitted in accordance with
the related buydown agreement may reduce the amount required to be paid by the
Mortgagor to fully prepay the related Mortgage Loan. If the Mortgagor on a
Buydown Mortgage Loan defaults on such Mortgage Loan during the Buydown Period
and the property securing such Buydown Mortgage Loan is sold in the liquidation
thereof (either by the Master Servicer or the insurer under any related Primary
Insurance Policy), the Subservicer shall be required to withdraw from the
Buydown Account the Buydown Funds for such Buydown Mortgage Loan still held in
the Buydown Account and remit the same to the Master Servicer in accordance with
the terms of the Subservicing Agreement for deposit in the Custodial Account or,
if instructed by the Master Servicer, pay to the insurer under any related
Primary Insurance Policy if the Mortgaged Property is transferred to such
insurer and such insurer pays all of the loss incurred in respect of such
default. Any amount so remitted pursuant to the preceding sentence will be
deemed to reduce the amount owed on the Mortgage Loan.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Certificate Account.
(a) The Master Servicer on behalf of the Trustee shall establish and
maintain a Certificate Account in which the Master Servicer shall cause to be
deposited on behalf of the Trustee on or before 2:00 P.M. New York time on each
Certificate Account Deposit Date by wire transfer of immediately available funds
an amount equal to the sum of (i) any Advance for the immediately succeeding
Distribution Date, (ii) any amount required to be deposited in the Certificate
Account pursuant to Section 3.12(a), (iii) any amount required to be deposited
in the Certificate Account pursuant to Section 3.16(e) or Section 4.07, (iv) any
amount required to be paid pursuant to Section 9.01 and (v) all other amounts
constituting the Available Distribution Amount for the immediately succeeding
Distribution Date.
(b) The Trustee shall, upon written request from the Master Servicer,
invest or cause the institution maintaining the Certificate Account to invest
the funds in the Certificate Account in Permitted Investments designated in the
name of the Trustee for the benefit of the Certificateholders, which shall
mature or be payable on demand not later than the Business Day next preceding
the Distribution Date next following the date of such investment (except that
(i) any investment in the institution with which the Certificate Account is
maintained may mature or be payable on demand on such Distribution Date and (ii)
any other investment may mature or be payable on demand on such Distribution
Date if the Trustee shall advance funds on such Distribution Date to the
Certificate
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Account in the amount payable on such investment on such Distribution Date,
pending receipt thereof to the extent necessary to make distributions on the
Certificates) and shall not be sold or disposed of prior to maturity. Subject to
Section 3.16(e), all income and gain realized from any such investment shall be
for the benefit of the Master Servicer and shall be subject to its withdrawal or
order from time to time. The amount of any losses incurred in respect of any
such investments shall be deposited in the Certificate Account by the Master
Servicer out of its own funds immediately as realized without any right of
reimbursement.
Section 4.02 Distributions.
As provided in Section 4.02 of the Series Supplement.
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting.
(a) Concurrently with each distribution charged to the Certificate
Account and with respect to each Distribution Date the Master Servicer shall
forward to the Trustee and the Trustee shall either forward by mail or make
available to each Holder and the Company, via the Trustee's internet website, a
statement (and at its option, any additional files containing the same
information in an alternative format) setting forth information as to each Class
of Certificates, the Mortgage Pool and, if the Mortgage Pool is comprised of two
or more Loan Groups, each Loan Group, to the extent applicable. This statement
will include the information set forth in an exhibit to the Series Supplement.
Such exhibit shall set forth the Trustee's internet website address together
with a phone number. The Trustee shall mail to each Holder that requests a paper
copy by telephone a paper copy via first class mail. The Trustee may modify the
distribution procedures set forth in this Section provided that such procedures
are no less convenient for the Certificateholders. The Trustee shall provide
prior notification to the Company, the Master Servicer and the
Certificateholders regarding any such modification. In addition, the Master
Servicer shall provide to any manager of a trust fund consisting of some or all
of the Certificates, upon reasonable request, such additional information as is
reasonably obtainable by the Master Servicer at no additional expense to the
Master Servicer. Also, at the request of a Rating Agency, the Master Servicer
shall provide the information relating to the Reportable Modified Mortgage Loans
substantially in the form attached hereto as Exhibit Q to such Rating Agency
within a reasonable period of time; provided, however, that the Master Servicer
shall not be required to provide such information more than four times in a
calendar year to any Rating Agency.
(b) Within a reasonable period of time after the end of each calendar
year, the Master Servicer shall prepare, or cause to be prepared, and shall
forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Certificate, other than a Class R Certificate,
a statement containing the information set forth in clauses (i) and (ii) of the
exhibit to the Series Supplement referred to in subsection (a) above aggregated
for such calendar year or applicable portion thereof during which such Person
was a Certificateholder. Such obligation of the Master Servicer shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Master Servicer pursuant to any requirements of the
Code.
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(c) Within a reasonable period of time after the end of each calendar
year, the Master Servicer shall prepare, or cause to be prepared, and shall
forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Class R Certificate, a statement containing
the applicable distribution information provided pursuant to this Section 4.03
aggregated for such calendar year or applicable portion thereof during which
such Person was the Holder of a Class R Certificate. Such obligation of the
Master Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Master Servicer
pursuant to any requirements of the Code.
(d) Upon the written request of any Certificateholder, the Master
Servicer, as soon as reasonably practicable, shall provide the requesting
Certificateholder with such information as is necessary and appropriate, in the
Master Servicer's sole discretion, for purposes of satisfying applicable
reporting requirements under Rule 144A.
(e) The Trustee will make the reports referred to in Section 4.03(a)
(and, at its option, any additional files containing the same information in an
alternative format) available each month to Certificateholders, any Certificate
Insurer and other parties to the Agreement via the Trustee's website, which can
be obtained by calling (000) 000-0000. Persons that are unable to use the above
website are entitled to have a paper copy mailed to them via first class mail by
calling the Trustee at (000) 000-0000. The Trustee shall have the right to
change the way the reports referred to in Section 4.03(a) are distributed in
order to make such distribution more convenient and/or more accessible to the
above parties, to the Certificateholders and to any Certificate Insurer. The
Trustee shall provide timely and adequate notification to all the parties
mentioned above and to the Certificateholders regarding any such change.
(f) The Master Servicer shall, on behalf of the Company and in respect
of the Trust Fund, sign and cause to be filed with the Commission any periodic
reports required to be filed under the provisions of the Exchange Act, and the
rules and regulations of the Commission thereunder. In connection with the
preparation and filing of such periodic reports, the Trustee shall timely
provide to the Master Servicer (I) a list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year, (II) copies of all
pleadings, other legal process and any other documents relating to any claims,
charges or complaints involving the Trustee, as trustee hereunder, or the Trust
Fund that are received by the Trustee, (III) notice of all matters that, to the
actual knowledge of a Responsible Officer of the Trustee, have been submitted to
a vote of the Certificateholders, other than those matters that have been
submitted to a vote of the Certificateholders at the request of the Company or
the Master Servicer, and (IV) notice of any failure of the Trustee to make any
distribution to the Certificateholders as required pursuant to this Agreement.
Neither the Master Servicer nor the Trustee shall have any liability with
respect to the Master Servicer's failure to properly prepare or file such
periodic reports resulting from or relating to the Master Servicer's inability
or failure to obtain any information not resulting from the Master Servicer's
own negligence or willful misconduct. Any Form 10-K filed with the Commission in
connection with this clause (f) shall include a certification, signed by the
senior officer in charge of the servicing functions of the Master Servicer, in
the form attached as Exhibit O hereto or such other form as may be required or
permitted by the Commission (the "Form 10-K Certification"), in compliance with
Rule 13a-14 and 15d-14 under the Exchange Act and any additional directives of
the Commission. In connection with
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the Form 10-K Certification, the Trustee shall provide the Master Servicer with
a back-up certification substantially in the form attached hereto as Exhibit P.
Section 4.04 Distribution of Reports to the Trustee and the
Company; Advances by the Master Servicer.
(a) Prior to the close of business on the Determination Date, the
Master Servicer shall furnish a written statement to the Trustee, any
Certificate Insurer, any Paying Agent and the Company (the information in such
statement to be made available to Certificateholders by the Master Servicer on
request) setting forth (i) the Available Distribution Amount and (ii) the
amounts required to be withdrawn from the Custodial Account and deposited into
the Certificate Account on the immediately succeeding Certificate Account
Deposit Date pursuant to clause (iii) of Section 4.01(a). The determination by
the Master Servicer of such amounts shall, in the absence of obvious error, be
presumptively deemed to be correct for all purposes hereunder and the Trustee
shall be protected in relying upon the same without any independent check or
verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account
Deposit Date, the Master Servicer shall either (i) deposit in the Certificate
Account from its own funds, or funds received therefor from the Subservicers, an
amount equal to the Advances to be made by the Master Servicer in respect of the
related Distribution Date, which shall be in an aggregate amount equal to the
aggregate amount of Monthly Payments (with each interest portion thereof
adjusted to the Net Mortgage Rate), less the amount of any related Servicing
Modifications, Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, or similar legislation or regulations then in
effect, on the Outstanding Mortgage Loans as of the related Due Date, which
Monthly Payments were not received as of the close of business as of the related
Determination Date; provided that no Advance shall be made if it would be a
Nonrecoverable Advance, (ii) withdraw from amounts on deposit in the Custodial
Account and deposit in the Certificate Account all or a portion of the Amount
Held for Future Distribution in discharge of any such Advance, or (iii) make
advances in the form of any combination of (i) and (ii) aggregating the amount
of such Advance. Any portion of the Amount Held for Future Distribution so used
shall be replaced by the Master Servicer by deposit in the Certificate Account
on or before 11:00 A.M. New York time on any future Certificate Account Deposit
Date to the extent that funds attributable to the Mortgage Loans that are
available in the Custodial Account for deposit in the Certificate Account on
such Certificate Account Deposit Date shall be less than payments to
Certificateholders required to be made on the following Distribution Date. The
Master Servicer shall be entitled to use any Advance made by a Subservicer as
described in Section 3.07(b) that has been deposited in the Custodial Account on
or before such Distribution Date as part of the Advance made by the Master
Servicer pursuant to this Section 4.04. The amount of any reimbursement pursuant
to Section 4.02(a) in respect of outstanding Advances on any Distribution Date
shall be allocated to specific Monthly Payments due but delinquent for previous
Due Periods, which allocation shall be made, to the extent practicable, to
Monthly Payments which have been delinquent for the longest period of time. Such
allocations shall be conclusive for purposes of reimbursement to the Master
Servicer from recoveries on related Mortgage Loans pursuant to Section 3.10.
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The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate of the
Master Servicer delivered to the Company and the Trustee.
If the Master Servicer determines as of the Business Day preceding any
Certificate Account Deposit Date that it will be unable to deposit in the
Certificate Account an amount equal to the Advance required to be made for the
immediately succeeding Distribution Date, it shall give notice to the Trustee of
its inability to advance (such notice may be given by telecopy), not later than
3:00 P.M., New York time, on such Business Day, specifying the portion of such
amount that it will be unable to deposit. Not later than 3:00 P.M., New York
time, on the Certificate Account Deposit Date the Trustee shall, unless by 12:00
Noon, New York time, on such day the Trustee shall have been notified in writing
(by telecopy) that the Master Servicer shall have directly or indirectly
deposited in the Certificate Account such portion of the amount of the Advance
as to which the Master Servicer shall have given notice pursuant to the
preceding sentence, pursuant to Section 7.01, (a) terminate all of the rights
and obligations of the Master Servicer under this Agreement in accordance with
Section 7.01 and (b) assume the rights and obligations of the Master Servicer
hereunder, including the obligation to deposit in the Certificate Account an
amount equal to the Advance for the immediately succeeding Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this
Section 4.04 into the Certificate Account.
Section 4.05 Allocation of Realized Losses.
As provided in Section 4.05 of the Series Supplement.
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged
Property.
The Master Servicer or the Subservicers shall file information returns
with respect to the receipt of mortgage interests received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P,
respectively, of the Code, and deliver to the Trustee an Officers' Certificate
on or before March 31 of each year stating that such reports have been filed.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
Section 4.07 Optional Purchase of Defaulted Mortgage Loans.
As to any Mortgage Loan which is delinquent in payment by 90 days or
more, the Master Servicer may, at its option, purchase such Mortgage Loan from
the Trustee at the Purchase Price therefor. If at any time the Master Servicer
makes a payment to the Certificate Account covering the amount of the Purchase
Price for such a Mortgage Loan, and the Master Servicer provides to the Trustee
a certification signed by a Servicing Officer stating that the amount of such
payment has been deposited in the Certificate Account, then the Trustee shall
execute the assignment of such Mortgage Loan at the request of the Master
Servicer without recourse to the Master Servicer, which
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shall succeed to all the Trustee's right, title and interest in and to such
Mortgage Loan, and all security and documents relative thereto. Such assignment
shall be an assignment outright and not for security. The Master Servicer will
thereupon own such Mortgage, and all such security and documents, free of any
further obligation to the Trustee or the Certificateholders with respect
thereto.
If, however the Master Servicer shall have exercised its right to
repurchase a Mortgage Loan pursuant to this Section 4.07 upon the written
request of and with funds provided by the Junior Certificateholder and thereupon
transferred such Mortgage Loan to the Junior Certificateholder, the Master
Servicer shall so notify the Trustee in writing.
Section 4.08 Surety Bond.
(a) If a Required Surety Payment is payable pursuant to the Surety Bond
with respect to any Additional Collateral Loan, the Master Servicer shall so
notify the Trustee as soon as reasonably practicable and the Trustee shall
promptly complete the notice in the form of Attachment 1 to the Surety Bond and
shall promptly submit such notice to the Surety as a claim for a Required
Surety. The Master Servicer shall upon request assist the Trustee in completing
such notice and shall provide any information requested by the Trustee in
connection therewith.
(b) Upon receipt of a Required Surety Payment from the Surety on behalf
of the Holders of Certificates, the Trustee shall deposit such Required Surety
Payment in the Certificate Account and shall distribute such Required Surety
Payment, or the proceeds thereof, in accordance with the provisions of Section
4.02.
(c) The Trustee shall (i) receive as attorney-in-fact of each Holder of
a Certificate any Required Surety Payment from the Surety and (ii) disburse the
same to the Holders of such Certificates as set forth in Section 4.02.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Senior, Class M, Class B and Class R Certificates shall be
substantially in the forms set forth in Exhibits A, B, C and D, respectively,
and shall, on original issue, be executed and delivered by the Trustee to the
Certificate Registrar for authentication and delivery to or upon the order of
the Company upon receipt by the Trustee or one or more Custodians of the
documents specified in Section 2.01. The Certificates shall be issuable in the
minimum denominations designated in the Preliminary Statement to the Series
Supplement.
The Certificates shall be executed by manual or facsimile signature on
behalf of an authorized officer of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Trustee shall bind the Trustee, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of such
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Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Certificate Registrar by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) Except as provided below, registration of Book-Entry Certificates
may not be transferred by the Trustee except to another Depository that agrees
to hold such Certificates for the respective Certificate Owners with Ownership
Interests therein. The Holders of the Book-Entry Certificates shall hold their
respective Ownership Interests in and to each of such Certificates through the
book-entry facilities of the Depository and, except as provided below, shall not
be entitled to Definitive Certificates in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall transfer the Ownership
Interests only in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
If (i)(A) the Company advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Company is unable to locate a
qualified successor or (ii) the Company at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Definitive Certificates.
In addition, if an Event of Default has occurred and is continuing,
each Certificate Owner materially adversely affected thereby may at its option
request a Definitive Certificate evidencing such Certificate Owner's Percentage
Interest in the related Class of Certificates. In order to make such request,
such Certificate Owner shall, subject to the rules and procedures of the
Depository,
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provide the Depository or the related Depository Participant with directions for
the Trustee to exchange or cause the exchange of the Certificate Owner's
interest in such Class of Certificates for an equivalent Percentage Interest in
fully registered definitive form. Upon receipt by the Trustee of instruction
from the Depository directing the Trustee to effect such exchange (such
instructions to contain information regarding the Class of Certificates and the
Certificate Balance being exchanged, the Depository Participant account to be
debited with the decrease, the registered holder of and delivery instructions
for the Definitive Certificates and any other information reasonably required by
the Trustee), (i) the Trustee shall instruct the Depository to reduce the
related Depository Participant's account by the aggregate Certificate Principal
Balance of the Definitive Certificates, (ii) the Trustee shall execute,
authenticate and deliver, in accordance with the registration and delivery
instructions provided by the Depository, a Definitive Certificate evidencing
such Certificate Owner's Percentage Interest in such Class of Certificates and
(iii) the Trustee shall execute and authenticate a new Book-Entry Certificate
reflecting the reduction in the aggregate Certificate Principal Balance of such
Class of Certificates by the amount of the Definitive Certificates.
Neither the Company, the Master Servicer nor the Trustee shall be
liable for any actions taken by the Depository or its nominee, including,
without limitation, any delay in delivery of any instruction required under this
section and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Company in connection with
the issuance of the Definitive Certificates pursuant to this Section 5.01 shall
be deemed to be imposed upon and performed by the Trustee, and the Trustee and
the Master Servicer shall recognize the Holders of the Definitive Certificates
as Certificateholders hereunder.
(c) From time to time Residential Funding, as the initial Holder of the
Class A-V Certificates, may exchange such Holder's Class A-V Certificates for
Subclasses of Class A-V Certificates to be issued under this Agreement by
delivering a "Request for Exchange" substantially in the form attached hereto as
Exhibit N executed by an authorized officer, which Subclasses, in the aggregate,
will represent the Uncertificated Class A-V REMIC Regular Interests
corresponding to the Class A-V Certificates so surrendered for exchange. Any
Subclass so issued shall bear a numerical designation commencing with Class
A-V-1 and continuing sequentially thereafter, and will evidence ownership of the
Uncertificated REMIC Regular Interest or Interests specified in writing by such
initial Holder to the Trustee. The Trustee may conclusively, without any
independent verification, rely on, and shall be protected in relying on,
Residential Funding's determinations of the Uncertificated Class A-V REMIC
Regular Interests corresponding to any Subclass, the Initial Notional Amount and
the initial Pass-Through Rate on a Subclass as set forth in such Request for
Exchange and the Trustee shall have no duty to determine if any Uncertificated
Class A-V REMIC Regular Interest designated on a Request for Exchange
corresponds to a Subclass which has previously been issued. Each Subclass so
issued shall be substantially in the form set forth in Exhibit A and shall, on
original issue, be executed and delivered by the Trustee to the Certificate
Registrar for authentication and delivery in accordance with Section 5.01(a).
Every Certificate presented or surrendered for exchange by the initial Holder
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer attached to
such Certificate and shall be completed to the satisfaction of the Trustee and
the Certificate Registrar duly executed by, the initial Holder thereof or his
attorney duly authorized in writing. The
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Certificates of any Subclass of Class A-V Certificates may be transferred in
whole, but not in part, in accordance with the provisions of Section 5.02.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions of
Section 8.12 a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided. The Trustee is initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar, or the Trustee, shall provide the
Master Servicer with a certified list of Certificateholders as of each Record
Date prior to the related Determination Date.
(b) Upon surrender for registration of transfer of any Certificate at
any office or agency of the Trustee maintained for such purpose pursuant to
Section 8.12 and, in the case of any Class M, Class B or Class R Certificate,
upon satisfaction of the conditions set forth below, the Trustee shall execute
and the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of a like
Class (or Subclass) and aggregate Percentage Interest.
(c) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class (or
Subclass) and aggregate Percentage Interest, upon surrender of the Certificates
to be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange the Trustee shall execute and the Certificate Registrar
shall authenticate and deliver the Certificates of such Class which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(d) No transfer, sale, pledge or other disposition of a Class B
Certificate shall be made unless such transfer, sale, pledge or other
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that a transfer of a Class B
Certificate is to be made either (i)(A) the Trustee shall require a written
Opinion of Counsel acceptable to and in form and substance satisfactory to the
Trustee and the Company that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from said Act and
laws or is being made pursuant to said Act and laws, which Opinion of Counsel
shall not be an expense of the Trustee, the Company or the Master Servicer
(except that, if such transfer is made by the Company or the Master Servicer or
any Affiliate thereof, the Company or the Master Servicer shall provide such
Opinion of Counsel at their own expense); provided that such Opinion of Counsel
will not be required in connection with the initial transfer of any such
Certificate by the Company or any Affiliate thereof to the Company or an
Affiliate of the Company and (B) the Trustee shall require the transferee to
execute a representation letter, substantially in the form of Exhibit H hereto,
and the Trustee shall require the transferor to execute a representation letter,
substantially in the form of
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Exhibit I hereto, each acceptable to and in form and substance satisfactory to
the Company and the Trustee certifying to the Company and the Trustee the facts
surrounding such transfer, which representation letters shall not be an expense
of the Trustee, the Company or the Master Servicer; provided, however, that such
representation letters will not be required in connection with any transfer of
any such Certificate by the Company or any Affiliate thereof to the Company or
an Affiliate of the Company, and the Trustee shall be entitled to conclusively
rely upon a representation (which, upon the request of the Trustee, shall be a
written representation) from the Company, of the status of such transferee as an
Affiliate of the Company or (ii) the prospective transferee of such a
Certificate shall be required to provide the Trustee, the Company and the Master
Servicer with an investment letter substantially in the form of Exhibit J
attached hereto (or such other form as the Company in its sole discretion deems
acceptable), which investment letter shall not be an expense of the Trustee, the
Company or the Master Servicer, and which investment letter states that, among
other things, such transferee (A) is a "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A, and (B) is aware
that the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule
144A. The Holder of any such Certificate desiring to effect any such transfer,
sale, pledge or other disposition shall, and does hereby agree to, indemnify the
Trustee, the Company, the Master Servicer and the Certificate Registrar against
any liability that may result if the transfer, sale, pledge or other disposition
is not so exempt or is not made in accordance with such federal and state laws.
(e) (i) In the case of any Class B or Class R Certificate presented for
registration in the name of any Person, either (A) the Trustee shall require an
Opinion of Counsel acceptable to and in form and substance satisfactory to the
Trustee, the Company and the Master Servicer to the effect that the purchase or
holding of such Class B or Class R Certificate is permissible under applicable
law, will not constitute or result in any non-exempt prohibited transaction
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), and will not subject the Trustee, the Company or the
Master Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Company or the Master Servicer or (B) the prospective
Transferee shall be required to provide the Trustee, the Company and the Master
Servicer with a certification to the effect set forth in paragraph six of
Exhibit H (with respect to any Class B Certificate) or paragraph fifteen of
Exhibit G-1 (with respect to any Class R Certificate), which the Trustee may
rely upon without further inquiry or investigation, or such other certifications
as the Trustee may deem desirable or necessary in order to establish that such
Transferee or the Person in whose name such registration is requested either (a)
is not an employee benefit plan or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code, or any Person
(including an investment manager, a named fiduciary or a trustee of any such
plan) who is using "plan assets" of any such plan to effect such acquisition
(each, a "Plan Investor") or (b) in the case of any Class B Certificate, the
following conditions are satisfied: (i) such Transferee is an insurance company,
(ii) the source of funds used to purchase or hold such Certificate (or interest
therein) is an "insurance company general account" (as defined in U.S.
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied (each entity that satisfies this clause (b), a "Complying Insurance
Company").
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(ii) Any Transferee of a Class M Certificate will be
deemed to have represented by virtue of its purchase or
holding of such Certificate (or interest therein) that either
(a) such Transferee is not a Plan Investor, (b) it has
acquired and is holding such Certificate in reliance on
Prohibited Transaction Exemption ("PTE") 94-29, 59 Fed. Reg.
14674 (March 29, 1994), as amended by PTE 97-34, 62 Fed. Reg.
39021 (July 21, 1997), and PTE 2000-58, 65 Fed. Reg. 67765
(November 13, 2000), and PTE 2002-41, 67 Fed. Reg. 54487
(August 22, 2002) (the "RFC Exemption"), and that it
understands that there are certain conditions to the
availability of the RFC Exemption including that such
Certificate must be rated, at the time of purchase, not lower
than "BBB-" (or its equivalent) by Standard & Poor's, Fitch or
Xxxxx'x or (c) such Transferee is a Complying Insurance
Company.
(iii) (A) If any Class M Certificate (or any interest
therein) is acquired or held by any Person that does not
satisfy the conditions described in paragraph (ii) above, then
the last preceding Transferee that either (i) is not a Plan
Investor, (ii) acquired such Certificate in compliance with
the RFC Exemption, or (iii) is a Complying Insurance Company
shall be restored, to the extent permitted by law, to all
rights and obligations as Certificate Owner thereof
retroactive to the date of such Transfer of such Class M
Certificate. The Trustee shall be under no liability to any
Person for making any payments due on such Certificate to such
preceding Transferee.
(B) Any purported Certificate Owner whose
acquisition or holding of any Class M Certificate (or
interest therein) was effected in violation of the
restrictions in this Section 5.02(e) shall indemnify
and hold harmless the Company, the Trustee, the
Master Servicer, any Subservicer, each Underwriter
and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by
such parties as a result of such acquisition or
holding.
(f) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any
Ownership Interest in a Class R Certificate shall be
a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its
status as a Permitted Transferee.
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(B) In connection with any proposed Transfer
of any Ownership Interest in a Class R Certificate,
the Trustee shall require delivery to it, and shall
not register the Transfer of any Class R Certificate
until its receipt of, (I) an affidavit and agreement
(a "Transfer Affidavit and Agreement," in the form
attached hereto as Exhibit G-1) from the proposed
Transferee, in form and substance satisfactory to the
Master Servicer, representing and warranting, among
other things, that it is a Permitted Transferee, that
it is not acquiring its Ownership Interest in the
Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for
any Person who is not a Permitted Transferee, that
for so long as it retains its Ownership Interest in a
Class R Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(f) and agrees to be
bound by them, and (II) a certificate, in the form
attached hereto as Exhibit G-2, from the Holder
wishing to transfer the Class R Certificate, in form
and substance satisfactory to the Master Servicer,
representing and warranting, among other things, that
no purpose of the proposed Transfer is to impede the
assessment or collection of tax.
(C) Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed
Transferee under clause (B) above, if a Responsible
Officer of the Trustee who is assigned to this
Agreement has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer
of an Ownership Interest in a Class R Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any
Ownership Interest in a Class R Certificate shall
agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person
attempts to transfer its Ownership Interest in a
Class R Certificate and (y) not to transfer its
Ownership Interest unless it provides a certificate
to the Trustee in the form attached hereto as Exhibit
G-2.
(E) Each Person holding or acquiring an
Ownership Interest in a Class R Certificate, by
purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning
of Temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it
is, or is holding an Ownership Interest in a Class R
Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee will register the Transfer of any
Class R Certificate only if it shall have received the
Transfer Affidavit and Agreement, a certificate of the Holder
requesting such transfer in the form attached hereto as
Exhibit G-2 and all of such other documents as shall have been
reasonably required by the Trustee as a condition to such
registration. Transfers of the Class R Certificates to
Non-United
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States Persons and Disqualified Organizations (as defined in
Section 860E(e)(5) of the Code) are prohibited.
(iii) (A) If any Disqualified Organization shall
become a holder of a Class R Certificate, then the last
preceding Permitted Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such
Transfer of such Class R Certificate. If a Non-United States
Person shall become a holder of a Class R Certificate, then
the last preceding United States Person shall be restored, to
the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such
Transfer of such Class R Certificate. If a transfer of a Class
R Certificate is disregarded pursuant to the provisions of
Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. The
Trustee shall be under no liability to any Person for any
registration of Transfer of a Class R Certificate that is in
fact not permitted by this Section 5.02(f) or for making any
payments due on such Certificate to the holder thereof or for
taking any other action with respect to such holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become
a Holder of a Class R Certificate in violation of the
restrictions in this Section 5.02(f) and to the
extent that the retroactive restoration of the rights
of the Holder of such Class R Certificate as
described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Master Servicer
shall have the right, without notice to the holder or
any prior holder of such Class R Certificate, to sell
such Class R Certificate to a purchaser selected by
the Master Servicer on such terms as the Master
Servicer may choose. Such purported Transferee shall
promptly endorse and deliver each Class R Certificate
in accordance with the instructions of the Master
Servicer. Such purchaser may be the Master Servicer
itself or any Affiliate of the Master Servicer. The
proceeds of such sale, net of the commissions (which
may include commissions payable to the Master
Servicer or its Affiliates), expenses and taxes due,
if any, will be remitted by the Master Servicer to
such purported Transferee. The terms and conditions
of any sale under this clause (iii)(B) shall be
determined in the sole discretion of the Master
Servicer, and the Master Servicer shall not be liable
to any Person having an Ownership Interest in a Class
R Certificate as a result of its exercise of such
discretion.
(iv) The Master Servicer, on behalf of the Trustee,
shall make available, upon written request from the Trustee,
all information necessary to compute any tax imposed (A) as a
result of the Transfer of an Ownership Interest in a Class R
Certificate to any Person who is a Disqualified Organization,
including the information regarding "excess inclusions" of
such Class R Certificates required to be provided to the
Internal Revenue Service and certain Persons as described in
Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5), and (B) as a result
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of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that holds
an Ownership Interest in a Class R Certificate having as among
its record holders at any time any Person who is a
Disqualified Organization. Reasonable compensation for
providing such information may be required by the Master
Servicer from such Person.
(v) The provisions of this Section 5.02(f) set forth
prior to this clause (v) may be modified, added to or
eliminated, provided that there shall have been delivered to
the Trustee the following:
(A) written notification from each Rating
Agency to the effect that the modification, addition
to or elimination of such provisions will not cause
such Rating Agency to downgrade its then-current
ratings, if any, of any Class of the Senior, Class M
or Class B Certificates below the lower of the
then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating
Agency; and
(B) subject to Section 10.01(f), an
Officers' Certificate of the Master Servicer stating
that the Master Servicer has received an Opinion of
Counsel, in form and substance satisfactory to the
Master Servicer, to the effect that such
modification, addition to or absence of such
provisions will not cause any portion of any REMIC
formed under the Series Supplement to cease to
qualify as a REMIC and will not cause (x) any portion
of any REMIC formed under the Series Supplement to be
subject to an entity-level tax caused by the Transfer
of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder
or another Person to be subject to a REMIC-related
tax caused by the Transfer of a Class R Certificate
to a Person that is not a Permitted Transferee.
(g) No service charge shall be made for any transfer or exchange of
Certificates of any Class, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate
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of like tenor, Class and Percentage Interest but bearing a number not
contemporaneously outstanding. Upon the issuance of any new Certificate under
this Section, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Company, the Master Servicer, the Trustee, any Certificate
Insurer, the Certificate Registrar and any agent of the Company, the Master
Servicer, the Trustee, any Certificate Insurer or the Certificate Registrar may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.02 and for all other purposes whatsoever, except as and to the extent provided
in the definition of "Certificateholder," and neither the Company, the Master
Servicer, the Trustee, any Certificate Insurer, the Certificate Registrar nor
any agent of the Company, the Master Servicer, the Trustee, any Certificate
Insurer or the Certificate Registrar shall be affected by notice to the contrary
except as provided in Section 5.02(f).
Section 5.05 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to the Certificateholders pursuant to Section 4.02. In the event
of any such appointment, on or prior to each Distribution Date the Master
Servicer on behalf of the Trustee shall deposit or cause to be deposited with
the Paying Agent a sum sufficient to make the payments to the Certificateholders
in the amounts and in the manner provided for in Section 4.02, such sum to be
held in trust for the benefit of the Certificateholders.
The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Any sums so
held by such Paying Agent shall be held only in Eligible Accounts to the extent
such sums are not distributed to the Certificateholders on the date of receipt
by such Paying Agent.
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ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Company and the Master
Servicer.
The Company and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Company and the Master Servicer herein. By
way of illustration and not limitation, the Company is not liable for the
servicing and administration of the Mortgage Loans, nor is it obligated by
Section 7.01 or Section 10.01 to assume any obligations of the Master Servicer
or to appoint a designee to assume such obligations, nor is it liable for any
other obligation hereunder that it may, but is not obligated to, assume unless
it elects to assume such obligation in accordance herewith.
Section 6.02 Merger or Consolidation of the Company or the
Master Servicer; Assignment of Rights and Delegation
of Duties by Master Servicer.
(a) The Company and the Master Servicer will each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and will each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Any Person into which the Company or the Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Company or the Master Servicer shall be a party, or
any Person succeeding to the business of the Company or the Master Servicer,
shall be the successor of the Company or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Xxx or Xxxxxxx Mac; and provided further that each Rating Agency's
ratings, if any, of the Senior, Class M or Class B Certificates in effect
immediately prior to such merger or consolidation will not be qualified, reduced
or withdrawn as a result thereof (as evidenced by a letter to such effect from
each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04
to the contrary, the Master Servicer may assign its rights and delegate its
duties and obligations under this Agreement; provided that the Person accepting
such assignment or delegation shall be a Person which is qualified to service
mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac, is reasonably
satisfactory to the Trustee and the Company, is willing to service the Mortgage
Loans and executes and delivers to the Company and the Trustee an agreement, in
form and substance reasonably satisfactory to the Company and the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Master Servicer under this Agreement; provided further that each Rating Agency's
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rating of the Classes of Certificates that have been rated in effect immediately
prior to such assignment and delegation will not be qualified, reduced or
withdrawn as a result of such assignment and delegation (as evidenced by a
letter to such effect from each Rating Agency). In the case of any such
assignment and delegation, the Master Servicer shall be released from its
obligations under this Agreement, except that the Master Servicer shall remain
liable for all liabilities and obligations incurred by it as Master Servicer
hereunder prior to the satisfaction of the conditions to such assignment and
delegation set forth in the next preceding sentence.
Section 6.03 Limitation on Liability of the Company, the Master
Servicer and Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Company, the Master Servicer or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Company, the Master Servicer and any
director, officer, employee or agent of the Company or the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company,
the Master Servicer and any director, officer, employee or agent of the Company
or the Master Servicer shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder.
Neither the Company nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Company or the Master Servicer
may in its discretion undertake any such action, proceeding, hearing or
examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Company and the Master Servicer shall be entitled to be reimbursed therefor out
of amounts attributable to the Mortgage Loans on deposit in the Custodial
Account as provided by Section 3.10 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated
in reduction of the Accrued Certificate Interest on each Class entitled thereto
in the same manner as if such expenses and costs constituted a Prepayment
Interest Shortfall.
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Section 6.04 Company and Master Servicer Not to Resign.
-----------------------------------------
Subject to the provisions of Section 6.02, neither the Company nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities and
obligations in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to distribute or
cause to be distributed to the Holders of Certificates of any
Class any distribution required to be made under the terms of
the Certificates of such Class and this Agreement and, in
either case, such failure shall continue unremedied for a
period of 5 days after the date upon which written notice of
such failure, requiring such failure to be remedied, shall
have been given to the Master Servicer by the Trustee or the
Company or to the Master Servicer, the Company and the Trustee
by the Holders of Certificates of such Class evidencing
Percentage Interests aggregating not less than 25%; or
(ii) the Master Servicer shall fail to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer contained in the
Certificates of any Class or in this Agreement and such
failure shall continue unremedied for a period of 30 days
(except that such number of days shall be 15 in the case of a
failure to pay the premium for any Required Insurance Policy)
after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Master Servicer by the Trustee or the Company, or to the
Master Servicer, the Company and the Trustee by the Holders of
Certificates of any Class evidencing, in the case of any such
Class, Percentage Interests aggregating not less than 25%; or
(iii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in
an involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law or appointing a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of
its affairs,
83
shall have been entered against the Master Servicer and such
decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(iv) the Master Servicer shall consent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of, or relating to, the
Master Servicer or of, or relating to, all or substantially
all of the property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file
a petition to take advantage of, or commence a voluntary case
under, any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(vi) the Master Servicer shall notify the Trustee
pursuant to Section 4.04(b) that it is unable to deposit in
the Certificate Account an amount equal to the Advance.
If an Event of Default described in clauses (i)-(v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, either the Company or the Trustee may, and
at the direction of Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, by notice in writing to the Master Servicer
(and to the Company if given by the Trustee or to the Trustee if given by the
Company), terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder. If an Event of Default
described in clause (vi) hereof shall occur, the Trustee shall, by notice to the
Master Servicer and the Company, immediately terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder as provided in Section 4.04(b). On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder thereof) or the Mortgage Loans or
otherwise, shall subject to Section 7.02 pass to and be vested in the Trustee or
the Trustee's designee appointed pursuant to Section 7.02; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its designee for administration by it of all cash
amounts which shall at the time be credited to the Custodial Account or the
Certificate Account or thereafter be received with respect to the Mortgage
Loans. No such termination shall release the Master Servicer for any liability
that it would otherwise have hereunder for any act or omission prior to the
effective time of such termination.
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Notwithstanding any termination of the activities of Residential
Funding in its capacity as Master Servicer hereunder, Residential Funding shall
be entitled to receive, out of any late collection of a Monthly Payment on a
Mortgage Loan which was due prior to the notice terminating Residential
Funding's rights and obligations as Master Servicer hereunder and received after
such notice, that portion to which Residential Funding would have been entitled
pursuant to Sections 3.10(a)(ii), (vi) and (vii) as well as its Servicing Fee in
respect thereof, and any other amounts payable to Residential Funding hereunder
the entitlement to which arose prior to the termination of its activities
hereunder. Upon the termination of Residential Funding as Master Servicer
hereunder the Company shall deliver to the Trustee a copy of the Program Guide.
Section 7.02 Trustee or Company to Act; Appointment of Successor.
---------------------------------------------------
(a) On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 or resigns in accordance with Section 6.04,
the Trustee or, upon notice to the Company and with the Company's consent (which
shall not be unreasonably withheld) a designee (which meets the standards set
forth below) of the Trustee, shall be the successor in all respects to the
Master Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer (except for the responsibilities, duties and liabilities contained in
Sections 2.02 and 2.03(a), excluding the duty to notify related Subservicers or
Sellers as set forth in such Sections, and its obligations to deposit amounts in
respect of losses incurred prior to such notice or termination on the investment
of funds in the Custodial Account or the Certificate Account pursuant to
Sections 3.07(c) and 4.01(b) by the terms and provisions hereof); provided,
however, that any failure to perform such duties or responsibilities caused by
the preceding Master Servicer's failure to provide information required by
Section 4.04 shall not be considered a default by the Trustee hereunder. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to charge
to the Custodial Account or the Certificate Account if the Master Servicer had
continued to act hereunder and, in addition, shall be entitled to the income
from any Permitted Investments made with amounts attributable to the Mortgage
Loans held in the Custodial Account or the Certificate Account. If the Trustee
has become the successor to the Master Servicer in accordance with Section 6.04
or Section 7.01, then notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution, which is also a Xxxxxx Xxx- or Xxxxxxx Mac-approved
mortgage servicing institution, having a net worth of not less than $10,000,000
as the successor to the Master Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee shall become successor to the Master Servicer and shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the initial Master Servicer hereunder. The Company, the Trustee, the
Custodian and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. The
Servicing Fee for any successor Master Servicer appointed pursuant to this
Section 7.02 will be lowered with respect to those Mortgage Loans, if any, where
the Subservicing Fee accrues at a rate of less than 0.20% per annum in the event
that the
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successor Master Servicer is not servicing such Mortgage Loans directly and it
is necessary to raise the related Subservicing Fee to a rate of 0.20% per annum
in order to hire a Subservicer with respect to such Mortgage Loans.
(b) In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, in which case the predecessor Master Servicer shall cooperate with the
successor Master Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor Master Servicer as necessary under MERS'
rules and regulations, or (ii) the predecessor Master Servicer shall cooperate
with the successor Master Servicer in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
successor Master Servicer. The predecessor Master Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Master Servicer shall bear any and all fees of MERS, costs of
preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this subsection (b). The
successor Master Servicer shall cause such assignment to be delivered to the
Trustee or the Custodian promptly upon receipt of the original with evidence of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Section 7.03 Notification to Certificateholders.
----------------------------------
(a) Upon any such termination or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 7.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights affected by
a default or Event of Default hereunder may waive such default or Event of
Default; provided, however, that (a) a default or Event of Default under clause
(i) of Section 7.01 may be waived only by all of the Holders of Certificates
affected by such default or Event of Default and (b) no waiver pursuant to this
Section 7.04 shall affect the Holders of Certificates in the manner set forth in
Section 11.01(b)(i) or (ii). Upon any such waiver of a default or Event of
Default by the Holders representing the requisite percentage of Voting Rights
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 4.03, 4.06, 7.03 and 10.01. The Trustee shall furnish in a
timely fashion to the Master Servicer such information as the Master Servicer
may reasonably request from time to time for the Master Servicer to fulfill its
duties as set forth in this Agreement. The Trustee covenants and agrees that it
shall perform its obligations hereunder in a manner so as to maintain the status
of any portion of any REMIC formed under the Series Supplement as a REMIC under
the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition
of any federal, state or local income, prohibited transaction, contribution or
other tax on the Trust Fund to the extent that maintaining such status and
avoiding such taxes are reasonably within the control of the Trustee and are
reasonably within the scope of its duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default,
and after the curing or waiver of all such Events of Default
which may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee by the Company or the
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Master Servicer and which on their face, do not contradict
the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of
Certificateholders of any Class holding Certificates which
evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement;
(iv) The Trustee shall not be charged with knowledge
of any default (other than a default in payment to the
Trustee) specified in clauses (i) and (ii) of Section 7.01 or
an Event of Default under clauses (iii), (iv) and (v) of
Section 7.01 unless a Responsible Officer of the Trustee
assigned to and working in the Corporate Trust Office obtains
actual knowledge of such failure or event or the Trustee
receives written notice of such failure or event at its
Corporate Trust Office from the Master Servicer, the Company
or any Certificateholder; and
(v) Except to the extent provided in Section 7.02, no
provision in this Agreement shall require the Trustee to
expend or risk its own funds (including, without limitation,
the making of any Advance) or otherwise incur any personal
financial liability in the performance of any of its duties as
Trustee hereunder, or in the exercise of any of its rights or
powers, if the Trustee shall have reasonable grounds for
believing that repayment of funds or adequate indemnity
against such risk or liability is not reasonably assured to
it.
(d) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust Fund or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only if such taxes arise out of a breach by the Trustee of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Trustee.
Section 8.02 Certain Matters Affecting the Trustee.
-------------------------------------
(a) Except as otherwise provided in Section 8.01:
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(i) The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (which has not been
cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent investor would
exercise or use under the circumstances in the conduct of such
investor's own affairs;
(iv) The Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all Events of
Default which may have occurred, the Trustee shall not be
bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing
so to do by Holders of Certificates of any Class evidencing,
as to such Class, Percentage Interests, aggregating not less
than 50%; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to
it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a
condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Master Servicer, if an
Event of Default shall have occurred and is continuing, and
otherwise by the Certificateholder requesting the
investigation;
(vi) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys; and
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(vii) To the extent authorized under the Code and the
regulations promulgated thereunder, each Holder of a Class R
Certificate hereby irrevocably appoints and authorizes the
Trustee to be its attorney-in-fact for purposes of signing any
Tax Returns required to be filed on behalf of the Trust Fund.
The Trustee shall sign on behalf of the Trust Fund and deliver
to the Master Servicer in a timely manner any Tax Returns
prepared by or on behalf of the Master Servicer that the
Trustee is required to sign as determined by the Master
Servicer pursuant to applicable federal, state or local tax
laws, provided that the Master Servicer shall indemnify the
Trustee for signing any such Tax Returns that contain errors
or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not
accept any contribution of assets to the Trust Fund unless (subject to Section
10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel to
the effect that such contribution will not (i) cause any portion of any REMIC
formed under the Series Supplement to fail to qualify as a REMIC at any time
that any Certificates are outstanding or (ii) cause the Trust Fund to be subject
to any federal tax as a result of such contribution (including the imposition of
any federal tax on "prohibited transactions" imposed under Section 860F(a) of
the Code).
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Mortgage Loans) shall be taken as the statements of the Company or the Master
Servicer as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (except that the
Certificates shall be duly and validly executed and authenticated by it as
Certificate Registrar) or of any Mortgage Loan or related document, or of MERS
or the MERS(R) System. Except as otherwise provided herein, the Trustee shall
not be accountable for the use or application by the Company or the Master
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Company or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account or the Certificate Account by the Company or the Master
Servicer.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.
(a) The Master Servicer covenants and agrees to pay to the Trustee and
any co-trustee from time to time, and the Trustee and any co-trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by each of them in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee and
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any co-trustee, and the Master Servicer will pay or reimburse the Trustee and
any co-trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or any co-trustee in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ, and the expenses incurred by the Trustee or any
co-trustee in connection with the appointment of an office or agency pursuant to
Section 8.12) except any such expense, disbursement or advance as may arise from
its negligence or bad faith.
(b) The Master Servicer agrees to indemnify the Trustee for, and to
hold the Trustee harmless against, any loss, liability or expense incurred
without negligence or willful misconduct on its part, arising out of, or in
connection with, the acceptance and administration of the Trust Fund, including
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against any claim in connection with the exercise or
performance of any of its powers or duties under this Agreement, and the
Custodial Agreement and the Master Servicer further agrees to indemnify the
Trustee for, and to hold the Trustee harmless against, any loss, liability or
expense arising out of, or in connection with, the provisions set forth in
Section 2.01(a) hereof, including, without limitation, all costs, liabilities
and expenses (including reasonable legal fees and expenses) of investigating and
defending itself against any claim, action or proceeding, pending or threatened,
relating to the provisions of such paragraph, provided that:
(i) with respect to any such claim, the Trustee shall
have given the Master Servicer written notice thereof promptly
after the Trustee shall have actual knowledge thereof;
(ii) while maintaining control over its own defense,
the Trustee shall cooperate and consult fully with the Master
Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to
the contrary, the Master Servicer shall not be liable for
settlement of any claim by the Trustee entered into without
the prior consent of the Master Servicer which consent shall
not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created
by this Section 8.05(b) of the Master Servicer to indemnify the Trustee under
the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 8.05(b) shall not pertain to any loss, liability
or expense of the Trustee, including the costs and expenses of defending itself
against any claim, incurred in connection with any actions taken by the Trustee
at the direction of the Certificateholders pursuant to the terms of this
Agreement.
Section 8.06 Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be a corporation or a national
banking association having its principal office in a state and city acceptable
to the Company and organized and doing business under the laws of such state or
the United States of America, authorized under such laws
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to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation or national banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee.
--------------------------------------
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Company, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Company may
remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee. In addition, in the event that
the Company determines that the Trustee has failed (i) to distribute or cause to
be distributed to the Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee or its Paying Agent (other than
the Master Servicer or the Company) for distribution or (ii) to otherwise
observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period
of 5 days (in respect of clause (i) above) or 30 days (in respect of clause (ii)
above) after the date on which written notice of such failure, requiring that
the same be remedied, shall have been given to the Trustee by the Company, then
the Company may remove the Trustee and appoint a successor trustee by written
instrument delivered as provided in the preceding sentence. In connection with
the appointment of a successor trustee pursuant to the preceding sentence, the
Company shall, on or before the date on which any such appointment becomes
effective, obtain from each Rating Agency written confirmation that the
appointment of any such successor trustee will not result in the reduction of
the ratings on any class of the Certificates below the lesser of the then
current or original ratings on such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Company, one complete set to the Trustee so removed
and one complete set to the successor so appointed.
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files at
the time held by a Custodian, which shall become the agent of any successor
trustee hereunder), and the Company, the Master Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Company fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
Section 8.09 Merger or Consolidation of Trustee.
----------------------------------
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall mail notice of any such merger or
consolidation to the Certificateholders at their address as shown in the
Certificate Register.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing
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the same may at the time be located, the Master Servicer and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, or in case an
Event of Default shall have occurred and be continuing, the Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee, and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer and the
Company, appoint one or more Custodians who are not Affiliates of the Company,
the Master Servicer or any Seller to hold all or a portion of the Mortgage Files
as agent for the Trustee, by entering into a Custodial Agreement. Subject to
Article VIII, the Trustee agrees to comply with the terms of each Custodial
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Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $15,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File. Each
Custodial Agreement may be amended only as provided in Section 11.01. The
Trustee shall notify the Certificateholders of the appointment of any Custodian
(other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11.
Section 8.12 Appointment of Office or Agency.
The Trustee will maintain an office or agency in the City of New York
at the address designated in Section 11.05 of the Series Supplement where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee will maintain an office at the address stated in Section 11.05 of the
Series Supplement where notices and demands to or upon the Trustee in respect of
this Agreement may be served.
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
Section 9.01 Optional Purchase by the Master Servicer of All
Certificates; Termination Upon Purchase by the Master
Servicer or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Company, the Master Servicer and the Trustee created
hereby in respect of the Certificates (other than the obligation of the Trustee
to make certain payments after the Final Distribution Date to Certificateholders
and the obligation of the Company to send certain notices as hereinafter set
forth) shall terminate upon the last action required to be taken by the Trustee
on the Final Distribution Date pursuant to this Article IX following the earlier
of:
(i) the later of the final payment or other
liquidation (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund or the disposition
of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, or
(ii) the purchase by the Master Servicer of all
Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund at a price equal to
100% of the unpaid principal balance of each Mortgage Loan or,
if less than such unpaid principal balance, the fair market
value of the related underlying property of such Mortgage Loan
with respect to Mortgage Loans as to which title has been
acquired if such fair market value is less than such unpaid
principal balance (net of any unreimbursed Advances
attributable to principal) on the day of repurchase plus
accrued interest thereon at the Net Mortgage Rate (or Modified
Net Mortgage Rate in the case of any Modified Mortgage Loan)
to, but not including, the first day of the month in which
such repurchase price is distributed, provided, however, that
in no event shall the trust created hereby continue beyond the
expiration of 21 years
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from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof and provided
further that the purchase price set forth above shall be
increased as is necessary, as determined by the Master
Servicer, to avoid disqualification of any portion of any
REMIC formed under the Series Supplement as a REMIC.
The right of the Master Servicer to purchase all the assets of the
Trust Fund pursuant to clause (ii) above is conditioned upon the Pool Stated
Principal Balance as of the Final Distribution Date, prior to giving effect to
distributions to be made on such Distribution Date, being less than ten percent
of the Cut-off Date Principal Balance of the Mortgage Loans. If such right is
exercised by the Master Servicer, the Master Servicer shall be deemed to have
been reimbursed for the full amount of any unreimbursed Advances theretofore
made by it with respect to the Mortgage Loans. In addition, the Master Servicer
shall provide to the Trustee the certification required by Section 3.15 and the
Trustee and any Custodian shall, promptly following payment of the purchase
price, release to the Master Servicer the Mortgage Files pertaining to the
Mortgage Loans being purchased.
In addition to the foregoing, on any Distribution Date on which the
Pool Stated Principal Balance, prior to giving effect to distributions to be
made on such Distribution Date, is less than ten percent of the Cut-off Date
Principal Balance of the Mortgage Loans, Master Servicer shall have the right,
at its option, to purchase the Certificates in whole, but not in part, at a
price equal to the outstanding Certificate Principal Balance of such
Certificates plus the sum of Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate
Interest. If the Master Servicer exercises this right to purchase the
outstanding Certificates, the Master Servicer will promptly terminate the
respective obligations and responsibilities created hereby in respect of the
Certificates pursuant to this Article IX.
(b) The Master Servicer shall give the Trustee not less than 60 days'
prior notice of the Distribution Date on which the Master Servicer anticipates
that the final distribution will be made to Certificateholders (whether as a
result of the exercise by the Master Servicer of its right to purchase the
assets of the Trust Fund or otherwise) or on which the Master Servicer
anticipates that the Certificates will be purchased (as a result of the exercise
by the Master Servicer to purchase the outstanding Certificates). Notice of any
termination, specifying the anticipated Final Distribution Date (which shall be
a date that would otherwise be a Distribution Date) upon which the
Certificateholders may surrender their Certificates to the Trustee (if so
required by the terms hereof) for payment of the final distribution and
cancellation or notice of any purchase of the outstanding Certificates,
specifying the Distribution Date upon which the Holders may surrender their
Certificates to the Trustee for payment, shall be given promptly by the Master
Servicer (if it is exercising its right to purchase the assets of the Trust Fund
or to purchase the outstanding Certificates), or by the Trustee (in any other
case) by letter to the Certificateholders mailed not earlier than the 15th day
and not later than the 25th day of the month next preceding the month of such
final distribution specifying:
(i) the anticipated Final Distribution Date upon
which final payment of the Certificates is anticipated to be
made upon presentation and surrender of Certificates at the
office or agency of the Trustee therein designated where
required pursuant to this Agreement or, in the case of the
purchase by the Master Servicer of
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the outstanding Certificates, the Distribution Date on which
such purchase is to be made,
(ii) the amount of any such final payment, or in the
case of the purchase of the outstanding Certificates, the
purchase price, in either case, if known, and
(iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, or in the case of
the Senior Certificates, or in the case of all of the
Certificates in connection with the exercise by the Master
Servicer of its right to purchase the Certificates, that
payment will be made only upon presentation and surrender of
the Certificates at the office or agency of the Trustee
therein specified.
If the Master Servicer is obligated to give notice to
Certificateholders as aforesaid, it shall give such notice to the Certificate
Registrar at the time such notice is given to Certificateholders and, if the
Master Servicer is exercising its rights to purchase the outstanding
Certificates, it shall give such notice to each Rating Agency at the time such
notice is given to Certificateholders. As a result of the exercise by the Master
Servicer of its right to purchase the assets of the Trust Fund, the Master
Servicer shall deposit in the Certificate Account before the Final Distribution
Date in immediately available funds an amount equal to the purchase price for
the assets of the Trust Fund, computed as provided above. As a result of the
exercise by the Master Servicer of its right to purchase the outstanding
Certificates, the Master Servicer shall deposit in an Eligible Account,
established by the Master Servicer on behalf of the Trustee and separate from
the Certificate Account in the name of the Trustee in trust for the registered
holders of the Certificates, before the Distribution Date on which such purchase
is to occur in immediately available funds an amount equal to the purchase price
for the Certificates, computed as above provided, and provide notice of such
deposit to the Trustee. The Trustee will withdraw from such account the amount
specified in subsection (c) below.
(c) In the case of the Senior Certificates, upon presentation and
surrender of the Certificates by the Certificateholders thereof, and in the case
of the Class M and Class B Certificates, upon presentation and surrender of the
Certificates by the Certificateholders thereof in connection with the exercise
by the Master Servicer of its right to purchase the Certificates and otherwise,
in accordance with Section 4.01(a), the Trustee shall distribute to the
Certificateholders (i) the amount otherwise distributable on such Distribution
Date, if not in connection with the Master Servicer's election to repurchase the
assets of the Trust Fund or the outstanding Certificates, or (ii) if the Master
Servicer elected to so repurchase the assets of the Trust Fund or the
outstanding Certificates, an amount determined as follows: (A) with respect to
each Certificate the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest for the related Interest Accrual Period thereon and
any previously unpaid Accrued Certificate Interest, subject to the priority set
forth in Section 4.02(a), and (B) with respect to the Class R Certificates, any
excess of the amounts available for distribution (including the repurchase price
specified in clause (ii) of subsection (a) of this Section) over the total
amount distributed under the immediately preceding clause (A). Nothwithstanding
the reduction of the Certificate Principal Balance of any Class of Subordinate
Certificates to zero, such Class will be outstanding hereunder until the
termination of the respective obligations and responsibilities of the Company,
the Master Servicer and the Trustee hereunder in accordance with Article IX.
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(d) If any Certificateholders shall not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date (if
so required by the terms hereof), the Trustee shall on such date cause all funds
in the Certificate Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for the
benefit of such Certificateholders, and the Master Servicer (if it exercised its
right to purchase the assets of the Trust Fund), or the Trustee (in any other
case) shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice any
Certificate shall not have been surrendered for cancellation, the Trustee shall
take appropriate steps as directed by the Master Servicer to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining the escrow account and of contacting
Certificateholders shall be paid out of the assets which remain in the escrow
account. If within nine months after the second notice any Certificates shall
not have been surrendered for cancellation, the Trustee shall pay to the Master
Servicer all amounts distributable to the holders thereof and the Master
Servicer shall thereafter hold such amounts until distributed to such Holders.
No interest shall accrue or be payable to any Certificateholder on any amount
held in the escrow account or by the Master Servicer as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
(e) If any Certificateholders do not surrender their Certificates on or
before the Distribution Date on which a purchase of the outstanding Certificates
is to be made, the Trustee shall on such date cause all funds in the Certificate
Account deposited therein by the Master Servicer pursuant to Section 9.01(b) to
be withdrawn therefrom and deposited in a separate escrow account for the
benefit of such Certificateholders, and the Master Servicer shall give a second
written notice to such Certificateholders to surrender their Certificates for
payment of the purchase price therefor. If within six months after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee shall take appropriate steps as directed by the Master Servicer to
contact the Holders of such Certificates concerning surrender of their
Certificates. The costs and expenses of maintaining the escrow account and of
contacting Certificateholders shall be paid out of the assets which remain in
the escrow account. If within nine months after the second notice any
Certificates shall not have been surrendered for cancellation in accordance with
this Section 9.01, the Trustee shall pay to the Master Servicer all amounts
distributable to the Holders thereof and the Master Servicer shall thereafter
hold such amounts until distributed to such Holders. No interest shall accrue or
be payable to any Certificateholder on any amount held in the escrow account or
by the Master Servicer as a result of such Certificateholder's failure to
surrender its Certificate(s) for payment in accordance with this Section 9.01.
Any Certificate that is not surrendered on the Distribution Date on which a
purchase pursuant to this Section 9.01 occurs as provided above will be deemed
to have been purchased and the Holder as of such date will have no rights with
respect thereto except to receive the purchase price therefor minus any costs
and expenses associated with such escrow account and notices allocated thereto.
Any Certificates so purchased or deemed to have been purchased on such
Distribution Date shall remain outstanding hereunder until the Master Servicer
has terminated the respective obligations and responsibilities created hereby in
respect of the Certificates pursuant to this Article IX. The Master Servicer
shall be for all purposes the Holder thereof as of such date.
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Section 9.02 Additional Termination Requirements.
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(a) Each REMIC that comprises the Trust Fund shall be terminated in
accordance with the following additional requirements, unless (subject to
Section 10.01(f)) the Trustee and the Master Servicer have received an Opinion
of Counsel (which Opinion of Counsel shall not be an expense of the Trustee) to
the effect that the failure of each such REMIC to comply with the requirements
of this Section 9.02 will not (i) result in the imposition on the Trust of taxes
on "prohibited transactions," as described in Section 860F of the Code, or (ii)
cause any such REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day
liquidation period for each such REMIC and specify the first
day of such period in a statement attached to the Trust Fund's
final Tax Return pursuant to Treasury regulations Section
1.860F-1. The Master Servicer also shall satisfy all of the
requirements of a qualified liquidation for a REMIC under
Section 860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at
the commencement of such 90-day liquidation period and, at or
prior to the time of making of the final payment on the
Certificates, the Trustee shall sell or otherwise dispose of
all of the remaining assets of the Trust Fund in accordance
with the terms hereof; and
(iii) If the Master Servicer or the Company is
exercising its right to purchase the assets of the Trust Fund,
the Master Servicer shall, during the 90-day liquidation
period and at or prior to the Final Distribution Date,
purchase all of the assets of the Trust Fund for cash.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably
approves and appoints the Master Servicer as its attorney-in-fact to adopt a
plan of complete liquidation for each REMIC at the expense of the Trust Fund in
accordance with the terms and conditions of this Agreement.
Section 9.03 Termination of Multiple REMICs.
If the REMIC Administrator makes two or more separate REMIC elections,
the applicable REMIC shall be terminated on the earlier of the Final
Distribution Date and the date on which it is deemed to receive the last deemed
distributions on the related Uncertificated REMIC Regular Interests and the last
distribution due on the Certificates is made.
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The REMIC Administrator shall make an election to treat the Trust
Fund as one or more REMICs under the Code and, if necessary, under applicable
state law. The assets of each such REMIC will be set forth in the Series
Supplement. Such election will be made on Form 1066 or
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other appropriate federal tax or information return (including Form 8811) or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. For the purposes of each
REMIC election in respect of the Trust Fund, Certificates and interests to be
designated as the "regular interests" and the sole class of "residual interests"
in the REMIC will be set forth in Section 10.03 of the Series Supplement. The
REMIC Administrator and the Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any REMIC
elected in respect of the Trust Fund other than the "regular interests" and
"residual interests" so designated.
(b) The Closing Date is hereby designated as the "startup day" of the
Trust Fund within the meaning of Section 860G(a)(9) of the Code.
(c) The REMIC Administrator shall hold a Class R Certificate
representing a 0.01% Percentage Interest each Class of the Class R Certificates
and shall be designated as "the tax matters person" with respect to each REMIC
in the manner provided under Treasury regulations section 1.860F-4(d) and
Treasury regulations section 301.6231(a)(7)-1. The REMIC Administrator, as tax
matters person, shall (i) act on behalf of each REMIC in relation to any tax
matter or controversy involving the Trust Fund and (ii) represent the Trust Fund
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor out of amounts attributable to the Mortgage Loans on deposit in the
Custodial Account as provided by Section 3.10 unless such legal expenses and
costs are incurred by reason of the REMIC Administrator's willful misfeasance,
bad faith or gross negligence. If the REMIC Administrator is no longer the
Master Servicer hereunder, at its option the REMIC Administrator may continue
its duties as REMIC Administrator and shall be paid reasonable compensation not
to exceed $3,000 per year by any successor Master Servicer hereunder for so
acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all
of the Tax Returns that it determines are required with respect to each REMIC
created hereunder and deliver such Tax Returns in a timely manner to the Trustee
and the Trustee shall sign and file such Tax Returns in a timely manner. The
expenses of preparing such returns shall be borne by the REMIC Administrator
without any right of reimbursement therefor. The REMIC Administrator agrees to
indemnify and hold harmless the Trustee with respect to any tax or liability
arising from the Trustee's signing of Tax Returns that contain errors or
omissions. The Trustee and Master Servicer shall promptly provide the REMIC
Administrator with such information as the REMIC Administrator may from time to
time request for the purpose of enabling the REMIC Administrator to prepare Tax
Returns.
(e) The REMIC Administrator shall provide (i) to any Transferor of a
Class R Certificate such information as is necessary for the application of any
tax relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee, and the Trustee shall forward to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name,
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title, address and telephone number of the person who will serve as the
representative of each REMIC.
(f) The Master Servicer and the REMIC Administrator shall take such
actions and shall cause each REMIC created hereunder to take such actions as are
reasonably within the Master Servicer's or the REMIC Administrator's control and
the scope of its duties more specifically set forth herein as shall be necessary
or desirable to maintain the status of each REMIC as a REMIC under the REMIC
Provisions (and the Trustee shall assist the Master Servicer and the REMIC
Administrator, to the extent reasonably requested by the Master Servicer and the
REMIC Administrator to do so). The Master Servicer and the REMIC Administrator
shall not knowingly or intentionally take any action, cause the Trust Fund to
take any action or fail to take (or fail to cause to be taken) any action
reasonably within their respective control that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
portion of any REMIC formed under the Series Supplement as a REMIC or (ii)
result in the imposition of a tax upon any such REMIC (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless
the Master Servicer or the REMIC Administrator, as applicable, has received an
Opinion of Counsel (at the expense of the party seeking to take such action or,
if such party fails to pay such expense, and the Master Servicer or the REMIC
Administrator, as applicable, determines that taking such action is in the best
interest of the Trust Fund and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Master Servicer, the REMIC
Administrator or the Trustee) to the effect that the contemplated action will
not, with respect to each REMIC created hereunder, endanger such status or,
unless the Master Servicer, the REMIC Administrator or both, as applicable,
determine in its or their sole discretion to indemnify the Trust Fund against
the imposition of such a tax, result in the imposition of such a tax. Wherever
in this Agreement a contemplated action may not be taken because the timing of
such action might result in the imposition of a tax on the Trust Fund, or may
only be taken pursuant to an Opinion of Counsel that such action would not
impose a tax on the Trust Fund, such action may nonetheless be taken provided
that the indemnity given in the preceding sentence with respect to any taxes
that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to any REMIC created hereunder
or any related assets thereof, or causing any such REMIC to take any action,
which is not expressly permitted under the terms of this Agreement, the Trustee
will consult with the Master Servicer or the REMIC Administrator, as applicable,
or its designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any such REMIC, and the Trustee
shall not take any such action or cause any such REMIC to take any such action
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that an Adverse REMIC Event could occur. The Master
Servicer or the REMIC Administrator, as applicable, may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the expense of the Master Servicer or the REMIC Administrator. At all
times as may be required by the Code, the Master
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Servicer will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of each
REMIC created hereunder as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions"
of any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of any such REMIC as defined in Section
860G(c) of the Code, on any contributions to any such REMIC after the Startup
Day therefor pursuant to Section 860G(d) of the Code, or any other tax is
imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Master Servicer, if such tax arises out of
or results from a breach by the Master Servicer of any of its obligations under
this Agreement or the Master Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax, (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article X, or (iii) otherwise against amounts on deposit in the
Custodial Account as provided by Section 3.10 and on the Distribution Date(s)
following such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Accrued Certificate Interest on each Class entitled thereto in
the same manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Master Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
(i) Following the Startup Day, neither the Master Servicer nor the
Trustee shall accept any contributions of assets to any REMIC created hereunder
unless (subject to Section 10.01(f)) the Master Servicer and the Trustee shall
have received an Opinion of Counsel (at the expense of the party seeking to make
such contribution) to the effect that the inclusion of such assets in such REMIC
will not cause the REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(j) Neither the Master Servicer nor the Trustee shall (subject to
Section 10.01(f)) enter into any arrangement by which any REMIC created
hereunder will receive a fee or other compensation for services nor permit any
such REMIC to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates) representing a regular interest in the applicable
REMIC and the Uncertificated Principal Balance of each Uncertificated REMIC
Regular Interest (other than each Uncertificated REMIC Regular Interest
represented by a Class A-V Certificate, if any) and the rights to the Interest
Only Certificates and Uncertificated REMIC Regular Interest represented by any
Class A-V Certificate would be reduced to zero is the Maturity Date for each
such Certificate and Interest.
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(l) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for each REMIC created hereunder.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of
or substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of any REMIC created hereunder, (iii)
the termination of any such REMIC pursuant to Article IX of this Agreement or
(iv) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) nor acquire any assets for any such REMIC, nor sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain nor
accept any contributions to any such REMIC after the Closing Date unless it has
received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not (a) affect adversely the status of such REMIC as a REMIC or
(b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause such REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02 Master Servicer, REMIC Administrator and Trustee
Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company, the
REMIC Administrator and the Master Servicer for any taxes and costs including,
without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Company or the Master Servicer, as a result of a breach of the
Trustee's covenants set forth in Article VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the
Company, the Master Servicer and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the Master Servicer or the Trustee, as a result of
a breach of the REMIC Administrator's covenants set forth in this Article X with
respect to compliance with the REMIC Provisions, including without limitation,
any penalties arising from the Trustee's execution of Tax Returns prepared by
the REMIC Administrator that contain errors or omissions; provided, however,
that such liability will not be imposed to the extent such breach is a result of
an error or omission in information provided to the REMIC Administrator by the
Master Servicer in which case Section 10.02(c) will apply.
(c) The Master Servicer agrees to indemnify the Trust Fund, the
Company, the REMIC Administrator and the Trustee for any taxes and costs
(including, without limitation, any reasonable attorneys' fees) imposed on or
incurred by the Trust Fund, the Company, the REMIC Administrator or the Trustee,
as a result of a breach of the Master Servicer's covenants set forth in this
Article X or in Article III with respect to compliance with the REMIC
Provisions, including without limitation, any penalties arising from the
Trustee's execution of Tax Returns prepared by the Master Servicer that contain
errors or omissions.
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Section 10.03 Designation of REMIC(s).
As provided in Section 10.03 of the Series Supplement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time
to time by the Company, the Master Servicer and the Trustee, without the consent
of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein
or therein, which may be inconsistent with any other
provisions herein or therein or to correct any error,
(iii) to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or desirable
to maintain the qualification of the Trust Fund as a REMIC at
all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust
Fund pursuant to the Code that would be a claim against the
Trust Fund, provided that the Trustee has received an Opinion
of Counsel to the effect that (A) such action is necessary or
desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax and (B)
such action will not adversely affect in any material respect
the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits
into the Custodial Account or the Certificate Account or to
change the name in which the Custodial Account is maintained,
provided that (A) the Certificate Account Deposit Date shall
in no event be later than the related Distribution Date, (B)
such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
Certificateholder and (C) such change shall not result in a
reduction of the rating assigned to any Class of Certificates
below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date, as
evidenced by a letter from each Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of
Section 5.02(f) or any other provision hereof restricting
transfer of the Class R Certificates, by virtue of their being
the "residual interests" in a REMIC, provided that (A) such
change shall not result in reduction of the rating assigned to
any such Class of Certificates below the lower of the
then-current rating or the rating assigned to such
Certificates as of the Closing Date, as evidenced by a letter
from each Rating Agency to such effect,
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and (B) such change shall not (subject to Section 10.01(f)),
as evidenced by an Opinion of Counsel (at the expense of the
party seeking so to modify, eliminate or add such provisions),
cause any REMIC created hereunder or any of the
Certificateholders (other than the transferor) to be subject
to a federal tax caused by a transfer to a Person that is not
a Permitted Transferee,
(vi) to make any other provisions with respect to
matters or questions arising under this Agreement or such
Custodial Agreement which shall not be materially inconsistent
with the provisions of this Agreement, provided that such
action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
Certificateholder, or
(vii) to amend any provision herein or therein that
is not material to any of the Certificateholders.
(b) This Agreement or any Custodial Agreement may also be amended from
time to time by the Company, the Master Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66% of the Percentage Interests of each Class of Certificates with a Certificate
Principal Balance greater than zero affected thereby for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or such Custodial Agreement or of modifying in any manner the
rights of the Holders of Certificates of such Class; provided, however, that no
such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments which are required to be distributed on
any Certificate without the consent of the Holder of such
Certificate,
(ii) reduce the aforesaid percentage of Certificates
of any Class the Holders of which are required to consent to
any such amendment, in any such case without the consent of
the Holders of all Certificates of such Class then
outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel (subject to Section 10.01(f) and at
the expense of the party seeking such amendment) to the effect that such
amendment or the exercise of any power granted to the Master Servicer, the
Company or the Trustee in accordance with such amendment will not result in the
imposition of a federal tax on the Trust Fund or cause any REMIC created under
the Series Supplement to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(d) Promptly after the execution of any such amendment the Trustee
shall furnish written notification of the substance of such amendment to the
Custodian and each Certificateholder. It shall not be necessary for the consent
of Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
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(e) The Company shall have the option, in its sole discretion, to
obtain and deliver to the Trustee any corporate guaranty, payment obligation,
irrevocable letter of credit, surety bond, insurance policy or similar
instrument or a reserve fund, or any combination of the foregoing, for the
purpose of protecting the Holders of the Class B Certificates against any or all
Realized Losses or other shortfalls. Any such instrument or fund shall be held
by the Trustee for the benefit of the Class B Certificateholders, but shall not
be and shall not be deemed to be under any circumstances included in the Trust
Fund. To the extent that any such instrument or fund constitutes a reserve fund
for federal income tax purposes, (i) any reserve fund so established shall be an
outside reserve fund and not an asset of the Trust Fund, (ii) any such reserve
fund shall be owned by the Company, and (iii) amounts transferred by the Trust
Fund to any such reserve fund shall be treated as amounts distributed by the
Trust Fund to the Company or any successor, all within the meaning of Treasury
Regulations Section 1.860G-2(h) as it reads as of the Cut-off Date. In
connection with the provision of any such instrument or fund, this Agreement and
any provision hereof may be modified, added to, deleted or otherwise amended in
any manner that is related or incidental to such instrument or fund or the
establishment or administration thereof, such amendment to be made by written
instrument executed or consented to by the Company but without the consent of
any Certificateholder and without the consent of the Master Servicer or the
Trustee being required unless any such amendment would impose any additional
obligation on, or otherwise adversely affect the interests of the Senior
Certificateholders, the Class M Certificateholders, the Master Servicer or the
Trustee, as applicable; provided that the Company obtains (subject to Section
10.01(f)) an Opinion of Counsel (which need not be an opinion of Independent
counsel) to the effect that any such amendment will not cause (a) any federal
tax to be imposed on the Trust Fund, including without limitation, any federal
tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or
on "contributions after the startup date" under Section 860G(d)(1) of the Code
and (b) any REMIC created hereunder to fail to qualify as a REMIC at any time
that any Certificate is outstanding. In the event that the Company elects to
provide such coverage in the form of a limited guaranty provided by General
Motors Acceptance Corporation, the Company may elect that the text of such
amendment to this Agreement shall be substantially in the form attached hereto
as Exhibit K (in which case Residential Funding's Subordinate Certificate Loss
Obligation as described in such exhibit shall be established by Residential
Funding's consent to such amendment) and that the limited guaranty shall be
executed in the form attached hereto as Exhibit K, with such changes as the
Company shall deem to be appropriate; it being understood that the Trustee has
reviewed and approved the content of such forms and that the Trustee's consent
or approval to the use thereof is not required.
Section 11.02 Recordation of Agreement; Counterparts.
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(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer and at its expense on direction by the Trustee
(pursuant to the request of Holders of Certificates entitled to at least 25% of
the Voting Rights), but only upon direction accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders.
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(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders.
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(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of any
of the parties hereto.
(b) No Certificateholder shall have any right to vote (except as
expressly provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates of any Class evidencing in the aggregate not less than
25% of the related Percentage Interests of such Class, shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
of any Class shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates of such Class or any other Class, or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the common benefit of Certificateholders of such Class
or all Classes, as the case may be. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law.
This agreement and the Certificates shall be governed by and construed
in accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
107
Section 11.05 Notices.
As provided in Section 11.05 of the Series Supplement.
Section 11.06 Required Notices to Rating Agency and Subservicer.
-------------------------------------------------
The Company, the Master Servicer or the Trustee, as applicable, (i)
shall notify each Rating Agency at such time as it is otherwise required
pursuant to this Agreement to give notice of the occurrence of, any of the
events described in clause (a), (b), (c), (d), (g), (h), (i) or (j) below, (ii)
shall notify the Subservicer at such time as it is otherwise required pursuant
to this Agreement to give notice of the occurrence of, any of the events
described in clause (a), (b), (c)(1), (g)(1), or (i) below, or (iii) provide a
copy to each Rating Agency at such time as otherwise required to be delivered
pursuant to this Agreement of any of the statements described in clauses (e) and
(f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) (1) the termination or appointment of a successor Master Servicer
or (2) the termination or appointment of a successor Trustee or a change in the
majority ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket
fidelity bond and the errors and omissions insurance policy required by Section
3.12 or the cancellation or modification of coverage under any such instrument,
(e) the statement required to be delivered to the Holders of each Class
of Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18
and 3.19,
(g) (1) a change in the location of the Custodial Account or (2) a
change in the location of the Certificate Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of
any Class of Certificates resulting from the failure by the Master Servicer to
make an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer, if applicable,
of any such event known to the Master Servicer.
108
Section 11.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.08 Supplemental Provisions for Resecuritization.
--------------------------------------------
This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Certificates issued hereunder, under the following
circumstances. With respect to any Class or Classes of Certificates issued
hereunder, or any portion of any such Class, as to which the Company or any of
its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Company may deposit such Resecuritized
Certificates into a new REMIC, grantor trust, FASIT or custodial arrangement (a
"Restructuring Vehicle") to be held by the Trustee pursuant to a Supplemental
Article. The instrument adopting such Supplemental Article shall be executed by
the Company, the Master Servicer and the Trustee; provided, that neither the
Master Servicer nor the Trustee shall withhold their consent thereto if their
respective interests would not be materially adversely affected thereby. To the
extent that the terms of the Supplemental Article do not in any way affect any
provisions of this Agreement as to any of the Certificates initially issued
hereunder, the adoption of the Supplemental Article shall not constitute an
"amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions
relating to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions to be made
thereon, and any other provisions necessary for the purposes thereof. In
connection with each Supplemental Article, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that (i) the Restructuring Vehicle
will qualify as a REMIC, grantor trust, FASIT or other entity not subject to
taxation for federal income tax purposes and (ii) the adoption of the
Supplemental Article will not endanger the status of the Trust Fund as a REMIC
or (subject to Section 10.01(f)) result in the imposition of a tax upon the
Trust Fund (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC as set forth in Section 860G(d) of the Code).
Section 11.09 Allocation of Voting Rights.
As provided in Section 11.09 of the Series Supplement.
109
EXHIBIT A
FORM OF CLASS A CERTIFICATE, [PRINCIPAL ONLY/CLASS A-P] CERTIFICATE
AND [INTEREST ONLY/CLASS A-V] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Certificate No. [____] [____]% [Adjustable] [Variable] Pass-Through
Rate [based on a Notional Amount]
Class [A-___] Senior Percentage Interest: ____%
Date of Pooling and Servicing Agreement and Aggregate Initial [Certificate Principal
Cut-off Date: Balance] [Interest Only/Class A-V] [Notional
[______________] Amount] [Subclass Notional Amount] of the
Class [A-___] Certificates: $________
First Distribution Date: [Initial] [Certificate Principal Balance]
[______________] [Interest Only/Class A-V] [Subclass] [Notional
Amount] of this
Certificate:
$[--------------]
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[--------------] [--------------]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES ________
evidencing a percentage interest in the distributions
allocable To the Class [A-___] certificates with respect to a
trust fund Consisting primarily of a pool of conventional one-
to Four-family fixed interest rate first mortgage loans formed
and sold by RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to below
or GMAC Mortgage Group, Inc. or any of their affiliates. Neither this
certificate nor the underlying mortgage loans are guaranteed or insured by any
governmental agency or instrumentality or by residential funding mortgage
securities I, inc., the master servicer, the trustee or GMAC Mortgage Group,
Inc. or any of their affiliates. None of the company, the master servicer, GMAC
Mortgage Group, Inc. or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the certificates.
This certifies that is the registered owner of the percentage interest
evidenced by this certificate [(obtained by dividing the [initial certificate
principal balance] [initial [interest only/Class A-v] notional amount] of this
certificate by the aggregate [initial certificate principal balance of all Class
A- certificates] [initial [interest only/Class A-v] notional amounts of all
[interest only/Class
A-v] certificates], both as specified above)] in certain distributions with
respect to the trust fund consisting primarily of an interest in a pool of
conventional one- to four-family fixed interest rate first mortgage loans (the
"mortgage loans"), formed and sold by residential funding mortgage securities I,
inc. (Hereinafter called the "company," which term includes any successor entity
under the agreement referred to below). The trust fund was created pursuant to a
series supplement, dated as specified above, to the standard terms of pooling
and servicing agreement dated as of ________________ (together, the "pooling and
servicing agreement" or the "agreement") among the company, the master servicer
and _______________, as trustee (the "trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
agreement. This certificate is issued under and is subject to the terms,
provisions and conditions of the agreement, to which agreement the holder of
this certificate by virtue of the acceptance hereof assents and by which such
holder is bound.
Pursuant to the terms of the agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a business day, the
business day immediately following (the "distribution date"), commencing as
described in the agreement, to the person in whose name this certificate is
registered at the close of business on the last day (or if such last day is not
a business day, the business day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "record date"),
from the available distribution amount in an amount equal to the product of the
percentage interest evidenced by this certificate and the amount [(of interest
and principal, if any)] required to be distributed to holders of Class A-
certificates on such distribution date. [the [interest only/Class A-v] notional
amount of the [interest only/Class A-v] certificates as of any date of
determination is equal to the aggregate stated principal balance of the mortgage
loans corresponding to the uncertificated remic regular interests represented by
such [interest only/Class A-v] certificates.]
Distributions on this certificate will be made either by the master
servicer acting on behalf of the trustee or by a paying agent appointed by the
trustee in immediately available funds (by wire transfer or otherwise) for the
account of the person entitled thereto if such person shall have so notified the
master servicer or such paying agent, or by check mailed to the address of the
person entitled thereto, as such name and address shall appear on the
certificate register.
Notwithstanding the above, the final distribution on this certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this certificate at the office or agency appointed
by the trustee for that purpose in the city and state of New York. The [initial
certificate principal balance] [initial [interest only/Class A-v] notional
amount] of this certificate is set forth above.] [the certificate principal
balance hereof will be reduced to the extent of distributions allocable to
principal and any realized losses allocable hereto.]
This certificate is one of a duly authorized issue of certificates
issued in several classes designated as mortgage pass-through certificates of
the series specified hereon (herein collectively called the "certificates").
The certificates are limited in right of payment to certain collections
and recoveries respecting the mortgage loans, all as more specifically set forth
herein and in the agreement. In the
event master servicer funds are advanced with respect to any mortgage loan, such
advance is reimbursable to the master servicer, to the extent provided in the
agreement, from related recoveries on such mortgage loan or from other cash that
would have been distributable to certificateholders.
As provided in the agreement, withdrawals from the custodial account
and/or the certificate account created for the benefit of certificateholders may
be made by the master servicer from time to time for purposes other than
distributions to certificateholders, such purposes including without limitation
reimbursement to the company and the master servicer of advances made, or
certain expenses incurred, by either of them.
The agreement permits, with certain exceptions therein provided, the
amendment of the agreement and the modification of the rights and obligations of
the company, the master servicer and the trustee and the rights of the
certificateholders under the agreement at any time by the company, the master
servicer and the trustee with the consent of the holders of certificates
evidencing in the aggregate not less than 66% of the percentage interests of
each class of certificates affected thereby. Any such consent by the holder of
this certificate shall be conclusive and binding on such holder and upon all
future holders of this certificate and of any certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the certificate. The agreement also permits the
amendment thereof in certain circumstances without the consent of the holders of
any of the certificates and, in certain additional circumstances, without the
consent of the holders of certain classes of certificates. As provided in the
agreement and subject to certain limitations therein set forth, the transfer of
this certificate is registrable in the certificate register upon surrender of
this certificate for registration of transfer at the offices or agencies
appointed by the trustee in the city and state of New York, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the trustee and the certificate registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new certificates of authorized denominations
evidencing the same class and aggregate percentage interest will be issued to
the designated transferee or transferees.
The certificates are issuable only as registered certificates without
coupons in classes and in denominations specified in the agreement. As provided
in the agreement and subject to certain limitations therein set forth,
certificates are exchangeable for new certificates of authorized denominations
evidencing the same Class and aggregate percentage interest, as requested by the
holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The company, the master servicer, the trustee and the certificate
registrar and any agent of the company, the master servicer, the trustee or the
certificate registrar may treat the person in whose name this certificate is
registered as the owner hereof for all purposes, and neither the company, the
master servicer, the trustee nor any such agent shall be affected by notice to
the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the agreement in respect of the certificates
and the trust fund created thereby shall terminate upon the payment to
certificateholders of all amounts held by or on behalf of the trustee and
required to be paid to them pursuant to the agreement following the earlier of
(i) the maturity or other liquidation of the last mortgage loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any mortgage loan and (ii) the purchase by the master servicer
from the trust fund of all remaining mortgage loans and all property acquired in
respect of such mortgage loans, thereby effecting early retirement of the
certificates. The agreement permits, but does not require, the master servicer
to (i) purchase at a price determined as provided in the agreement all remaining
mortgage loans and all property acquired in respect of any mortgage loan or (ii)
purchase in whole, but not in part, all of the certificates from the holders
thereof; provided, that any such option may only be exercised if the pool stated
principal balance of the mortgage loans as of the distribution date upon which
the proceeds of any such purchase are distributed is less than ten percent of
the cut-off date principal balance of the mortgage loans.
Reference is hereby made to the further provisions of this certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the certificate registrar, by manual signature, this certificate shall not be
entitled to any benefit under the agreement or be valid for any purpose.
IN WITNESS WHEREOF, the trustee has caused this certificate to be duly
executed.
Dated:________________ [TRUSTEE],
as Trustee
By:
------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:
----------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass- Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:__________________________
Dated:
--------------------- ----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT B
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES [CLASS M-1 CERTIFICATES] [AND CLASS M-2 CERTIFICATES] AS DESCRIBED
IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED
BY VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN)
THAT EITHER (A) SUCH TRANSFEREE IS NOT AN INVESTMENT MANAGER, A NAMED FIDUCIARY
OR A TRUSTEE OF ANY PLAN, OR ANY OTHER PERSON, ACTING, DIRECTLY OR INDIRECTLY,
ON BEHALF OF OR PURCHASING ANY CERTIFICATE WITH "PLAN ASSETS" OF ANY PLAN (A
"PLAN INVESTOR"), (B) IT HAS ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN
RELIANCE ON PROHIBITED TRANSACTION EXEMPTION ("PTE") 94-29, 59 FED. REG. 14674
(MARCH 29, 1994), AS AMENDED BY PTE 97-34, 62 FED. REG. 39021 (JULY 21, 1997),
AND PTE 2000-58, 65 FED. REG. 67765 (NOVEMBER 13, 2000), AND PTE 2002-41, 67
FED. REG. 54487 (AUGUST 22, 2002) (THE "RFC EXEMPTION"), AND THAT IT UNDERSTANDS
THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE RFC EXEMPTION
INCLUDING THAT SUCH CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT
LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY STANDARD & POOR'S, FITCH OR XXXXX'X OR
(C)(I) THE TRANSFEREE IS AN INSURANCE COMPANY, (II) THE SOURCE OF FUNDS TO BE
USED BY IT TO PURCHASE THE CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT"
(WITHIN THE MEANING OF U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 95-60), AND (III) THE CONDITIONS SET FORTH IN SECTIONS I AND
III OF PTCE 95-60 HAVE BEEN SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE
(C), A "COMPLYING INSURANCE COMPANY").
IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST PRECEDING
TRANSFEREE THAT EITHER (I) IS NOT A PLAN INVESTOR, (II) ACQUIRED SUCH
CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION OR (III) IS A COMPLYING
INSURANCE COMPANY SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL
RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF
SUCH TRANSFER OF THIS CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO LIABILITY TO
ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING
TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS
IN SECTION 5.02(E) OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND
HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER, ANY SUBSERVICER,
AND THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
Certificate No. [____] [____]% Pass-Through Rate
Class [M-___] Subordinate
Date of Pooling and Servicing Agreement and Principal Balance of the Class M Certificates:
Cut-off Date: $_______________
[--------------]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[--------------]
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[--------------] [--------------]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES ________
evidencing a percentage interest in any distributions
allocable to the Class M-___ Certificates with respect to the
Trust Fund consisting primarily of a pool of conventional one-
to four-family fixed interest rate first mortgage loans formed
and sold by RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to below
or GMAC Mortgage Group, Inc. or any of their affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality or by Residential Funding Mortgage
Securities I, Inc., the Master Servicer, the Trustee or GMAC Mortgage Group,
Inc. or any of their affiliates. None of the Company, the Master Servicer, GMAC
Mortgage Group, Inc. or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Certificate Principal
Balance of this Certificate by the aggregate Certificate Principal Balance of
all Class M-___ Certificates, both as specified above) in certain distributions
with respect to a Trust Fund consisting primarily of a pool of conventional one-
to four-family fixed interest rate first mortgage loans (the "Mortgage Loans"),
formed and sold by Residential Funding Mortgage Securities I, Inc. (hereinafter
called the "Company," which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a Series
Supplement, dated as specified above, to the Standard Terms of Pooling and
Servicing Agreement dated as of ________________ (together, the "Pooling and
Servicing Agreement" or the "Agreement") among the Company, the Master Servicer
and ___________, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class M-___
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of the
distributions allocable to principal and any Realized Losses allocable hereto.
As described above, any transferee of this Certificate will be deemed
to have represented by virtue of its purchase or holding of this Certificate (or
interest herein) that either (A) such transferee is not a Plan Investor, (B) it
has acquired and is holding this Certificate in reliance on the RFC Exemption
and that it understands that there are certain conditions to the availability of
the RFC Exemption including that this Certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch
or Xxxxx'x or (C) the transferee is a Complying Insurance Company. In addition,
any purported Certificate Owner whose acquisition or holding of this Certificate
(or interest herein) was effected in violation of the restrictions in Section
5.02(e) of the Agreement shall indemnify and hold harmless the Company, the
Trustee, the Master Servicer, any Subservicer, and the Trust Fund from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Pass-Through Certificates of
the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Company and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the
Company, the Master Servicer, the Trustee nor any such agent shall be affected
by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
to (i) purchase at a price determined as provided in the Agreement all remaining
Mortgage Loans and all property acquired in respect of any Mortgage Loan or (ii)
purchase in whole, but not in part, all of the Certificates from the Holders
thereof; provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans as of the Distribution Date upon which
the proceeds of any such purchase are distributed is less than ten percent of
the Cut-off Date Principal Balance of the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the trustee has caused this certificate to be duly
executed.
Dated:________________ [TRUSTEE],
as Trustee
By:
-----------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [M- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:
----------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass- Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:__________________________
Dated:
--------------------- ----------------------------------------
Signature by or on behalf of assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT C
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES AND CLASS M CERTIFICATES [AND CLASS B-1] [CLASS B-2 CERTIFICATES]
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(E) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE
COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY
OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN
THE AGREEMENT.
Certificate No. [____] [____]% Pass-Through Rate
Class [B-___] Subordinate
Date of Pooling and Servicing Agreement and Principal Balance of the Class B-___
Cut-off Date: Certificates as of the Cut-off Date: $________
[--------------]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[--------------]
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[--------------] [--------------]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in any distributions
allocable to the Class B-___ Certificates with respect to the
Trust Fund consisting primarily of a pool of conventional one-
to four-family fixed interest rate first mortgage loans formed
and sold by RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to below
or GMAC Mortgage Group, Inc. or any of their affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality or by Residential Funding Mortgage
Securities I, Inc., the Master Servicer, the Trustee or GMAC Mortgage Group,
Inc. or any of their affiliates. None of the Company, the Master Servicer, GMAC
Mortgage Group, Inc. or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This certifies that _______________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
Certificate Principal Balance of this Certificate by the aggregate Certificate
Principal Balance of all Class B-___ Certificates, both as specified above) in
certain distributions with respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed interest rate first mortgage
loans (the "Mortgage Loans"), formed and sold by Residential Funding Mortgage
Securities I, Inc. (hereinafter called the "Company," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Series Supplement, dated as specified above, to the
Standard
Terms of Pooling and Servicing Agreement dated as of ________________ (together,
the "Pooling and Servicing Agreement" or the "Agreement") among the Company, the
Master Servicer and ___________, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if such
last day is not a Business Day, the Business Day immediately preceding such last
day) of the month next preceding the month of such distribution (the "Record
Date"), from the Available Distribution Amount in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount (of
interest and principal, if any) required to be distributed to Holders of Class B
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of the
distributions allocable to principal and any Realized Losses allocable hereto.
No transfer of this Class B Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Company that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described by Section 5.02(e) of the Agreement. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Company, the Master Servicer and the Certificate Registrar acting
on behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with such Federal and state laws.
In connection with any such transfer, the Trustee will also require either (i)
an opinion of counsel acceptable to and in form and substance satisfactory to
the Trustee, the Company and the Master Servicer with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended
("ERISA"), and Section 4975 of the Internal Revenue Code (the "Code") and
stating, among other things, that the transferee's acquisition of a Class B
Certificate will not constitute or result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code or (ii) a representation
letter, in the form as described by the Agreement, either stating that the
transferee is not an employee benefit or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code (a "Plan"), or any
other person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan, or stating that the transferee is an
insurance company, the source of funds to be used by it to purchase the
Certificate is an "insurance company general account" (within the meaning of
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60), and
the purchase is being made in reliance upon the availability of the exemptive
relief afforded under Sections I and III of PTCE 95-60.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Pass-Through Certificates of
the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Company and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed
by the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
to (i) purchase at a price determined as provided in the Agreement all remaining
Mortgage Loans and all property acquired in respect of any Mortgage Loan or (ii)
purchase in whole, but not in part, all of the Certificates from the Holders
thereof; provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans as of the Distribution Date upon which
the proceeds of any such purchase are distributed is less than ten percent of
the Cut-off Date Principal Balance of the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the trustee has caused this certificate to be duly
executed.
Dated:________________ [TRUSTEE],
as Trustee
By:
------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-___ Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:
-----------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass- Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:__________________________
Dated:
--------------------- ----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON- UNITED
STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(E) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE
COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY
OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN
THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER
SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES,
OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN
INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO
TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT
SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C)
ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(A)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(A) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH
TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR
AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. [____] [____]% Pass-Through Rate
Class [R-___] Senior
Date of Pooling and Servicing Agreement and Aggregate Initial Certificate Principal Balance
Cut-off Date: of the Class R-___ Certificates: $100.00
[--------------]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[--------------]
Master Servicer: Percentage Interest: _____%
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[--------------] [--------------]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in any distributions
allocable to the Class R[-__] Certificates with respect to the
Trust Fund consisting primarily of a pool of conventional one-
to four-family fixed interest rate first mortgage loans formed
and sold by RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to below
or GMAC Mortgage Group, Inc. or any of their affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality or by Residential Funding Mortgage
Securities I, Inc., the Master Servicer, the Trustee or GMAC Mortgage Group,
Inc. or any of their affiliates. None of the Company, the Master Servicer, GMAC
Mortgage Group, Inc. or any of their affiliates will have any obligation with
respect to any certificate or other obligation secured by or payable from
payments on the Certificates.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Balance of this Certificate by the aggregate Initial Certificate
Principal Balance of all Class R[-__] Certificates, both as specified above) in
certain distributions with respect to the Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed interest rate first mortgage
loans (the "Mortgage Loans"), formed and sold by Residential Funding Mortgage
Securities I, Inc. (hereinafter called the "Company," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Series Supplement, dated as specified above, to the
Standard
Terms of Pooling and Servicing Agreement dated as of ________________ (together,
the "Pooling and Servicing Agreement" or the "Agreement") among the Company, the
Master Servicer and ___________, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class R
Certificates on such Distribution Date.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i) each
person holding or acquiring any Ownership Interest in this Certificate must be a
United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Company will have the right, in its
sole discretion and without notice to the Holder of this Certificate, to sell
this Certificate to a purchaser selected by the Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose in the City and State of New York. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
Notwithstanding the reduction of the Certificate Principal Balance hereof to
zero, this Certificate will remain outstanding under the Agreement and the
Holder hereof may have additional obligations with respect to this Certificate,
including tax liabilities, and may be entitled to certain additional
distributions hereon, in accordance with the terms and provisions of the
Agreement.
No transfer of this Class R[-__] Certificate will be made unless the
Trustee has received either (i) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee, the Company and the Master Servicer
with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of
the Internal Revenue Code (the "Code") and stating, among other things, that the
transferee's acquisition of a Class R Certificate will not constitute or result
in a non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code or (ii) a representation letter, in the form as described by
the Agreement, stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction provisions of ERISA or Section 4975
of the Code (a "Plan"), or any other person (including an investment manager, a
named fiduciary or a trustee of any Plan) acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Pass-Through Certificates of
the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Company and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee in the City and State of New York,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
to (i) purchase at a price determined as provided in the Agreement all remaining
Mortgage Loans and all property acquired in respect of any Mortgage Loan or (ii)
purchase in whole, but not in part, all of the Certificates from the Holders
thereof; provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans as of the Distribution Date upon which
the proceeds of any such purchase are distributed is less than ten percent of
the Cut-off Date Principal Balance of the Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purpose
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the trustee has caused this certificate to be duly
executed.
Dated:________________ [TRUSTEE],
as Trustee
By:
------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:
----------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass- Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:__________________________
Dated:
--------------------- ----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT E
FORM OF SELLER/SERVICER CONTRACT
This Seller/Servicer Contract (as may be amended, supplemented or
otherwise modified from time to time, this "Contract") is made this day of
_____________, 20__, by and between Residential Funding Corporation, its
successors and assigns ("Residential Funding") and (the "Seller/Servicer," and,
together with Residential Funding, the "parties" and each, individually, a
"party").
WHEREAS, the Seller/Servicer desires to sell Loans to, and/or service
Loans for, Residential Funding, and Residential Funding desires to purchase
Loans from the Seller/Servicer and/or have the Seller/Servicer service various
of its Loans, pursuant to the terms of this Contract and the Residential Funding
Seller and Servicer Guides incorporated herein by reference, as amended,
supplemented or otherwise modified, from time to time (together, the "Guides").
NOW, THEREFORE, in consideration of the premises, and the terms,
conditions and agreements set forth below, the parties agree as follows:
1. INCORPORATION OF GUIDES BY REFERENCE.
The Seller/Servicer acknowledges that it has received and read the
Guides. All provisions of the Guides are incorporated by reference into and made
a part of this Contract, and shall be binding upon the parties; provided,
however, that the Seller/Servicer shall be entitled to sell Loans to and/or
service Loans for Residential Funding only if and for so long as it shall have
been authorized to do so by Residential Funding in writing. Specific reference
in this Contract to particular provisions of the Guides and not to other
provisions does not mean that those provisions of the Guides not specifically
cited in this Contract are not applicable. All terms used herein shall have the
same meanings as such terms have in the Guides, unless the context clearly
requires otherwise.
2. AMENDMENTS.
This Contract may not be amended or modified orally, and no provision
of this Contract may be waived or amended except in writing signed by the party
against whom enforcement is sought. Such a written waiver or amendment must
expressly reference this Contract. However, by their terms, the Guides may be
amended or supplemented by Residential Funding from time to time. Any such
amendment(s) to the Guides shall be binding upon the parties hereto.
3. REPRESENTATIONS AND WARRANTIES.
a. Reciprocal Representations and Warranties.
The Seller/Servicer and Residential Funding each represents and
warrants to the other that as of the date of this Contract:
(1) Each party is duly organized, validly existing, and
in good standing under the laws of its jurisdiction
of organization, is qualified, if necessary, to do
business and in good standing in each jurisdiction in
which it is required to be so qualified, and has the
requisite power and authority to enter into this
Contract and all other agreements which are
contemplated by this Contract and to carry out its
obligations hereunder and under the Guides and under
such other agreements.
(2) This Contract has been duly authorized, executed and
delivered by each party and constitutes a valid and
legally binding agreement of each party enforceable
in accordance with its terms.
(3) There is no action, proceeding or investigation
pending or threatened, and no basis therefor is known
to either party, that could affect the validity or
prospective validity of this Contract.
(4) Insofar as its capacity to carry out any obligation
under this Contract is concerned, neither party is in
violation of any charter, articles of incorporation,
bylaws, mortgage, indenture, indebtedness, agreement,
instrument, judgment, decree, order, statute, rule or
regulation and none of the foregoing adversely
affects its capacity to fulfill any of its
obligations under this Contract. Its execution of,
and performance pursuant to, this Contract will not
result in a violation of any of the foregoing.
b. Seller/Servicer's Representations, Warranties and Covenants.
In addition to the representations, warranties and covenants
made by the Seller/Servicer pursuant to subparagraph (a) of
this paragraph 3, the Seller/Servicer makes the
representations, warranties and covenants set forth in the
Guides and, upon request, agrees to deliver to Residential
Funding the certified Resolution of Board of Directors which
authorizes the execution and delivery of this Contract.
4. REMEDIES OF RESIDENTIAL FUNDING.
If an Event of Seller Default or an Event of Servicer Default shall
occur, Residential Funding may, at its option, exercise one or more of those
remedies set forth in the Guides.
5. SELLER/SERVICER'S STATUS AS INDEPENDENT CONTRACTOR.
At no time shall the Seller/Servicer represent that it is acting as an
agent of Residential Funding. The Seller/Servicer shall, at all times, act as an
independent contractor.
6. PRIOR AGREEMENTS SUPERSEDED.
This Contract restates, amends and supersedes any and all prior Seller
Contracts or Servicer Contracts between the parties except that any subservicing
agreement executed by the Seller/Servicer in connection with any loan-security
exchange transaction shall not be affected.
7. ASSIGNMENT.
This Contract may not be assigned or transferred, in whole or in part,
by the Seller/Servicer without the prior written consent of Residential Funding.
Residential Funding may sell, assign, convey, hypothecate, pledge or in any
other way transfer, in whole or in part, without restriction, its rights under
this Contract and the Guides with respect to any Commitment or Loan.
8. NOTICES.
All notices, requests, demands or other communications that are to be
given under this Contract shall be in writing, addressed to the appropriate
parties and sent by telefacsimile or by overnight courier or by United States
mail, postage prepaid, to the addresses and telefacsimile numbers specified
below. However, another name, address and/or telefacsimile number may be
substituted by the Seller/Servicer pursuant to the requirements of this
paragraph 8, or Residential Funding pursuant to an amendment to the Guides.
If to Residential Funding, notices must be sent to the appropriate address or
telefacsimile number specified in the Guides.
If to the Seller/Servicer, notice must be sent to:
Attention:
Telefacsimile Number: (_____) _____-_________
9. JURISDICTION AND VENUE.
Each of the parties irrevocably submits to the jurisdiction of any
state or federal court located in Hennepin County, Minnesota, over any action,
suit or proceeding to enforce or defend any right under this Contract or
otherwise arising from any loan sale or servicing relationship existing in
connection with this Contract, and each of the parties irrevocably agrees that
all claims in respect of any such action or proceeding may be heard or
determined in such state or federal court. Each of the parties irrevocably
waives the defense of an inconvenient forum to the maintenance of any such
action or proceeding and any other substantive or procedural rights or remedies
it may have with respect to the maintenance of any such action or proceeding in
any such forum. Each of the parties agrees that a final judgment in any such
action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law. Each of the parties further agrees not to institute any
legal actions or proceedings against the other party or any director, officer,
employee, attorney, agent or property of the other party, arising out of or
relating to this Contract in any court other than as hereinabove specified in
this paragraph 9.
10. MISCELLANEOUS.
This Contract, including all documents incorporated by reference
herein, constitutes the entire understanding between the parties hereto and
supersedes all other agreements, covenants, representations, warranties,
understandings and communications between the parties, whether written or oral,
with respect to the transactions contemplated by this Contract. All paragraph
headings contained herein are for convenience only and shall not be construed as
part of this Contract. Any provision of this Contract that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction, and, to this end, the provisions hereof are
severable. This Contract shall be governed by, and construed and enforced in
accordance with, applicable federal laws and the laws of the State of Minnesota.
IN WITNESS WHEREOF, the duly authorized officers of the Seller/Servicer
and Residential Funding have executed this Seller/Servicer Contract as of the
date first above written.
ATTEST: SELLER/SERVICER
[Corporate Seal]
(Name of Seller/Servicer)
By: By:
-----------------------------------------
(Signature) (Signature) By: By:
(Typed Name) (Typed Name)
Title: Title:
--------------------------------------
============================================ ========= =========================
ATTEST: RESIDENTIAL FUNDING CORPORATION
[Corporate Seal]
By: By:
-----------------------------------------
(Signature) (Signature) By: By:
(Typed Name) (Typed Name)
Title: Title:
-------------------------------------- -------------------
EXHIBIT F
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Series Supplement, to the Standard Terms of Pooling and Servicing Agreement,
Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (circle one)
Mortgage Loan Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
Residential Funding Corporation
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name:
Title:
Date:
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes
and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Mortgage Pass-Through Certificates, Series _______,
Class R[-__] (the "Owner")), a [savings institution] [corporation] duly
organized and existing under the laws of [the State of ] [the United States], on
behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" or an electing large partnership as of [date of transfer] within
the meaning of Sections 860E(e)(5) and 775, respectively, of the Internal
Revenue Code of 1986, as amended (the "Code") or an electing large partnership
under Section 775(a) of the Code, (ii) will endeavor to remain other than a
disqualified organization for so long as it retains its ownership interest in
the Class R[-__] Certificates, and (iii) is acquiring the Class R[-__]
Certificates for its own account or for the account of another Owner from which
it has received an affidavit and agreement in substantially the same form as
this affidavit and agreement. (For this purpose, a "disqualified organization"
means an electing large partnership under Section 775 of the Code, the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R[-__] Certificates to disqualified organizations or electing
large partnerships, under the Code, that applies to all transfers of Class
R[-__] Certificates after March 31, 1988; (ii) that such tax would be on the
transferor (or, with respect to transfers to electing large partnerships, on
each such partnership), or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a disqualified organization, on the
agent; (iii) that the person (other than with respect to transfers to electing
large partnerships) otherwise liable for the tax shall be relieved of liability
for the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Class R[-__] Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that the
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding Class R[-__] Certificates if either the pass-through entity is
an electing large partnership under Section 775 of the Code or if at any time
during the taxable year of the pass-through entity a disqualified organization
is the record holder of an interest in such entity. (For this purpose, a "pass
through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity treated as a corporation or a
partnership for U.S. federal income tax purposes and created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States person
under any applicable Treasury regulations), (iii) an estate that is described in
Section 7701(a)(30)(D) of the Code, or (iv) a trust that is described in Section
7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the Class
R[-__] Certificates to be attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of the Owner
of another United States taxpayer.
7. That the Owner is aware that the Trustee will not register the
transfer of any Class R[- __] Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it knows
or believes that any of the representations contained in such affidavit and
agreement are false.
8. That the Owner has reviewed the restrictions set forth on the face
of the Class R[-__] Certificates and the provisions of Section 5.02(f) of the
Pooling and Servicing Agreement under which the Class R[-__] Certificates were
issued (in particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which
authorize the Trustee to deliver payments to a person other than the Owner and
negotiate a mandatory sale by the Trustee in the event the Owner holds such
Certificates in violation of Section 5.02(f)). The Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R[-__] Certificates will only
be owned, directly or indirectly, by an Owner that is not a disqualified
organization.
10. The Owner's Taxpayer Identification Number is ____________.
11. This affidavit and agreement relates only to the Class R[-__]
Certificates held by the Owner and not to any other holder of the Class R[-__]
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R[-__] Certificates.
12. That no purpose of the Owner relating to the transfer of any of the
Class R[-__] Certificates by the Owner is or will be to impede the assessment or
collection of any tax; in making
this representation, the Owner warrants that the Owner is familiar with (i)
Treasury Regulation Section 1.860E-1(c) and recent amendments thereto, effective
as of July 19, 2002, and (ii) the preamble describing the adoption of the
amendments to such regulation, which is attached hereto as Exhibit 1.
13. That the Owner has no present knowledge or expectation that it will
be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R[-__]
Certificate that the Owner intends to pay taxes associated with holding such
Class R[- __] Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R[-__]
Certificate.
14. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of the
Class R[-__] Certificates remain outstanding.
15. (a) The Purchaser is not an employee benefit plan or other plan
subject to the prohibited transaction provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), or an investment
manager, named fiduciary or a trustee of any such plan, or any other Person
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any such plan; or
(b) The Purchaser will provide the Trustee, the Company and
the Master Servicer with an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee, the Company and the Master Servicer to
the effect that the purchase of Certificates is permissible under applicable
law, will not constitute or result in any non-exempt prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Trustee, the
Company or the Master Servicer to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in the Pooling and Servicing Agreement.
In addition, the Purchaser hereby certifies, represents and warrants
to, and covenants with, the Company, the Trustee and the Master Servicer that
the Purchaser will not transfer such Certificates to any Plan or person unless
either such Plan or person meets the requirements set forth in either (a) or (b)
above.
Capitalized terms used but not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, pursuant to the authority of its Board of Directors, by its [Title
of Officer] and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this day of _____,___ 200__.
[NAME OF OWNER]
By:
--------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this ___ day of ________, 200 __.
NOTARY PUBLIC
COUNTY OF
---------------------------------
STATE OF
----------------------------------
My Commission expires the ____ day of
_____, 20__ .
EXHIBIT 1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-
(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and,
pending receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number
1545-1675.
The collection of information in this regulation is in Sec. 1.860E -
1(c)(5)(ii). This information is required to enable the IRS to verify
that a taxpayer is complying with the conditions of this regulation.
The collection of information is mandatory and is required. Otherwise,
the taxpayer will not receive the benefit of safe harbor treatment as provided
in the regulation. The likely respondents are businesses and other for-profit
institutions.
Comments on the collection of information should be sent to the Office of
Management and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX, 00000, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the collection of information
should be received by September 17, 2002. Comments are specifically requested
concerning:
Whether the collection of information is necessary for the proper performance
of the functions of the Internal Revenue Service, including whether the
information will have practical utility;
The accuracy of the estimated burden associated with the collection of
information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the collection of information may be
minimized, including through the application of automated collection techniques
or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance,
and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to respond
to, a collection of information unless it displays a valid control number
assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an
estimated number of respondents of 470 and an estimated average annual burden
hours per respondent of one hour.
Books or records relating to a collection of information must be retained as
long as their contents may become material in the administration of any internal
revenue law. Generally, tax returns and tax return information are confidential,
as required by 26 U.S.C. 6103.
Background
This document contains final regulations regarding the proposed amendments to
26 CFR part 1 under section 860E of the Internal Revenue Code (Code). The
regulations provide the circumstances under which a transferor of a noneconomic
REMIC residual interest meeting the investigation and representation
requirements may avail itself of the safe harbor by satisfying either the
formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules governing
the transfer of noneconomic REMIC residual interests. In general, a transfer of
a noneconomic residual interest is disregarded for all tax purposes if a
significant purpose of the transfer is to
[[Page 47452]]
enable the transferor to impede the assessment or collection of tax. A purpose
to impede the assessment or collection of tax (a wrongful purpose) exists if the
transferor, at the time of the transfer, either knew or should have known that
the transferee would be unwilling or unable to pay taxes due on its share of the
REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual interest
is presumed not to have a wrongful purpose if two requirements are satisfied:
(1) the transferor conducts a reasonable investigation of the transferee's
financial condition (the investigation requirement); and (2) the transferor
secures a representation from the transferee to the effect that the transferee
understands the tax obligations associated with holding a residual interest and
intends to pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of noneconomic
residual interests claim they satisfy the safe harbor even in situations where
the economics of the transfer clearly indicate the transferee is unwilling or
unable to pay the tax associated with holding the interest. For this reason, on
February 7, 2000, the IRS published in the Federal Register (65 FR 5807) a
notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed to clarify
the safe harbor by adding the "formula test," an economic test. The proposed
regulation provides that the safe harbor is unavailable unless the present value
of the anticipated tax liabilities associated with holding the residual interest
does not exceed the sum of: (1) The present value of any consideration given to
the transferee to acquire the interest; (2) the present value of the expected
future distributions on the interest; and (3) the present value of the
anticipated tax savings associated with holding the interest as the REMIC
generates losses.
The notice of proposed rulemaking also contained rules for FASITs. Section
1.860H-6(g) of the proposed regulations provides requirements for transfers of
FASIT ownership interests and adopts a safe harbor by reference to the safe
harbor provisions of the REMIC regulations.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to
set forth an alternative safe harbor that taxpayers could use while the IRS and
the Treasury considered comments on the proposed regulations. Under the
alternative safe harbor, if a transferor meets the investigation requirement and
the representation requirement but the transfer fails to meet the formula test,
the transferor may invoke the safe harbor if the transferee meets a two- prong
test (the asset test). A transferee generally meets the first prong of this test
if, at the time of the transfer, and in each of the two years preceding the year
of transfer, the transferee's gross assets exceed $100 million and its net
assets exceed $10 million. A transferee
generally meets the second prong of this test if it is a domestic, taxable
corporation and agrees in writing not to transfer the interest to any person
other than another domestic, taxable corporation that also satisfies the
requirements of the asset test. A transferor cannot rely on the asset test if
the transferor knows, or has reason to know, that the transferee will not comply
with its written agreement to limit the restrictions on subsequent transfers of
the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied in the
case of a transfer or assignment of a noneconomic residual interest to a foreign
branch of an otherwise eligible transferee. If such a transfer or assignment
were permitted, a corporate taxpayer might seek to claim that the provisions of
an applicable income tax treaty would resource excess inclusion income as
foreign source income, and that, as a consequence, any U.S. tax liability
attributable to the excess inclusion income could be offset by foreign tax
credits. Such a claim would impede the assessment or collection of U.S. tax on
excess inclusion income, contrary to the congressional purpose of assuring that
such income will be taxable in all events. See, e.g., sections 860E(a)(1), (b),
(e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers transferring
noneconomic residual interests to foreign branches have attempted to rely on the
formula test to obtain safe harbor treatment in an effort to impede the
assessment or collection of U.S. tax on excess inclusion income. Accordingly,
the final regulations provide that if a noneconomic residual interest is
transferred to a foreign permanent establishment or fixed base of a U.S.
taxpayer, the transfer is not eligible for safe harbor treatment under either
the asset test or the formula test. The final regulations also require a
transferee to represent that it will not cause income from the noneconomic
residual interest to be attributable to a foreign permanent establishment or
fixed base.
Section 1.860E -1(c)(8) provides computational rules that a taxpayer may use
to qualify for safe harbor status under the formula test. Section
1.860E-1(c)(8)(i) provides that the transferee is presumed to pay tax at a rate
equal to the highest rate of tax specified in section 11(b). Some commentators
were concerned that this presumed rate of taxation was too high because it does
not take into consideration taxpayers subject to the alternative minimum tax
rate. In light of the comments received, this provision has been amended in the
final regulations to allow certain transferees that compute their taxable income
using the alternative minimum tax rate to use the alternative minimum tax rate
applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present
values in the formula test are to be computed using a discount rate
equal to the applicable Federal short-term rate prescribed by section 1274(d).
This is a change from the proposed regulation and Rev. Proc. 2001-12. In those
publications the provision stated that "present values are computed using a
discount rate equal to the applicable Federal rate prescribed in section 1274(d)
compounded semiannually" and that "[a] lower discount rate may be used if the
transferee can demonstrate that it regularly borrows, in the course of its trade
or business, substantial funds at such lower rate from an unrelated third
party." The IRS and the Treasury Department have learned that, based on this
provision, certain taxpayers have been attempting to use unrealistically low or
zero interest rates to satisfy the formula test, frustrating the intent of the
test. Furthermore, the Treasury Department and the IRS believe that a rule
allowing for a rate other than a rate based on an objective index would add
unnecessary complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if the
transferee can demonstrate that it regularly borrows substantial funds at such
lower rate, is not included in the final regulations; and the Federal short-term
rate has been substituted for the applicable Federal rate. To simplify
taxpayers' computations, the final regulations allow use of any of the published
short-term rates, provided that the present values are computed with a
corresponding period of compounding. With the exception of the provisions
relating to transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may choose to
apply the interest rate formula set forth in the proposed regulation and Rev.
Proc. 2001-12 for transfers occurring before August 19, 2002.
It is anticipated that when final regulations are adopted with respect to
[[Page 47453]]
FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a significant
economic impact on a substantial number of small entities. This certification is
based on the fact that it is unlikely that a substantial number of small
entities will hold REMIC residual interests. Therefore, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that sections
553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do
not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However,
other personnel from the IRS and Treasury Department participated in their
development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
__________ , 20__
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[Trustee]
Attention: Residential Funding Corporation Series _______
Re: Mortgage Pass-Through Certificates,
Series ________, Class R[-__]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Seller") to _____________________(the "Purchaser")
of $______________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series ________, Class R[-__] (the "Certificates"),
pursuant to Section 5.02 of the Series Supplement, dated as of ________________,
to the Standard Terms of Pooling and Servicing Agreement dated as of
________________ (together, the "Pooling and Servicing Agreement") among
Residential Funding Mortgage Securities I, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer, and __________, as trustee
(the "Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Seller hereby
certifies, represents and warrants to, and covenants with, the Company and the
Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate
by the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E- 1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R[-__]
Certificate may not be respected for United States
income tax purposes (and the Seller may continue to be liable for United States
income taxes Associated therewith) unless the Seller has conducted such an
investigation.
4. The Seller has no actual knowledge that the proposed Transferee is
not both a United States Person and a Permitted Transferee.
Very truly yours,
(Seller)
By:
--------------------------------
Name:
Title:
EXHIBIT H
FORM OF INVESTOR REPRESENTATION LETTER
______________ , 20___
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
[Trustee]
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Corporation Series ________
RE: Mortgage Pass-Through Certificates,
Series ________, [Class B-]
Ladies and Gentlemen:
_________________- (the "Purchaser") intends to purchase from
_________________ (the "Seller") $_____________ Initial Certificate Principal
Balance of Mortgage Pass-Through Certificates, Series ________, Class (the
"Certificates"), issued pursuant to the Series Supplement, dated as of
________________, to the Standard Terms of Pooling and Servicing Agreement dated
as of ________________ (together, the "Pooling and Servicing Agreement") among
Residential Funding Mortgage Securities I, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer (the "Master Servicer"), and
_____________, as trustee (the "Trustee"). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Company, the Trustee and the Master Servicer that:
1. The Purchaser understands that (a) the Certificates have not been
and will not be registered or qualified under the Securities Act of 1933, as
amended (the "Act") or any state securities law, (b) the Company is not required
to so register or qualify the Certificates, (c) the Certificates may be resold
only if registered and qualified pursuant to the provisions of the Act or any
state securities law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates and (e) the Certificates
will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any applicable
state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters,
and, in particular, in such matters related to securities similar to the
Certificates, such that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic risks of such an
investment and (c) an "accredited investor" within the meaning of Rule 501(a)
promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity to
review (a) [a copy of the Private Placement Memorandum, dated ___________,
20___, relating to the Certificates (b)] a copy of the Pooling and Servicing
Agreement and [b] [c] such other information concerning the Certificates, the
Mortgage Loans and the Company as has been requested by the Purchaser from the
Company or the Seller and is relevant to the Purchaser's decision to purchase
the Certificates. The Purchaser has had any questions arising from such review
answered by the Company or the Seller to the satisfaction of the Purchaser. [If
the Purchaser did not purchase the Certificates from the Seller in connection
with the initial distribution of the Certificates and was provided with a copy
of the Private Placement Memorandum (the "Memorandum") relating to the original
sale (the "Original Sale") of the Certificates by the Company, the Purchaser
acknowledges that such Memorandum was provided to it by the Seller, that the
Memorandum was prepared by the Company solely for use in connection with the
Original Sale and the Company did not participate in or facilitate in any way
the purchase of the Certificates by the Purchaser from the Seller, and the
Purchaser agrees that it will look solely to the Seller and not to the Company
with respect to any damage, liability, claim or expense arising out of,
resulting from or in connection with (a) error or omission, or alleged error or
omission, contained in the Memorandum, or (b) any information, development or
event arising after the date of the Memorandum.]
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicit any offer to buy or to accept
a pledge, disposition of other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest in
any Certificate or any other similar security with any person in any manner, (d)
make any general solicitation by means of general advertising or in any other
manner or (e) take any other action, that (as to any of (a) through (e) above)
would constitute a distribution of any Certificate under the Act, that would
render the disposition of any Certificate a violation of Section 5 of the Act or
any state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
6. The Purchaser
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA), or Section 4975 of the Internal Revenue Code of 1986, as
amended ("Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan within the meaning of the Department of Labor ("DOL")
regulation at 29 C.F.R. ss.2510.3-101;
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within the
meaning of DOL Prohibited Transaction Class Exemption ("PTCE") 95-60), and the
purchase is being made in reliance upon the availability of the exemptive relief
afforded under Sections I and III of PTCE 95-60; or
(c) has provided the Trustee, the Company and the Master Servicer with
an opinion of counsel acceptable to and in form and substance satisfactory to
the Trustee, the Company and the Master Servicer to the effect that the purchase
of Certificates is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code and will not subject the Trustee, the Company or the Master Servicer to
any obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Pooling and
Servicing Agreement.
In addition, the Purchaser hereby certifies, represents and warrants
to, and covenants with, the Company, the Trustee and the Master Servicer that
the Purchaser will not transfer such Certificates to any Plan or person unless
such Plan or person meets the requirements set forth in either 6(a), (b) or (c)
above.
Very truly yours,
By:
---------------------------------
Name:
Title:
EXHIBIT I
FORM OF TRANSFEROR REPRESENTATION LETTER
_________, 20___
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
[Trustee]
Attention: Residential Funding Corporation Series ________
Re: Mortgage Pass-Through Certificates,
Series ________, [Class B-]
Ladies and Gentlemen:
In connection with the sale by ____________________ (the "Seller") to
____________________ (the "Purchaser") of __________________ Initial Certificate
Principal Balance of Mortgage Pass-Through Certificates, Series ________, Class
(the "Certificates"), issued pursuant to the Series Supplement, dated as of
________________, to the Standard Terms of Pooling and Servicing Agreement dated
as of ________________ (together, the "Pooling and Servicing Agreement") among
Residential Funding Mortgage Securities I, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer, and __________, as trustee
(the "Trustee"). The Seller hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act, in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
(Seller)
By:
-----------------------------------
Name:
Title:
EXHIBIT J
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including
numbers:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer (the
"Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee and the Master Servicer (as defined in the Series
Supplement, dated as of ________________, to the Standard Terms of Pooling and
Servicing Agreement dated as of ________________ (the "Agreement") among
Residential Funding Corporation as Master Servicer, Residential Funding Mortgage
Securities I, Inc. as depositor pursuant to Section 5.02 of the Agreement and
__________, as trustee, as follows:
(a) The Buyer understands that the Rule 144A Securities have
not been registered under the 1933 Act or the securities laws of any
state.
(b) The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
(c) The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Seller, the Trustee or the Servicer.
(d) Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that
term is defined in Rule 144A under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be
resold, pledged or transferred only (i) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
[3. The Buyer
(a) is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (a "Plan"), or any other
person (including an investment manager, a named fiduciary or a trustee
of any Plan) acting, directly or indirectly, on behalf of or purchasing
any Certificate with "plan assets" of any Plan within the meaning of
the Department of Labor ("DOL") regulation at 29 C.F.R. ss.2510.3-101;
(b) is an insurance company, the source of funds to be used by
it to purchase the Certificates is an "insurance company general
account" (within the meaning of DOL Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the purchase is being made in reliance
upon the availability of the exemptive relief afforded under Sections I
and III of PTCE 95-60; or
(c) has provided the Trustee, the Company and the Master
Servicer with an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee, the Company and the Master
Servicer to the effect that the purchase of Certificates is permissible
under applicable law, will not constitute or result in any non-exempt
prohibited transaction under ERISA or Section 4975 of the Code and will
not subject the Trustee, the Company or the Master Servicer to any
obligation or liability (including obligations or liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in
the Pooling and Servicing Agreement. ]
4. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
----------------------------- ---------------------------------
Name: Name:
Title: Title:
Taxpayer Identification Taxpayer Identification:
No. No:
---------------------------- ---------------------------------
Date: Date:
-------------------------- ------------------------------
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE
144A [For Buyers Other Than Registered Investment
Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $ in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A) and (ii) the Buyer satisfies the
criteria in the category marked below.
Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code.
Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements.
Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State or
territory or the District of Columbia.
State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
Investment Adviser. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees, or (b) employee benefit plans within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, but is not a trust fund
that includes as participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
Print Name of Buyer
By:
----------------------------------
Name:
Title:
Date:
-------------------------------
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) bank deposit notes and certificates of deposit,
(iii) loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Buyer
By:
----------------------------------------
Name:
Title:
IF AN ADVISOR:
Print Name of Buyer
Date:
-------------------------------------
EXHIBIT K
[TEXT OF AMENDMENT TO POOLING AND SERVICING
AGREEMENT PURSUANT TO SECTION 11.01(E) FOR A
LIMITED GUARANTY]
ARTICLE XII
Subordinate Certificate Loss Coverage; Limited Guaranty
Section 12.01. Subordinate Certificate Loss Coverage; Limited Guaranty.
(a) Subject to subsection (c) below, prior to the later of the third Business
Day prior to each Distribution Date or the related Determination Date, the
Master Servicer shall determine whether it or any Sub-Servicer will be entitled
to any reimbursement pursuant to Section 4.02(a) on such Distribution Date for
Advances or Sub-Servicer Advances previously made, (which will not be Advances
or Sub-Servicer Advances that were made with respect to delinquencies which were
subsequently determined to be Excess Special Hazard Losses, Excess Fraud Losses,
Excess Bankruptcy Losses or Extraordinary Losses) and, if so, the Master
Servicer shall demand payment from Residential Funding of an amount equal to the
amount of any Advances or Sub-Servicer Advances reimbursed pursuant to Section
4.02(a), to the extent such Advances or Sub-Servicer Advances have not been
included in the amount of the Realized Loss in the related Mortgage Loan, and
shall distribute the same to the Class B Certificateholders in the same manner
as if such amount were to be distributed pursuant to Section 4.02(a).
(b) Subject to subsection (c) below, prior to the later of the third
Business Day prior to each Distribution Date or the related Determination Date,
the Master Servicer shall determine whether any Realized Losses (other than
Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses and
Extraordinary Losses) will be allocated to the Class B Certificates on such
Distribution Date pursuant to Section 4.05, and, if so, the Master Servicer
shall demand payment from Residential Funding of the amount of such Realized
Loss and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a);
provided, however, that the amount of such demand in respect of any Distribution
Date shall in no event be greater than the sum of (i) the additional amount of
Accrued Certificate Interest that would have been paid for the Class B
Certificateholders on such Distribution Date had such Realized Loss or Losses
not occurred plus (ii) the amount of the reduction in the Certificate Principal
Balances of the Class B Certificates on such Distribution Date due to such
Realized Loss or Losses. Notwithstanding such payment, such Realized Losses
shall be deemed to have been borne by the Certificateholders for purposes of
Section 4.05. Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses and Extraordinary Losses allocated to the Class B Certificates
will not be covered by the Subordinate Certificate Loss Obligation.
(c) Demands for payments pursuant to this Section shall be made prior
to the later of the third Business Day prior to each Distribution Date or the
related Determination Date by the Master Servicer with written notice thereof to
the Trustee. The maximum amount that Residential Funding shall be required to
pay pursuant to this Section on any Distribution Date (the "Amount Available")
shall be equal to the lesser of (X) minus the sum of (i) all previous payments
made under subsections (a) and (b) hereof and (ii) all draws under the Limited
Guaranty made in lieu of such payments as
described below in subsection (d) and (Y) the then outstanding Certificate
Principal Balances of the Class B Certificates, or such lower amount as may be
established pursuant to Section 12.02. Residential Funding's obligations as
described in this Section are referred to herein as the "Subordinate Certificate
Loss Obligation."
(d) The Trustee will promptly notify General Motors Acceptance
Corporation of any failure of Residential Funding to make any payments hereunder
and shall demand payment pursuant to the limited guaranty (the "Limited
Guaranty"), executed by General Motors Acceptance Corporation, of Residential
Funding's obligation to make payments pursuant to this Section, in an amount
equal to the lesser of (i) the Amount Available and (ii) such required payments,
by delivering to General Motors Acceptance Corporation a written demand for
payment by wire transfer, not later than the second Business Day prior to the
Distribution Date for such month, with a copy to the Master Servicer.
(e) All payments made by Residential Funding pursuant to this Section
or amounts paid under the Limited Guaranty shall be deposited directly in the
Certificate Account, for distribution on the Distribution Date for such month to
the Class B Certificateholders.
(f) The Company shall have the option, in its sole discretion, to
substitute for either or both of the Limited Guaranty or the Subordinate
Certificate Loss Obligation another instrument in the form of a corporate
guaranty, an irrevocable letter of credit, a surety bond, insurance policy or
similar instrument or a reserve fund; provided that (i) the Company obtains
(subject to the provisions of Section 10.01(f) as if the Company was substituted
for the Master Servicer solely for the purposes of such provision) an Opinion of
Counsel (which need not be an opinion of Independent counsel) to the effect that
obtaining such substitute corporate guaranty, irrevocable letter of credit,
surety bond, insurance policy or similar instrument or reserve fund will not
cause either (a) any federal tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions" under
Section 860(F)(a)(1) of the Code or on "contributions after the startup date"
under Section 860(G)(d)(1) of the Code or (b) the Trust Fund to fail to qualify
as a REMIC at any time that any Certificate is outstanding, and (ii) no such
substitution shall be made unless (A) the substitute Limited Guaranty or
Subordinate Certificate Loss Obligation is for an initial amount not less than
the then current Amount Available and contains provisions that are in all
material respects equivalent to the original Limited Guaranty or Subordinate
Certificate Loss Obligation (including that no portion of the fees,
reimbursements or other obligations under any such instrument will be borne by
the Trust Fund), (B) the long term debt obligations of any obligor of any
substitute Limited Guaranty or Subordinate Certificate Loss Obligation (if not
supported by the Limited Guaranty) shall be rated at least the lesser of (a) the
rating of the long term debt obligations of General Motors Acceptance
Corporation as of the date of issuance of the Limited Guaranty and (b) the
rating of the long term debt obligations of General Motors Acceptance
Corporation at the date of such substitution and (C) the Company obtains written
confirmation from each nationally recognized credit rating agency that rated the
Class B Certificates at the request of the Company that such substitution shall
not lower the rating on the Class B Certificates below the lesser of (a) the
then-current rating assigned to the Class B Certificates by such rating agency
and (b) the original rating assigned to the Class B Certificates by such rating
agency. Any replacement of the Limited Guaranty or Subordinate Certificate Loss
Obligation pursuant to this Section shall be accompanied by a written Opinion of
Counsel to the substitute guarantor or obligor, addressed to the Master
Servicer and the Trustee, that such substitute instrument constitutes a legal,
valid and binding obligation of the substitute guarantor or obligor, enforceable
in accordance with its terms, and concerning such other matters as the Master
Servicer and the Trustee shall reasonably request. Neither the Company, the
Master Servicer nor the Trustee shall be obligated to substitute for or replace
the Limited Guaranty or Subordinate Certificate Loss Obligation under any
circumstance.
Section 12.02. Amendments Relating to the Limited Guaranty.
Notwithstanding Sections 11.01 or 12.01: (i) the provisions of this Article XII
may be amended, superseded or deleted, (ii) the Limited Guaranty or Subordinate
Certificate Loss Obligation may be amended, reduced or canceled, and (iii) any
other provision of this Agreement which is related or incidental to the matters
described in this Article XII may be amended in any manner; in each case by
written instrument executed or consented to by the Company and Residential
Funding but without the consent of any Certificateholder and without the consent
of the Master Servicer or the Trustee being required unless any such amendment
would impose any additional obligation on, or otherwise adversely affect the
interests of, the Master Servicer or the Trustee, as applicable; provided that
the Company shall also obtain a letter from each nationally recognized credit
rating agency that rated the Class B Certificates at the request of the Company
to the effect that such amendment, reduction, deletion or cancellation will not
lower the rating on the Class B Certificates below the lesser of (a) the
then-current rating assigned to the Class B Certificates by such rating agency
and (b) the original rating assigned to the Class B Certificates by such rating
agency, unless (A) the Holder of 100% of the Class B Certificates is Residential
Funding or an Affiliate of Residential Funding, or (B) such amendment,
reduction, deletion or cancellation is made in accordance with Section 11.01(e)
and, provided further that the Company obtains (subject to the provisions of
Section 10.01(f) as if the Company was substituted for the Master Servicer
solely for the purposes of such provision), in the case of a material amendment
or supersession (but not a reduction, cancellation or deletion of the Limited
Guaranty or the Subordinate Certificate Loss Obligation), an Opinion of Counsel
(which need not be an opinion of Independent counsel) to the effect that any
such amendment or supersession will not cause either (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code or
(b) the Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is outstanding. A copy of any such instrument shall be provided to
the Trustee and the Master Servicer together with an Opinion of Counsel that
such amendment complies with this Section 12.02.
EXHIBIT L
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates
Series ________
___________, 20____
[Trustee]
Attention: Residential Funding Corporation Series ________
Ladies and Gentlemen:
WHEREAS, Residential Funding Corporation, a Delaware corporation
("Residential Funding"), an indirect wholly-owned subsidiary of General Motors
Acceptance Corporation, a New York corporation ("GMAC"), plans to incur certain
obligations as described under Section 12.01 of the Series Supplement, dated as
of ________________, to the Standard Terms of Pooling and Servicing Agreement
dated as of ________________ (together, the "Servicing Agreement"), among
Residential Funding Mortgage Securities I, Inc. (the "Company"), Residential
Funding and __________ (the "Trustee") as amended by Amendment No. thereto,
dated as of , with respect to the Mortgage Pass-Through Certificates, Series
________ (the "Certificates"); and
WHEREAS, pursuant to Section 12.01 of the Servicing Agreement,
Residential Funding agrees to make payments to the Holders of the Class B
Certificates with respect to certain losses on the Mortgage Loans as described
in the Servicing Agreement; and
WHEREAS, GMAC desires to provide certain assurances with respect to the
ability of Residential Funding to secure sufficient funds and faithfully to
perform its Subordinate Certificate Loss Obligation;
NOW THEREFORE, in consideration of the premises herein contained and
certain other good and valuable consideration, the receipt of which is hereby
acknowledged, GMAC agrees as follows:
1. Provision of Funds. (a) GMAC agrees to contribute and deposit in the
Certificate Account on behalf of Residential Funding (or otherwise provide to
Residential Funding, or to cause to be made available to Residential Funding),
either directly or through a subsidiary, in any case prior to the related
Distribution Date, such moneys as may be required by Residential Funding to
perform its Subordinate Certificate Loss Obligation when and as the same arises
from time to time upon the demand of the Trustee in accordance with Section
12.01 of the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall be
absolute, irrevocable and unconditional and shall not be affected by the
transfer by GMAC or any other person of all or any
part of its or their interest in Residential Funding, by any insolvency,
bankruptcy, dissolution or other proceeding affecting Residential Funding or any
other person, by any defense or right of counterclaim, set-off or recoupment
that GMAC may have against Residential Funding or any other person or by any
other fact or circumstance. Notwithstanding the foregoing, GMAC's obligations
under clause (a) shall terminate upon the earlier of (x) substitution for this
Limited Guaranty pursuant to Section 12.01(f) of the Servicing Agreement, or (y)
the termination of the Trust Fund pursuant to the Servicing Agreement.
2. Waiver. GMAC hereby waives any failure or delay on the part of
Residential Funding, the Trustee or any other person in asserting or enforcing
any rights or in making any claims or demands hereunder. Any defective or
partial exercise of any such rights shall not preclude any other or further
exercise of that or any other such right. GMAC further waives demand,
presentment, notice of default, protest, notice of acceptance and any other
notices with respect to this Limited Guaranty, including, without limitation,
those of action or nonaction on the part of Residential Funding or the Trustee.
3. Modification, Amendment and Termination. This Limited Guaranty may
be modified, amended or terminated only by the written agreement of GMAC and the
Trustee and only if such modification, amendment or termination is permitted
under Section 12.02 of the Servicing Agreement. The obligations of GMAC under
this Limited Guaranty shall continue and remain in effect so long as the
Servicing Agreement is not modified or amended in any way that might affect the
obligations of GMAC under this Limited Guaranty without the prior written
consent of GMAC.
4. Successor. Except as otherwise expressly provided herein, the
guarantee herein set forth shall be binding upon GMAC and its respective
successors.
5. Governing Law. This Limited Guaranty shall be governed by the laws
of the State of New York.
6. Authorization and Reliance. GMAC understands that a copy of this
Limited Guaranty shall be delivered to the Trustee in connection with the
execution of Amendment No. 1 to the Servicing Agreement and GMAC hereby
authorizes the Company and the Trustee to rely on the covenants and agreements
set forth herein.
7. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meaning given them in the Servicing Agreement.
8. Counterparts. This Limited Guaranty may be executed in any number of
counterparts, each of which shall be deemed to be an original and such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be
executed and delivered by its respective officers thereunto duly authorized as
of the day and year first above written.
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:
-----------------------------------
Name:
Title:
Acknowledged by:
[Trustee], as Trustee
By:
---------------------------------
Name:
Title:
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
By:
---------------------------------
Name:
Title:
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
_____________, 20______
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[Trustee]
Attention: Residential Funding Corporation Series ________
Re: Mortgage Pass-Through Certificates, Series ________
Assignment of Mortgage Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the assignment by
___________ (the "Trustee") to _____________________ (the "Lender") of
__________________(the "Mortgage Loan") pursuant to Section 3.13(d) of the
Series Supplement, dated as of ________________, to the Standard Terms of
Pooling and Servicing Agreement dated as of ________________ (together, the
"Pooling and Servicing Agreement") among Residential Funding Mortgage Securities
I, Inc., as seller (the "Company"), Residential Funding Corporation, as master
servicer, and the Trustee. All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The Lender
hereby certifies, represents and warrants to, and covenants with, the Master
Servicer and the Trustee that:
the Mortgage Loan is secured by Mortgaged Property located in a
jurisdiction in which an assignment in lieu of satisfaction is required to
preserve lien priority, minimize or avoid mortgage recording taxes or otherwise
comply with, or facilitate a refinancing under, the laws of such jurisdiction;
the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and the form of the transaction is solely to
comply with, or facilitate the transaction under, such local laws;
the Mortgage Loan following the proposed assignment will be modified to
have a rate of interest at least 0.25 percent below or above the rate of
interest on such Mortgage Loan prior to such proposed assignment; and such
assignment is at the request of the borrower under the related Mortgage Loan.
Very truly yours,
(Lender)
By:
-----------------------------------
Name:
Title:
EXHIBIT N
FORM OF REQUEST FOR EXCHANGE
[Date]
Bank One, National Association
1 Bank Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Re: Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates, Series [________]
Residential Funding Corporation, as the Holder of a ____% Percentage
Interest of the [Class/Subclass] of Class A-V Certificates, hereby requests the
Trustee to exchange the above-referenced Certificates for the Subclasses
referred to below:
1. Class A-V Certificates, corresponding to the following
Uncertificated REMIC Regular Interests: [List numbers
corresponding to the related loans and Pool Strip Rates from
the Mortgage Loan Schedule]. The Initial Subclass Notional
Amount and the initial Pass-Through Rate on the Class A-V
Certificates will be $___________ and _____%, respectively.
[2. Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate all of
the Uncertificated REMIC Regular Interests represented by the Class A-V
Certificates surrendered for exchange.
The capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement, dated as of _______,
among Residential Funding Mortgage Securities I, Inc., Residential Funding
Corporation and Bank One National Association, as trustee.
RESIDENTIAL FUNDING CORPORATION
By:
---------------------------------
Name:
Title:
EXHIBIT O
FORM OF FORM 10-K CERTIFICATE
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of the trust (the "Trust") created pursuant to the Pooling and Servicing
Agreement dated __________ (the "Agreement") among Residential Funding Mortgage
Securities I, Inc. (the "Company"), Residential Funding Corporation (the "Master
Servicer") and Bank One, National Association (the "Trustee");
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer under the Agreement for inclusion
in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the
Master Servicer under the Agreement and based upon my knowledge and the annual
compliance review required under the Agreement, and except as disclosed in the
report, the Master Servicer has fulfilled its obligations under the Agreement;
and
5. The reports disclose all significant deficiencies relating to the
Master Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
as set forth in the Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the Trustee].
Date:____________
_________________________________*
[Signature]
Name:
Title:
* - to be signed by the senior officer in charge of the servicing functions of
the Master Servicer
EXHIBIT P
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of Bank One, National
Association (the "Trustee") certifies that:
1. The Trustee has performed all of the duties specifically required to
be performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated _________ (the "Agreement") by and among Residential Funding
Mortgage Securities I, Inc. (the "Company"), Residential Funding Corporation
(the "Master Servicer") and Trustee in accordance with the standards set forth
therein.
2. Based on my knowledge, the list of Certificateholders as shown on
the Certificate Register as of the end of each calendar year that is provided by
the Trustee pursuant to Section 4.03(f)(I) of the Agreement is accurate as of
the last day of the 20___ calendar year.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
IN WITNESS THEREOF, I have duly executed this certificate as of
____________, 20___
Name:_____________________________
Title:
EXHIBIT Q
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING
AGENCIES RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Term (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
EXHIBIT SIX
CERTIFICATE POLICY OF RADIAN ASSET ASSURANCE INC.
[Radian logo and address]
FINANCIAL GUARANTY INSURANCE POLICY
CLASS A-6 CERTIFICATES: MAXIMUM INSURED CERTIFICATE PRINCIPAL BALANCE:
RFMSI Series 2004-S2 Trust
Mortgage Pass-Through Certificates
Series 2004-S2, Class A-6 $17,500,000
POLICY NO.: FANI-0524-04086-NY EFFECTIVE DATE: March 1, 2004
RADIAN ASSET ASSURANCE INC., a New York stock insurance company
regulated by the Insurance Department of the State of New York (the "Insurer"),
in consideration of the payment of the Insurance Premium (as defined herein) and
subject to the terms of this Financial Guaranty Insurance Policy (this
"Policy"), hereby unconditionally and irrevocably guarantees that an amount
equal to each Insured Payment will be received from the Insurer by JPMorgan
Chase Bank, as trustee under the Agreement (as defined herein) or any successor
thereto (the "Trustee") and for the benefit of the Class A-6 Certificateholders
(as defined herein), for distribution to each Class A-6 Certificateholder of
such Class A-6 Certificateholder's applicable share of such amount. Insured
Payments shall be made by or on behalf of the Insurer only at the times set
forth in this Policy and no accelerated Insured Payments shall be made
regardless of any acceleration of the Class A-6 Certificates as a result of a
default by or insolvency of the Depositor or Master Servicer (each as defined
herein) or any other cause, unless the Insurer shall elect, as its sole option,
to pay such principal as is due upon such acceleration together with any accrued
interest thereon and such acceleration is effected in accordance with the
Agreement.
Notwithstanding any contrary or otherwise inconsistent provision hereof,
this Policy does not cover shortfalls or other amounts, if any, attributable to
taxes required to be paid or withheld in respect of distributions on the Class
A-6 Certificates (including interest and penalties in respect thereof). This
Policy does not insure any Class of Certificates other than the Class A-6
Certificates.
Page 1 of 6
Subject to the terms of the Agreement, the Insurer shall be subrogated
to the rights of each Class A-6 Certificateholder to receive payments in respect
of the Class A-6 Certificates to the extent of any payment by the Insurer
hereunder.
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Agreement" means, collectively, the Series Supplement, dated as of
March 1, 2004 to the Standard Terms of Pooling and Servicing Agreement dated as
of February 1, 2004, each among Residential Funding Mortgage Securites I, Inc.,
as Depositor, Residential Funding Corporation, as Master Servicer, and the
Trustee, without regard to any amendment or supplement thereto, unless such
amendment or supplement has been approved in writing by the Insurer.
"Business Day" means any day other than a Saturday, a Sunday, a day on
which the Insurer is closed, or a day on which banking institutions in the State
of New York, the State of Michigan, the State of California or the State of
Illinois (and such other state or states in which the Custodial Account or the
Certificate Account are at the time located) are authorized or obligated by law
or executive order to close.
"Class A-6 Certificateholders" means each Holder of RFMSI Series 2004-S2
Trust Mortgage Pass-Through Certificates, Series 2004-S2, Class A-6, who on the
applicable Distribution Date is entitled under the terms of the Agreement to
distributions in respect of Class A-6 Certificates.
"Deficiency Amount" means, as to any Distribution Date, the sum of (1)
the excess of (a) the Accrued Certificate Interest for the Class A-6
Certificates on such Distribution Date over (b) the amount of the Available
Distribution Amount available to be distributed in respect of the Class A-6
Certificates on such Distribution Date pursuant to the Agreement, (2) any amount
allocated to the Class A-6 Certificates which reduces the Accrued Certificate
Interest distributable to the Class A-6 Certificateholders with respect to such
Distribution Date pursuant to clause (ii), clause (iii) or, other than in
respect of Relief Act shortfalls, clause (iv) of the definition of Accrued
Certificate Interest for the Class A-6 Certificates, (3) the principal portion
of any Realized Losses allocated to the Class A-6 Certificates with respect to
such Distribution Date pursuant to the Agreement, and (4) the Certificate
Principal Balance of the Class A-6 Certificates, net of any Subsequent
Recoveries added thereto pursuant to clause (ii) of the definition of
Certificate Principal Balance for the Class A-6 Certificates, to the extent
unpaid on the Scheduled Final Distribution Date after taking into account all
distributions of principal and allocations of Realized Losses to be made on such
date pursuant to the Agreement.
"Fiscal Agent" has the meaning provided in Section 4 of this Policy.
"Insured Payment" means the sum of (i) with respect to any Distribution
Date, any Deficiency Amount and (ii) any Preference Amount.
Page 2 of 6
"Preference Amount" means any amount previously distributed in respect
of the Class A-6 Certificates that is recoverable and sought to be recovered as
a voidable preference by a trustee in bankruptcy pursuant to the United States
Bankruptcy Code (11 U.S.C.), as amended from time to time, in accordance with a
final, nonappealable order of a court of competent jurisdiction.
"Receipt" and "Received" mean actual delivery to the Insurer and to the
Fiscal Agent, if any, prior to 12:00 noon, New York City time, on a Business
Day. Delivery either on a day that is not a Business Day or after 12:00 noon,
New York City time, shall be deemed to be receipt on the next succeeding
Business Day. If any notice or certificate given hereunder is not in proper form
or is not properly completed, executed or delivered, it shall be deemed not to
have been Received, and the Insurer or its Fiscal Agent shall promptly so advise
the Trustee, whereupon the Trustee may submit an amended or otherwise corrected
notice.
Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Agreement as of the Effective Date
of this Policy, without giving effect to any subsequent amendment to or
modification of the Agreement, unless such amendment or modification has been
approved in writing by the Insurer.
2. Notices and Conditions to Payment.
(a) Following Receipt by the Insurer of (i) a notice and certificate
from the Trustee in the form attached as Exhibit A to this Policy, (ii) a
certified copy of a final nonappealable order of a court of competent
jurisdiction exercising such jurisdiction in an insolvency proceeding to the
effect that a related Preference Amount is required to be returned to a trustee
in bankruptcy pursuant to the United States Bankruptcy Code (11 U.S.C.) because
it has been avoided as a preferential transfer or otherwise is being rescinded
by or is required to be restored to the related debtor in such proceeding, (iii)
an opinion of counsel satisfactory to the Insurer that such order is final and
not subject to appeal, (iv) an assignment in form and substance satisfactory to
the Insurer, irrevocably assigning to the Insurer all rights and claims of the
Class A-6 Certificateholders relating to or arising under the Class A-6
Certificates against the debtor that made such payment or otherwise with respect
to such payment, and (v) appropriate instruments to effect the appointment of
the Insurer as agent for the Class A-6 Certificateholders in any legal
proceeding related to such payment, such instruments to be in form and substance
satisfactory to the Insurer, the Insurer will pay the related Insured Payment
payable hereunder in respect of the Class A-6 Certificates, to the extent that
such Insured Payment is a Preference Amount paid during the term of this Policy,
out of the funds of the Insurer at 12:00 noon, New York City time, on the first
Business Day following such Receipt. Such Insured Payment shall be disbursed to
the receiver or trustee in bankruptcy named in the final order of the court
exercising jurisdiction on behalf of the Trustee and not to the Trustee directly
unless the Trustee or any Class A-6 Certificateholder has returned the related
Preference Amount to such receiver or trustee in bankruptcy, in which case such
Insured Payment shall be disbursed to the Trustee for the benefit of the related
Class A-6 Certificateholders upon proof reasonable satisfactory to the Insurer
that such Preference Amount has been so returned.
(b) Following Receipt by the Insurer of a notice and certificate from
the Trustee in the form attached as Exhibit A to this Policy, the Insurer will
pay the related Insured Payment payable hereunder in respect of the Class A-6
Certificates, other than any Insured Payment in respect of a
Page 3 of 6
Preference Amount, out of the funds of the Insurer on the later to occur of (a)
12:00 noon, New York City time, on the first Business Day following such Receipt
and (b) 12:00 noon, New York City time, on the Distribution Date on which such
Insured Payment is due. Such Insured Payment will be disbursed to the Trustee by
wire transfer of immediately available funds.
(c) The Insurer's obligations hereunder in respect of the Insured
Payments shall be discharged to the extent funds are disbursed by the Insurer as
provided herein whether or not such funds are properly applied by the Trustee.
3. GOVERNING LAW. THIS POLICY IS BEING ISSUED UNDER AND PURSUANT TO, AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF
(OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
4. Fiscal Agent. At any time during the term of this Policy, the Insurer
may appoint a fiscal agent (the "Fiscal Agent") for purposes of this Policy by
written notice to the Trustee at the notice address specified in Section 11.05
of the Agreement specifying the name and notice address of the Fiscal Agent.
From and after the date of receipt of such notice by the Trustee, (i) copies of
all notices and documents required to be delivered to the Insurer pursuant to
this Policy shall be delivered to the Fiscal Agent and to the Insurer and shall
not be deemed Received until Received by both, and (ii) all payments required to
be made by the Insurer under this Policy may be made directly by the Insurer or
by the Fiscal Agent on behalf of the Insurer. The Fiscal Agent is the agent of
the Insurer only and the Fiscal Agent shall in no event be liable to the Trustee
or to any Class 1-A-5 Certificateholder for any acts of the Fiscal Agent or any
failure of the Insurer to deposit, or cause to be deposited, sufficient funds to
make payments due under this Policy.
5. Notices. All notices to be given hereunder shall be in writing
(except as otherwise specifically provided herein) and shall be sent by
registered mail, e-mail or facsimile or personally delivered to the Insurer as
follows:
Radian Asset Assurance Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Risk Officer and Chief Legal Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx@xxxxxx.xxx
The Insurer may specify a different address or addresses by writing mailed or
delivered to the Trustee. Each such notice shall be effective only upon Receipt.
6. EXCLUSIONS FROM INSURANCE GUARANTY FUNDS. THIS POLICY IS NOT COVERED
BY THE PROPERTY/CASUALTY INSURANCE SECURITY FUND SPECIFIED IN ARTICLE 76 OF THE
NEW YORK INSURANCE LAW.
Page 4 of 6
7. Surrender of Policy. The Trustee shall surrender this Policy to the
Insurer for cancellation upon expiration of the term of this Policy.
8. Assignability. This Policy is neither transferable nor assignable
except, in whole but not in part, to a successor Trustee duly appointed and
qualified under the Agreement. Such transfer and assignment shall be effective
upon the receipt by the Insurer of a copy of the instrument effecting such
transfer and assignment signed by the assignor and the assignee, and a
certificate, properly completed and signed by the assignor and the assignee, in
the form of Exhibit B hereto (which shall be conclusive evidence of such
transfer and assignment) and, in such case, the assignee instead of the assignor
shall, without the necessity of further action, be entitled to all the benefits
of and rights under this Policy in the assignor's place, provided that, in such
case, the notice and certificate for payment presented hereunder shall be a
certificate of the assignee and shall be signed by a Person who states therein
that he or she is a duly authorized officer of the assignee.
9. No Other Undertakings. This Policy sets forth in full the undertaking
of the Insurer and shall not be amended or otherwise modified by any other
agreement or instrument, including any amendment or other modification to any
other agreement or instrument.
10. No Cancellation; No Refunds. This Policy is not cancelable for any
reason, and the Insurance Premiums paid in respect of this Policy are not
refundable for any reason (including payment or any provision being made for
payment of the Class A-6 Certificateholders prior to the final date for
distributions in respect of the Class A-6 Certificates under this Agreement).
Page 5 of 6
IN WITNESS WHEREOF, the Insurer has caused this Policy to be executed
and delivered as of the Effective Date.
RADIAN ASSET ASSURANCE INC.
By:
Name: Xxxx X. Xxxxxx
Title:Senior Vice President
Page 6 of 6
EXHIBIT A
NOTICE OF CLAIM AND CERTIFICATE
[Date]
RADIAN ASSET ASSURANCE INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Asset-Back Surveillance
Re: RFMSI Series 2004-S2 Trust
Mortgage Pass-Through Certificates
Series 2004-S2, Class A-6
Ladies and Gentlemen:
The undersigned, a duly authorized officer of JPMorgan Chase Bank, as trustee
(the "Trustee"), hereby certifies to Radian Asset Assurance Inc. (the
"Insurer"), with reference to Financial Guaranty Insurance Policy No.
FANI-0524-04086-NY (the "Policy") issued by the Insurer in respect of the
above-referenced certificates (the "Class A-6 Certificates"), and the payment to
occur on [Month] [Day], [Year] (the "Applicable Distribution Date"), that:
(i) the Trustee is the trustee under the Agreement, pursuant to which
the Class A-6 Certificates were issued;
(ii) the amounts due under clauses (1) and (2) of the definition of
Deficiency Amount for the Applicable Distribution Date are
$[_____] and $[_____], respectively;
(iii) the amounts due under clauses (3) and (4) of the definition of
Deficiency Amount for the Applicable Distribution Date are
$[_____] and $[_____], respectively;
(iv) the sum of the interest amounts and principal amounts specified
in clauses (ii) and (iii), respectively, above is $[_____] (the
"Deficiency Amount");
(v) the amount previously distributed in respect of the Class A-6
Certificates that is recoverable and sought to be recovered as
voidable preference by a trustee in bankruptcy pursuant to the
United States Bankruptcy Code (11 U.S.C.), as amended, in
accordance with a final, nonappealable order of a court of
competent jurisdiction is $[_____] (the "Preference Amount");
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(vi) the amount of the Insured Payment hereunder resulting from
shortfalls or other amounts attributable to taxes required to be
paid or withheld in respect of distributions on the Class A-6
Certificates (including interest and penalties in respect
thereof) is $[_____];
(vii) the total Insured Payment payable by the Insurer under Policy is
$[_____], which amount equals the sum of the Deficiency Amount
and any Preference Amount less the amount specified in clause
(vi) above;
(viii) the Trustee is making a claim under and pursuant to the terms of
the Policy for the amount set forth in clause (vii) above, to be
applied in accordance with the terms of the Agreement and directs
that payment of such amount be made to the Trustee at the
following account by wire transfer of immediately available funds
in accordance with the terms of the Policy;
[Trustee's Account Number];
(ix) the Trustee, on behalf of the Class A-6 Certificateholders,
hereby assigns to the Insurer the rights of the Class A-6
Certificateholders with respect to the Class A-6 Certificates to
the extent of any payments by the Insurer under the Policy,
including, without limitation, any amounts due to the Class A-6
Certificateholders in respect of securities law violations
arising from the offer and sale of the Class A-6 Certificates.
The foregoing assignment is in addition to, and not in limitation
of, rights of subrogation otherwise available to the Insurer in
respect of such payments. Payments to the Insurer in respect of
the foregoing assignment shall in all cases be subject to and
subordinate to the rights of the Class A-6 Certificateholders to
receive all Insured Payments payable under the Policy. The
Trustee shall take such action and deliver such instruments as
may be reasonably requested or required by the Insurer to
effectuate the purpose or provisions of this clause (ix); and
(x) the Trustee, on behalf of the Class A-6 Certificateholders,
hereby appoints the Insurer as agent and attorney-in-fact for the
Trustee and each such Class A-6 Certificateholder in any legal
proceeding with respect to the Class A-6 Certificates to the
extent of any payments by the Insurer under the Policy. The
Trustee hereby agrees that the Insurer may at any time during the
continuation of any proceeding affecting the Class A-6
Certificateholders under the United States Bankruptcy Code or any
other applicable bankruptcy, insolvency, receivership,
reorganization, rehabilitation or similar law (an "Insolvency
Proceeding") direct all matters relating to such Insolvency
Proceeding to the extent of any payments by the Insurer under the
Policy, including without limitation (A) all matters relating to
any claim in connection with an Insolvency Proceeding seeking the
avoidance as a preferential transfer of any payment made with
respect to the Class A-6 Certificates (a "Preference Claim"), (B)
the direction of any appeal of any order relating to any
Preference Claim and (C) the posting of any surety, supersedeas
or performance bond pending any such appeal. In addition, the
Trustee hereby agrees that the Insurer shall be subrogated to,
and the Trustee on its behalf and on behalf of each Class X-0
X-0
Xxxxxxxxxxxxxxxxx, hereby delegates and assigns, to the fullest
extent permitted by law, the rights of the Trustee and each Class
A-6 Certificateholder in the conduct of any Insolvency Proceeding
to the extent of any payments by the Insurer under the Policy,
including without limitation, all rights of any party to an
adversary proceeding or action with respect to any court order
issued in connection with any such Insolvency Proceeding.
ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE
COMPANY OR OTHER PERSON, FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF
CLAIM CONTAINING ANY MATERIALLY FALSE INFORMATION, OR CONCEALS, FOR THE PURPOSE
OF MISLEADING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO, COMMITS A
FRAUDULENT INSURANCE ACT, WHICH IS A CRIME, AND SHALL BE SUBJECT TO A CIVIL
PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS AND THE STATED VALUE OF THE CLAIM
FOR EACH SUCH VIOLATION.
Any capitalized term used in this notice and certificate and not
otherwise defined herein shall have the meaning assigned thereto in the Policy.
IN WITNESS WHEREOF, the Trustee has caused this notice and certificate
to be duly executed and delivered under the Policy as of the date first written
above.
JPMORGAN CHASE BANK,
as Trustee
By: _______________________
Name:
Title:
A-3
EXHIBIT B
[Date]
RADIAN ASSET ASSURANCE INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Asset-Backed Surveillance.
Re: Policy No. FANI-0524-04086-NY
Ladies and Gentlemen:
Reference is made to the above-referenced Policy dated March 26, 2004
(the "Policy"), which has been issued by Radian Asset Assurance Inc. in favor of
JPMorgan Chase Bank, as Trustee.
The undersigned, [Name of Assignor] ("Assignor"), has transferred and
assigned (and hereby confirms to you said transfer and assignment) all of its
rights in and under the Policy to [Name of Assignee] ("Assignee"), and confirms
that Assignor no longer has any rights under or interest in the Policy.
Assignor and Assignee have indicated on the face of the Policy that it
has been transferred and assigned to Assignee.
Assignee hereby certifies that it is a duly authorized Assignee under
the terms of the Policy and is accordingly entitled, upon presentation of the
document(s) called for therein, to receive payment thereunder.
[Name of Assignor]
By: __________________________________________
[Name and Title of Authorized Officer of Assignor]
[Name of Assignee]
By: __________________________________________
[Name and Title of Authorized Officer of Assignor]
[_________________]
B-1
