Ex. 10.1
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.,
Company,
RESIDENTIAL FUNDING COMPANY, LLC,
Master Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
SERIES SUPPLEMENT,
DATED AS OF AUGUST 1, 2007
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
DATED AS OF JULY 1, 2007
Mortgage Pass-Through Certificates
Series 2007-S8
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................4
Section 1.01 Definitions.......................................................................4
Section 1.02 Use of Words and Phrases.........................................................27
ARTICLE II ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES................28
Section 2.01 Conveyance of Mortgage Loans.....................................................28
Section 2.02 Acceptance by Trustee. (See Section 2.02 of the Standard Terms).................28
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the
Company..........................................................................28
Section 2.04 Representations and Warranties of Residential Funding. (See Section 2.04
of the Standard Terms)...........................................................31
Section 2.05 Execution and Authentication of Class R-I Certificates...........................31
Section 2.06 Conveyance of Uncertificated REMIC I Regular Interests; Acceptance by the
Trustee..........................................................................32
Section 2.07 Issuance of Certificates Evidencing Interest in REMIC II.........................32
Section 2.08 Purposes and Powers of the Trust. (See Section 2.08 of the Standard
Terms)...........................................................................32
Section 2.09 Agreement Regarding Ability to Disclose..........................................32
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............................................33
Section 3.01 Master Servicer to Act as Servicer. (See Section 3.01 of the Standard
Terms)...........................................................................33
Section 3.02 Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations............................33
Section 3.03 Successor Subservicers. (See Section 3.03 of the Standard Terms)................34
Section 3.04 Liability of the Master Servicer. (See Section 3.04 of the Standard
Terms)...........................................................................34
Section 3.05 No Contractual Relationship Between Subservicer and Trustee or
Certificateholders. (See Section 3.05 of the Standard Terms)....................34
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee. (See
Section 3.06 of the Standard Terms)..............................................34
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to Custodial
Account..........................................................................34
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TABLE OF CONTENTS
(continued)
PAGE
Section 3.08 Subservicing Accounts; Servicing Accounts. (See Section 3.08 of the
Standard Terms)..................................................................36
Section 3.09 Access to Certain Documentation and Information Regarding the Mortgage
Loans. (See Section 3.09 of the Standard Terms).................................36
Section 3.10 Permitted Withdrawals from the Custodial Account. (See Section 3.10 of
the Standard Terms)..............................................................36
Section 3.11 Maintenance of the Primary Insurance Policies; Collections Thereunder.
(See Section 3.11 of the Standard Terms).........................................36
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity Coverage. (See
Section 3.12 of the Standard Terms)..............................................36
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments. (See Section 3.13 of the Standard Terms).......36
Section 3.14 Realization Upon Defaulted Mortgage Loans. (See Section 3.14 of the
Standard Terms)..................................................................36
Section 3.15 Trustee to Cooperate; Release of Custodial Files. (See Section 3.15 of
the Standard Terms)..............................................................36
Section 3.16 Servicing and Other Compensation; Compensating Interest..........................36
Section 3.17 Reports to the Trustee and the Company. (See Section 3.17 of the
Standard Terms)..................................................................37
Section 3.18 Annual Statement as to Compliance. (See Section 3.18 of the Standard
Terms)...........................................................................37
Section 3.19 Annual Independent Public Accountants' Servicing Report. (See Section
3.19 of the Standard Terms)......................................................37
Section 3.20 Rights of the Company in Respect of the Master Servicer. (See Section
3.20 of the Standard Terms)......................................................37
Section 3.21 Administration of Buydown Funds. (See Section 3.21 of the Standard Terms).......37
Section 3.22 Advance Facility. (See Section 3.22 of the Standard Terms)......................37
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS............................................................38
Section 4.01 Certificate Account. (See Section 4.01 of the Standard Terms)...................38
Section 4.02 Distributions....................................................................38
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies; Exchange
Act Reporting. (See Section 4.03 of the Standard Terms) and Exhibit
Three hereto)....................................................................46
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TABLE OF CONTENTS
(continued)
PAGE
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).......................46
Section 4.05 Allocation of Realized Losses....................................................47
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property. (See
Section 4.06 of the Standard Terms)..............................................49
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See Section 4.07 of the
Standard Terms)..................................................................49
Section 4.08 Surety Bond. (See Section 4.08 of the Standard Terms)...........................49
Section 4.09 Class P Reserve Account..........................................................49
ARTICLE V 50
ARTICLE VI THE COMPANY AND THE MASTER SERVICER (SEE ARTICLE VI OF THE STANDARD TERMS)................54
ARTICLE VII DEFAULT (SEE ARTICLE VII OF THE STANDARD TERMS)...........................................55
ARTICLE VIII CONCERNING THE TRUSTEE (SEE ARTICLE VIII OF THE STANDARD TERMS)...........................56
ARTICLE IX TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
(SEE ARTICLE IX OF THE STANDARD TERMS)....................................................57
ARTICLE X REMIC PROVISIONS..........................................................................58
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard Terms).................58
Section 10.02 Master Servicer; REMIC Administrator and Trustee Indemnification. (See
Section 10.02 of the Standard Terms).............................................58
Section 10.03 Designation of REMIC(s)..........................................................58
Section 10.04 Distributions on the Uncertificated REMIC I Regular Interests,
Uncertificated REMIC II Regular Interests and Uncertificated REMIC II
Regular Interests Z..............................................................58
Section 10.05 Compliance with Withholding Requirements.........................................61
ARTICLE XI MISCELLANEOUS PROVISIONS..................................................................62
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)............................62
Section 11.02 Recordation of Agreement, Counterparts. (See Section 11.02 of the
Standard Terms)..................................................................62
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TABLE OF CONTENTS
(continued)
PAGE
Section 11.03 Limitation on Rights of Certificateholders. (See Section 11.03 of the
Standard Terms)..................................................................62
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms).......................62
Section 11.05 Notices..........................................................................62
Section 11.06 Required Notices to Rating Agency and Subservicer. (See Section 11.06 of
the Standard Terms)..............................................................63
Section 11.07 Severability of Provisions. (See Section 11.07 of the Standard Terms)...........63
Section 11.08 Supplemental Provisions for Resecuritization. (See Section 11.08 of the
Standard Terms)..................................................................63
Section 11.09 Allocation of Voting Rights......................................................63
Section 11.10 No Petition. (See Section 11.10 of the Standard Terms)..........................63
ARTICLE XII COMPLIANCE WITH REGULATION AB (SEE
ARTICLE XII OF THE STANDARD TERMS)........................................................64
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TABLE OF CONTENTS
(continued)
EXHIBITS
--------
Exhibit One-I: Mortgage Loan Schedule (Group I Loans)
Exhibit One-II: Mortgage Loan Schedule (Group II Loans)
Exhibit Two-I: Schedule of Discount Fractions for Group I Loans
Exhibit Two-II: Schedule of Discount Fractions for Group II Loans
Exhibit Three: Information to be Included in Monthly Distribution Date Statement
Exhibit Four: Standard Terms of Pooling and Servicing Agreement dated as
of July 1, 2007
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This is a Series Supplement, dated as of August 1, 2007 (the "SERIES
SUPPLEMENT"), to the Standard Terms of Pooling and Servicing Agreement, dated as
of July 1, 2007 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 COMPANY, LLC, as master servicer (together with its
permitted successors and assigns, the "MASTER SERVICER"), and U.S. BANK NATIONAL
ASSOCIATION, as Trustee (together with its permitted successors and assigns, the
"TRUSTEE").
PRELIMINARY STATEMENT
The Company intends to sell Mortgage Pass-Through Certificates
(collectively, the "CERTIFICATES"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the 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 Trust Fund, and subject to this Agreement (including the Mortgage
Loans but excluding the Initial Monthly Payment Fund and amounts, including the
prepayment charges, to which the Class P Certificates are entitled), as two real
estate mortgage investment conduits (each a "REMIC") for federal income tax
purposes.
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 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
PASS- CERTIFICATE
THROUGH PRINCIPAL MATURITY MINIMUM
DESIGNATION RATE BALANCE FEATURES(1) DATE S&P/FITCH DENOMINATIONS(2)
----------- ------- ----------- ----------- -------- --------- ----------------
Class I-A-1 6.00% $393,148,400 Super Senior/Fixed Rate September 2037 AAA/AAA $100,000.00
Class I-A-2 6.00% $15,980,600 Senior Support/Fixed Rate September 2037 AAA/AAA $100,000.00
Class II-A-1 5.50% $57,862,300 Super Senior/Fixed Rate September 2022 AAA/AAA $100,000.00
Class II-A-2 5.50% $2,349,700 Senior Support/Fixed Rate September 2022 AAA/AAA $100,000.00
Class I-A-P 0.00% $1,038,900 Senior/Principal Only September 2037 AAA/AAA $100,000.00
Variable
Class I-A-V Rate(3) Notional(4) Senior/Interest Only/Variable Rate September 2037 AAA/AAA $2,000,000.00
Class II-A-P 0.00% $95,189 Senior/Principal Only September 2022 AAA/AAA $100,000.00
Variable
Class II-A-V Rate(4) Notional(5) Senior/Interest Only/Variable Rate September 2022 AAA/AAA $2,000,000.00
Class R-I 6.00% $100 Senior/Residual/Fixed Rate September 2037 AAA/AAA (5)
Class R-II 5.50% $100 Senior/Residual/Fixed Rate September 2037 AAA/AAA (5)
Variable
Class M-1 Rate(6) $8,065,400 Mezzanine/Variable Rate September 2037 AA/AA $100,000.00
Variable
Class M-2 Rate(6) $3,421,600 Mezzanine/Variable Rate September 2037 A/A $250,000.00
Variable
Class M-3 Rate(6) $2,199,700 Mezzanine/Variable Rate September 2037 BBB/BBB $250,000.00
Class P 0.00% $100 Senior/Prepayment Charge September 2037 AAA/AAA $100.00
Variable
Class B-1 Rate(6) $1,955,200 Subordinate/Variable Rate September 2037 BB/BB $250,000.00
Variable
-------------------------------
(1) The Certificates, other than the Class B and Class R Certificates
shall be Book-Entry Certificates. The Class B Certificates and the
Class R 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 B-1,
Class B-2 and Class B-3 Certificates) in excess thereof, except that
one Certificate of any of the Class B-1, Class B-2 and Class B-3
Certificates that contain an uneven multiple of $1,000 shall be issued
in a denomination equal to the sum of the related minimum denomination
set forth above and such uneven multiple for such Class or the sum of
such denomination and an integral multiple of $1,000.
(3) The initial Pass-Through Rate on the Class I-A-V Certificates is
0.3727% and the initial Pass-Through Rate on the Class II-A-V
Certificates is 0.3080%.
(4) The Class I-A-V Certificates and Class II-A-V Certificates each do not
have a certificate principal balance. For the purpose of calculating
interest payments, interest will accrue on a notional amount equal to,
in the case of Class I-A-V Certificate, the aggregate stated principal
balance of the mortgage loans in loan group I, which is initially
equal to approximately $426,148,718, and in the case of Class II-A-V
Certificates, the aggregate stated principal balance of the mortgage
loans in loan group II, which is initially equal to approximately
$62,657,115.
(5) The Class R Certificates shall be issuable in minimum denominations of
not less than a 20% Percentage Interest; PROVIDED, HOWEVER, that one
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%.
(6) The pass-through rate on the Class M Certificates and Class B
Certificates is equal to the weighted average of 6.00% per annum and
5.50% per annum, weighted on the basis of the portion of loan group I
and loan group II, respectively, represented by the Class M
Certificates and Class B Certificates. The pass-through rate on the
Class M Certificates and Class B Certificates with respect to the
initial interest accrual period is approximately 5.93590% per annum.
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AGGREGATE
INITIAL
PASS- CERTIFICATE
THROUGH PRINCIPAL MATURITY MINIMUM
DESIGNATION RATE BALANCE FEATURES(1) DATE S&P/FITCH DENOMINATIONS(2)
----------- ------- ----------- ----------- -------- --------- ----------------
Class B-2 Rate(7) $1,710,800 Subordinate/Variable Rate September 2037 B/NA $250,000.00
Variable
Class B-3 Rate(7) $977,743 Subordinate/Variable Rate September 2037 NA/NA $250,000.00
The Group I Loans have an aggregate principal balance as of the Cut-off
Date of $426,148,718. The Group II Loans have an aggregate principal balance as
of the Cut-off Date of $62,657,115. The Mortgage Loans have an aggregate
principal balance as of the Cut-off Date of $488,805,833.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
ACCRUED CERTIFICATE INTEREST: With respect to each Distribution Date, as to
any Class 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 (to the extent not offset by the
Master Servicer with a payment of Compensating Interest as provided
in SECTION 4.01 of the Standard Terms),
(ii) the interest portions of Realized Losses, including Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses and
Extraordinary Losses, not allocated through subordination;
(iii) the interest portion of any Advances that were 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 Relief Act, all allocated as described below.
The Class I-A Percentage of these reductions with respect to the Group I Loans
will be allocated among the Holders of the Group I Senior Certificates, other
than the Class P and Class I-A-P Certificates, in proportion to the amounts of
Accrued Certificate Interest that would have been payable to those Certificates
from the Group I Loans on that Distribution Date absent such reductions. The
Class II-A Percentage of these reductions with respect to the Group II Loans
will be allocated among the Holders of the Group II Senior Certificates, other
than the Class II-A-P Certificates, in proportion to the amounts of Accrued
Certificate Interest that would have been payable to those Certificates from the
Group II Loans on that Distribution Date absent such reductions. The remainder
of these reductions will be allocated among the Holders of the Class M
Certificates and the Class B Certificates in proportion to the respective
amounts of Accrued Certificate Interest that would have been payable on that
Distribution Date absent these reductions. In the case of each Class of Class A
Certificates (other than the Principal-Only Certificates), Class M Certificates
and Class B Certificates, Accrued Certificate Interest on that Class will be
further reduced by the interest portion (adjusted to the Net Mortgage Rate) of
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Realized Losses that are allocated solely to such Class of Class A Certificates,
Class M Certificates or Class B Certificates pursuant to SECTION 4.05.
AGGREGATE AVAILABLE DISTRIBUTION AMOUNT: With respect to a Distribution
Date, the sum of the Available Distribution Amounts for both Loan Groups for
such Distribution Date.
AGGREGATE CLASS A-P PRINCIPAL DISTRIBUTION AMOUNT: With respect to a
Distribution Date, the sum of the Class A-P Principal Distribution Amounts for
both Loan Groups for such Distribution Date.
AGGREGATE SENIOR INTEREST DISTRIBUTION AMOUNT: With respect to a
Distribution Date, the sum of the Senior Interest Distribution Amounts for both
Loan Groups for such Distribution Date.
AGGREGATE SENIOR PRINCIPAL DISTRIBUTION AMOUNT: With respect to a
Distribution Date, the sum of the Senior Principal Distribution Amounts for both
Loan Groups for such Distribution Date.
BANKRUPTCY AMOUNT: As of any date of determination prior to the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (A)
$175,816, 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
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)
$175,816; 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
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divided by the total number of Outstanding Mortgage Loans in the Mortgage
Pool as of the Relevant Anniversary, and (ii) $175,816,
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 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.
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, the State of Illinois or the City of St. Xxxx,
Minnesota (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.
CERTIFICATE: Any Class A, Class M, Class B, Class P 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 "U.S. Bank National Association, as trustee, in trust for the
registered holders of Residential Funding Mortgage Securities I, Inc., Mortgage
Pass-Through Certificates, Series 2007-S8" and which must be an Eligible
Account.
CERTIFICATE GROUP: With respect to (i) Loan Group I, the Group I Senior
Certificates; and (ii) Loan Group II, the Group II Senior Certificates.
CERTIFICATE PRINCIPAL BALANCE: With respect to each Certificate (other than
any Interest Only Certificate), on any date of determination, an amount equal
to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal Balance
of such Certificate pursuant to SECTION 4.02, minus
(iii) 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;
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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.
CLASS A CERTIFICATE: Any Class I-A or Class II-A Certificate
CLASS A-P CERTIFICATES: The Class I-A-P Certificates, which relate to and
are payable from the Group I Loans, and Class II-A-P Certificates, which relate
to and are payable from the Group II Loans.
CLASS A-P COLLECTION SHORTFALL: With respect to the Cash Liquidation or REO
Disposition of a Discount Mortgage Loan, any Distribution Date and any Loan
Group, the extent to which the amount described in clause (C) of the definition
of Class A-P Principal Distribution Amount for such Loan Group is less than the
amount described in clause (C)(1) of such definition.
CLASS A-P PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date and each Loan Group, an amount equal to the aggregate of:
(A) the related Discount Fraction of the principal portion of each
Monthly Payment on each Discount Mortgage Loan in the related Loan Group
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 on the related Mortgage Loans exceeds the
Bankruptcy Amount for that Loan Group;
(B) the related Discount Fraction of the principal portion of all
unscheduled collections on each Discount Mortgage Loan in the related Loan
Group 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 in the related Loan Group 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 in the related Loan Group (or, in the case of a substitution
of a Deleted Mortgage Loan in the related Loan Group, 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 in the related Loan Group 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;
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(D) any amounts allocable to principal for the related Loan Group for
any previous Distribution Date (calculated pursuant to CLAUSES (A) through
(C) above) that remain undistributed; and
(E) the amount of the related Class A-P Collection Shortfalls for such
Distribution Date and Loan Group 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 the related Loan Group for such
Distribution Date; minus
(F) the Discount Fraction of the related Capitalization Reimbursement
Amount for the related Loan Group for such Distribution Date, if any,
related to each Discount Mortgage Loan in the related Loan Group.
CLASS A-V CERTIFICATES: The Class I-A-V Certificates, which relate to and
are payable from the Group I Loans, and Class II-A-V Certificates, which relate
to and are payable from the Group II Loans.
CLASS I-A CERTIFICATES: Any one of the Class I-A-1, Class I-A-2, Class
I-A-P or Class I-A-V Certificates, executed by the Trustee and authenticated by
the Certificate Registrar substantially in the form annexed to the Standard
Terms as Exhibit A.
CLASS I-A PERCENTAGE: With respect to any Distribution Date, the percentage
equal to the aggregate Certificate Principal Balance of the Group I Senior
Certificates, other than the Class I-A-P Certificates, immediately prior to that
Distribution Date divided by the aggregate Stated Principal Balance of all of
the Mortgage Loans (or related REO Properties) in Loan Group I, other than the
Discount Fraction of the Discount Mortgage Loans in Loan Group I, immediately
prior to that Distribution Date. The Class I-A Percentage will initially equal
approximately 96.24% and will in no event exceed 100%.
CLASS II-A CERTIFICATES: Any one of the Class II-A-1, Class II-A-2, Class
II-A-P and Class II-A-V Certificates, executed by the Trustee and authenticated
by the Certificate Registrar substantially in the form annexed to the Standard
Terms as Exhibit A.
CLASS II-A PERCENTAGE: With respect to any Distribution Date, the
percentage equal to the aggregate Certificate Principal Balance of the Group II
Senior Certificates, other than the Class II-A-P Certificates, immediately prior
to that Distribution Date divided by the aggregate Stated Principal Balance of
all of the Mortgage Loans (or related REO Properties) in Loan Group II, other
than the Discount Fraction of the Discount Mortgage Loans in Loan Group II,
immediately prior to that Distribution Date. The Class II-A Percentage will
initially equal approximately 96.24% and will in no event exceed 100%.
CLASS P CERTIFICATE: Any one of the Class P Certificates executed by the
Trustee and authenticated by the Certificate Registrar substantially in the form
annexed to the Standard Terms as Exhibit C-1 and evidencing a percentage
interest in any Prepayment Charges.
CLASS P RESERVE ACCOUNT: The account established and maintained by the
Trustee pursuant to SECTION 4.09 hereof. The Class P Reserve Account will not be
part of any REMIC hereunder.
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CLASS R CERTIFICATE: Any one of the Class R-I and Class R-II Certificates.
CLASS R-I CERTIFICATE: Any one of the Class R-I Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit D and evidencing an interest
designated as a "residual interest" in REMIC I for purposes of the REMIC
Provisions.
CLASS R-II CERTIFICATE: Any one of the Class R-II Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit D and evidencing an interest
designated as a "residual interest" in REMIC II for purposes of the REMIC
Provisions.
CLOSING DATE: August 24, 2007.
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
Agreement is located at U.S. Bank National Association, EP-MN-WS3D, 00
Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured
Finance/RFMSI 2007-S8.
CREDIT SUPPORT DEPLETION DATE: The first Distribution Date on which the
aggregate Certificate Principal Balance of the Class M Certificates and the
Class B Certificates have been reduced to zero.
CUT-OFF DATE: August 1, 2007.
DETERMINATION DATE: With respect to any Distribution Date, the second
Business Day prior to such Distribution Date.
DISCOUNT FRACTION: With respect to each Discount Mortgage Loan in Loan
Group I, a fraction expressed as a percentage, the numerator of which is 6.00%
minus the Net Mortgage Rate for such Discount Mortgage Loan and the denominator
of which is 6.00%. The Class I-A-P Certificates will be entitled to payments
based on the Discount Fraction of the Discount Mortgage Loans in Loan Group I.
With respect to each Discount Mortgage Loan in Loan Group II, a fraction
expressed as a percentage, the numerator of which is 5.50% minus the Net
Mortgage Rate for such Discount Mortgage Loan and the denominator of which is
5.50%. The Class II-A-P Certificates will be entitled to payments based on the
Discount Fraction of the Discount Mortgage Loans in Loan Group II.
DISCOUNT MORTGAGE LOAN: With respect to (i) Loan Group I, any Mortgage Loan
with a Net Mortgage Rate less that 6.00% per annum or (ii) Loan Group II, any
Mortgage Loan with a Net Mortgage Rate less than 5.50% per annum.
DISCOUNT NET MORTGAGE RATE: With respect to Loan Group I, 6.00% per annum
and, with respect to Loan Group II, 5.50% per annum.
DUE PERIOD: With respect to each Distribution Date and any Mortgage Loan,
the calendar month of such Distribution Date.
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ELIGIBLE FUNDS: With respect to any Distribution Date and Loan Group, the
portion, if any, of (a) the Available Distribution Amount for such Loan Group or
Aggregate Available Distribution Amount, as applicable, over (b) the sum of (i)
the aggregate amount of Accrued Certificate Interest on the related Senior
Certificates or Aggregate Senior Interest Distribution Amount, as applicable,
(ii) the related Senior Principal Distribution Amount or Aggregate Senior
Principal Distribution Amount, as applicable (both determined without regard to
SECTION 4.02(A)(II)(Z)(F) of this Series Supplement), (iii) the related Class
A-P Principal Distribution Amount or Aggregate Class A-P Principal Distribution
Amount, as applicable (both determined without regard to clause (E) of the
definition of Class A-P Principal Distribution Amount) and (iv) the aggregate
amount of Accrued Certificate Interest on the Class M, Class B-1 and Class B-2
Certificates, as applicable. In the event there are Class A-P Shortfalls
remaining for both Loan Groups on any Distribution Date, the Eligible Funds will
be allocated to each Loan Group, pro rata, based on the aggregate unpaid Class
A-P Shortfalls for each Loan Group.
EXCESS BANKRUPTCY LOSSES: Bankruptcy Losses in excess of the related
Bankruptcy Amount.
EXCESS FRAUD LOSSES: Fraud Losses in excess of the related Fraud Loss
Amount.
EXCESS SPECIAL HAZARD LOSSES: Special Hazard Losses in excess of the
related Special Hazard Amount.
EXCESS SUBORDINATE PRINCIPAL AMOUNT: With respect to any Distribution Date
and each Loan Group, on which the aggregate Certificate Principal Balance of the
Class of Subordinate Certificates issued in connection with the related Loan
Group, 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 clause (E) of the definition of Class A-P Principal
Distribution Amount. The Excess Subordinate Principal Amount will be allocated
among the Loan Groups, on a pro rata basis, based on the amount of Realized
Losses on the Mortgage Loans in each Loan Group allocated to the Certificates on
that Distribution Date.
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 1.00% of the aggregate outstanding principal balance of all of
the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of Certificates in
accordance with SECTION 4.05 of this Series Supplement since the Cut-off Date up
to such date of determination and (Y) from the third to the fifth anniversary of
the Cut-off Date, an amount equal to (1) the lesser of (a) the Fraud Loss Amount
as of the most recent anniversary of the Cut-off Date and (b) 0.50% of the
aggregate outstanding principal balance of all of the Mortgage Loans as of the
most recent anniversary of the Cut-off Date minus (2) the aggregate amount of
Fraud Losses allocated solely to one or more specific Classes of Certificates in
accordance with SECTION 4.05 of this Series Supplement since the most recent
anniversary of the Cut-off Date up to such date of determination. On and after
the fifth anniversary of the
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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 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 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.
GROUP I LOANS: The Mortgage Loans designated on the Mortgage Loan Schedule
as Group I Loans.
GROUP I SENIOR CERTIFICATES: The Class I-A-1, Class I-A-2, Class I-A-V,
Class I-A-P, Class P and Class R-I Certificates, which relate to and are payable
from the Group I Loans.
GROUP I SUBORDINATE COMPONENT: On any date of determination, the excess of
the aggregate Stated Principal Balance of the Group I Loans as of such date over
the aggregate Certificate Principal Balance of the Group I Senior Certificates
(other than the Interest Only Certificates) then outstanding.
GROUP II LOANS: The Mortgage Loans designated on the Mortgage Loan Schedule
as Group II Loans.
GROUP II SENIOR CERTIFICATES: The Class II-A-1, Class II-A-2, Class II-A-P,
Class II-A-V and Class R-II Certificates, which relate to and are payable from
the Group II Loans.
GROUP II SUBORDINATE COMPONENT: On any date of determination, the excess of
the aggregate Stated Principal Balance of the Group II Loans as of such date
over the aggregate Certificate Principal Balance of the Group II Senior
Certificates (other than the Interest Only Certificates) then outstanding.
INITIAL MONTHLY PAYMENT FUND: With respect to the Group I Loans,
$110,451.21 representing scheduled principal amortization and interest at the
Net Mortgage Rate during the month of August 2007, for those Group I 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 any Class I-A-V Certificates or
Subclass thereof issued pursuant to SECTION 5.01(C) of the Standard Terms, the
aggregate Cut-off Date Principal Balance of the Mortgage Loans relating to the
Uncertificated REMIC I Regular Interests Z1, and correspondingly, the
Uncertificated REMIC II Regular Interests Z1, corresponding to such Class or
Subclass on such date. With respect to any Class II-A-V Certificates or Subclass
thereof issued pursuant to SECTION 5.01(C) of the Standard Terms, the aggregate
Cut-off Date Principal Balance of the Mortgage Loans relating to the
Uncertificated REMIC I Regular Interests Z2, and correspondingly, the
Uncertificated REMIC II Regular Interests Z2, corresponding to such Class or
Subclass on such date.
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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: 1.65% Class B-1: 0.40%
Class M-2: 0.70% Class B-2: 0.35%
Class M-3: 0.45% Class B-3: 0.20%
INTEREST ACCRUAL PERIOD: With respect to any Class of Certificates and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs.
INTEREST ONLY CERTIFICATES: Any one of the Class A-V Certificates. The
Interest Only Certificates will have no Certificate Principal Balance.
LOAN GROUP: Either of Loan Group I or Loan Group II.
LOAN GROUP I: The group of Mortgage Loans comprised of the Group I Loans.
LOAN GROUP II: The group of Mortgage Loans comprised of the Group II Loans.
MATURITY DATE: With respect to Certificates in the Certificate Group
related to Loan Group I, the Distribution Date in September 2037, which is the
Distribution Date in the month immediately following the latest scheduled
maturity date of any Mortgage Loan in Loan Group I. With respect to Certificates
in the Certificate Group related to Loan Group II, the Distribution Date in
September 2022, which is the Distribution Date immediately in the month
following the latest scheduled maturity date of any Mortgage Loan in Loan Group
II.
MORTGAGE LOAN SCHEDULE: The list or lists of the Mortgage Loans attached
hereto as Exhibit One-I (with respect to Loan Group I) and Exhibit One-II (with
respect to Loan Group II) (in each case, as amended from time to time to reflect
the addition of Qualified Substitute Mortgage Loans), which list or lists shall
set forth the following information as to each Mortgage Loan in the related Loan
Group:
(a) 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");
(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;
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(l) a code "N" under the column "OCCP CODE," indicating that the Mortgage
Loan is secured by a non-owner occupied residence; and
(m) a code "Y" under the column "PREPAY PENALTY IND," indicating that the
Mortgage Loan is a Prepayment Charge Loan.
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 any Class
I-A-V Certificates, an amount equal to the aggregate Stated Principal Balance of
the Group I 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, as of any Distribution Date,
with respect to any Class I-A-V Certificates or Subclass thereof issued pursuant
to SECTION 5.01(C) of the Standard Terms, the aggregate Stated Principal Balance
of the Group I Loans corresponding to the Uncertificated REMIC I Regular
Interests Z1, and correspondingly, the Uncertificated REMIC II Regular Interests
Z1, corresponding to 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). As of any Distribution Date with
respect to any Class II-A-V Certificates, an amount equal to the aggregate
Stated Principal Balance of the Group II 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, as of any Distribution Date, with respect to any Class II-A-V
Certificates or Subclass thereof issued pursuant to SECTION 5.01(C) of the
Standard Terms, the aggregate Stated Principal Balance of the Group II Loans
corresponding to the Uncertificated REMIC I Regular Interests Z2, and
correspondingly, the Uncertificated REMIC II Regular Interests Z2, corresponding
to 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
Class A-V Certificates and the Principal Only Certificates) and Class R
Certificates and any Distribution Date, the per annum rates set forth in the
Preliminary Statement hereto. With respect to each Class of Class A-V
Certificates (other than any Subclass thereof) and any Distribution Date other
than the initial Distribution Date, a rate equal to the weighted average,
expressed as a percentage, of the Pool Strip Rates of all Mortgage Loans in the
related Loan Group as of the Due Date in the related Due Period, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans in the
related Loan Group as of the day immediately preceding such Distribution Date.
With respect to the Class I-A-V Certificates and the Class II-A-V Certificates
and the initial Distribution Date, the Pass-Through Rates are equal to 0.3727%
and 0.3080% per annum, respectively. With respect to any Subclass of Class I-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 Group I Loans
corresponding to the Uncertificated REMIC I Regular Interests Z1 corresponding
to the Uncertificated REMIC II Regular Interests Z1 represented by such Subclass
as of the Due Date in the related Due Period, weighted on the basis of the
respective
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Stated Principal Balances of such Group I Loans as of the day immediately
preceding such Distribution Date (or with respect to the initial Distribution
Date, at the close of business on the Cut-Off Date). With respect to any
Subclass of Class II-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
Group II Loans corresponding to the Uncertificated REMIC I Regular Interests Z2
corresponding to the Uncertificated REMIC II Regular Interests Z2 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 Group II Loans as of
the day immediately preceding such Distribution Date (or with respect to the
initial Distribution Date, at the close of business on the Cut-Off Date). The
Principal Only Certificates and the Class P Certificates have no Pass-Through
Rate and are not entitled to Accrued Certificate Interest. The Pass-Through Rate
on the Class M Certificates and Class B Certificates as of any date of
determination is equal to the weighted average of 6.00% per annum and 5.50% per
annum weighted on the basis of the Group I Subordinate Component and Group II
Subordinate Component, respectively, as of such date of determination. For
federal income tax purposes, however, the Pass-Through Rate on the Class M
Certificates and Class B Certificates for any Distribution Date is expressed as
a per annum rate equal to the weighted average of the Uncertificated
Pass-Through Rates applicable to Uncertificated REMIC I Regular Interest I-X and
Uncertificated REMIC I Regular Interest II-X weighted on the basis of the
Uncertificated Principal Balances of each such Uncertificated REMIC I Regular
Interest immediately preceding such Distribution Date. The Pass-Through Rate on
the Class M Certificates and Class B Certificates with respect to the initial
Interest Accrual Period is approximately 5.93590% per annum.
POOL STRIP RATE: The pool strip rate on any Group I Loan is equal to its
Net Mortgage Rate minus 6.00%, but not less than 0.00%. The pool strip rate on
any Group II loan is equal to its Net Mortgage Rate minus 5.50%, but not less
than 0.00%.
PREPAYMENT ASSUMPTION: With respect to each Loan Group, 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
related 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 the related Mortgage Loans in
the first month of the life of such 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 related
Mortgage Loans.
PREPAYMENT CHARGE LOAN: Any Mortgage Loan for which a Prepayment Charge may
be assessed and to which such Prepayment Charge the Class P Certificates are
entitled, as indicated on the Mortgage Loan Schedule.
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
September 2012 (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:
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(a) in the case of the Class of Subordinate Certificates
then outstanding with the Highest Priority and each other Class of
Subordinate Certificates for which the related Prepayment
Distribution Trigger has been satisfied, a fraction, expressed as a
percentage, the numerator of which is the Certificate Principal
Balance of such Class immediately prior to such date and the
denominator of which is the sum of the Certificate Principal
Balances immediately prior to such date of (1) the Class of
Subordinate Certificates then outstanding with the Highest Priority
and (2) all other Classes of Subordinate Certificates for which the
respective Prepayment Distribution Triggers have been satisfied; and
(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.
RECORD DATE: With respect to each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month next
preceding the month in which the related Distribution Date occurs.
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RELATED CLASSES: As to any Uncertificated REMIC II Regular Interests Z, the
Class A-V Certificates or Subclass thereof issued pursuant to SECTION 5.01(C) of
the Standard Terms representing the Uncertificated REMIC II Regular Interests Z
corresponding to such Uncertificated REMIC II Regular Interests Z.
REMIC I: The segregated pool of assets with respect to which a REMIC
election is to be made, consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral
securing such Mortgage Loans,
(ii) all payments 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, amounts in the Initial Monthly Payment Fund and
amounts, including the prepayment charges, to which the Class P
Certificates are entitled) as shall be on deposit in the Custodial
Account or in the Certificate Account and identified as belonging to
the Trust Fund,
(iii) property which secured a Mortgage Loan and which has been acquired
for the benefit of the Certificateholders by foreclosure or deed in
lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if
any, related to the Mortgage Loans, and
(v) all proceeds of clauses (i) through (iv) above.
REMIC I CERTIFICATES: The Class R-I Certificates.
REMIC I SUBORDINATE BALANCE RATIO: The ratio among the principal balances
of each of the Uncertificated REMIC I Regular Interests ending with the
designation "X," equal to the ratio among: (1) the Group I Subordinate Component
and (2) the Group II Subordinate Component.
REMIC II: The segregated pool of assets consisting of the Uncertificated
REMIC I Regular Interests, with respect to which a separate REMIC election is to
be made.
REMIC II CERTIFICATES: The Class R-II Certificates.
SENIOR ACCELERATED DISTRIBUTION PERCENTAGE: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date and any
Loan Group, 100%. With respect to any Distribution Date thereafter and such Loan
Group, 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;
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(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 related Senior Percentage
for such Distribution Date;
PROVIDED, HOWEVER,
(i) that any scheduled reduction to the Senior Accelerated Distribution
Percentage for either Loan Group described above shall not occur as
of any Distribution Date unless either:
(a)(1)(X) the outstanding principal balance of the Mortgage Loans in
both Loan Groups delinquent 60 days or more (including Mortgage Loans which
are in foreclosure, have been foreclosed or otherwise liquidated, or with
respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding Certificate Principal Balance of the Subordinate Certificates,
is less than 50% or (Y) the outstanding principal balance of Mortgage Loans
in both Loan Groups delinquent 60 days or more (including Mortgage Loans
which are in foreclosure, have been foreclosed or otherwise liquidated, or
with respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans in both Loan Groups
averaged over the last six months, does not exceed 2% and (2) Realized
Losses on the Mortgage Loans in both Loan Groups to date for such
Distribution Date if occurring during the sixth, seventh, eighth, ninth or
tenth year (or any year thereafter) after the Closing Date are less than
30%, 35%, 40%, 45% or 50%, respectively, of the sum of the Initial
Certificate Principal Balances of the Subordinate Certificates; or
(b)(1) the outstanding principal balance of the Mortgage Loans in both
Loan Groups delinquent 60 days or more (including Mortgage Loans which are
in foreclosure, have been foreclosed or otherwise liquidated, or with
respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans in both Loan Groups
averaged over the last six months, does not exceed 4% and (2) Realized
Losses on the Mortgage Loans in both Loan Groups 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 related Senior Percentage
is greater than the related Senior Percentage as of the Closing Date,
the related Senior Accelerated Distribution Percentage for such
Distribution Date shall be 100%.
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Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the Senior Certificates related to a Loan Group (other than the
related Class A-P Certificates) to zero, the related Senior Accelerated
Distribution Percentage shall thereafter be 0%.
SENIOR CERTIFICATE: Any one of the Group I Senior Certificates or Group II
Senior Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form annexed to the Standard Terms as
Exhibit A (Class A), Exhibit D (Class R) and Exhibit C-1 (Class P).
SENIOR INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution Date
and Loan Group, the amount of Accrued Certificate Interest required to be
distributed from the related Available Distribution Amount to the Holders of the
related Senior Certificates for that Distribution Date.
SENIOR PERCENTAGE: The Class I-A Percentage or Class II-A Percentage, as
applicable.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date and Loan
Group, the lesser of (a) the balance of the related Available Distribution
Amount remaining after the distribution of all amounts required to be
distributed pursuant to SECTION 4.02(a)(i) and SECTION 4.02(a)(ii)(X) (excluding
any amount distributable pursuant to clause (E) of the definition of Class A-P
Principal Distribution Amount) (or, on or after the Credit Support Depletion
Date, the amount required to be distributed to the related Class A-P
Certificateholders pursuant to SECTION 4.02(e)), in each case, for the related
Loan Group, and (b) the sum of the amounts required to be distributed to the
Senior Certificateholders of the related Certificate Group on such Distribution
Date pursuant to SECTION 4.02(a)(ii)(Z).
SPECIAL HAZARD AMOUNT: As of any Distribution Date, an amount equal to
$4,888,058 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 (B) the greatest 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 33.1% (equal to the
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percentage of Mortgage Loans initially secured by Mortgaged Properties located
in the State of California) and (ii) the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of the largest Mortgage Loan
secured by a Mortgaged Property located in the State of California.
The Special Hazard Amount may be further reduced by the Master Servicer
(including accelerating the manner in which coverage is reduced) PROVIDED that
prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date and Loan Group and each Class of Subordinate Certificates, (a) the sum of
the following: (i) such Class's pro rata share, based on the Certificate
Principal Balance of each Class of Subordinate certificates then outstanding, of
the aggregate of the amounts calculated (without giving effect to the related
Senior Percentages) for such Distribution Date for the related Loan Group under
CLAUSES (1), (2) and (3) of SECTION 4.02(a)(ii)(Z)(A) of this Series Supplement
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)(Z)(B)(b) of this Series Supplement for the related Loan Group
(without giving effect to the related Senior Accelerated Distribution
Percentages) to the extent such collections are not otherwise distributed to the
related Senior Certificates; (iii) the product of (x) the related Prepayment
Distribution Percentage and (y) the aggregate of all Principal Prepayments in
Full received in the related Prepayment Period and Curtailments received in the
preceding calendar month for the related Loan Group (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 the related
Loan Group for such Distribution Date not paid to the Senior Certificates; and
(v) any amounts described in CLAUSES (i), (ii) and (iii) as determined for any
previous Distribution Date, that remain undistributed to the extent that such
amounts are not attributable to Realized Losses which have been allocated to a
Class of Subordinate Certificates 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 Loan Group and Distribution Date,
other than the related Discount Fraction of any portion of that amount related
to each Discount Mortgage Loan in the related Loan Group, 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: The segregated pool of assets consisting of:
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(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,
(v) the Initial Monthly Payment Fund, and
(vi) all proceeds of CLAUSES (i) through (v) above.
UNCERTIFICATED ACCRUED INTEREST: With respect to each Distribution Date,
(i) as to each Uncertificated REMIC I Regular Interest other than each
Uncertificated REMIC I Regular Interest Z, an amount equal to one month's
interest at the related Uncertificated Pass-Through Rate on the Uncertificated
Principal Balance of such Uncertificated REMIC I Regular Interest and (ii) as to
the Uncertificated REMIC I Regular Interest Z and Uncertificated REMIC II
Regular Interest Z, an amount equal to one month's interest at the Pool Strip
Rate of the related Mortgage Loan on the principal balance of such Mortgage Loan
reduced by such regular interest's pro-rata share of any prepayment interest
shortfalls or other reductions of interest allocable to the related Class A-V
Certificates.
UNCERTIFICATED PASS-THROUGH RATE: With respect to each of the
Uncertificated REMIC I Regular Interests, other than the Uncertificated REMIC I
Regular Interests Z, the per annum rate specified in the definition of
Uncertificated REMIC I Regular Interests. With respect to the Uncertificated
REMIC I Regular Interest Z and Uncertificated REMIC II Regular Interest Z, the
Pool Strip Rate for the related Mortgage Loan, and with respect to each
Uncertificated REMIC II Regular Interests Z, 100% of the Uncertificated
Pass-Through Rate on the related identically numbered Uncertificated REMIC I
Regular Interests Z.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to each Uncertificated REMIC
I Regular Interest, other than the Uncertificated REMIC I Regular Interests Z,
as defined in the definition of Uncertificated REMIC I Regular Interest.
UNCERTIFICATED REMIC I REGULAR INTEREST DISTRIBUTION AMOUNTS: With respect
to each Uncertificated REMIC I Regular Interest, other than the Uncertificated
REMIC I Regular Interests Z, the amount specified as the Uncertificated REMIC I
Regular Interest Distribution Amount with respect thereto in the definition of
Uncertificated REMIC I Regular Interests. With respect to the Uncertificated
REMIC I Regular Interests Z, the Uncertificated REMIC I Regular Interests Z
Distribution Amount.
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UNCERTIFICATED REMIC I REGULAR INTERESTS: The Uncertificated REMIC I
Regular Interests Z together with the interests identified in the table below,
each representing an undivided beneficial ownership interest in REMIC I, and
having the following characteristics:
1. The principal balance from time to time of each Uncertificated REMIC I
Regular Interest identified in the table below shall be the amount
identified as the Initial Principal Balance thereof in such table,
minus the sum of (x) the aggregate of all amounts previously deemed
distributed with respect to such interest and applied to reduce the
Uncertificated Principal Balance thereof pursuant to SECTION 10.04(c)
and (y) the aggregate of all reductions in Certificate Principal
Balance deemed to have occurred in connection with Realized Losses
that were previously deemed allocated to the Uncertificated Principal
Balance of such Uncertificated REMIC I Regular Interest pursuant to
SECTION 10.04(c), which equals the aggregate principal balance of the
Classes of Certificates identified as related to such Uncertificated
REMIC I Regular Interest in such table.
2. The Uncertificated Pass-Through Rate for each Uncertificated REMIC I
Regular Interest identified in the table below shall be the per annum
rate set forth in the Pass-Through Rate column of such table.
3. The Uncertificated REMIC I Regular Interest Distribution Amount for
each Uncertificated REMIC I Regular Interest identified in the table
below shall be, for any Distribution Date, the amount deemed
distributed with respect to such Uncertificated REMIC I Regular
Interest on such Distribution Date pursuant to the provisions of
SECTION 10.04(a).
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--------------------------- ---------------------- -------------------------
Uncertificated REMIC I Pass-Through Rate Initial Principal
Regular Interests Balance
--------------------------- ---------------------- -------------------------
I-X 6.00% $1,598
--------------------------- ---------------------- -------------------------
I-Y 6.00% $42,615
--------------------------- ---------------------- -------------------------
I-ZZZ 6.00% $425,065,405
--------------------------- ---------------------- -------------------------
II-X 5.50% $235
--------------------------- ---------------------- -------------------------
II-Y 5.50% $6,265
--------------------------- ---------------------- -------------------------
II-ZZZ 5.50% $62,555,426
--------------------------- ---------------------- -------------------------
I-A-P-L 0.00% $1,038,900
--------------------------- ---------------------- -------------------------
I-A-P-L 0.00% $95,189
--------------------------- ---------------------- -------------------------
UNCERTIFICATED REMIC I REGULAR INTERESTS Z DISTRIBUTION AMOUNT: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interests Z for such
Distribution Date pursuant to SECTION 10.04(a).
UNCERTIFICATED REMIC I REGULAR INTERESTS Z: Each of the Uncertificated
REMIC I Regular Interests Z1 and Uncertificated REMIC I Regular Interests Z2.
UNCERTIFICATED REMIC I REGULAR INTERESTS Z1: Each of the 734 uncertificated
partial undivided beneficial ownership interests in REMIC I, numbered
sequentially from 1 to 734, each relating to the particular Mortgage Loan in
Loan Group I identified by such sequential number on the Mortgage Loan Schedule,
each having no principal balance, and each bearing interest at the respective
Pool Strip Rate on the Stated Principal Balance of the related Mortgage Loan.
UNCERTIFICATED REMIC I REGULAR INTERESTS Z2: Each of the 115 uncertificated
partial undivided beneficial ownership interests in REMIC I, numbered
sequentially from 1 to 115, each relating to the particular Mortgage Loan in
Loan Group II identified by such sequential number on the Mortgage Loan
Schedule, each having no principal balance, and each bearing interest at the
respective Pool Strip Rate on the Stated Principal Balance of the related
Mortgage Loan.
UNCERTIFICATED REMIC II REGULAR INTERESTS Z: Each of the Uncertificated
REMIC II Regular Interests Z1 and Uncertificated REMIC II Regular Interests Z2.
UNCERTIFICATED REMIC II REGULAR INTERESTS Z1: Each of the 734
uncertificated partial undivided beneficial ownership interests in REMIC II
numbered sequentially from 1 to 734, each relating to the identically numbered
Uncertificated REMIC I Regular Interests Z1, each having
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no principal balance, and each bearing interest at the respective Pool Strip
Rate on the Stated Principal Balance of the related Mortgage Loan.
UNCERTIFICATED REMIC II REGULAR INTERESTS Z2: Each of the 115
uncertificated partial undivided beneficial ownership interests in REMIC II
numbered sequentially from 1 to 115, each relating to the identically numbered
Uncertificated REMIC I Regular Interests Z2, each having no principal balance,
and each bearing interest at the respective Pool Strip Rate on the Stated
Principal Balance of the related Mortgage Loan.
UNCERTIFICATED REMIC II REGULAR INTERESTS Z DISTRIBUTION AMOUNT: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC II Regular Interests Z for such
Distribution Date pursuant to SECTION 10.04.
UNCERTIFICATED REMIC II REGULAR INTEREST DISTRIBUTION AMOUNTS: With respect
to the Uncertificated REMIC II Regular Interests Z, the Uncertificated REMIC II
Regular Interests Z Distribution Amount.
UNCERTIFICATED REMIC REGULAR INTEREST: Any of the Uncertificated REMIC I
Regular Interests or Uncertificated REMIC II Regular Interests Z.
UNDERWRITER: Residential Funding Securities, LLC.
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.
References in the Pooling and Servicing Agreement to "interest" on and
"principal" of the Mortgage Loans shall mean, with respect to the Sharia
Mortgage Loans, amounts in respect profit payments and acquisition payments,
respectively.
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ARTICLE II
ARTICLE II CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 CONVEYANCE OF MORTGAGE LOANS.
(a) (See Section 2.01(a) of the Standard Terms)
(b) (See Section 2.01(b) of the Standard Terms)
(c) (See Section 2.01(c) of the Standard Terms)
(d) (See Section 2.01(d) of the Standard Terms)
(e) (See Section 2.01(e) of the Standard Terms)
(f) (See Section 2.01(f) of the Standard Terms)
(g) (See Section 2.01(g) of the Standard Terms)
(h) (See Section 2.01(h) 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 Cut-off Date (or, if otherwise
specified below, as of the date so specified):
(i) No Group I Loan is 30 to 59 days Delinquent in the payment of
principal and interest as of the Cut-Off Date and no Group I Loan has been
30 or more days Delinquent in payment of principal and interest since its
origination. No Group II Loan is 30 or more days Delinquent in the payment
of principal and interest as of the Cut-off Date and no Group II Loan has
been 30 or more days Delinquent in payment of principal and interest since
its origination.
(ii) The information set forth in Exhibit One-I and Exhibit One-II
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 (subject to interest
only periods, if applicable), fixed-rate mortgage loans with level Monthly
Payments due, with respect
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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,
in the case of Group I Loans, and 15 years, in the case of Group II Loans;
(iv) Except with respect to approximately 0.2% of Group I Loans, to
the best of the Company's knowledge, with respect to all of the Group I
Loans and Group II Loans, if a Mortgage Loan is secured by a Mortgaged
Property with a Loan-to-Value Ratio at origination in excess of 80%, (i)
any such Group I 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% and (ii) any such Group II
Loan is the subject of a Primary Insurance Policy that insures that (a) at
least 25% 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 12% of such balance if the Loan-to-Value Ratio is between 90.00% and
85.01%, and (c) at least 6% 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;
(vi) No more than 0.7% of the Group I Loans by aggregate Cut-off Date
Principal Balance are secured by Mortgaged Properties located in any one
zip code area in the State of California and no more than 0.6% of the Group
I Loans by aggregate Cut-off Date Principal Balance are secured by
Mortgaged Properties located in any one zip code area outside the State of
California; no more than 2.4% of the Group II Loans by aggregate Cut-off
Date Principal Balance are secured by Mortgaged Properties located in any
one zip code area in the State of California and no more than 1.8% of the
Group II Loans by aggregate Cut-off Date Principal Balance are secured by
Mortgaged Properties located in any one zip code area outside the State of
California;
(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 therefore 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;
-25-
(ix) No more than 40.48% of the Group I Loans by aggregate Cut-off
Date Principal Balance were underwritten under a reduced loan documentation
program; no more than 33.75% of the Group II 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 are Buydown Mortgage Loans;
(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) No more than 0.2% of the Group I Loans are Cooperative Loans and
none of the Group II Loans are Cooperative Loans;
(xv) Except with respect to approximately 2.4% the Group II Loans,
none of the Mortgage Loans were 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 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 Custodial Files to
the Trustee or the Custodian.
Upon discovery by any of the Company, the Master Servicer, the Trustee, or
the 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
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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 of the Standard Terms; 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 of the
Standard Terms 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 RESIDENTIAL FUNDING. (See
Section 2.04 of the Standard Terms)
Section 2.05 EXECUTION AND AUTHENTICATION OF CLASS R-I CERTIFICATES.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery of the Custodial 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 therefore, 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 Class R-I Certificates in authorized denominations which
together with the Uncertificated REMIC I Regular Interests, evidence the
beneficial interest in REMIC I.
Section 2.06 CONVEYANCE OF UNCERTIFICATED REMIC I 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 I Regular
Interests to the Trustee for the benefit of the Holders of each Class of
Certificates (other than the Class R-I Certificates and the Class P
Certificates). The Trustee acknowledges receipt of the Uncertificated REMIC I
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
-27-
Certificates and the Class P Certificates). The rights of the Holders of each
Class of Certificates (other than the Class R-I Certificates and the Class P
Certificates) to receive distributions from the proceeds of REMIC II in respect
of such Classes, and all ownership interests of the Holders of such Classes in
such distributions shall be as set forth in this Agreement.
Section 2.07 ISSUANCE OF CERTIFICATES EVIDENCING INTEREST IN REMIC II.
The Trustee acknowledges the assignment to it of the Uncertificated REMIC I
Regular Interests and, concurrently therewith and in exchange therefore,
pursuant to the written request of the Company executed by an officer of the
Company, the Trustee has executed and caused to be authenticated and delivered
to or upon the order of the Company, all Classes of Certificates (other than the
Class R-I Certificates and the Class P Certificates) in authorized
denominations, which evidence the beneficial interest in the entire REMIC II.
Section 2.08 PURPOSES AND POWERS OF THE TRUST. (See Section 2.08 of the
Standard Terms).
Section 2.09 AGREEMENT REGARDING ABILITY TO DISCLOSE.
The Company, the Master Servicer and the Trustee hereby agree,
notwithstanding any other express or implied agreement to the contrary, that any
and all Persons, and any of their respective employees, representatives, and
other agents may disclose, immediately upon commencement of discussions, to any
and all Persons, without limitation of any kind, the tax treatment and tax
structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to any of them relating to such tax
treatment and tax structure. For purposes of this paragraph, the terms "tax
treatment" and "tax structure" are defined under Treasury Regulation ss.
1.6011-4(c).
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 MASTER SERVICER TO ACT AS SERVICER. (See Section 3.01 of the
Standard Terms)
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 shall be either (i) an institution the accounts
of which are insured by the FDIC or (ii) another entity that engages in the
business of originating or servicing mortgage loans, and in either case shall be
authorized to transact business in the state or states in which the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Subservicer to perform its obligations
hereunder and under the Subservicing Agreement, and in either case shall be a
Freddie Mac, Xxxxxx Xxx or HUD approved mortgage servicer. In addition, any
Subservicer of a Mortgage Loan insured by the FHA must be an FHA-approved
servicer, and any Subservicer of a Mortgage Loan guaranteed by the VA must be a
VA-approved servicer. Each Subservicer of a Mortgage Loan shall be entitled to
receive and retain, as provided in the related Subservicing Agreement and in
SECTION 3.07 of the Standard Terms, 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 by, permitted by or consistent
with the Program Guide and are not inconsistent with this Agreement and as the
Master Servicer and the Subservicer have agreed; PROVIDED that, the Subservicing
Agreement between the Master Servicer and Xxxxx Fargo, if any, will be upon such
terms and conditions as are consistent with this Agreement and as the Master
Servicer and the Subservicer have agreed, which may not be consistent with the
Program Guide. 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
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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) (See Section 3.02(b) of the Standard Terms)
Section 3.03 SUCCESSOR SUBSERVICERS. (See Section 3.03 of the Standard
Terms)
Section 3.04 LIABILITY OF THE MASTER SERVICER. (See Section 3.04 of the
Standard Terms)
Section 3.05 NO CONTRACTUAL RELATIONSHIP BETWEEN SUBSERVICER AND TRUSTEE
OR CERTIFICATEHOLDERS. (See Section 3.05 of the Standard
Terms)
Section 3.06 ASSUMPTION OR TERMINATION OF SUBSERVICING AGREEMENTS BY
TRUSTEE. (See Section 3.06 of the Standard Terms)
Section 3.07 COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS; DEPOSITS TO
CUSTODIAL ACCOUNT.
(a) (See Section 3.07(a) of the Standard Terms)
(b) The Master Servicer shall establish and maintain a Custodial Account in
which the Master Servicer shall deposit or cause to be deposited within two
Business Days of receipt by the Master Servicer, except as otherwise
specifically provided herein, the following payments and collections remitted by
Subservicers or received by it in respect of the Mortgage Loans subsequent to
the Cut-off Date (other than in respect of principal and interest on the
Mortgage Loans due on or before the Cut-off Date):
(i) All payments on account of principal, including Principal
Prepayments made by Mortgagors on the Mortgage Loans and the principal
component of any Subservicer Advance or of any REO Proceeds received in
connection with an REO Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage
Rate on the Mortgage Loans, including 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, 4.07 or 9.01 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), 3.08(b) or 3.21;
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(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 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. Amounts received
by the Master Servicer in connection with Prepayment Charges on the Prepayment
Charge Loans shall be remitted by the Master Servicer, upon receipt thereof, to
the Trustee and shall be deposited by the Trustee, upon the receipt thereof and
written direction with respect thereto, into the Class P Reserve Account. The
Custodial Account may contain funds that belong to one or more trust funds
created for mortgage pass-through certificates of other Series but may not
contain funds relating to the Mortgage Loans that are not included in such trust
funds. 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 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) (See Section 3.07(c) of the Standard Terms)
(d) (See Section 3.07(d) of the Standard Terms)
(e) Notwithstanding Section 3.07(a), The Master Servicer shall not waive
(or permit a Subservicer to waive) any Prepayment Charge unless: (i) the
enforceability thereof shall have been limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally, (ii) the enforcement thereof is illegal, or any local, state or
federal agency has threatened legal action if the prepayment penalty is
enforced, (iii) the collectability thereof shall have been limited due to
acceleration in connection with a foreclosure or other involuntary payment or
(iv) such waiver is standard and customary in servicing similar Mortgage Loans
and relates to a default or a reasonably foreseeable default and would, in the
reasonable
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judgment of the Master Servicer, maximize recovery of total proceeds taking into
account the value of such Prepayment Charge and the related Mortgage Loan. In no
event will the Master Servicer waive a Prepayment Charge in connection with a
refinancing of a Mortgage Loan that is not related to a default or a reasonably
foreseeable default. If a Prepayment Charge is waived, but does not meet the
standards described above, then the Master Servicer is required to deposit into
the Class P Reserve Account the amount of such waived Prepayment Charge at the
time that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Custodial Account. Notwithstanding any other provisions of
this Agreement, any payments made by the Master Servicer in respect of any
waived Prepayment Charges pursuant to this Section shall be deemed to be paid
outside of the Trust Fund and not part of any REMIC.
Section 3.08 SUBSERVICING ACCOUNTS; SERVICING ACCOUNTS. (See Section 3.08
of the Standard Terms)
Section 3.09 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE
MORTGAGE LOANS. (See Section 3.09 of the Standard Terms)
Section 3.10 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT. (See Section
3.10 of the Standard Terms)
Section 3.11 MAINTENANCE OF THE PRIMARY INSURANCE POLICIES; COLLECTIONS
THEREUNDER. (See Section 3.11 of the Standard Terms)
Section 3.12 MAINTENANCE OF FIRE INSURANCE AND OMISSIONS AND FIDELITY
COVERAGE. (See Section 3.12 of the Standard Terms)
Section 3.13 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AND
MODIFICATION AGREEMENTS; CERTAIN Assignments. (See Section
3.13 of the Standard Terms)
Section 3.14 REALIZATION UPON DEFAULTED MORTGAGE LOANS. (See Section 3.14
of the Standard Terms)
Section 3.15 TRUSTEE TO COOPERATE; RELEASE OF CUSTODIAL FILES. (See Section
3.15 of the Standard Terms)
Section 3.16 SERVICING AND OTHER COMPENSATION; COMPENSATING INTEREST.
(a) (See Section 3.16(a) of the Standard Terms)
(b) Additional servicing compensation in the form of assumption fees,
late payment charges, investment income on amounts in the Custodial Account
or the Certificate Account or otherwise (but not including Prepayment
Charges) shall be retained by the Master Servicer or the Subservicer to the
extent provided herein, subject to clause (e) below. Prepayment Charges
shall be deposited into the Class P Reserve Account and shall be paid on
each Distribution Date to the Holders of the Class P Certificates.
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(c) (See Section 3.16(c) of the Standard Terms)
(d) (See Section 3.16(d) of the Standard Terms)
(e) (See Section 3.16(e) of the Standard Terms)
Section 3.17 REPORTS TO THE TRUSTEE AND THE COMPANY. (See Section 3.17 of
the Standard Terms)
Section 3.18 ANNUAL STATEMENT AS TO COMPLIANCE. (See Section 3.18 of the
Standard Terms)
Section 3.19 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT. (See
Section 3.19 of the Standard Terms)
Section 3.20 RIGHTS OF THE COMPANY IN RESPECT OF THE MASTER SERVICER. (See
Section 3.20 of the Standard Terms)
Section 3.21 ADMINISTRATION OF BUYDOWN FUNDS. (See Section 3.21 of the
Standard Terms)
Section 3.22 ADVANCE FACILITY. (See Section 3.22 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 (I)
to the Master Servicer or a sub-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, and
(II) to each Certificateholder of record on the next preceding Record Date
(other than as provided in SECTION 9.01 of the Standard Terms 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 therefore, 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), (c), (d), (e) and (f) below), in each case to the
extent of the related Available Distribution Amount remaining, and further
subject to the provisions of SECTION 4.02(a)(ii)(Y) below with respect to
Prepayment Charges, to the extent of Prepayment Charges on deposit in the Class
P Reserve Account:
(i) (X) from the Available Distribution Amount related to the Loan
Group I, to the holders of the Group I Senior Certificates (other than the
Class I-A-P Certificates and the Class P Certificates) on a PRO RATA basis
based on the Accrued Certificate Interest payable on such Certificates with
respect to such Distribution Date, the Accrued Certificate Interest on such
Classes of Certificates (or Subclasses, if any, with respect to the Class
I-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); and
(Y) from the Available Distribution Amount related to the Loan Group
II, to the holders of the Group II Senior Certificates (other than the
Class II-A-P Certificates) on a PRO RATA basis based on the Accrued
Certificate Interest payable on such Certificates with respect to such
Distribution Date, the Accrued Certificate Interest on such Classes of
Certificates (or Subclasses, if any, with respect to the Class II-A-V
Certificates) for such Distribution Date, plus any
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Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided in the last paragraph of this SECTION
4.02(a);
(ii) (X) to the Class I-A-P Certificates from the Available
Distribution Amount from Loan Group I and to the Class II-A-P Certificates
from the Available Distribution Amount from Loan Group II, the Class A-P
Principal Distribution Amount for the related Loan Group, until the
Certificate Principal Balance of the related Class A-P Certificates has
been reduced to zero;
(Y) to the Class P Certificates, the Prepayment Charges on deposit in
the Class P Reserve Account; and
(Z) to the Senior Certificates (other than the related Class A-P
Certificates) of each Certificate Group, from the Available Distribution
Amount for the related Loan Group in the priorities and amounts set forth
in SECTIONS 4.02(b) through 4.02(f), the sum of the following (applied to
reduce the Certificate Principal Balances of such Senior Certificates, as
applicable):
(A) the related Senior Percentage for such Distribution Date and Loan
Group, as applicable, 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 in the
related Loan Group (other than the related Discount Fraction of
the principal portion of such payment with respect to a Discount
Mortgage Loan, if any, in the related Loan Group), 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,
if any) which together with other Bankruptcy Losses on the
Mortgage Loans in the related Loan Group exceeds the related
Bankruptcy Amount;
(2) the Stated Principal Balance of any Mortgage Loan in the
related Loan Group 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,
2.03, 2.04 or 4.07 and the amount of any shortfall deposited in
the Custodial Account in connection with the substitution of a
Deleted Mortgage Loan in the related Loan Group pursuant to
SECTION 2.03 or 2.04 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,
if any); and
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(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)(Z)(B) of this Series Supplement, including
without limitation Insurance Proceeds, Liquidation Proceeds and
REO Proceeds) with respect to the related Loan Group, 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, if any, in the related Loan Group);
(B) with respect to each Mortgage Loan in the related Loan
Group 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
related 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 related
Senior Accelerated Distribution Percentage for such Distribution
Date times the related unscheduled collections (including without
limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan pursuant to
SECTION 3.14 of the Standard Terms (in each case other than the
portion of such unscheduled collections, with respect to a
Discount Mortgage Loan, included in clause (C) of the definition
of Class A-P Principal Distribution Amount in this Series
Supplement);
(C) the related Senior Accelerated Distribution Percentage
for such Distribution Date times the aggregate of all Principal
Prepayments in Full with respect to the related Loan Group
received in the related Prepayment Period and Curtailments with
respect to the related Loan Group received in the preceding
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calendar month (other than the related Discount Fraction of such
Principal Prepayments in Full and Curtailments, with respect to
each Discount Mortgage Loan in the related Loan Group);
(D) any Excess Subordinate Principal Amount for such
Distribution Date with respect to such Loan Group;
(E) any amounts to be allocated to the related Loan Group
from the other Loan Group pursuant to the second paragraph of
SECTION 4.02(d) of this Series Supplement; and
(F) any amounts described in subsection (ii)(Z), CLAUSES
(a), (b), (c) and (e) 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 (f) to the extent that such amounts are not attributable
to Realized Losses which have been allocated to the Subordinate
Certificates; minus
(G) the related Capitalization Reimbursement Amount for such
Distribution Date, other than the related Discount Fraction of
any portion of that amount related to each Discount Mortgage
Loan, if any, in the related Loan Group, multiplied by a
fraction, the numerator of which is the related Senior Principal
Distribution Amount, without giving effect to this CLAUSE (g),
and the denominator of which is the sum of the principal
distribution amounts for all Classes of related Certificates
other than the related Class A-P Certificates, payable from the
Available Distribution Amount for the related Loan Group without
giving effect to any reductions for the related Capitalization
Reimbursement Amount;
(iii) if the Certificate Principal Balances of the Subordinate
Certificates have not been reduced to zero, to the Master Servicer or a
Sub-Servicer, by remitting for deposit to the Custodial Account, to the
extent of and in reimbursement for any Advances or Sub-Servicer Advances
previously made with respect to any Mortgage Loan or REO Property which
remain unreimbursed in whole or in part following the Cash Liquidation or
REO Disposition of such Mortgage Loan or REO Property, minus any such
Advances that were made with respect to delinquencies that ultimately
constituted Excess 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 each Loan Group for such Distribution Date, minus (y) the
amount of any Class A-P Collection Shortfalls for each Loan Group for such
Distribution Date or remaining unpaid for all
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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 therefore, 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 each Loan Group for such Distribution Date, minus (y) the
amount of any Class A-P Collection Shortfalls for each Loan Group 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 therefore, 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 each Loan Group for such Distribution Date minus (y) the
amount of any Class A-P Collection Shortfalls for each Loan Group 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 therefore, applied in reduction of the Certificate Principal
Balance of the Class M-3 Certificates;
(x) to the Holders of the Class B-1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(xi) to the Holders of the Class B-1 Certificates, an amount equal to
(x) the Subordinate Principal Distribution Amount for such Class of
Certificates for each Loan Group for such Distribution Date minus (y) the
amount of any Class A-P Collection Shortfalls for each Loan Group 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
therefore, 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;
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(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 each Loan Group for such Distribution Date minus (y) the
amount of any Class A-P Collection Shortfalls for each Loan Group 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 therefore,
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 each Loan Group 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 therefore;
(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 each Loan Group for such Distribution Date minus (y) the
amount of any Class A-P Collection Shortfalls for each Loan Group for such
Distribution Date or remaining unpaid for all previous Distribution Dates,
applied in reduction of the Certificate Principal Balance of the Class B-3
Certificates;
(xvi) to the Senior Certificates in a Certificate Group, in the
priority set forth in SECTION 4.02(b), (c), (d), (e) and (f) of this Series
Supplement, the portion, if any, of the Available Distribution Amounts for
the related Loan Group remaining after the foregoing distributions, applied
to reduce the Certificate Principal Balances of such Senior Certificates,
but in no event more than the aggregate of the outstanding Certificate
Principal Balances of each such Class of Senior Certificates, and
thereafter, to each Class of Subordinate Certificates then outstanding
beginning with such Class with the Highest Priority, any portion of the
related Available Distribution Amount remaining after the related Senior
Certificates have been retired, applied to reduce the Certificate Principal
Balance of each such Class of Subordinate Certificates, but in no event
more than the outstanding Certificate Principal Balance of each such Class
of Subordinate Certificates; and
(xvii) to the Class R-II Certificates, the balance, if any, of the
Available Distribution Amount for each Loan Group.
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
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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) On each Distribution Date occurring prior to the Credit Support
Depletion Date, the Senior Principal Distribution Amount for Loan Group I shall
be distributed in the following manner and priority:
(i) FIRST, to the Class R-I Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(ii) SECOND, to the Class P Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(iii) THIRD, to the Class I-A-1 and Class I-A-2 Certificates, pro
rata, in accordance with their respective Certificate Principal Balance,
until the Certificate Principal Balances thereof have been reduced to zero.
(c) On each Distribution Date occurring prior to the Credit Support
Depletion Date, the Senior Principal Distribution Amount for Loan Group II shall
be distributed in the following manner and priority:
(i) FIRST, to the Class R-II Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(ii) SECOND, to the Class II-A-1 and Class II-A-2 Certificates, pro
rata, in accordance with their respective Certificate Principal Balance,
until the Certificate Principal Balances thereof have been reduced to zero.
(d) On any Distribution Date prior to the occurrence of the Credit Support
Depletion Date that occurs after the reduction of the aggregate Certificate
Principal Balance of the Senior Certificates of any Certificate Group to zero,
the outstanding Senior Certificates of the other Certificate Group will be
entitled to receive 100% of the mortgagor prepayments on the Mortgage Loans in
the Loan Group related to Senior Certificates that have been fully paid. Such
amounts allocated to Senior Certificates shall be treated as part of the related
Available Distribution Amount and distributed as part of the related Senior
Principal Distribution Amount in accordance with the priorities set forth in
SECTION 4.02(B) and SECTION 4.02(C), as applicable, in reduction of the
Certificate Principal Balances thereof. Notwithstanding the foregoing, remaining
Senior Certificates will not be entitled to receive mortgagor prepayments on the
Mortgage Loans in a Loan Group related to Senior Certificates that have been
fully paid if the following two conditions are satisfied: (1) the weighted
average of the Subordinate Percentages for both Loan Groups for such
Distribution Date, weighted on the basis of the Stated Principal Balances of the
Mortgage Loans in the related Loan Group, is at least two times the weighted
average of the initial Subordinate Percentages for both Loan Groups, calculated
on that basis and (2) the outstanding principal balance of the Mortgage Loans in
both Loan Groups delinquent 60 days or more averaged over the last six months,
as a percentage of the aggregate outstanding
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Certificate Principal Balance of the Class M Certificates and Class B
Certificates, is less than 50%.
On any Distribution Date prior to the Credit Support Depletion Date on
which the aggregate Certificate Principal Balance of the Senior Certificates of
any Certificate Group is greater than the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group in each case after giving effect to
distributions to be made on such Distribution Date, (1) 100% of the mortgagor
prepayments allocable to the Class M Certificates and Class B Certificates on
the Mortgage Loans in the other Loan Group will be distributed to such
undercollateralized Senior Certificates in accordance with the priorities set
forth in SECTION 4.02(b) and SECTION 4.02(c), as applicable, in reduction of the
Certificate Principal Balances thereof, until the aggregate Certificate
Principal Balance of such certificates equals the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group and (2) an amount equal
to one month's interest at a rate of 6.00% per annum in the case of Loan Group I
and 5.50% per annum in the case of Loan Group II on the amount of such
difference will be distributed, pro rata, from the Available Distribution Amount
for the other Loan Group otherwise allocable to the Class M Certificates and
Class B Certificates, based on such amounts otherwise allocable to the Class M
Certificates and Class B Certificates, as follows: first to pay any unpaid
interest on such undercollateralized Senior Certificates and then to pay
principal on those certificates in accordance with the priorities set forth in
SECTION 4.02(b) and SECTION 4.02(c), as applicable.
(e) On or after the occurrence of the related Credit Support Depletion
Date, all priorities relating to distributions as described in SECTION 4.02(B)
and (C) of this Series Supplement in respect of principal among the Senior
Certificates in the related Certificate Group (other than the related Class A-P
Certificates) will be disregarded, and (i) an amount equal to the Class A-P
Principal Distribution Amount for the related Loan Group shall be distributed to
the Class A-P Certificates in that Certificate Group, and (ii) the Senior
Principal Distribution Amount for the related Loan Group will be distributed to
the remaining Senior Certificates in the related Certificate Group (other than
the related Class A-P Certificates) PRO RATA in accordance with their respective
outstanding Certificate Principal Balances.
(f) After the reduction of the Certificate Principal Balances of all
Classes of Senior Certificates of a Certificate Group (other than the related
Class A-P Certificates) to zero but prior to the related Credit Support
Depletion Date, such Senior Certificates (other than the related Class A-P
Certificates) will be entitled to no further distributions of principal thereon
and the applicable Available Distribution Amount will be distributed solely to
the holders of the related Class A-P Certificates, the related Class A-V
Certificates, and the Subordinate Certificates, in each case as described
herein.
(g) 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) of the Standard Terms. 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
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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.
(h) 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 such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Company or the Master Servicer shall have any
responsibility therefore except as otherwise provided by this Series Supplement
or applicable law.
(i) Except as otherwise provided in SECTION 9.01 of the Standard Terms, if
the Master Servicer anticipates that a final distribution with respect to any
Class of Certificates will be made on a future Distribution Date, the Master
Servicer shall, no later than 40 days prior to such final distribution, notify
the Trustee and the Trustee shall, not earlier than the 15th day and not later
than the 25th day of the month next preceding the month of such final
distribution, distribute, or cause to be distributed 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) of the Standard
Terms 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) of the
Standard Terms.
Section 4.03 STATEMENTS TO CERTIFICATEHOLDERS; STATEMENTS TO RATING
AGENCIES; EXCHANGE ACT REPORTING. (See Section 4.03 of the
Standard Terms) and Exhibit Three hereto)
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)
-42-
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 Realized Loss
is on a Discount Mortgage Loan, to the related Class A-P Certificates in an
amount equal to the related Discount Fraction of the principal portion thereof
until the Certificate Principal Balance of such Class A-P Certificates has been
reduced to zero, and the remainder of such Realized Losses on the Discount
Mortgage Loans in the related Loan Group and the entire amount of such Realized
Losses on Non-Discount Mortgage Loans in the related Loan Group will be
allocated (i) among all the Group I Senior Certificates other than the Class
I-A-P Certificates (in the case of a Realized Loss on a Group I loan) and, in
the case of the interest portion of such Realized Loss, the Class I-A-V
Certificates (in the case of a Realized Loss on a Group I Loan) on a PRO RATA
basis; provided, however, that Realized Losses otherwise allocable to the Class
I-A-1 Certificates will be allocated to the Class I-A-2 Certificates, until the
Certificate Principal Balance of the Class I-A-2 Certificates has been reduced
to zero and (ii) among all of the Group II Senior Certificates other than the
Class II-A-P Certificates (in the case of a Realized Loss on a Group II loan)
and, in the case of the interest portion of such Realized Loss, Class II-A-V
Certificates (in the case of a Realized Loss on a Group II Loan) on a PRO RATA
basis, as described below; provided, however, that Realized Losses otherwise
allocable to the Class II-A-1 Certificates will be allocated to the Class II-A-2
Certificates, until the Certificate Principal Balance of the Class II-A-2
Certificates has been reduced to zero.
The principal portion of any Excess Special Hazard Losses, Excess
Bankruptcy Losses, Excess Fraud Losses and Extraordinary Losses on Discount
Mortgage Loans will be allocated to the related Class A-P Certificates in an
amount equal to the related Discount Fraction thereof. The Class I-A Percentage
or Class II-A Percentage (as applicable) of the remainder of the principal
portion of such losses on Discount Mortgage Loans and the Class I-A Percentage
or Class II-A Percentage (as applicable) of the entire amount of the principal
portion of such losses on Non-Discount Mortgage Loans will be allocated to (i)
the Group I Senior Certificates (other than the Class I-A-P Certificates and the
Class I-A-V Certificates), on a pro rata basis (in the case of a Realized Loss
on a Group I Loan), and (ii) the Group II Senior Certificates (other than the
Class II-A-P Certificates and the Class II-A-V Certificates), on a pro rata
basis (in the case of a Realized Loss on a Group II Loan). The remainder of the
principal portion of such losses on Discount Mortgage Loans and Non-Discount
Mortgage Loans will be allocated to the Class M
-43-
Certificates and Class B Certificates on a pro rata basis. The interest portion
of such losses will be allocated to all of the Certificates in the related
Certificate Group, on a pro rata basis based on the Accrued Certificate Interest
thereon payable from the related Loan Group in respect of the related
Distribution Date.
On any Distribution Date, Realized Losses will be allocated as set forth
herein after distributions of principal on the Certificates as set forth herein.
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 from the related Loan Group in
respect of such Distribution Date (without regard to any Compensating Interest
allocated to the Available Distribution Amount of such Loan Group for such
Distribution Date) in the case of an interest portion of a Realized Loss;
PROVIDED that no such reduction shall reduce the aggregate Certificate Principal
Balance of the Certificates in the Certificate Group related to Loan Group I or
Loan Group II, as applicable, below the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group. 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) of the Standard Terms, 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.
-44-
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 CLASS P RESERVE ACCOUNT.
(a) The Trustee shall establish a Class P Reserve Account on behalf of the
Holders of the Class P Certificates. The Class P Reserve Account must be an
Eligible Account. The Class P Reserve Account shall be entitled "Class P Reserve
Account, U.S. Bank National Association, as Trustee for the benefit of Holders
of Residential Funding Mortgage Securities I, Inc., Mortgage Asset-Backed
Pass-Through Certificates, Series 2007-S8," (the "Class P Reserve Account"). All
amounts received by the Master Servicer in connection with Prepayment Charges on
the Prepayment Charge Loans shall be deposited by the Master Servicer into the
Class P Reserve Account upon receipt thereof. Funds on deposit in the Class P
Reserve Account shall be held in trust by the Trustee for the Holder of the
Class P Certificates. Amounts on deposit in the Class P Reserve Account shall be
held and remain uninvested, and the Trustee shall have no liability for interest
or other compensation therein. The Class P Reserve Account shall not be a part
of any REMIC hereunder.
(b) On each Distribution Date, the Master Servicer on behalf of the Trustee
(or the Paying Agent appointed by the Trustee) shall withdraw the amount then on
deposit in the Class P Reserve Account representing Prepayment Charges in
respect of the Prepayment Charge Loans received after the immediately preceding
Distribution Date, and distribute such amounts to the Holders of the Class P
Certificates in accordance with Section 4.02(a)(ii)(Y).
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ARTICLE V
THE CERTIFICATES
(SEE ARTICLE V OF THE STANDARD TERMS)
-46-
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
-47-
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
-48-
ARTICLE VIII
CONCERNING THE TRUSTEE
(SEE ARTICLE VIII OF THE STANDARD TERMS)
-49-
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
(SEE ARTICLE IX OF THE STANDARD TERMS)
-50-
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 an election to treat the 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
Initial Monthly Payment Fund and amounts, including the prepayment charges, to
which the Class P Certificates are entitled), as a REMIC ("REMIC I") for federal
income tax purposes. The REMIC Administrator will make an election to treat the
segregated pool of assets consisting of the Uncertificated REMIC I Regular
Interests, and subject to this Agreement, as a REMIC ("REMIC II") for federal
income tax purposes.
The Uncertificated REMIC I 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 in the
Standard Terms).
The Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2, Class I-A-V,
Class I-A-P, Class II-A-V, Class II-A-P, Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates, the Uncertificated REMIC II Regular
Interests Z1 and Uncertificated REMIC II Regular Interest Z2, the rights in and
to which will be represented by the related 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 related Class A-V Certificates pursuant
to SECTION 5.01(c) of the Standard Terms, any such Subclass will represent the
related Uncertificated REMIC II Regular Interests Z1 or Uncertificated REMIC II
Regular Interests Z2, as applicable, specified by the initial Holder of the
related Class A-V Certificates pursuant to said Section. The Class P
Certificates will not represent ownership of an interest in any REMIC.
Section 10.04 DISTRIBUTIONS ON THE UNCERTIFICATED REMIC I REGULAR
INTERESTS, UNCERTIFICATED REMIC II REGULAR INTERESTS AND
UNCERTIFICATED REMIC II REGULAR INTERESTS Z.
(a) On each Distribution Date the Trustee shall be deemed to distribute to
itself, as the holder of the Uncertificated REMIC I Regular Interests and to the
holder of the Class R-I Certificate, Uncertificated Accrued Interest on the
Uncertificated REMIC I Regular Interests and Class R-I Certificate, PRO RATA,
for such Distribution Date, plus any Uncertificated Accrued Interest thereon
remaining unpaid from any previous Distribution Date.
-51-
(b) Distributions of principal from the Group I Loans shall be deemed to be
made to the Class R-I Certificate, until the principal balance of the Class R-I
Certificate has been reduced to zero.
(c) Distributions of principal from the Loan Groups shall then be deemed to
be made to the related Uncertificated REMIC I Regular Interests first, so as to
keep the Uncertificated Principal Balance of each such related Uncertificated
REMIC I Regular Interest ending with the designation "Y" equal to 0.01% of the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group; second, so as to keep the principal balance of each such related
Uncertificated REMIC I Regular Interest ending with the designation "X" equal to
0.01% of the Group I Subordinate Component or the Group II Subordinate
Component, as the case may be (except that if on any Distribution Date the
Subordinate Component for any Loan Group is greater than the Subordinate
Component for such Loan Group on the preceding Distribution Date, the least
amount of principal shall be distributed to Uncertificated REMIC I Regular
Interests I-X and II-X such that the REMIC I Subordinate Balance Ratio is
maintained); and third, any remaining principal shall be distributed to the
related Uncertificated REMIC I Regular Interest ZZZ. Realized Losses on the
Mortgage Loans shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal Balance of
each Uncertificated REMIC I Regular Interest ending with the designation "Y"
equal to 0.01% of the aggregate Stated Principal Balance of the Mortgage Loans
in the related Loan Group; second, Realized Losses shall be applied after all
distributions have been made on each Distribution Date, so as to keep the
principal balance of each Uncertificated REMIC I Regular Interest ending with
the designation "X" equal to 0.01% of the Group I Subordinate Component or the
Group II Subordinate Component, as the case may be (except that if on any
Distribution Date the Subordinate Component for any Group of Loans is greater
than the Subordinate Component for such Group of Loans on the preceding
Distribution Date, the least amount of Realized Losses shall be applied to
Uncertificated REMIC I Regular Interests I-X and II-X such that the REMIC I
Subordinate Balance Ratio is maintained); and third, the remaining Realized
Losses shall be allocated to the related Uncertificated REMIC I Regular Interest
ZZZ.
-52-
(d) In determining from time to time the amounts distributable on the
Uncertificated REMIC I Regular Interests, Realized Losses allocated to the REMIC
II Regular Interests shall be deemed allocated to the Uncertificated REMIC I
Regular Interests corresponding to the related Loan Group in which the Realized
Loss has occurred.
(e) Notwithstanding the deemed distributions on the Uncertificated REMIC I
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 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
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 issue 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.
-53-
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
--------- -------
Company 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President
Master Servicer 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Managing Director/Master Servicing
Trustee U.S. Bank National Association
Mail Code: EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/RFMSI
2007-S8
Fitch Ratings Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's 00 Xxxxx 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.
-54-
Section 11.06 REQUIRED NOTICES TO RATING AGENCY AND SUBSERVICER. (See
Section 11.06 of the Standard Terms)
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.
97.0% of all Voting Rights shall be allocated among Holders of
Certificates, other than the Interest Only Certificates and the Class R
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 I-A-V Certificates, 1.0% of all Voting Rights
shall be allocated among the Holders of the Class II-A-V Certificates and 0.5%
and 0.5% of all Voting Rights shall be allocated among the Holders of the Class
R-I and Class R-II Certificates, respectively, in accordance with their
respective Percentage Interests.
Section 11.10 NO PETITION. (See Section 11.10 of the Standard Terms).
-55-
ARTICLE XII
COMPLIANCE WITH REGULATION AB (SEE
ARTICLE XII OF THE STANDARD TERMS)
-56-
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: Xxxxxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President Title: Vice President
[Seal] RESIDENTIAL FUNDING COMPANY, LLC
Attest: By:
------------------------------------ -----------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxxxxx Xxxxxxx
Title: Associate Title: Associate
[Seal] U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
Attest: By:
------------------------------------ -----------------------------
Name: Name:
Title: Title:
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the _____ day of August, 2007 before me, a notary public in and for said
State, personally appeared Xxxxxxx Xxxxxxxx, 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]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of August, 2007 before me, a notary public in and for said
State, personally appeared Xxxxxxxxxx Xxxxxxx, known to me to be an Associate of
Residential Funding Company, LLC, one of the limited liability companies that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said limited liability company, and acknowledged to me
that such limited liability company executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
------------------------------
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF XXXXXX )
On the ___ day of August, 2007 before me, a notary public in and for said
State, personally appeared _________________________, known to me to be an
_________________________ of U.S. Bank National Association, a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association and
acknowledged to me that such national banking association executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-----------------------------
[Notarial Seal]
EXHIBIT ONE-I
MORTGAGE LOAN SCHEDULE
GROUP I LOANS
(Available from the Company upon request)
EXHIBIT ONE-I
EXHIBIT ONE-II
MORTGAGE LOAN SCHEDULE
GROUP II LOANS
(Available from the Company upon request)
EXHIBIT ONE-II
EXHIBIT TWO-I
SCHEDULE OF DISCOUNT FRACTIONS
FOR GROUP I LOANS
(Available from the Company upon request)
EXHIBIT TWO-I
EXHIBIT TWO-II
SCHEDULE OF DISCOUNT FRACTIONS FOR
GROUP II LOANS
(Available from the Company upon request)
EXHIBIT TWO-II
EXHIBIT THREE
INFORMATION TO BE INCLUDED IN
MONTHLY DISTRIBUTION DATE STATEMENT
(i) the applicable Record Date, Determination Date and Distribution Date;
(ii) the aggregate amount of payments received with respect to the Mortgage
Loans, including prepayment amounts;
(iii) the Servicing Fee and Subservicing Fee payable to the Master Servicer
and the Subservicer;
(iv) the amount of any other fees or expenses paid and the identity of the
party receiving such fees or expenses;
(v) (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;
(vi) the amount of such distribution to Holders of such Class of
Certificates allocable to interest;
(vii) 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;
(viii) the aggregate Certificate Principal Balance of each Class of
Certificates before and 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) for each Loan Group, the weighted average remaining term to maturity
of the Mortgage Loans after giving effect to the amounts distributed on such
Distribution Date;
(x) for each Loan Group, the weighted average Mortgage Rates of the
Mortgage Loans after giving effect to the amounts distributed on such
Distribution Date;
(xi) if applicable, the Special Hazard Amount, Fraud Loss Amount and
Bankruptcy Amount as of the close of business on the applicable Distribution
Date;
(xii) for each Loan Group, the number and Stated Principal Balance of the
Mortgage Loans after giving effect to the distribution of principal on such
Distribution Date and the number of Mortgage Loans at the beginning and end of
the preceding Due Period;
(xiii) for each Loan Group, on the basis of the most recent reports
furnished to it by Sub-Servicers, the number and Stated Principal Balances of
Mortgage Loans that are Delinquent
EXHIBIT THREE-I
(A) 30-59 days, (B) 60-89 days and (C) 90 or more days and the number and Stated
Principal Balance of Mortgage Loans that are in foreclosure;
(xiv) for each Loan Group, the aggregate amount of Realized Losses for such
Distribution Date;
(xv) the amount, terms and general purpose of any Advance by the Master
Servicer pursuant to SECTION 4.04 of the Standard Terms;
(xvi) any material modifications, extensions or waivers to the terms of the
Mortgage Loans during the Due Period or that have cumulatively become material
over time;
(xvii) any material breaches of Mortgage Loan representations or warranties
or covenants in the Agreement.
(xviii) the related Subordinate Principal Distribution Amount;
(xix) in the aggregate and for each Loan Group, the number, Stated
Principal Balance and actual principal balance of REO Properties;
(xx) 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;
(xxi) the Pass-Through Rate with respect to each Class of Class A-V
Certificates;
(xxii) the Notional Amount with respect to each class of Interest Only
Certificates;
(xxiii) the occurrence of the Credit Support Depletion Date;
(xxiv) the Senior Accelerated Distribution Percentages applicable to such
distribution;
(xxv) the Senior Percentages and Subordinate Class Percentage for such
Distribution Date;
(xxvi) in the aggregate and for each Loan Group, the aggregate amount of
any recoveries on previously foreclosed loans; and
(xxvii) payment made from the Class P Reserve Account on such Distribution
Date and the balance of the Class P Reserve Account after giving effect to such
amounts.
In the case of information furnished pursuant to CLAUSES (v) and (vi) 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.xxxxxx.xxx/xxx. To receive this statement via first class mail,
telephone the Trustee at 0 (000) 000-0000.
EXHIBIT THREE-2
EXHIBIT FOUR
STANDARD TERMS OF POOLING AND SERVICING
AGREEMENT DATED AS OF JULY 1, 2007
[See Standard Terms of Pooling and Servicing Agreement at [Tab 5] of the closing
set]
EXHIBIT FOUR-I
================================================================================
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 2007
Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................1
Section 1.01 Definitions................................................1
Section 1.02 Use of Words and Phrases..................................33
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL
ISSUANCE OF CERTIFICATES........................................34
Section 2.01 Conveyance of Mortgage Loans..............................34
Section 2.02 Acceptance by Trustee.....................................41
Section 2.03 Representations, Warranties and Covenants of the
Master Servicer and the Company...........................42
Section 2.04 Representations and Warranties of Residential Funding.....44
Section 2.05 Execution and Authentication of Certificates/Issuance
of Certificates Evidencing Interests in REMIC I...........46
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II
Regular Interests; Acceptance by the Trustee..............46
Section 2.07 Issuance of Certificates Evidencing Interests in
REMIC II..................................................46
Section 2.08 Purposes and Powers of the Trust..........................46
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..................47
Section 3.01 Master Servicer to Act as Servicer........................47
Section 3.02 Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and
Sellers' Obligations......................................49
Section 3.03 Successor Subservicers....................................50
Section 3.04 Liability of the Master Servicer..........................50
Section 3.05 No Contractual Relationship Between Subservicer and
Trustee or Certificateholders.............................51
Section 3.06 Assumption or Termination of Subservicing Agreements
by Trustee................................................51
Section 3.07 Collection of Certain Mortgage Loan Payments;
Deposits to Custodial Account.............................51
Section 3.08 Subservicing Accounts; Servicing Accounts.................54
Section 3.09 Access to Certain Documentation and Information
Regarding the Mortgage Loans..............................56
Section 3.10 Permitted Withdrawals from the Custodial Account..........56
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Section 3.11 Maintenance of the Primary Insurance Policies;
Collections Thereunder....................................58
Section 3.12 Maintenance of Fire Insurance and Omissions and
Fidelity Coverage.........................................59
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments..............60
Section 3.14 Realization Upon Defaulted Mortgage Loans.................62
Section 3.15 Trustee to Cooperate; Release of Custodial Files..........66
Section 3.16 Servicing and Other Compensation; Compensating Interest...67
Section 3.17 Reports to the Trustee and the Company....................68
Section 3.18 Annual Statement as to Compliance and Servicing
Assessment................................................68
Section 3.19 Annual Independent Public Accountants' Servicing Report...69
Section 3.20 Rights of the Company in Respect of the Master Servicer...69
Section 3.21 Administration of Buydown Funds...........................70
Section 3.22 Advance Facility..........................................70
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS..................................74
Section 4.01 Certificate Account.......................................74
Section 4.02 Distributions.............................................75
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting..........................75
Section 4.04 Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer...........................77
Section 4.05 Allocation of Realized Losses.............................79
Section 4.06 Reports of Foreclosures and Abandonment of
Mortgaged Property........................................79
Section 4.07 Optional Purchase of Defaulted Mortgage Loans.............79
Section 4.08 Surety Bond...............................................80
ARTICLE V THE CERTIFICATES................................................80
Section 5.01 The Certificates..........................................80
Section 5.02 Registration of Transfer and Exchange of Certificates.....83
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.........89
Section 5.04 Persons Deemed Owners.....................................89
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Section 5.05 Appointment of Paying Agent...............................90
Section 5.06 U.S.A. Patriot Act Compliance.............................90
Section 5.07 Exchangeable Certificates.................................90
ARTICLE VI THE COMPANY AND THE MASTER SERVICER.............................90
Section 6.01 Respective Liabilities of the Company and the
Master Servicer...........................................90
Section 6.02 Merger or Consolidation of the Company or the Master
Servicer; Assignment of Rights and Delegation of
Duties by Master Servicer.................................91
Section 6.03 Limitation on Liability of the Company, the Master
Servicer and Others.......................................92
Section 6.04 Company and Master Servicer Not to Resign.................92
ARTICLE VII DEFAULT.........................................................93
Section 7.01 Events of Default.........................................93
Section 7.02 Trustee or Company to Act; Appointment of Successor.......95
Section 7.03 Notification to Certificateholders........................96
Section 7.04 Waiver of Events of Default...............................96
ARTICLE VIII CONCERNING THE TRUSTEE..........................................97
Section 8.01 Duties of Trustee.........................................97
Section 8.02 Certain Matters Affecting the Trustee.....................98
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans....100
Section 8.04 Trustee May Own Certificates.............................100
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification..........................................100
Section 8.06 Eligibility Requirements for Trustee.....................101
Section 8.07 Resignation and Removal of the Trustee...................102
Section 8.08 Successor Trustee........................................103
Section 8.09 Merger or Consolidation of Trustee.......................103
Section 8.10 Appointment of Co-Trustee or Separate Trustee............104
Section 8.11 Appointment of Custodians................................105
Section 8.12 Appointment of Office or Agency..........................105
ARTICLE IX TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES...........105
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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............105
Section 9.02 Additional Termination Requirements......................109
Section 9.03 Termination of Multiple REMICs...........................110
ARTICLE X REMIC PROVISIONS...............................................110
Section 10.01 REMIC Administration.....................................110
Section 10.02 Master Servicer, REMIC Administrator and Trustee
Indemnification..........................................114
Section 10.03 Designation of REMIC(s)..................................114
Section 10.04 Distributions on the Uncertificated REMIC I and
REMIC II Regular Interests...............................114
Section 10.05 Compliance with Withholding Requirements.................114
ARTICLE XI MISCELLANEOUS PROVISIONS.......................................115
Section 11.01 Amendment................................................115
Section 11.02 Recordation of Agreement; Counterparts...................117
Section 11.03 Limitation on Rights of Certificateholders...............118
Section 11.04 Governing Law............................................118
Section 11.05 Notices..................................................119
Section 11.06 Required Notices to Rating Agency and Subservicer........119
Section 11.07 Severability of Provisions...............................120
Section 11.08 Supplemental Provisions for Resecuritization.............120
Section 11.09 Allocation of Voting Rights..............................120
Section 11.10 No Petition..............................................120
ARTICLE XII COMPLIANCE WITH REGULATION AB..................................121
Section 12.01 Intent of Parties; Reasonableness........................121
Section 12.02 Additional Representations and Warranties of the
Trustee..................................................121
Section 12.03 Information to be Provided by the Trustee................122
Section 12.04 Report on Assessment of Compliance and Attestation.......122
Section 12.05 Indemnification; Remedies................................123
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EXHIBITS
Exhibit A: Form of Class A Certificate
Exhibit A-I: Form of Class X Certificate
Exhibit B: Form of Class M Certificate
Exhibit C: Form of Class B Certificate
Exhibit C-I: Form of Class P Certificate
Exhibit C-II: Form of Class SB 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
Exhibit R: Servicing Criteria
Exhibit S: Form of Exchange Notice
This is the Standard Terms of Pooling and Servicing Agreement, dated as of
July 1, 2007 (the "Standard Terms", and as incorporated by reference into a
Series Supplement dated as of the date specified therein, 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 COMPANY, LLC, 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 each 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 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 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, and
(iv) any other interest shortfalls not covered by the subordination
PROVIDED by the related Class M Certificates and related Class
B Certificates, including interest that is not collectible
from the Mortgagor pursuant to the Relief Act,
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 related Class M Certificates and the related
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 each Class of Class B
Certificates or each 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,
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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.
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.
ADVANCE FACILITY: As defined in Section 3.22.
ADVANCE FACILITY NOTICE: As defined in Section 3.22.
ADVANCE FACILITY TRUSTEE: As defined in Section 3.22.
ADVANCING PERSON: As defined in Section 3.22.
ADVANCE REIMBURSEMENT AMOUNTS: As defined in Section 3.22.
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.
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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,
LLC, National Financial Services Corporation and the Mortgagor or other person
pledging the related Pledged Assets; the Additional Collateral Agreement,
between GMAC Mortgage, LLC 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 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 AGREEMENT AND AMENDMENT OF SECURITY INSTRUMENT: With respect to
a Sharia Mortgage Loan, the agreement between the consumer and the co-owner
pursuant to which all of the co-owner's interest as a beneficiary under the
related Sharia Mortgage Loan Security Instrument and the co-owner's interest in
the related Mortgaged Property is conveyed to a subsequent owner, which may take
the form of an "Assignment Agreement" and an "Amendment of Security Instrument"
or an "Assignment Agreement and Amendment of Security Instrument", as
applicable.
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 and any
amounts deposited in the Custodial Account pursuant to Section 9.01,
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(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 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 , the State of Illinois or the State of Minnesota (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.
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CAPITALIZATION REIMBURSEMENT AMOUNT: As to any Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, the amount of Advances or Servicing Advances that were added to the
Stated Principal Balance of 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, 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 related 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
and, with respect to any Mortgage Pool comprised of two or more Loan Groups,
each Loan Group, the amount, if any, by which the amount of Advances or
Servicing Advances that were added to the Stated Principal Balance of 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) during the preceding
calendar month exceeds the amount of principal payments on the Mortgage Loans
included in the Available Distribution Amount (or, if the Mortgage Pool is
comprised of two or more Loan Groups, Available Distribution Amount for the
related Loan Group) for that Distribution Date.
CALL RIGHTS: As defined in Section 9.01(f).
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 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.
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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.
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, any Distribution Date and, with respect
to any Mortgage Pool comprised of two or more Loan Groups, any Loan Group, the
excess of the amount described in Section 4.02(b)(i)(C)(1) (for the related Loan
Group, if applicable) over the amount described in Section 4.02(b)(i)(C)(2).
CLASS A-P PRINCIPAL DISTRIBUTION AMOUNT: As defined in Section 4.02.
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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.
CLASS P CERTIFICATE: Any one of the Certificates designated as a Class P
Certificate.
CLASS SB CERTIFICATE: Any one of the Certificates designated as a Class SB
Certificate.
CLASS X CERTIFICATE: Any one of the Certificates designated as a Class X
Certificate.
CLOSING DATE: As defined in the Series Supplement.
CODE: The Internal Revenue Code of 1986, as amended.
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, and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, 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 Loan Group on 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 or, if the Mortgage Pool is comprised of two or more Loan
Groups, the Mortgage Loans in the related Loan Group immediately preceding such
Distribution Date and (b) the sum of the Servicing Fee and all income and gain
on amounts held in the Custodial Account and the Certificate Account and payable
to the Certificateholders with respect to the Mortgage Loans or, if the Mortgage
Pool is comprised of two or more Loan Groups, the Mortgage Loans in the related
Loan Group and 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(a) except as may be required pursuant to the last sentence of such
paragraph.
COOPERATIVE: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
COOPERATIVE APARTMENT: A dwelling unit in a multi-dwelling building owned
or leased by a Cooperative, which unit the Mortgagor has an exclusive right to
occupy pursuant to the terms of a proprietary lease or occupancy agreement.
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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, LLC, Combined
Collateral LLC and The First National Bank of Chicago (now known as JPMorgan
Chase Bank, N.A.), 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 Residential Funding Mortgage Securities I, Inc. mortgage
asset-backed pass-through certificates issued by the Company in series from time
to time, into which the amounts set forth in Section 3.07 shall be deposited.
Any such account or accounts shall be an Eligible Account.
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.
CUSTODIAL FILE: Any mortgage loan document in the Mortgage File that is
required to be delivered to the Trustee or Custodian pursuant to Section 2.01(b)
of this Agreement.
CUSTODIAN: A custodian appointed pursuant to a Custodial Agreement.
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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.
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.
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DESTROYED OBLIGATION TO PAY: An Obligation to Pay 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.
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.
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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) in the case of the
Custodial Account, a trust account or accounts maintained in the corporate trust
department of U.S. Bank National Association, or (iii) in the case of the
Certificate Account, a trust account or accounts maintained in the corporate
trust department of the Trustee, or (iv) an account or accounts of a depository
institution acceptable to each Rating Agency (as evidenced in writing by each
Rating Agency that use of any such account as the Custodial Account or the
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); provided that, if Standard & Poor's is a Rating Agency, such account
shall be rated A-2 or above by Standard & Poor's and, if such account shall have
its rating downgraded below A-2 by Standard & Poor's, such account will be
replaced.
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 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;
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(b) nuclear reaction or nuclear radiation or radioactive contamination, all
whether controlled or uncontrolled, and whether such loss be direct or indirect,
proximate or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special Hazard
Loss";
(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.
XXXXXX XXX: 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.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FINAL DISTRIBUTION DATE: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
9.01, which Final Distribution Date shall in no event be later than the end of
the 90-day liquidation period described in Section 9.02.
FITCH: Fitch Ratings or its successor in interest.
FORECLOSURE PROFITS: As to any Distribution Date or related Determination
Date and any Mortgage Loan, the excess, if any, of Liquidation Proceeds,
Insurance Proceeds and REO Proceeds (net of all amounts reimbursable therefrom
pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or REO
Property for which a Cash Liquidation or REO Disposition occurred in the related
Prepayment Period over the sum of the unpaid principal balance of such Mortgage
Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
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FORM 10-K CERTIFICATION: As defined in Section 4.03(f).
FRAUD LOSSES: Realized 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 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.
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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.
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. If the Mortgage Pool is comprised of two or
more Loan Groups, any of such Loan Groups.
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.
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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: Xxxxxxx Xxxxx Credit Corporation, or its successor in interest.
MODIFIED MORTGAGE LOAN: Any Mortgage Loan that has been the subject of a
Servicing Modification.
MODIFIED MORTGAGE RATE: As to any Mortgage Loan that is the subject of a
Servicing Modification, the Mortgage Rate minus the rate per annum by which the
Mortgage Rate on such Mortgage Loan was reduced.
MODIFIED NET MORTGAGE RATE: As to any Mortgage Loan that is the subject of
a Servicing Modification, the Net Mortgage Rate minus the rate per annum by
which the Mortgage Rate on such Mortgage Loan was reduced.
MOM LOAN: With respect to any Mortgage Loan, MERS acting as the mortgagee
of such Mortgage Loan, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns, at the origination thereof.
MONTHLY PAYMENT: With respect to any Mortgage Loan (including any REO
Property) and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment, if any, for Curtailments and for Deficient Valuations occurring
prior to such Due Date but before any adjustment to such amortization schedule
by reason of any bankruptcy, other than a Deficient Valuation, or similar
proceeding or any moratorium or similar waiver or grace period and before any
Servicing Modification that constitutes a reduction of the interest rate on such
Mortgage Loan).
MOODY'S: Xxxxx'x 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. With respect to each
Obligation to Pay related to a Sharia Mortgage Loan, the Sharia Mortgage Loan
Security Instrument.
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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, including any Sharia 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, (ii) with respect to each Sharia
Mortgage Loan, the related Obligation to Pay, Sharia Mortgage Loan Security
Instrument, Sharia Mortgage Loan Co-Ownership Agreement, Assignment Agreement
and Amendment of Security Instrument and Mortgage File and all rights
appertaining thereto and (iii) with respect to each Mortgage Loan other than a
Cooperative Loan or a Sharia Mortgage 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. With respect to each Sharia Mortgage
Loan, the related Obligation to Pay.
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. As to any Sharia Mortgage Loan, the profit factor described in the
related Obligation to Pay, 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, or with respect to a Sharia
Mortgage Loan, the consumer on an Obligation to Pay.
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.
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.
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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.
OBLIGATION TO PAY: The originally executed obligation to pay or similar
agreement evidencing the obligation of the consumer under a Sharia Mortgage
Loan, together with any modification thereto.
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.
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.
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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;
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(iv) commercial paper and demand notes (having original maturities of not
more than 365 days) of any corporation incorporated under the laws
of the United States or any state thereof which on the date of
acquisition has been rated by each Rating Agency in its highest
short-term rating available; PROVIDED that such commercial paper
shall have a remaining maturity of not more than 30 days;
(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 Xxxxx'x and either A-1 by Standard
& Poor's, P-1 by Xxxxx'x or F-1 by Fitch in the case of Fitch; provided,
however, that any Permitted Investment that is a short-term debt obligation
rated A-1 by Standard & Poor's must satisfy the following additional conditions:
(i) the total amount of debt from A-1 issuers must be limited to the investment
of monthly principal and interest payments (assuming fully amortizing
collateral); (ii) the total amount of A-1 investments must not represent more
than 20% of the aggregate outstanding Certificate Principal Balance of the
Certificates and each investment must not mature beyond 30 days; (iii)
investments in A-1 rated securities are not eligible for the Reserve Fund; (iv)
the terms of the debt must have a predetermined fixed dollar amount of principal
due at maturity that cannot vary; and (v) if the investments may be liquidated
prior to their maturity or are being relied on to meet a certain yield, interest
must be tied to a single interest rate index plus a single fixed spread (if any)
and must move proportionately with that index. Any Permitted Investment may be
held by or through the Trustee or its Affiliates.
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.
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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.
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.
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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 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 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);
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(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
(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
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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 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.
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REGULATION AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
REIMBURSEMENT AMOUNTS: As defined in Section 3.22.
RELIEF ACT: The Servicemembers Civil Relief Act or similar legislation or
regulations as in effect from time to time.
RELIEF ACT SHORTFALLS: Shortfalls in interest payable by a Mortgagor that
are not collectible from the Mortgagor pursuant to the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC ADMINISTRATOR: Residential Funding Company, LLC. If Residential
Funding Company, LLC 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, 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.
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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.
RESIDENTIAL FUNDING: Residential Funding Company, LLC, a Delaware limited
liability company, in its capacity as seller of the Mortgage Loans to the
Company and not in its capacity as Master Servicer, 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, 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, in each case with direct responsibility for the
administration of the Agreements.
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.
SECURITIZATION TRANSACTION: Any transaction involving a sale or other
transfer of mortgage loans directly or indirectly to an issuing entity in
connection with an issuance of publicly offered or privately placed, rated or
unrated mortgage-backed securities.
SECURITY AGREEMENT: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
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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;
(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 (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with respect
to which the Mortgagor is in bankruptcy and any REO Property) averaged
over the last six months, as a percentage of the aggregate outstanding
Certificate Principal Balance of the Subordinate Certificates, is less
than 50% or (Y) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with respect
to which the Mortgagor is in bankruptcy and any REO Property) averaged
over the last six months, as a percentage of the aggregate outstanding
principal balance of all Mortgage Loans averaged over the last six months,
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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 (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with respect
to which the Mortgagor is in bankruptcy and any REO Property) averaged
over the last six months, as a percentage of the aggregate outstanding
principal balance of all Mortgage Loans averaged over the last six months,
does not exceed 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 Senior 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.
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.
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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 ADVANCE REIMBURSEMENT AMOUNTS: As defined in Section 3.22.
SERVICING CRITERIA: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
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.
SHARIA MORTGAGE LOAN: A declining balance co-ownership transaction,
structured so as to comply with Islamic religious law.
SHARIA MORTGAGE LOAN CO-OWNERSHIP AGREEMENT: The agreement that defines the
relationship between the consumer and co-owner and the parties' respective
rights under a Sharia Mortgage Loan, including their respective rights with
respect to the indicia of ownership of the related Mortgaged Property.
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SHARIA MORTGAGE LOAN SECURITY INSTRUMENT: The mortgage, security instrument
or other comparable instrument creating a first lien on an estate in fee simple
or leasehold interest in real property securing an Obligation to Pay.
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 XxXxxx-Xxxx
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.
SUCCESSOR MASTER SERVICER: As defined in Section 3.22.
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.
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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 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, LLC, the Addendum and Assignment Agreement, dated as of
November 24, 1998, between the Master Servicer and GMAC Mortgage, LLC, 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.
SUCCESSOR MASTER SERVICER: As defined in Section 3.22.
SURETY: Ambac, or its successors in interest, or such other surety as may
be identified in the Series Supplement.
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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 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.
TRANSACTION PARTY: As defined in Section 12.02(a).
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,
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(v) the Initial Monthly Payment Fund, and
(vi) all proceeds of clauses (i) through (v) above.
TRUSTEE INFORMATION: As specified in Section 12.05(a)(i)(A).
UNDERWRITER: As defined in the Series Supplement.
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.
U.S.A. PATRIOT ACT: Uniting and Strengthening America by Providing
Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001, as amended.
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 definitions set forth herein include both the singular and the
plural.
References in the Pooling and Servicing Agreement to "interest" on and
"principal" of the Mortgage Loans shall mean, with respect to the Sharia
Mortgage Loans, amounts in respect profit payments and acquisition payments,
respectively.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee for the benefit of the Certificateholders without
recourse all the right, title and interest of the Company in and to the Mortgage
Loans, including all interest and principal received on or with respect to the
Mortgage Loans after the Cut-off Date (other than payments of principal and
interest due on the Mortgage Loans 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, for the benefit of the Holders of such insured Certificates. 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 (i) a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Act effective November 27, 2003, (ii) a
"High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a "High Cost Home Mortgage Loan" as defined in
the Massachusetts Predatory Home Practices Act effective November 7, 2004 or
(iv) a "High-Cost Home Loan" as defined in the Indiana House Enrolled Act No.
1229, effective as of January 1, 2005.
(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:
(I) with respect to each Mortgage Loan so assigned (other than a
Cooperative Loan or a Sharia Mortgage Loan) (1) in the case of all such
Mortgage Loans, deliver to and deposit with the Master Servicer (or an
Affiliate of the Master Servicer) each of the documents or instruments
described in clause (ii) below (and the Master Servicer shall hold (or
cause such Affiliate to hold) such documents or instruments in trust for
the use and benefit of all present and future Certificateholders), (2) with
respect to each MOM Loan, deliver to, and deposit with, the Trustee, or to
and with one or more Custodians on behalf of the Trustee, as the duly
appointed agent or agents of the Trustee for such purpose, the documents or
instruments described in clauses (i) and (v) below, (3) with respect to
each Mortgage Loan that is not a MOM Loan but is registered on the MERS(R)
System, deliver to, and deposit with, the Trustee, or to and with one or
more Custodian on behalf of the Trustees, as the duly appointed agent or
agents of the Trustee for such purpose, the documents or instruments
described in clauses (i), (iv) and (v) below, (4) with respect to each
Mortgage Loan that is not a MOM Loan and is not registered on the MERS(R)
System, deliver to, and deposit with, the Trustee, or to and with one or
more Custodians on behalf of the Trustee, as the duly appointed agent or
agents of the Trustee for such purpose, the documents or instruments
described in clauses (i), (iii), (iv) and (v) below, and (5) with respect
to each Cooperative Loan and Sharia Mortgage Loan, deliver to and deposit
with the Trustee, or to the Custodian on behalf of the Trustee, the
documents and instruments described in clause (II) and clause (III) below:
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(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) The 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.
(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.
(II) with respect to each Cooperative Loan so assigned:
(vi) 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.
(vii) 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 or a copy of such Cooperative Lease and
Assignment of Proprietary Lease and copies of such intervening assignments.
(viii) 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 or copies thereof.
(ix) The original recognition agreement by the Cooperative of the
interests of the mortgagee with respect to the related Cooperative Loan or
a copy thereof.
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(x) The Security Agreement or a copy thereof.
(xi) 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.
(xii) 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.
(xiii) 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 or a copy thereof.
(xiv) The original of each modification, assumption agreement or
preferred loan agreement, if any, relating to such Cooperative Loan or a
copy of each modification, assumption agreement or preferred loan
agreement.
(xv) 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 or
a copy thereof.
and (III) with respect to each Sharia Mortgage Loan so assigned:
(xvi) The original Obligation to Pay, endorsed without recourse in
blank or 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 Obligation to Pay, an original
affidavit from the related Seller or Residential Funding stating that the
original Obligation to Pay was lost, misplaced or destroyed, together with
a copy of the related Obligation to Pay.
(xvii) The original Sharia Mortgage Loan Security Instrument, with
evidence of recording indicated thereon or a copy of the Sharia Mortgage
Loan Security Instrument with evidence of recording indicated thereon.
(xviii) An original Assignment and Amendment of Security Instrument,
assigned to the Trustee with evidence of recording indicated thereon or a
copy of such Assignment and Amendment of Security Instrument with evidence
of recording indicated thereon.
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(xix) The original recorded assignment or assignments of the Sharia
Mortgage Loan Security Instrument showing an unbroken chain of title from
the originator thereof to the Person assigning it to the Trustee with
evidence of recordation noted thereon or attached thereto, or a copy of
such assignment or assignments of the Sharia Mortgage Loan Security
Instrument with evidence of recording indicated thereon.
(xx) The original Sharia Mortgage Loan Co-Ownership Agreement with
respect to the related Sharia Mortgage Loan or a copy of such Sharia
Mortgage Loan Co-Ownership Agreement.
(xxi) The original of each modification or assumption agreement, if
any, relating to such Sharia Mortgage Loan or a copy of each modification
or assumption agreement.
(c) The Company may, in lieu of delivering the original of the documents
set forth in Sections 2.01(b)(I) (iii), (iv) and (v), Sections (b)(II)(ii),
(iv), (vii), (ix) and (x) and Sections 2.01(b)(III)(ii), (iii), (iv), (v) and
(vi) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or the
Custodian or Custodians on behalf of the Trustee, 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 Sections 2.01(b)(I)(iii), (iv) and (v), Sections
(b)(II)(ii), (iv), (vii), (ix) and (x) and Sections 2.01(b)(III)(ii), (iii),
(iv), (v) and (vi) (or copies thereof) for any Mortgage Loan and (ii) a written
request by the Trustee to deliver those documents with respect to any or all of
the Mortgage Loans then being held by the Master Servicer, the Master Servicer
shall deliver a complete set of such documents to the Trustee or the Custodian
or Custodians that are the duly appointed agent or agents of the Trustee.
(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 on behalf of the Trustee a copy of such Mortgage, assignment,
modification, assumption agreement or preferred loan agreement.
The Company (i) 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 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, (ii) shall
promptly cause to be filed the Form UCC-3 assignment and
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UCC-1 financing statement referred to in clauses (II)(vii) and (x),
respectively, of Section 2.01(b) and (iii) shall promptly cause to be recorded
in the appropriate public recording office for real property records the
Assignment Agreement and Amendment of Security Instrument referred to in clause
(III)(iii) of Section 2.01(b). If any Assignment, Assignment Agreement and
Amendment of Security Instrument, 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, Assignment Agreement and
Amendment of Security Instrument, Form UCC-3 or Form UCC-1, as applicable, or
cure such defect, as the case may be, and cause such Assignment or Assignment
Agreement and Amendment of Security Instrument to be recorded in accordance with
this paragraph. The Company shall promptly deliver or cause to be delivered to
the applicable Person described in Section 2.01(b) such Assignment or substitute
Assignment or Assignment Agreement and Amendment of Security Instrument or Form
UCC-3 or Form UCC-1, as applicable, (or copy thereof) recorded in connection
with this paragraph, 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 on behalf of the
Trustee any Mortgage Note, Obligation to Pay, Assignment Agreement and Amendment
of Security Instrument or Assignment of Mortgage in blank, the Company shall, or
shall cause the Custodian to, complete the endorsement of the Mortgage Note,
Obligation to Pay, Assignment Agreement and Amendment of Security Instrument 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)(II)(vi) and (vii) and
Sections 2.01(b)(III)(ii), (iii), and (iv) 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 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 Xxxxxxxx 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.
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(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 Sharia Mortgage Loan, the related Sharia
Mortgage Loan Security Instrument, Sharia Mortgage Loan Co-Ownership Agreement,
Obligation to Pay and Assignment Agreement and Amendment of Security Instrument,
(iii) with respect to each Mortgage Loan other than a Cooperative Loan or a
Sharia Mortgage Loan, the related Mortgage Note and Mortgage, and (iv) 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 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 on behalf
of the Trustee or any other agent of the Trustee of Mortgage
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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 the related
Initial Monthly Payment Fund in the Available Distribution Amount for the
Mortgage Loans or, with respect to any Mortgage Pool comprised of two or more
Loan Groups, the Mortgage Loans in each Loan Group, 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 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.
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(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
Custodial 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 a Custodial
Agreement) agrees, for the benefit of Certificateholders, to review each
Custodial File delivered to it pursuant to
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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 Custodial 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 Custodial 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 Custodial 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 Residential Funding of such omission or defect
and request that Residential Funding 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 Residential Funding does not correct or cure such omission or
defect within such period, the Master Servicer shall require Residential Funding
to purchase such Mortgage Loan from the Trust Fund at its Purchase Price 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 shall 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 Master Servicer,
the Trustee or any Custodian, as the case may be, shall release the contents of
any related Mortgage File in its possession to the owner of such Mortgage Loan
(or such owner's designee) 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 Residential Funding or
its designee any Mortgage Loan released pursuant hereto and thereafter such
Mortgage Loan shall not be part of the Trust Fund. It is understood and agreed
that the obligation of Residential Funding to so cure or purchase any Mortgage
Loan as to which a material and adverse defect in or omission of a constituent
document exists shall constitute the sole remedy respecting such defect or
omission available to Certificateholders or the Trustee on behalf of 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:
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(i) The Master Servicer is a limited liability company 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 Formation
or limited liability company agreement 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;
(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
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(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
Custodial 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 Residential Funding.
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 (to
the extent assigned to the Company pursuant to the Assignment Agreement)
applicable to a Mortgage Loan. Insofar as the Assignment Agreement relates 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 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 Residential Funding of such breach and
request that Residential Funding 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
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Section 2.02; provided that 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 (xii) or (xxxviii) 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 or the Custodian 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, Residential
Funding shall be deemed to have made the representations and warranties with
respect to the Qualified Substitute Mortgage Loan contained in the related
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.
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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 Residential Funding to
cure such breach or purchase or 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 (xii) or (xxxviii) 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 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.
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;
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(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 ,
following such procedures as it would employ in its good faith business judgment
and which are normal and usual in its general mortgage servicing activities, and
in the case of the Mortgage Loans being subserviced by Xxxxx Fargo, if any, such
procedures that comply with applicable federal, state and local law and that are
in accordance with accepted mortgage servicing practices of prudent mortgage
lending institutions which service loans of the same type as the Mortgage Loans
in the jurisdiction in which the related Mortgaged Property is located, and
shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do any and all things which it may deem necessary
or desirable in connection with such servicing and administration. Without
limiting the generality of the foregoing, the Master Servicer in its own name or
in the name of a Subservicer is hereby authorized and empowered by the Trustee
when the Master Servicer or the Subservicer, as the case may be, believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
consent to assumption or modification in connection with a proposed conveyance,
or of assignment of any Mortgage and Mortgage Note in connection with the
repurchase of a Mortgage Loan and all other comparable instruments, or with
respect to the modification or re-recording of a Mortgage for the purpose of
correcting the Mortgage, the subordination of the lien of the Mortgage in favor
of a public utility company or government agency or unit with powers of eminent
domain, the taking of a deed in lieu of foreclosure, the 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
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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).
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(c) The Master Servicer may enter into one or more agreements in connection
with the offering of pass-through certificates evidencing interests in one or
more of the Certificates providing for the payment by the Master Servicer of
amounts received by the Master Servicer as servicing compensation hereunder and
required to cover certain Prepayment Interest Shortfalls on the Mortgage Loans,
which payment obligation will thereafter be an obligation of the Master Servicer
hereunder.
Section 3.02 Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' 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
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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 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.
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Section 3.05 No Contractual Relationship Between Subservicer and Trustee
or Certificateholders
Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Master Servicer alone and the Trustee and 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
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related Mortgage Loan during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such arrangements unless otherwise agreed to by the Holders of the
Classes of Certificates affected thereby; PROVIDED, HOWEVER, that no such
extension shall be made if any such advance would be a Nonrecoverable Advance.
Consistent with the terms of this Agreement, the 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 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, and (2) the final maturity date for any Mortgage Loan shall not be
extended beyond the Maturity Date. 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 within two
Business Days of receipt by the Master Servicer, 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):
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(i) All payments on account of principal, including Principal
Prepayments made by Mortgagors on the Mortgage Loans and the principal
component of any Subservicer Advance or of any REO Proceeds received in
connection with an REO Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate
on the Mortgage Loans, including 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, 4.07 or 9.01 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),
3.08(b) 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 but may not
contain funds relating to mortgage loans that are not included in such trust
funds. 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.
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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 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 , or with respect to the Mortgage Loans,
subserviced by Xxxxx Fargo, if any, within two (2) Business Days of receipt, 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
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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.
(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.
(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.
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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, 4.07 or 9.01) 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;
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(iv) to pay to itself as additional servicing compensation any
interest or investment income earned on funds and other property deposited
in or credited to the Custodial Account that it is entitled to withdraw
pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any
Foreclosure Profits and any amounts 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; and
(xi) to reimburse or pay any Subservicer any such amounts as are due
thereto under the applicable Subservicing Agreement and have not been
retained by or paid to the Subservicer, to the extent provided in the
related Subservicing Agreement.
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(b) Since, in connection with withdrawals pursuant to clauses (ii), (iii),
(v) and (vi), the Master Servicer's entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, the Master
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such clauses.
(c) The Master Servicer shall be entitled to reimburse itself or the
related Subservicer for any advance made in respect of a Mortgage Loan that the
Master Servicer determines to be a Nonrecoverable Advance by withdrawal from the
Custodial Account of amounts on deposit therein attributable to the Mortgage
Loans on any Certificate Account Deposit Date succeeding the date of such
determination. Such right of reimbursement in respect of a Nonrecoverable
Advance relating to an Advance pursuant to Section 4.04 on any such Certificate
Account Deposit Date shall be limited to an amount not exceeding the portion of
such advance previously paid to Certificateholders (and not theretofore
reimbursed to the Master Servicer or the related Subservicer).
Section 3.11 Maintenance of 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.
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(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 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).
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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 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.
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
Freddie Mac, whichever is greater, with respect to the Master Servicer if the
Master Servicer were servicing and administering the Mortgage Loans for Xxxxxx
Xxx or Freddie 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
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(ii) if the Master Servicer determines that it is reasonably likely
that any Mortgagor will bring, or if any Mortgagor does bring, legal action
to declare invalid or otherwise avoid enforcement of a due-on-sale clause
contained in any Mortgage Note or Mortgage, the Master Servicer shall not
be required to enforce the due-on-sale clause or to contest such action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a Mortgaged
Property is to be conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption or modification agreement or supplement to the Mortgage
Note or Mortgage which requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the Mortgagor
from liability on the Mortgage Loan, the Master Servicer is authorized, subject
to the requirements of the sentence next following, to execute and deliver, on
behalf of the Trustee, the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person; PROVIDED, HOWEVER, none of
such terms and requirements shall 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.
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(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 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
(a) The Master Servicer shall foreclose upon or otherwise comparably
convert (which may include an REO Acquisition) the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. Alternatively, the Master Servicer may take
other actions in respect of a defaulted Mortgage Loan, which may include (i)
accepting a short sale (a payoff of the Mortgage Loan for an amount less than
the total amount contractually owed in order to facilitate a sale of the
Mortgaged Property by the Mortgagor) or permitting a short refinancing (a payoff
of the Mortgage Loan for an amount less than the total amount contractually owed
in order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (ii) arranging for a repayment plan or (iii)
agreeing to a modification in accordance with Section 3.07. In connection with
such foreclosure or other conversion or action, the Master Servicer shall,
consistent with Section 3.11, follow such practices and procedures as it shall
deem necessary or advisable, as shall be normal and usual in its general
mortgage servicing activities and as shall be required or permitted by the
Program
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Guide, as applicable; 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 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 and any of the Mortgage Loans and Pledged Asset Loans,
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
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(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 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
Custodial 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
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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 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 (other than Subsequent Recoveries) resulting from a collection
of Liquidation Proceeds, Insurance Proceeds or REO Proceeds, will be applied in
the following order of priority: first, to reimburse the Master Servicer or the
related Subservicer in accordance with Section 3.10(a)(ii) and, in the case of
Xxxxx Fargo as a Subservicer, if applicable, to reimburse such Subservicer for
any Subservicing Fees payable therefrom; second, to the Certificateholders to
the extent of accrued and unpaid interest on the Mortgage Loan, and any related
REO Imputed Interest, at the Net Mortgage Rate (or the Modified Net Mortgage
Rate in the case of a Modified Mortgage Loan), to the Due Date in the related
Due Period prior to the Distribution Date on which such amounts are to be
distributed; third, to the Certificateholders as a recovery of principal on the
Mortgage Loan (or REO Property); 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.
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(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.
Section 3.15 Trustee to Cooperate; Release of Custodial Files
(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 Custodial 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 Custodial File. Within two Business
Days of receipt of such certification and request, the Trustee shall release, or
cause the Custodian to release, the related Custodial 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 Custodial 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 Custodial File or any document therein to the Master Servicer. The Master
Servicer shall cause each Custodial 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 Custodial File or
such document has been delivered directly or
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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 Custodial File
or such document was delivered and the purpose or purposes of such delivery. In
the event of the liquidation of a Mortgage Loan, the Trustee shall deliver the
Request for Release with respect thereto to the Master Servicer upon deposit of
the related Liquidation Proceeds in the Custodial Account.
(c) The Trustee or the Master Servicer on the Trustee's behalf shall
execute and deliver to the Master Servicer, if necessary, any court pleadings,
requests for trustee's sale or other documents necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
PROVIDED by the Mortgage Note or Mortgage or otherwise available at law or in
equity. Together with such documents or pleadings (if signed by the Trustee),
the Master Servicer shall deliver to the Trustee 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.
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(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 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
Not later than fifteen days after it receives a written request from the
Trustee or the Company, 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 and Servicing Assessment
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 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, a servicer compliance statement, signed
by an authorized officer of the Master Servicer, as described in Items 1122(a),
1122(b) and 1123 of Regulation AB, to the effect that:
(i) A review of the Master Servicer's activities during the reporting
period and of its performance under this Agreement has been made under such
officer's supervision.
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(ii) To the best of such officer's knowledge, based on such review, the
Master Servicer has fulfilled all of its obligations under this Agreement in all
material respects throughout the reporting period or, if there has been a
failure to fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status thereof.
The Master Servicer shall use commercially reasonable efforts to obtain
from all other parties participating in the servicing function any additional
certifications required under Item 1122 and Item 1123 of Regulation AB to the
extent required to be included in a Report on Form 10-K; provided, however, that
a failure to obtain such certifications shall not be a breach of the Master
Servicer's duties hereunder if any such party fails to deliver such a
certification.
Section 3.19 Annual Independent Public Accountants' Servicing Report
On or before the earlier of (a) March 31 of each year 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 to the Company and the
Trustee the attestation required under Item 1122(b) of Regulation AB. 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.
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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 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.
Section 3.22 Advance Facility
(a) The Master Servicer is hereby authorized to enter into a financing or
other facility (any such arrangement, an "Advance Facility") under which (1) the
Master Servicer sells, assigns or pledges to another Person (an "Advancing
Person") the Master Servicer's rights under this Agreement to be reimbursed for
any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund
some or all Advances and/or Servicing Advances required to be made by the Master
Servicer pursuant to this Agreement. No consent of the Company, the Trustee, the
Certificateholders or any other party shall be required before the Master
Servicer may enter into an Advance Facility. Notwithstanding the existence of
any Advance Facility under which an Advancing Person agrees to fund Advances
and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer
shall remain obligated pursuant to this Agreement to make Advances and Servicing
Advances pursuant to and as required by this Agreement. If the Master Servicer
enters into an Advance Facility, and for so long as an Advancing Person remains
entitled to receive reimbursement for any Advances including Nonrecoverable
Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including
Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together
with Advance
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Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such
type of Reimbursement Amount is included in the Advance Facility), as
applicable, pursuant to this Agreement, then the Master Servicer shall identify
such Reimbursement Amounts consistent with the reimbursement rights set forth in
Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance
with this Section 3.22 or otherwise in accordance with the documentation
establishing the Advance Facility to such Advancing Person or to a trustee,
agent or custodian (an "Advance Facility Trustee") designated by such Advancing
Person in an Advance Facility Notice described below in Section 3.22(b).
Notwithstanding the foregoing, if so required pursuant to the terms of the
Advance Facility, the Master Servicer may direct, and if so directed in writing
the Trustee is hereby authorized to and shall pay to the Advance Facility
Trustee the Reimbursement Amounts identified pursuant to the preceding sentence.
An Advancing Person whose obligations hereunder are limited to the funding of
Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a)
or 6.02(c) hereof and shall not be deemed to be a Subservicer under this
Agreement. Notwithstanding anything to the contrary herein, in no event shall
Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be
included in the Available Distribution Amount or distributed to
Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes the
election set forth in Section 3.22(a), the Master Servicer and the related
Advancing Person shall deliver to the Trustee a written notice and payment
instruction (an "Advance Facility Notice"), providing the Trustee with written
payment instructions as to where to remit Advance Reimbursement Amounts and/or
Servicing Advance Reimbursement Amounts (each to the extent such type of
Reimbursement Amount is included within the Advance Facility) on subsequent
Distribution Dates. The payment instruction shall require the applicable
Reimbursement Amounts to be distributed to the Advancing Person or to an Advance
Facility Trustee designated in the Advance Facility Notice. An Advance Facility
Notice may only be terminated by the joint written direction of the Master
Servicer and the related Advancing Person (and any related Advance Facility
Trustee).
(c) Reimbursement Amounts shall consist solely of amounts in respect of
Advances and/or Servicing Advances made with respect to the Mortgage Loans for
which the Master Servicer would be permitted to reimburse itself in accordance
with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the
Advancing Person had made the related Advance(s) and/or Servicing Advance(s).
Notwithstanding the foregoing, except with respect to reimbursement of
Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no
Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this
Agreement. Neither the Company nor the Trustee shall have any duty or liability
with respect to the calculation of any Reimbursement Amount, nor shall the
Company or the Trustee have any responsibility to track or monitor the
administration of the Advance Facility and the Company shall not have any
responsibility to track, monitor or verify the payment of Reimbursement Amounts
to the related Advancing Person or Advance Facility Trustee. The Master Servicer
shall maintain and provide to any Successor Master Servicer a detailed
accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or
assigned to, and reimbursed to any Advancing Person. The Successor Master
Servicer shall be entitled to rely on any such information provided by the
Master Servicer and the Successor Master Servicer shall not be liable for any
errors in such information.
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(d) Upon the direction of and at the expense of the Master Servicer, the
Trustee agrees to execute such acknowledgments, certificates, and other
documents provided by the Master Servicer and reasonably satisfactory to the
Trustee recognizing the interests of any Advancing Person or Advance Facility
Trustee in such Reimbursement Amounts as the Master Servicer may cause to be
made subject to Advance Facilities pursuant to this Section 3.22, and such other
documents in connection with such Advance Facility as may be reasonably
requested from time to time by any Advancing Person or Advance Facility Trustee
and reasonably satisfactory to the Trustee.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan
shall be allocated to outstanding unreimbursed Advances or Servicing Advances
(as the case may be) made with respect to that Mortgage Loan on a "first-in,
first out" ("FIFO") basis, subject to the qualifications set forth below:
(i) Any successor Master Servicer to Residential Funding (a "Successor
Master Servicer") and the Advancing Person or Advance Facility Trustee
shall be required to apply all amounts available in accordance with this
Section 3.22(e) to the reimbursement of Advances and Servicing Advances in
the manner provided for herein; provided, however, that after the
succession of a Successor Master Servicer, (A) to the extent that any
Advances or Servicing Advances with respect to any particular Mortgage Loan
are reimbursed from payments or recoveries, if any, from the related
Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with
respect to that Mortgage Loan, reimbursement shall be made, first, to the
Advancing Person or Advance Facility Trustee in respect of Advances and/or
Servicing Advances related to that Mortgage Loan to the extent of the
interest of the Advancing Person or Advance Facility Trustee in such
Advances and/or Servicing Advances, second to the Master Servicer in
respect of Advances and/or Servicing Advances related to that Mortgage Loan
in excess of those in which the Advancing Person or Advance Facility
Trustee Person has an interest, and third, to the Successor Master Servicer
in respect of any other Advances and/or Servicing Advances related to that
Mortgage Loan, from such sources as and when collected, and (B)
reimbursements of Advances and Servicing Advances that are Nonrecoverable
Advances shall be made pro rata to the Advancing Person or Advance Facility
Trustee, on the one hand, and any such Successor Master Servicer, on the
other hand, on the basis of the respective aggregate outstanding
unreimbursed Advances and Servicing Advances that are Nonrecoverable
Advances owed to the Advancing Person, Advance Facility Trustee or Master
Servicer pursuant to this Agreement, on the one hand, and any such
Successor Master Servicer, on the other hand, and without regard to the
date on which any such Advances or Servicing Advances shall have been made.
In the event that, as a result of the FIFO allocation made pursuant to this
Section 3.22(e), some or all of a Reimbursement Amount paid to the
Advancing Person or Advance Facility Trustee relates to Advances or
Servicing Advances that were made by a Person other than Residential
Funding or the Advancing Person or Advance Facility Trustee, then the
Advancing Person or Advance Facility Trustee shall be required to remit any
portion of such Reimbursement Amount to the Person entitled to such portion
of such Reimbursement Amount. Without limiting the generality of the
foregoing, Residential Funding shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility Trustee for all Advances and
Servicing Advances funded by Residential Funding
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to the extent the related Reimbursement Amount(s) have not been assigned or
pledged to an Advancing Person or Advance Facility Trustee. The
documentation establishing any Advance Facility shall require Residential
Funding to provide to the related Advancing Person or Advance Facility
Trustee loan by loan information with respect to each Reimbursement Amount
distributed to such Advancing Person or Advance Facility Trustee on each
date of remittance thereof to such Advancing Person or Advance Facility
Trustee, to enable the Advancing Person or Advance Facility Trustee to make
the FIFO allocation of each Reimbursement Amount with respect to each
Mortgage Loan.
(ii) By way of illustration, and not by way of limiting the generality
of the foregoing, if the Master Servicer resigns or is terminated at a time
when the Master Servicer is a party to an Advance Facility, and is replaced
by a Successor Master Servicer, and the Successor Master Servicer directly
funds Advances or Servicing Advances with respect to a Mortgage Loan and
does not assign or pledge the related Reimbursement Amounts to the related
Advancing Person or Advance Facility Trustee, then all payments and
recoveries received from the related Mortgagor or received in the form of
Liquidation Proceeds with respect to such Mortgage Loan (including
Insurance Proceeds collected in connection with a liquidation of such
Mortgage Loan) will be allocated first to the Advancing Person or Advance
Facility Trustee until the related Reimbursement Amounts attributable to
such Mortgage Loan that are owed to the Master Servicer and the Advancing
Person, which were made prior to any Advances or Servicing Advances made by
the Successor Master Servicer, have been reimbursed in full, at which point
the Successor Master Servicer shall be entitled to retain all related
Reimbursement Amounts subsequently collected with respect to that Mortgage
Loan pursuant to Section 3.10 of this Agreement. To the extent that the
Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed
on an aggregate basis pursuant to Section 3.10 of this Agreement, the
reimbursement paid in this manner will be made pro rata to the Advancing
Person or Advance Facility Trustee, on the one hand, and the Successor
Master Servicer, on the other hand, as described in clause (i)(B) above.
(f) The Master Servicer shall remain entitled to be reimbursed for all
Advances and Xxxxxxxxx Advances funded by the Master Servicer to the extent the
related rights to be reimbursed therefor have not been sold, assigned or pledged
to an Advancing Person.
(g) Any amendment to this Section 3.22 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an Advance
Facility as described generally in this Section 3.22, including amendments to
add provisions relating to a successor Master Servicer, may be entered into by
the Trustee, the Company and the Master Servicer without the consent of any
Certificateholder, with written confirmation from each Rating Agency that the
amendment will not result in the reduction of the ratings on any class of the
Certificates below the lesser of the then current or original ratings on such
Certificates, and an opinion of counsel as required by Section 11.01(c)
notwithstanding anything to the contrary in Section 11.01 of or elsewhere in
this Agreement.
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(h) Any rights of set-off that the Trust Fund, the Trustee, the Company,
any Successor Master Servicer or any other Person might otherwise have against
the Master Servicer under this Agreement shall not attach to any rights to be
reimbursed for Advances or Servicing Advances that have been sold, transferred,
pledged, conveyed or assigned to any Advancing Person.
(i) At any time when an Advancing Person shall have ceased funding Advances
and/or Servicing Advances (as the case may be) and the Advancing Person or
related Advance Facility Trustee shall have received Reimbursement Amounts
sufficient in the aggregate to reimburse all Advances and/or Servicing Advances
(as the case may be) the right to reimbursement for which were assigned to the
Advancing Person, then upon the delivery of a written notice signed by the
Advancing Person and the Master Servicer or its successor or assign) to the
Trustee terminating the Advance Facility Notice (the "Notice of Facility
Termination"), the Master Servicer or its Successor Master Servicer shall again
be entitled to withdraw and retain the related Reimbursement Amounts from the
Custodial Account pursuant to Section 3.10.
(j) After delivery of any Advance Facility Notice, and until any such
Advance Facility Notice has been terminated by a Notice of Facility Termination,
this Section 3.22 may not be amended or otherwise modified without the prior
written consent of the related Advancing Person.
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 and (iv)
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 Account in the amount payable on such investment on such
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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. The Trustee or its Affiliates are permitted to receive
compensation that could be deemed to be in the Trustee's economic self interest
for (i) serving as investment adviser (with respect to investments made through
its Affiliates), administrator, shareholder servicing agent, custodian or sub
custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments.
Section 4.02 Distributions
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.
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(b) Within a reasonable period of time after it receives a written request
from a Holder of a Certificate, other than a Class R Certificate, 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 (v) and (vi) 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.
(c) Within a reasonable period of time after it receives a written request
from any Holder of a Class R Certificate, 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 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 including, without
limitation, reports on Form 10-K, Form 10-D and Form 8-K. 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 a Responsible Officer of 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 the Series Supplement. 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.
(f) Any Form 10-K filed with the Commission in connection with this Section
4.03 shall include, with respect to the Certificates relating to such 10-K:
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(i) 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 Rules 13a-14
and 15d-14 under the Exchange Act and any additional directives of the
Commission.
(ii) A report regarding its assessment of compliance during the
preceding calendar year with all applicable servicing criteria set forth in
relevant Commission regulations with respect to mortgage-backed securities
transactions taken as a whole involving the Master Servicer that are backed
by the same types of assets as those backing the certificates, as well as
similar reports on assessment of compliance received from other parties
participating in the servicing function as required by relevant Commission
regulations, as described in Item 1122(a) of Regulation AB. The Master
Servicer shall obtain from all other parties participating in the servicing
function any required assessments.
(iii) With respect to each assessment report described immediately
above, a report by a registered public accounting firm that attests to, and
reports on, the assessment made by the asserting party, as set forth in
relevant Commission regulations, as described in Regulation 1122(b) of
Regulation AB and Section 3.19
(iv) The servicer compliance certificate required to be delivered
pursuant Section 3.18.
(g) In connection with the Form 10-K Certification, the Trustee shall
provide the Master Servicer with a back-up certification substantially in the
form attached hereto as Exhibit P.
(h) This Section 4.03 may be amended in accordance with this Agreement
without the consent of the Certificateholders.
(i) The Trustee shall make available on the Trustee's internet website each
of the reports filed with the Commission by or on behalf of the Company under
the Exchange Act upon delivery of such reports to the Trustee.
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 Paying Agent and
the Company (the information in such statement to be made available to
Certificateholders and any Certificate Insurer 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.
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(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 Relief Act, 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.
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.
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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
(a) With respect to any Mortgage Loan which is delinquent in payment by 90
days or more, the Master Servicer may, at its option, purchase such Mortgage
Loan from the Trustee at the Purchase Price therefor; provided, that such
Mortgage Loan that becomes 90 days or more delinquent during any given calendar
quarter shall only be eligible for purchase pursuant to this Section during the
period beginning on the first Business Day of the following calendar quarter,
and ending at the close of business on the second-to-last Business Day of such
following calendar quarter; and provided, further, that such Mortgage Loan is 90
days or more delinquent at the time of repurchase. Such option if not exercised
shall not thereafter be reinstated as to any Mortgage Loan, unless the
delinquency is cured and the Mortgage Loan thereafter again becomes delinquent
in payment by 90 days or more in a subsequent calendar quarter.
(b) 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 as
provided in clause (a) above, and the Master Servicer provides to the Trustee a
certification signed by a Servicing Officer stating that the amount of such
payment has been deposited in the Certificate Account, then the Trustee shall
execute the assignment of such Mortgage Loan at the request of the Master
Servicer without recourse to the Master Servicer which shall succeed to all the
Trustee's right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an assignment
outright and not for security. The Master Servicer will thereupon own such
Mortgage, and all such security and documents, free of any further obligation to
the Trustee or the Certificateholders with respect thereto.
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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 X, Class M, Class B, Class P, Class SB and Class R
Certificates shall be substantially in the forms set forth in Exhibits A, A-I,
B, C, C-I, C-II and D, respectively, or such other form or forms shall be set
forth in the Series Supplement, 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 the
Custodian 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
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.
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(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 with respect to any Book-Entry Certificate (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 with respect to such
Book-Entry Certificate and (B) the Company is unable to locate a qualified
successor, or (ii)(A) the Depositor at its option advises the Trustee in writing
that it elects to terminate the book-entry system for such Book-Entry
Certificate through the Depositary and (B) upon receipt of notice from the
Depository of the Depositor's election to terminate the book-entry system for
such Book-Entry Certificate, the Depository Participants holding beneficial
interests in such Book-Entry Certificates agree to initiate such termination,
the Trustee shall notify all Certificate Owner of such Book-Entry Certificate,
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 execute, authenticate and deliver
the Definitive Certificates.
In addition, if an Event of Default has occurred and is continuing, each
Certificate Owner materially adversely affected thereby may at its option
request a Definitive Certificate evidencing such Certificate Owner's Percentage
Interest in the related Class of Certificates. In order to make such request,
such Certificate Owner shall, subject to the rules and procedures of the
Depository, provide the Depository or the related Depository Participant with
directions for
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the Trustee to exchange or cause the exchange of the Certificate Owner's
interest in such Class of Certificates for an equivalent Percentage Interest in
fully registered definitive form. Upon receipt by the Trustee of instruction
from the Depository directing the Trustee to effect such exchange (such
instructions to contain information regarding the Class of Certificates and the
Certificate Balance being exchanged, the Depository Participant account to be
debited with the decrease, the registered holder of and delivery instructions
for the Definitive Certificates and any other information reasonably required by
the Trustee), (i) the Trustee shall instruct the Depository to reduce the
related Depository Participant's account by the aggregate Certificate Principal
Balance of the Definitive Certificates, (ii) the Trustee shall execute,
authenticate and deliver, in accordance with the registration and delivery
instructions provided by the Depository, a Definitive Certificate evidencing
such Certificate Owner's Percentage Interest in such Class of Certificates and
(iii) the Trustee shall execute and authenticate a new Book-Entry Certificate
reflecting the reduction in the aggregate Certificate Principal Balance of such
Class of Certificates by the amount of the Definitive Certificates.
None of the Company, the Master Servicer or the Trustee shall be liable for
any actions taken by the Depository or its nominee, including, without
limitation, any delay in delivery of any instructions required under Section
5.01 and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates the Trustee and the
Master Servicer shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(c) If the Class A-V Certificates are Definitive Certificates, 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 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.
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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, Class P 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
or Class P 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 or Class P 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 (with
respect to any Class B Certificate) or Exhibit G-1 (with respect to any Class P
Certificate) hereto, and the Trustee shall require the transferor to execute a
representation letter, substantially in the form of Exhibit I hereto, each
acceptable to and in form and substance satisfactory to the
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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 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, Class P, Class SB 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 and holding of such Class B, Class P, Class SB or
Class R Certificate are 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, Class SB or Class P 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 (each, a "Plan"), or
any Person (including, without limitation, an investment manager, a named
fiduciary or a trustee of any Plan) who is using plan assets, within the meaning
of the U.S. Department of Labor regulation promulgated at 29 C.F.R. Section
2510.3-101, as modified by Section 3(42) of ERISA, of any 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 any 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
any interest therein) that either (a) such Transferee is not a Plan or 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 most recently amended by PTE 2007-05, 72 Fed.
Reg. 13130 (March 20, 2007) (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, Moody's,
DBRS Limited or DBRS, Inc. 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 or 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) (C) Any purported Certificate Owner whose acquisition or
holding of any Class M Certificate (or any 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.
(iv) Any Purchaser of an allowable combination of Exchangeable
Certificates or Exchanged Certificates will be deemed to have represented
by virtue of its purchase and holding of such Certificates (or any interest
therein) that either (a) it is not a Plan or a Plan Investor or (b) it has
acquired and is holding such Certificates in reliance on the RFC Exemption
and that it understands that there are certain conditions to the
availability of the RFC Exemption including that such Certificates must be
rated, at the time of the exchange, not lower than "BBB-" (or its
equivalent) by Standard & Poor's, Fitch, Moody's, DBRS Limited or DBRS,
Inc.
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(v) Any Purchaser of a combination of Exchangeable Certificates or
Exchanged Certificates that is not eligible for exemptive relief under the
RFC Exemption will be deemed to have represented by virtue of its purchase
and holding of such Certificates (or any interest therein) that either (a)
it is not a Plan or a Plan Investor; (b) it is a Complying Insurance
Company; or (c) it has provided the Trustee 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 and holding
of such Certificates by or on behalf of those entities are permissible
under applicable law, will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), and will not
subject the Trustee, the Company and 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.
(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.
(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.
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(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 shall 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 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.
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(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, shall be remitted by the
Master Servicer to such purported Transferee. The terms and conditions
of any sale under this clause (iii)(B) shall be determined in the sole
discretion of the Master Servicer, and the Master Servicer shall not
be liable to any Person having an Ownership Interest in a Class R
Certificate as a result of its exercise of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information necessary
to compute any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Class R Certificate to any Person who is a Disqualified
Organization, including the information regarding "excess inclusions" of
such Class R Certificates required to be provided to the Internal Revenue
Service and certain Persons as described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the
Code that holds an Ownership Interest in a Class R Certificate having as
among its record holders at any time any Person who is a Disqualified
Organization. Reasonable compensation for providing such information may be
required by the Master Servicer from such Person.
(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
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(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 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
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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.
Section 5.06 U.S.A. Patriot Act Compliance
In order for it to comply with its duties under the U.S.A. Patriot Act, the
Trustee may obtain and verify certain information from the other parties hereto,
including but not limited to such parties' name, address and other identifying
information.
Section 5.07 Exchangeable Certificates
As provided in Section 5.07 of the Series Supplement.
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.
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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 shall each keep in full effect its
existence, rights and franchises as a corporation or limited liability company,
respectively, under the laws of the state of its incorporation or formation, as
applicable, and shall each obtain and preserve its qualification to do business
as a foreign company 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 converted or with which it may be consolidated, or any Person resulting from
any merger, conversion 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 in this Section 6.02(b) 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 Freddie Mac; and
PROVIDED further that the Master Servicer (or the Company, as applicable) shall
notify each Rating Agency and the Trustee in writing of any such merger,
conversion or consolidation at least 30 days prior to the effective date of such
event.
(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 Xxx or Freddie 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
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. This Section 6.02 shall not
apply to any sale, transfer, pledge or assignment by Residential Funding of the
Call Rights.
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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 or covenants 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.
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.
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ARTICLE VII
DEFAULT
Section 7.01 Events of Default
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be
distributed to 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, 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
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(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.
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
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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 Freddie 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 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. The
Master Servicer shall pay the reasonable expenses of the Trustee in connection
with any servicing transition hereunder.
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(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
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to the Trustee by the Company or the 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.
(e) Notwithstanding anything to the contrary contained herein or in any
related Custodial Agreement, in no event shall the Trustee have any liability in
respect of any actions or omissions of the Custodian herein or pursuant to any
related Custodial Agreement.
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 or custodian or nominee, and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of,
any such agent, attorney, custodian or nominee appointed with due care by
it hereunder; 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 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
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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 (A) 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 or (B) the extent the Trustee is required to indemnify the Master
Servicer pursuant to Section 12.05(a).
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
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laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by federal or
state authority and the short-term rating of such institution shall be A-1 in
the case of Standard & Poor's if Standard & Poor's is a Rating Agency. 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 and the Master
Servicer. 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), other than any failure to comply with the provisions of Article XII, in
which case no notice or grace period shall be applicable) 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.
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(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.
(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 Custodial Files and related
documents and statements held by it hereunder (other than any Custodial 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.
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Section 8.10 Appointment of Co-Trustee or Separate Trustee
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee, and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust 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.
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Section 8.11 Appointment of Custodians
The Trustee may, with the consent of the Master Servicer and the Company,
or shall, at the direction of the Company and the Master Servicer, 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 Custodial Files as agent for the
Trustee, by entering into a Custodial Agreement. Subject to Article VIII, the
Trustee agrees to comply with the terms of each Custodial Agreement with respect
to the Custodial Files 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 Custodial
File. Each Custodial Agreement, with respect to the Custodial Files, 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 United States 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
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(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 on the day of
repurchase plus accrued interest thereon at the Mortgage Rate (or Modified
Mortgage Rate in the case of any Modified Mortgage Loan) from the Due Date
to which interest was last paid by the Mortgagor 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 (i) the Maturity Date or (ii) 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 the Master Servicer
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 (xii) or (xxxviii) 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 the Master Servicer, the Master Servicer shall be entitled to
reimbursement for the full amount of any unreimbursed Advances theretofore made
by it with respect to the Mortgage Loans pursuant to Section 3.10. 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 Custodial 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, the Master Servicer shall have the right, at its
option, to purchase the Certificates in whole, but not in part, at a price equal
to the 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.
(b) The Master Servicer shall give the Trustee not less than 40 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 Residential Funding 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 Residential
Funding of its right to purchase the outstanding Certificates). Notice of any
termination, specifying the anticipated Final Distribution Date (which shall be
a date that would otherwise be
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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 shall be given promptly by the Master Servicer (if
Residential Funding 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. Such notice shall be prepared by the Master Servicer (in
the case of Residential Funding exercising its right to purchase the assets of
the Trust Fund or to purchase the outstanding Certificates) or the Trustee (in
any other case) and mailed by the Trustee to the Certificateholders 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 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 and that payment will be made only upon presentation
and surrender of the Certificates at the office or agency of the Trustee
therein specified.
If the Master Servicer is obligated to give notice to Certificateholders as
aforesaid, it shall give such notice to the Certificate Registrar at the time
such notice is given to Certificateholders and, if Residential Funding is
exercising its rights to purchase the outstanding Certificates, Residential
Funding shall give such notice to each Rating Agency at the time such notice is
given to Certificateholders. As a result of the exercise by Residential Funding
of its right to purchase the assets of the Trust Fund or the outstanding
Certificates, Residential Funding shall deposit in the Custodial 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.
(c) Upon presentation and surrender of the Certificates by the
Certificateholders thereof in connection with the exercise by Residential
Funding of its right to purchase the Certificates, the Trustee shall distribute
to the Certificateholders on the Final Distribution Date the respective amounts
determined in accordance with Section 4.02. Notwithstanding 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 Residential
Funding 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 Custodial
Account deposited therein by Residential Funding 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.
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(f) All rights of Residential Funding to purchase the assets of the Trust
Fund, or to purchase specified classes of Certificates, as set forth in Section
9.01(a) are referred to in this Agreement as the "Call Rights". Notwithstanding
any other provision of this Agreement, Residential Funding shall have the right
to sell, transfer, pledge or otherwise assign the Call Rights at any time to any
Person. Upon written notice by Residential Funding to the Trustee and the Master
Servicer of any such assignment of the Call Rights to any assignee, the Trustee
and the Master Servicer shall be obligated to recognize such assignee as the
holder of the Call Rights. Such entity, if not Residential Funding or an
affiliate, shall be deemed to represent, at the time of such sale, transfer,
pledge or other assignment, that one of the following will be, and at the time
the Call Right is exercised is, true and correct: (i) the exercise of such Call
Right shall not result in a non-exempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code (including by reason of U.S. Department of
Labor ("DOL") Prohibited Transaction Class Exemption ("PTCE") 75-1 (Part I),
84-14, 90-1, 91-38, 95-60 or 96-23 or other applicable exemption) or (ii) such
entity is (A) not a party in interest under Section 3(14) of ERISA or a
disqualified person under Section 4975(e)(2) of the Code with respect to any
employee benefit plan subject to Section 406 of ERISA or any plan subject to
Section 4975 of the Code (other than an employee benefit plan or plan sponsored
or maintained by the entity, provided that no assets of such employee benefit
plan or plan are invested or deemed to be invested in the Certificates) and (B)
not a "benefit plan investor" as described in DOL regulation Section
2510.3-101(f)(2) and as modified by Section 3(42) of ERISA. If any such assignee
of the Call Right is unable to exercise such Call Right by reason of the
preceding sentence, then the Call Right shall revert to the immediately
preceding assignor of such Call Right subject to the rights of any secured party
therein.
Section 9.02 Additional Termination Requirements
(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 Fund 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
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(iii) If Residential Funding or the Company is exercising its right to
purchase the assets of the Trust Fund, Residential Funding 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 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
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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, 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
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"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 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
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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.
(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
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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.
Section 10.03 Designation of REMIC(s)
As provided in Section 10.03 of the Series Supplement.
Section 10.04 Distributions on the Uncertificated REMIC I and REMIC II
Regular Interests
As provided in Section 10.04 of the Series Supplement.
Section 10.05 Compliance with Withholding Requirements
As provided in Section 10.05 of the Series Supplement.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment
(a) This Agreement or any Custodial Agreement may be amended from time to
time by the 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, 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,
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(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 is permitted hereunder and 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 GMAC LLC,
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
(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
(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.
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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, shall (i)
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
(ii) provide a copy to each Rating Agency and Subservicer 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, 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 of any
such event known to the Master Servicer.
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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 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 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.
Section 11.10 No Petition
The Company, Master Servicer and the Trustee, by entering into this
Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the Trust
Fund, or join in any institution against the Trust Fund, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligation with respect to the Certificates or this
Agreement.
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ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01 Intent of Parties; Reasonableness
The Company, the Trustee and the Master Servicer acknowledge and agree that
the purpose of this Article XII is to facilitate compliance by the Company with
the provisions of Regulation AB and related rules and regulations of the
Commission. The Company shall not exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission under the
Securities Act and the Exchange Act. Each of the Master Servicer and the Trustee
acknowledges that interpretations of the requirements of Regulation AB may
change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the mortgage-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
reasonable requests made by the Company in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
Regulation AB. Each of the Master Servicer and the Trustee shall cooperate
reasonably with the Company to deliver to the Company (including any of its
assignees or designees), any and all disclosure, statements, reports,
certifications, records and any other information necessary in the reasonable,
good faith determination of the Company to permit the Company to comply with the
provisions of Regulation AB.
Section 12.02 Additional Representations and Warranties of the Trustee
(a) The Trustee shall be deemed to represent and warrant to the Company as
of the date hereof and on each date on which information is provided to the
Company under Sections 12.01, 12.02(b) or 12.03 that, except as disclosed in
writing to the Company prior to such date: (i) it is not aware and has not
received notice that any default, early amortization or other performance
triggering event has occurred as to any other Securitization Transaction due to
any default of the Trustee; (ii) there are no aspects of its financial condition
that could have a material adverse effect on the performance by it of its
trustee obligations under this Agreement or any other Securitization Transaction
as to which it is the trustee; (iii) there are no material legal or governmental
proceedings pending (or known to be contemplated) against it that would be
material to Certificateholders; (iv) there are no relationships or transactions
(as described in Item 1119(b) of Regulation AB) relating to the Trustee with
respect to the Company or any sponsor, issuing entity, servicer, trustee,
originator, significant obligor, enhancement or support provider or other
material transaction party (as each of such terms are used in Regulation AB)
relating to the Securitization Transaction contemplated by the Agreement, as
identified by the Company to the Trustee in writing as of the Closing Date
(each, a "Transaction Party") that are outside the ordinary course of business
or on terms other than would be obtained in an arm's length transaction with an
unrelated third party, apart from the Securitization Transaction, and that are
material to the investors' understanding of the Certificates; and (v) the
Trustee is not an affiliate (as contemplated by Item 1119(a) of Regulation AB)
of any Transaction Party. The Company shall notify the Trustee of any change in
the identity of a Transaction Party after the Closing Date.
-121-
(b) If so requested by the Company on any date following the Closing Date,
the Trustee shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is not
accurate as of the date of such confirmation, provide the pertinent facts, in
writing, to the Company. Any such request from the Company shall not be given
more than once each calendar quarter, unless the Company shall have a reasonable
basis for a determination that any of the representations and warranties may not
be accurate.
Section 12.03 Information to be Provided by the Trustee
For so long as the Certificates are outstanding, for the purpose of
satisfying the Company's reporting obligation under the Exchange Act with
respect to any class of Certificates, the Trustee shall provide to the Company a
written description of (a) any litigation or governmental proceedings pending
against the Trustee as of the last day of each calendar month that would be
material to Certificateholders, and (b) any affiliations or relationships (as
described in Item 1119 of Regulation AB) that develop following the Closing Date
between the Trustee and any Transaction Party of the type described in Section
12.02(a)(iv) or 12.02(a)(v) as of the last day of each calendar year. Any
descriptions required with respect to legal proceedings, as well as updates to
previously provided descriptions, under this Section 12.03 shall be given no
later than five Business Days prior to the Determination Date following the
month in which the relevant event occurs, and any notices and descriptions
required with respect to affiliations, as well as updates to previously provided
descriptions, under this Section 12.03 shall be given no later than January 31
of the calendar year following the year in which the relevant event occurs. As
of the date the Company or Master Servicer files each Report on Form 10-D and
Report on Form 10-K with respect to the Certificates, the Trustee will be deemed
to represent and warrant that any information previously provided by the Trustee
under this Article XII is materially correct and does not have any material
omissions unless the Trustee has provided an update to such information. The
Company will allow the Trustee to review any disclosure relating to material
litigation against the Trustee prior to filing such disclosure with the
Commission to the extent the Company changes the information provided by the
Trustee.
Section 12.04 Report on Assessment of Compliance and Attestation
On or before March 15 of each calendar year, the Trustee shall:
(a) deliver to the Company a report (in form and substance reasonably
satisfactory to the Company) regarding the Trustee's assessment of compliance
with the applicable Servicing Criteria during the immediately preceding calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be addressed to the Company and signed
by an authorized officer of the Trustee, and shall address each of the Servicing
Criteria specified on Exhibit R hereto; and
(b) deliver to the Company a report of a registered public accounting firm
reasonably acceptable to the Company that attests to, and reports on, the
assessment of compliance made by the Trustee and delivered pursuant to the
preceding paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act.
-122-
Section 12.05 Indemnification; Remedies
(a) The Trustee shall indemnify the Company, each affiliate of the Company,
the Master Servicer and each affiliate of the Master Servicer; and the
respective present and former directors, officers, employees and agents of each
of the foregoing, and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged to
be contained in any information, report, certification, accountants'
attestation or other material provided under this Article XII by or on
behalf of the Trustee (collectively, the "Trustee Information"), or (B) the
omission or alleged omission to state in the Trustee Information a material
fact required to be stated in the Trustee Information or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; or
(ii) any failure by the Trustee to deliver any information, report,
certification or other material when and as required under this Article
XII, other than a failure by the Trustee to deliver an accountants'
attestation.
(b) In the case of any failure of performance described in clause (ii) of
Section 12.05(a), the Trustee shall (i) promptly reimburse the Company for all
costs reasonably incurred by the Company in order to obtain the information,
report, certification, accountants' attestation or other material not delivered
as required by the Trustee and (ii) cooperate with the Company to mitigate any
damages that may result from such failure.
(c) The Company and the Master Servicer shall indemnify the Trustee, each
affiliate of the Trustee or each Person who controls the Trustee (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act);
and the respective present and former directors, officers, employees and agents
of the Trustee, and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon (i) any untrue statement of a
material fact contained or alleged to be contained in any information provided
under this Agreement by or on behalf of the Company or Master Servicer for
inclusion in any report filed with Commission under the Exchange Act
(collectively, the "RFC Information"), or (ii) the omission or alleged omission
to state in the RFC Information a material fact required to be stated in the RFC
Information or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided, by
way of clarification, that clause (ii) of this paragraph shall be construed
solely by reference to the RFC Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the RFC Information or any portion thereof is presented together with
or separately from such other information.
-123-
(d) Notwithstanding any provision in this Section 12.05 to the contrary,
the parties agree that none of the Trustee, the Company or the Master Servicer
shall be liable to the other for any consequential or punitive damages
whatsoever, whether in contract, tort (including negligence and strict
liability), or any other legal or equitable principle; provided, however, that
such limitation shall not be applicable with respect to third party claims made
against a party.
-124-
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 (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.]
[THIS CERTIFICATE IS AN [EXCHANGEABLE] [EXCHANGED] CERTIFICATE AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT AND MAY BE EXCHANGED FOR THE
[EXCHANGEABLE] [EXCHANGED] CERTIFICATE OR CERTIFICATES IN THE RELATED
COMBINATION GROUP.]
EXHIBIT A-1
Certificate No. [____] [____]% [Adjustable] [Variable] Pass-Through Rate
[based on a Notional Amount]
Class [A-___] Senior Percentage Interest: ____%
Date of Pooling and Aggregate Initial [Certificate Principal Balance]
Servicing Agreement [Interest Only/Class A-V] [Notional Amount]
and Cut-off Date: [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
Company, LLC
[Assumed] [Scheduled]
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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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"),
EXHIBIT A-2
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 [related]
Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount [(of interest
and principal, if any)] required to be distributed to Holders of Class A-
Certificates on such Distribution Date. [the [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. [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").
EXHIBIT A-3
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 66.6% 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
, 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 Xxxxxx'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.
EXHIBIT A-4
[This Certificate is an [Exchangeable] [Exchanged] Certificate as described
in the Pooling and Servicing Agreement and may be exchanged for the
[Exchangeable] [Exchanged] Certificate or Certificates in the related
Combination Group specified in the Pooling and Servicing Agreement, subject to
certain terms and conditions specified therein, including the payment to the
Trustee of a fee of $10,000 with respect to each exchange. This [Exchangeable]
[Exchanged] Certificate may be exchanged for the [Exchangeable] [Exchanged]
Certificate or Certificates in the related Combination Group only on the days of
each month specified in the Pooling and Servicing Agreement.]
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 [in the related
Loan Group] 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 [in the related Loan Group] 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 [in
the related Loan Group] and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the [related]
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the
related Loan Group] 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 Group [in the related Loan Group].
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.
EXHIBIT A-5
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
EXHIBIT A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
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 A-7
EXHIBIT A-1
FORM OF CLASS X 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.
EXHIBIT A-1-1
Certificate No. ____ Variable Pass-Through Rate
Class X Senior
Date of Pooling and Servicing Agreement Percentage Interest: 100%
and Cut-off Date: __________ 1, ____
Master Servicer: Aggregate Initial Notional Amount of
Residential Funding Company, LLC the Class X Certificates: $__________
First Distribution Date: Initial Notional Amount of this
__________ 25, ____ Certificate: $_____________
Assumed Final Distribution Date: CUSIP ________
-------------
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES ____-____
Evidencing a percentage interest in the distributions
allocable to the Class X Certificates with respect to a
Trust Fund consisting primarily of a pool of [conventional
one- to four-family residential, adjustable-rate first lien
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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 Notional Amount of this Certificate by the Aggregate Notional Amount of
all Class X 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 residential, adjustable-rate first lien
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 Pooling and Servicing Agreement dated as
specified above (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
EXHIBIT A-1-2
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 required to be distributed to
Holders of Class X Certificates on such Distribution Date. The Class X
Certificates have no Certificate Principal Balance.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose. The Initial Notional Amount of this Certificate
is set forth above.
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as Mortgage Asset-Backed 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.
EXHIBIT A-1-3
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, 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.
EXHIBIT A-1-4
The obligations created by the Agreement in respect of the Certificates and
the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
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.
EXHIBIT A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: [--------------------------------],
as Trustee
By:
--------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the within-mentioned
Agreement.
[--------------------------------],
as Certificate Registrar
By:
--------------------------------
Authorized Signatory
EXHIBIT A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Asset-Backed
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:
-------------------------------------
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
Dated:
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 A-1-7
EXHIBIT B
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE [RELATED]
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 SUCH CERTIFICATE (OR ANY INTEREST HEREIN)
THAT EITHER (A) SUCH TRANSFEREE 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 CODE
(EACH, A "PLAN"), OR ANY PERSON (INCLUDING, WITHOUT LIMITATION, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY PLAN) WHO IS USING PLAN ASSETS,
WITHIN THE MEANING OF THE U.S. DEPARTMENT OF LABOR REGULATION PROMULGATED AT 29
C.F.R. ss. 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA, OF ANY PLAN (EACH,
A "PLAN INVESTOR") TO EFFECT SUCH ACQUISITION, (B) IT HAS ACQUIRED AND IS
HOLDING THIS CERTIFICATE IN RELIANCE ON U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION EXEMPTION ("PTE") 94-29, 59 FED. REG. 14674 (MARCH 29, 1994), AS
MOST RECENTLY AMENDED BY 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 USED TO PURCHASE OR HOLD THE CERTIFICATE (OR
ANY
EXHIBIT B-1
INTEREST HEREIN) 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 (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 (A) IS NOT A PLAN OR A PLAN INVESTOR, (B) ACQUIRED SUCH
CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION OR (C) 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 ANY 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.
EXHIBIT B-2
Certificate No. [____] [____]% Pass-Through Rate
Class [M-___] Subordinate
Date of Pooling and Principal Balance of the Class M Certificates:
Servicing Agreement and $_______________
Cut-off Date:
[______________]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[______________]
Master Servicer:
Residential Funding Company, LLC
[Assumed] [Schedule] 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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
EXHIBIT B-3
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 [related]
Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class M-___
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose. 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
any interest herein) that either (a) such transferee is not a Plan or 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 any 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").
EXHIBIT B-4
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 66.6% 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, 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.
EXHIBIT B-5
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 [in the related
Loan Group] 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 [in the related Loan Group] 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 [in
the related Loan Group] and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the [related]
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the
related Loan Group] 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 Group [in the related Loan Group].
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.
EXHIBIT B-6
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
EXHIBIT B-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
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-8
EXHIBIT C
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE RELATED SENIOR
CERTIFICATES AND THE RELATED 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 (OR ANY INTEREST HEREIN) MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE MASTER
SERVICER WITH EITHER (A) A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE
AGREEMENT OR (B) 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 AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW,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 INTERNAL REVENUE CODE OF
1986, AS AMENDED (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 AND LIABILITIES UNDER
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE
COMPANY OR THE MASTER SERVICER.
EXHIBIT C-1
Certificate No. [____] [____]% Pass-Through Rate
Class [B-___] Subordinate
Date of Pooling and Servicing Agreement Principal Balance of the Class B-___
and Cut-off Date: Certificates as of the Cut-off Date: $________
[______________]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[______________]
Master Servicer:
Residential Funding Company, LLC
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in the distributions allocable to the
Class B-___ 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 B-___ 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
EXHIBIT C-2
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 [related] Available Distribution Amount in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount (of
interest and principal, if any) required to be distributed to Holders of Class B
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will
be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose. 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.
As described above, no transfer of this Certificate (or any interest
herein) shall be made unless the transferee provides the Trustee, the Company
and the Master Servicer with either (a) a certification pursuant to Section
5.02(e) of the Agreement stating that either (i) the transferee is not an
employee benefit or other plan subject to the prohibited transaction provisions
of ERISA or Section 4975 of the Code (each, a "Plan"), or any Person (including,
without limitation, an investment manager, a named fiduciary or a trustee of any
Plan) who is using plan assets, within
EXHIBIT C-3
the meaning of the U.S. Department of Labor regulation promulgated at 29 C.F.R.
ss. 2510.3-101, as modified by Section 3(42) of ERISA, of any Plan (each, a
"Plan Investor") to effect such acquisition or (ii) the transferee is an
insurance company, the source of funds used to purchase or hold such Certificate
(or any interest therein) is an "insurance company general account" (as defined
in U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60) and the conditions set forth in Sections I and III of PTCE 95-60 have
been satisfied, or (b) 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 and holding of this Certificate is permissible
under applicable law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), and will not subject the
Trustee, the 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 Agreement, which opinion of counsel shall
not be an expense of the Trustee, the Company or the Master Servicer.
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 66.6% 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.
EXHIBIT C-4
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, 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 [in the related
Loan Group] 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 [in the related Loan Group] 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 [in
the related Loan Group] and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the [related]
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the
related Loan Group] 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 Group [in the related Loan Group].
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.
EXHIBIT C-5
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
EXHIBIT C-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
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-7
EXHIBIT C-I
FORM OF CLASS P CERTIFICATE
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 (OR ANY INTEREST HEREIN) MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE MASTER
SERVICER WITH EITHER (A) A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE
AGREEMENT OR (B) 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 AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, 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 INTERNAL REVENUE CODE OF
1986, AS AMENDED (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 AND LIABILITIES UNDER
ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE
AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE
COMPANY OR THE MASTER SERVICER.
EXHIBIT C-I-1
Certificate No. [____] [ ] Prepayment Charge
Class P Prepayment Charge [ ]
Date of Pooling and Servicing Agreement Aggregate Certificate Principal Balance of the Class P
and Cut-off Date: Certificates as of the Cut-off Date: $0.00
[______________]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[______________]
Master Servicer: Percentage Interest of this Certificate: 100%
Residential Funding Company, LLC
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in the distributions
allocable to the Class P 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 P 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
EXHIBIT C-I-2
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 [related] Available Distribution Amount in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount (of
interest and principal, if any) required to be distributed to Holders of Class P
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.
No transfer of this Class P 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 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.
As described above, no transfer of this Certificate (or any interest
herein) shall be made unless the transferee provides the Trustee, the Company
and the Master Servicer with either (a) a certification pursuant to Section
5.02(e) of 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 (each, a "Plan"), or any Person (including, without
limitation, an insurance company investing its general account, an investment
manager, a named fiduciary or a trustee of any Plan) who is using plan assets,
within the meaning of the U.S. Department of Labor regulation promulgated at 29
C.F.R. ss. 2510.3-101, as modified by Section 3(42) of ERISA, of any Plan (each,
a "Plan Investor") to effect such acquisition, or (b) an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee, the Company
and the
EXHIBIT C-I-3
Master Servicer to the effect that the purchase and holding of this Certificate
is permissible under applicable law, will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code (or comparable provisions of any subsequent enactments), and will not
subject the Trustee, the 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 Agreement, which opinion of
counsel shall not be an expense of the Trustee, the Company or the Master
Servicer.
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 66.6% 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, 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.
EXHIBIT C-I-4
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 [in the related
Loan Group] 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 [in the related Loan Group] 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 [in
the related Loan Group] and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the [related]
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the
related Loan Group] 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 Group [in the related Loan Group].
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.
EXHIBIT C-I-5
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 P Certificates referred to in the within-mentioned
Agreement.
[TRUSTEE],
as Certificate Registrar
By:_________________________________________
Authorized Signatory
EXHIBIT C-I-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
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-I-7
EXHIBIT C-II
FORM OF CLASS SB-[ ] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS M-1, CLASS M-2, CLASS M-3, [CLASS M-4, CLASS M-5, CLASS
M-6, CLASS M-7, CLASS M-8, CLASS M-9 AND CLASS M-10] CERTIFICATES AS DESCRIBED
IN THE AGREEMENT (AS DEFINED HEREIN).
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, AS AMENDED (THE "CODE"). COUPLED WITH INTERESTS IN THE SWAP AGREEMENT AND
THE SB-AM SWAP AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT (THE "AGREEMENT").
NO TRANSFER OF THIS CERTIFICATE (OR ANY INTEREST HEREIN) MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE MASTER
SERVICER WITH EITHER (A) A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE
AGREEMENT OR (B) 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 AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, 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 (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 AND LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE TRUSTEE, THE COMPANY OR THE MASTER SERVICER.
EXHIBIT C-II-1
Class SB-[ ] Subordinate Certificate No. ___
Date of Pooling and Servicing Agreement Percentage Interest: ________%
and Cut-off Date:
[_______ 1, _______]
First Distribution Date: Aggregate Initial Notional Principal Balance of the
[_______ 25, _______] Class SB-[ ] Certificates: $_________
Master Servicer: Initial Notional Balance of this Class SB-2
Residential Funding Company, LLC Certificate: $________
Maturity Date: CUSIP
[______ 25, ________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in the distributions
allocable to the Class SB-[ ] Certificates with respect to a
Trust Fund consisting primarily of a pool of [one- to
four-family residential, hybrid adjustable-rate first lien
mortgage loans with a negative amortization feature] 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 in certain distributions with respect to the Trust
Fund consisting primarily of an interest in a pool of [conventional one- to
four-family fix interest rate first lien mortgage loans] (the "Mortgage Loans"),
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 Pooling and Servicing
Agreement dated as specified above (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.
EXHIBIT C-II-2
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 Business 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 SB-[ ] 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. The Notional Amount of this Class SB-[ ]
Certificate as of any date of determination will be calculated as described in
the Agreement. This Class SB-[ ] Certificate will accrue interest at the
Pass-Through Rate on the Notional Amount as indicated in the definition of
Accrued Certificate Interest in the Agreement. This Class SB-[ ] Certificate
will not accrue interest on its Certificate Principal Balance.
No transfer of this Class SB-[ ] 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 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.
As described above, no transfer of this Certificate (or any interest
herein) shall be made unless the transferee provides the Trustee, the Company
and the Master Servicer with either (a) a certification pursuant to Section
5.02(e) of 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 (each, a "Plan"), or any Person (including, without
limitation, an insurance company investing its general account, an investment
manager, a named fiduciary or a trustee of any Plan) who is using plan assets,
within the meaning of the U.S. Department of Labor regulation promulgated at 29
C.F.R. ss. 2510.3-101, as modified by Section 3(42) of ERISA, of any Plan (each,
a "Plan Investor") to effect such acquisition, or (b) an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee, the Company
and the
EXHIBIT C-II-3
Master Servicer to the effect that the purchase and holding of this Certificate
is permissible under applicable law, will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code (or comparable provisions of any subsequent enactments), and will not
subject the Trustee, the 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 Agreement, which opinion of
counsel shall not be an expense of the Trustee, the Company or the Master
Servicer.
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 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 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, 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.
EXHIBIT C-II-4
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, 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
(i) to 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) to 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
Stated Principal Balance before giving effect to the distributions to be made on
such Distribution Date 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.
[Signature Page Follows]
EXHIBIT C-II-5
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 SB-[ ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_________________________________________
Authorized Signatory
EXHIBIT C-II-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
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-II-7
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 (OR ANY INTEREST HEREIN) MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE MASTER
SERVICER WITH EITHER (A) A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE
AGREEMENT OR (B) 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 AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, 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 (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 AND LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE TRUSTEE, THE COMPANY OR THE MASTER SERVICER.
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 FREDDIE 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
EXHIBIT D-1
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.
EXHIBIT D-2
Certificate No. [____] [____]% Pass-Through Rate
Class [R-___] Senior
Date of Pooling and Servicing Agreement Aggregate Initial Certificate Principal Balance of the
and Cut-off Date: Class R-___ Certificates: $100.00
[______________]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[______________]
Master Servicer: Percentage Interest: _____%
Residential Funding Company, LLC
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in the distributions
allocable to the Class R[-__] 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 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
EXHIBIT D-3
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing as described in
the Agreement, to the Person in whose name this Certificate is registered at the
close of business on the last day (or if such last day is not a Business Day,
the Business Day immediately preceding such last day) of the month immediately
preceding the month of such distribution (the "Record Date"), from the [related]
Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class 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. 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.
As described above, no transfer of this Certificate (or any interest
herein) shall be made unless the transferee provides the Trustee, the Company
and the Master Servicer with either (a) a certification pursuant to Section
5.02(e) of 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 (each, a "Plan"), or any Person (including, without
limitation, an insurance company investing its general account, an investment
manager, a named fiduciary or a trustee of any Plan) who is using plan assets,
within the meaning of the U.S. Department of Labor regulation promulgated at 29
C.F.R. ss. 2510.3-101, as modified by Section 3(42) of
EXHIBIT D-4
ERISA, of any Plan (each, a "Plan Investor") to effect such acquisition, or
(b) 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 and holding of this Certificate is permissible under applicable law,
will not constitute or result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or comparable provisions of
any subsequent enactments), and will not subject the Trustee, the 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 Agreement, which opinion of counsel shall not be an expense of
the Trustee, the Company or the Master Servicer.
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 66.6% 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, 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.
EXHIBIT D-5
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 [in the related
Loan Group] 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 [in the related Loan Group] 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 [in
the related Loan Group] and all property acquired in respect of any Mortgage
Loan or (ii) purchase in whole, but not in part, all of the [related]
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the
related Loan Group] 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 Group [in the related Loan Group].
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.
EXHIBIT D-6
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
EXHIBIT D-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
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-8
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 Company, LLC, 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:
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.
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.
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:
EXHIBIT E-1
(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, certificates of formation, limited liability company
agreement, 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.
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.
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.
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.
EXHIBIT E-2
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.
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: (_____) _____-_________
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.
EXHIBIT E-3
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.
EXHIBIT E-4
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 COMPANY, LLC
[Corporate Seal]
By:___________________________________ By:_____________________________________
(Signature) (Signature)
By: By:
Title: Title:
EXHIBIT E-5
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 Company, LLC
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 F-1
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
EXHIBIT G-1-1
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.
EXHIBIT G-1-2
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 Owner is not an employee benefit plan or other plan subject to
the prohibited transaction provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Code (each, a "Plan"),
or any Person (including, without limitation, an insurance company investing its
general account, an investment manager, a named fiduciary or a trustee of any
Plan) who is using plan assets, within the meaning of the U.S. Department of
Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101, as modified by Section
3(42) of ERISA, of any Plan (each, a "Plan Investor") to effect such
acquisition; or
(b) The Owner 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 and holding of Certificates is permissible under applicable law, will
not constitute or result in any non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Trustee, the 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, which opinion of counsel
shall not be an expense of the Trustee, the Company or the Master Servicer.
In addition, the Owner 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 transferee unless such
transferee 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.
EXHIBIT G-1-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, pursuant to the authority of its Board of Directors, by its [Title
of Officer] and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this day of _____,___ 200__.
[NAME OF OWNER]
By:______________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be the [Title of Officer] of the Owner, and acknowledged to me that he executed
the same as his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ___ day of ________, 200 __.
NOTARY PUBLIC
COUNTY OF___________________________________________
STATE OF____________________________________________
My Commission expires the __ day of _____, 20__.
EXHIBIT G-1-4
EXHIBIT 1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and,
pending receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number
1545-1675.
The collection of information in this regulation is in
Sec. 1.860E-1(c)(5)(ii). This information is required to enable the IRS to
verify that a taxpayer is complying with the conditions of this regulation. The
collection of information is mandatory and is required. Otherwise, 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.
EXHIBIT G-1-5
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, Washington, DC, 20503, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, Washington, DC 20224. 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]]
EXHIBIT G-1-6
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.
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
EXHIBIT G-1-7
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.
[[Page 47453]]
Effect on Other Documents
EXHIBIT G-1-8
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-1-9
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 Company, LLC 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
Company, LLC, 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.
EXHIBIT G-2-1
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 G-2-2
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 Company, LLC
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Company, LLC 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 Company, LLC, 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.
EXHIBIT H-1
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any applicable
state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters, and, in
particular, in such matters related to securities similar to the Certificates,
such that it is capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an investment and (c)
an "accredited investor" within the meaning of Rule 501(a) promulgated pursuant
to the Act.
4. 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.
EXHIBIT H-2
6. The Purchaser
(a) 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") (each, a "Plan"), or any Person (including, without
limitation, an investment manager, a named fiduciary or a trustee of any Plan)
who is using plan assets, within the meaning of the U.S. Department of Labor
("DOL") regulation promulgated at 29 C.F.R. ss. 2510.3-101, as modified by
Section 3(42) of ERISA, of any Plan (each, a "Plan Investor"), to effect such
acquisition;
(b) is an insurance company, the source of funds used to purchase or hold
the Certificate (or any interest therein) is an "insurance company general
account" (as defined in DOL Prohibited Transaction Class Exemption ("PTCE")
95-60), and the conditions set forth in Sections I and III of PTCE 95-60 have
been satisfied; 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 and
holding of the Certificates is permissible under applicable law, will not
constitute or result in a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), and will not subject the Trustee, the 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, which opinion of counsel shall not be an
expense of the Trustee, the Company or the Master Servicer.
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 transferee unless such
transferee meets the requirements set forth in either (a), (b) or (c) above.
Very truly yours,
By:________________________________________
Name:
Title:
EXHIBIT H-3
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 Company, LLC 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 Company, LLC, 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.
EXHIBIT I-1
Very truly yours,
____________________________________________
(Seller)
____________________________________________
By:
Name:
Title:
EXHIBIT I-2
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 1933 Act.
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
Company, LLC 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.
EXHIBIT J-1
(d) Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Rule 144A
Securities under the 1933 Act or that would render the disposition of the Rule
144A Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that term is defined
in Rule 144A under the 1933 Act and has completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. The Buyer is
aware that the sale to it is being made in reliance on Rule 144A. The Buyer is
acquiring the Rule 144A Securities for its own account or the accounts of other
qualified institutional buyers, understands that such Rule 144A Securities may
be resold, pledged or transferred only (i) to a person reasonably believed to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A, or
(ii) pursuant to another exemption from registration under the 1933 Act.
3. The Buyer
(a) is not an employee benefit 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") (each, a "Plan"), or any Person (including, without
limitation, an investment manager, a named fiduciary or a trustee of any Plan)
who is using plan assets, within the meaning of the U.S. Department of Labor
("DOL") regulation promulgated at 29 C.F.R. ss. 2510.3-101, as modified by
Section 3(42) of ERISA, of any Plan (each, a "Plan Investor"), to effect such
acquisition; or
(b) in the case of any Class B Certificate, is an insurance company, the
source of funds used to purchase or hold the Certificates (or any interest
therein) is an "insurance company general account" (as defined in DOL Prohibited
Transaction Class Exemption ("PTCE") 95-60), and the conditions set forth in
Sections I and III PTCE 95-60 have been satisfied; 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 and
holding of the Certificates is permissible under applicable law, will not
constitute or result in any non-exempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Trustee, the 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, which opinion of counsel shall not be an expense of the
Trustee, the Company or the Master Servicer.
EXHIBIT J-2
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:
EXHIBIT J-3
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:
12. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
13. 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.
EXHIBIT J-4
___ 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.
14. 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.
15. 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.
16. 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?
EXHIBIT J-5
17. 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.
18. 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:_______________________________________
EXHIBIT J-6
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:
19. 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.
20. 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).
21. 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).
22. 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.
23. 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.
EXHIBIT J-7
24. 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 J-8
EXHIBIT K
[TEXT OF AMENDMENT TO POOLING AND SERVICING
AGREEMENT PURSUANT TO SECTION 11.01(e)
FOR A LIMITED GUARANTY]
ARTICLE XIII
SUBORDINATE CERTIFICATE LOSS COVERAGE; LIMITED GUARANTY
Section 13.01. 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.
EXHIBIT K-1
(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 13.02. 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 GMAC LLC 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 GMAC LLC, 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 GMAC LLC 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 GMAC LLC as of the date of issuance
of the Limited Guaranty and (b) the rating of the long term debt obligations of
GMAC LLC 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
EXHIBIT K-2
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 13.02. AMENDMENTS RELATING TO THE LIMITED GUARANTY. Notwithstanding
Sections 11.01 or 13.01: (i) the provisions of this Article XIII 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 XIII 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 13.02.
EXHIBIT K-3
EXHIBIT L
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates
Series ________
___________, 20____
[Trustee]
Attention: Residential Funding Company, LLC Series ________
Ladies and Gentlemen:
WHEREAS, Residential Funding Company, LLC, a Delaware limited liability
company ("Residential Funding"), an indirect wholly-owned subsidiary of GMAC
LLC, a New York corporation ("GMAC"), plans to incur certain obligations as
described under Section 13.01 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 13.01 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 xxxxxx
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 13.01 of the Servicing Agreement.
EXHIBIT L-1
(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 13.01(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 13.02 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.
EXHIBIT L-2
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be executed
and delivered by its respective officers thereunto duly authorized as of the day
and year first above written.
GMAC LLC
By:________________________________________
Name:
Title:
Acknowledged by:
[Trustee], as Trustee
By:_____________________________
Name:
Title:
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
By:_____________________________
Name:
Title:
EXHIBIT L-3
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 Company, LLC 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 Company, LLC, 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:
(a) 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;
(b) 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;
(c) 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.
EXHIBIT M-1
Very truly yours,
(Xxxxxx)
By:________________________________________
Name:
Title:
EXHIBIT M-2
EXHIBIT N
FORM OF REQUEST FOR EXCHANGE
[Date]
U.S. Bank National Association
U.S. Bank Corporate Trust Services
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000-0000
Re: Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates, Series [________]
Residential Funding Company, LLC, 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 Company,
LLC and U.S. Bank National Association, as trustee.
RESIDENTIAL FUNDING
CORPORATION
By:_________________________________________
Name:
Title:
EXHIBIT N-1
EXHIBIT O
FORM OF FORM 10-K CERTIFICATION
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on
Form 10-K of the trust (the Exchange Act periodic reports) created pursuant to
the Pooling and Servicing Agreement dated __________ (the "Agreement") among
Residential Funding Mortgage Securities I, Inc., Residential Funding Company,
LLC (the "Master Servicer") and [Name of Trustee] (the "Trustee");
2. Based on my knowledge, Exchange Act periodic reports, taken as a whole,
do 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 with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer and based on my knowledge and the compliance review conducted in
preparing the servicer compliance statement required in this report under Item
1123 of Regulation AB and except as disclosed in the Exchange Act periodic
reports, the Master Servicer has fulfilled its obligations under the Agreement;
and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
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 O-1
EXHIBIT P
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of U.S. Bank 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 Company, LLC
(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 P-1
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 Terms (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 Q-1
EXHIBIT R
SERVICING CRITERIA
The assessment of compliance to be delivered by the Trustee shall
address, at a minimum, the criteria identified below as "Applicable Servicing
Criteria"
-----------------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
-----------------------------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
1122(d)(1)(ii) such servicing activities.
-----------------------------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to maintain
1122(d)(1)(iii) a back-up servicer for the pool assets are maintained.
-----------------------------------------------------------------------------------------------------------------
A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
1122(d)(1)(iv) the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
-----------------------------------------------------------------------------------------------------------------
Payments on pool assets are deposited into the appropriate
custodial bank accounts and related bank clearing accounts [X] (as to accounts
no more than two business days following receipt, or such held by Trustee)
other number of days specified in the transaction
1122(d)(2)(i) agreements.
-----------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized [X] (as to investors
1122(d)(2)(ii) personnel. only)
-----------------------------------------------------------------------------------------------------------------
Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
1122(d)(2)(iii) approved as specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with [X] (as to accounts
respect to commingling of cash) as set forth in the transaction held by Trustee)
1122(d)(2)(iv) agreements.
-----------------------------------------------------------------------------------------------------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with respect to
a foreign financial institution means a foreign financial
institution that meets the requirements of Rule 13k-1(b)(1)
1122(d)(2)(v) of the Securities Exchange Act.
-----------------------------------------------------------------------------------------------------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access.
-----------------------------------------------------------------------------------------------------------------
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification,
or such other number of days specified in the transaction
1122(d)(2)(vii) agreements.
-----------------------------------------------------------------------------------------------------------------
EXHIBIT R-1
-----------------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
-----------------------------------------------------------------------------------------------------------------
Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of pool assets
1122(d)(3)(i) serviced by the servicer.
-----------------------------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in accordance [X]
with timeframes, distribution priority and other terms set forth in
1122(d)(3)(ii) the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two business
days to the servicer's investor records, or such other number of [X]
1122(d)(3)(iii) days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports [X]
agree with cancelled checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
-----------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
-----------------------------------------------------------------------------------------------------------------
Collateral or security pool asset is maintained as
required by the transaction agreements or related asset
1122(d)(4)(i) pool documents.
-----------------------------------------------------------------------------------------------------------------
Pool assets and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements
-----------------------------------------------------------------------------------------------------------------
Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
1122(d)(4)(iii) conditions or requirements in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Payments on pool assets, including any payoffs, made in
accordance with the related pool asset documents are
posted to the servicer's obligor records maintained no
more than two business days after receipt, or such other
number of days specified in the transaction agreements,
and allocated to principal, interest or other items (e.g.,
escrow) in accordance with the related pool asset
1122(d)(4)(iv) documents.
-----------------------------------------------------------------------------------------------------------------
The servicer's records regarding the pool assets agree with
the servicer's records with respect to an obligor's unpaid
1122(d)(4)(v) principal balance.
-----------------------------------------------------------------------------------------------------------------
Changes with respect to the terms or status of an obligor's
pool asset (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
1122(d)(4)(vi) asset documents.
-----------------------------------------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
1122(d)(4)(vii) transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Records documenting collection efforts are maintained
during the period a pool asset is delinquent in accordance
with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
pool assets including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment).
-----------------------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for pool
assets with variable rates are computed based on the
1122(d)(4)(ix) related pool asset documents.
-----------------------------------------------------------------------------------------------------------------
EXHIBIT R-2
-----------------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-----------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------
Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's pool asset documents, on at
least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is
paid, or credited, to obligors in accordance with
applicable pool asset documents and state laws; and (C)
such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool asset, or such
other number of days specified in the transaction
1122(d)(4)(x) agreements.
-----------------------------------------------------------------------------------------------------------------
Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such other
1122(d)(4)(xi) number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless
the late payment was due to the obligor's error or
1122(d)(4)(xii) omission.
-----------------------------------------------------------------------------------------------------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
1122(d)(4)(xiii) specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
-----------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, [X]
1122(d)(4)(xv) is maintained as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
EXHIBIT R-3
EXHIBIT S
FORM OF EXCHANGE NOTICE
-----------------------
[CERTIFICATEHOLDER'S LETTERHEAD]
[DATE]
U.S. Bank National Association
U.S. Bank Corporate Trust Services
00 Xxxxxxxxxx Xxxxxx
XX XX XX0X
Xx. Xxxx, XX 00000-0000
Re:
Ladies and Gentlemen:
Pursuant to the terms of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of [], between Residential Funding Company,
LLC, as master servicer, Residential Funding Mortgage Securities I, Inc., as
depositor, and U.S. Bank National Association, as trustee (the "Trustee"), we
hereby present and surrender the Exchangeable [Exchanged] Certificates specified
on Annex I attached hereto (the "Exchangeable [Exchanged] Certificates") and
transfer, assign, set over and otherwise convey to the Trustee, all of our
right, title and interest in and to the Exchangeable [Exchanged] Certificates,
including all payments of interest thereon received after [], in exchange for
the Exchanged [Exchangeable] Certificates specified on Schedule I attached
hereto (the "Exchanged [Exchangeable] Certificates").
We agree that upon such exchange the portions of the Exchangeable [Exchanged]
Certificates designated for exchange shall be deemed cancelled and replaced by
the Exchanged [Exchangeable] Certificates issued in exchange therefor. We
confirm that we have paid a fee to the Trustee in connection with such exchange
equal to $10,000.
Very truly yours,
[NAME OF TRANSFEREE]
By:________________________________
Authorized Officer
[MEDALLION STAMP GUARANTEE]
EXHIBIT S-1
Acknowledged by:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
EXHIBIT S-2
ANNEX I TO EXHIBIT S
INITIAL EXCHANGEABLE CERTIFICATES
------------------------------------------------------------------------------------------------------------------------------
EXCHANGEABLE [EXCHANGED] CERTIFICATES EXCHANGED [EXCHANGEABLE] CERTIFICATES
------------------------------------------------------------------------------------------------------------------------------
OUTSTANDING INITIAL
CERTIFICATE CERTIFICATE
PRINCIPAL PRINCIPAL
BALANCE OR BALANCE OR CERTIFICATEHOLDER'S PROPOSED
NOTIONAL NOTIONAL DTC PARTICIPANT EXCHANGE
CERTIFICATE(S) AMOUNT CUSIP NUMBER CERTIFICATE(S) AMOUNT CUSIP NUMBER NUMBER DATE
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
EXHIBIT S-3
