RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.,
Company,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
AMENDMENT NO. 1 dated as of
January 8, 2003 to the
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1997
Mortgage Pass-Through Certificates
Series 1997-S17
AMENDMENT NO. 1 made as of this 8th day of January 2003, among
Residential Funding Mortgage Securities I, Inc., as company (the "Company"),
Residential Funding Corporation, as master servicer (the "Master Servicer"), and
Bank One, National Association (formerly known as The First National Bank of
Chicago), as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company, the Trustee and the Master Servicer entered into a
Pooling and Servicing Agreement (the "Agreement") dated as of November 1, 1997,
relating to the issuance of Mortgage Pass-Through Certificates, Series 1997-S17;
and
WHEREAS, the Company, the Master Servicer and the Trustee desire to
amend the terms of the Agreement pursuant to and in accordance with Section
11.01(a) of the Agreement.
NOW, THEREFORE, in consideration of the mutual premises and agreements
herein, the Company, the Master Servicer and the Trustee agree as follows:
1. Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Agreement.
2. Section 5.02(e) of the Agreement is amended to read as follows:
(e) (i) In the case of any Class B or Class R Certificate presented for
registration in the name of any Person, either (A) the Trustee shall require an
Opinion of Counsel acceptable to and in form and substance satisfactory to the
Trustee, the Company and the Master Servicer to the effect that the purchase or
holding of such Class B or Class R Certificate is permissible under applicable
law, will not constitute or result in any non-exempt prohibited transaction
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code (or comparable provisions of any
subsequent enactments), and will not subject the Trustee, the Company or the
Master Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Company or the Master Servicer or (B) the prospective
Transferee shall be required to provide the Trustee, the Company and the Master
Servicer with a certification to the effect set forth in paragraph six of
Exhibit J (with respect to any Class B Certificate) or paragraph fourteen of
Exhibit I-1 (with respect to any Class R Certificate), which the Trustee may
rely upon without further inquiry or investigation, or such other certifications
as the Trustee may deem desirable or necessary in order to establish that such
Transferee or the Person in whose name such registration is requested either (a)
is not an employee benefit plan or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code, or any Person
(including an investment manager, a named fiduciary or a trustee of any such
plan) who is using "plan assets" of any such plan to effect such acquisition
(each, a "Plan Investor") or (b) in the case of any Class B Certificate, the
following conditions are satisfied: (i) such Transferee is an insurance company,
(ii) the source of funds used to purchase or hold such Certificate (or interest
therein) is an "insurance company general account" (as defined in U.S.
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and
(iii) the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied (each entity that satisfies this clause (b), a "Complying Insurance
Company").
(ii) Any Transferee of a Class M Certificate will be deemed to
have represented by virtue of its purchase or holding of such Certificate (or
interest therein) that either (a) such Transferee is not a Plan Investor, (b) it
has acquired and is holding such Certificate in reliance on Prohibited
Transaction Exemption ("PTE") 94-29, 59 Fed. Reg. 14674 (March 29, 1994), as
amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), and PTE 2000-58, 65
Fed. Reg. 67765 (November 13, 2000) (the "RFC Exemption"), and that it
understands that there are certain conditions to the availability of the RFC
Exemption including that such Certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch
or Moody's or (c) such Transferee is a Complying Insurance Company.
(iii) (A) If any Class M Certificate (or any interest therein)
is acquired or held by any Person that does not satisfy
the conditions described in paragraph (ii) above, then the
last preceding Transferee that either (i) is not a Plan
Investor, (ii) acquired such Certificate in compliance
with the RFC Exemption, or (iii) is a Complying Insurance
Company shall be restored, to the extent permitted by law,
to all rights and obligations as Certificate Owner thereof
retroactive to the date of such Transfer of such Class M
Certificate. The Trustee shall be under no liability to
any Person for making any payments due on such Certificate
to such preceding Transferee.
(B) Any purported Certificate Owner whose acquisition or
holding of any Class M Certificate (or interest therein)
was effected in violation of the restrictions in this
Section 5.02(e) shall indemnify and hold harmless the
Company, the Trustee, the Master Servicer, any
Subservicer, 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.
3. The third paragraph on the face of the Form of Class M Certificate
attached as Exhibit B to the Agreement, is hereby amended to read as follows:
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED BY
VIRTUE OF ITS PURCHASE OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN) THAT
EITHER (A) SUCH TRANSFEREE IS NOT AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A
TRUSTEE OF ANY PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING
ANY CERTIFICATE WITH "PLAN ASSETS" OF ANY PLAN (A "PLAN INVESTOR"), (B) IT HAS
ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION
EXEMPTION ("PTE") 94-29, 59 FED. REG. 14674 (MARCH 29, 1994), AS AMENDED BY PTE
97-34, 62
FED. REG. 39021 (JULY 21, 1997), AND PTE 2000-58, 65 FED. REG. 67765 (NOVEMBER
13, 2000) (THE "RFC EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN
CONDITIONS TO THE AVAILABILITY OF THE RFC EXEMPTION INCLUDING THAT SUCH
CERTIFICATE MUST BE RATED, AT THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR
ITS EQUIVALENT) BY STANDARD & POOR'S, FITCH OR MOODY'S OR (C)(I) THE TRANSFEREE
IS AN INSURANCE COMPANY, (II) THE SOURCE OF FUNDS TO BE USED BY IT TO PURCHASE
THE CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60),
AND (III) THE CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (C), A "COMPLYING INSURANCE
COMPANY").
4. The Form of Class M Certificate attached as Exhibit B to the
Agreement, is hereby amended by adding the following as the seventh paragraph of
the body of the certificate:
As described above, any transferee of this Certificate will be deemed to
have represented by virtue of its purchase or holding of this Certificate (or
interest herein) that either (A) such transferee is not a Plan Investor, (B) it
has acquired and is holding this Certificate in reliance on the RFC Exemption
and that it understands that there are certain conditions to the availability of
the RFC Exemption including that this Certificate must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch
or Moody's or (C) the transferee is a Complying Insurance Company. In addition,
any purported Certificate Owner whose acquisition or holding of this Certificate
(or interest herein) was effected in violation of the restrictions in Section
5.02(e) of the Agreement shall indemnify and hold harmless the Company, the
Trustee, the Master Servicer, any Subservicer, and the Trust Fund from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.
5. Paragraph six of the Form of Transferor Certificate attached as Exhibit
J to the Agreement, is hereby amended to read as follows:
6. The Purchaser
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA), or Section 4975 of the Internal Revenue Code of 1986, as
amended ("Plan"), or any other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing any Certificate with "plan assets" of any Plan within the meaning
of the Department of Labor ("DOL") regulation at 29 C.F.R. ss.2510.3-101;
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within the
meaning of DOL Prohibited Transaction Class Exemption ("PTCE") 95-60), and the
purchase is being made in reliance upon the availability of the exemptive relief
afforded under Sections I and III of PTCE 95-60; or
(c) has provided the Trustee, the Company and the Master Servicer with
an opinion of counsel acceptable to and in form and substance satisfactory to
the Trustee, the Company and the Master Servicer to the effect that the purchase
of Certificates is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code and will not subject the Trustee, the Company or the Master Servicer to
any obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Pooling and
Servicing Agreement.
In addition, the Purchaser hereby certifies, represents and warrants to,
and covenants with, the Company, the Trustee and the Master Servicer that the
Purchaser will not transfer such Certificates to any Plan or person unless such
Plan or person meets the requirements set forth in either 6(a), (b) or (c)
above.
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused their duly authorized representatives to execute and deliver this
instrument as of the date first above written.
RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Managing Director
BANK ONE, NATIONAL ASSOCIATION,
solely in its capacity as Trustee
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
