Execution Copy
RESIDENTIAL ASSET SECURITIES CORPORATION,
Depositor,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2006
Home Equity Mortgage Asset-Backed Pass-Through Certificates
Series 2006-EMX7
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS....................................................................................3
Section 1.01. Definitions.......................................................................3
Section 1.02. Determination of LIBOR...........................................................41
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES...............................43
Section 2.01. Conveyance of Mortgage Loans.....................................................43
Section 2.02. Acceptance by Trustee............................................................46
Section 2.03. Representations, Warranties and Covenants of the Master Servicer
and the Depositor................................................................47
Section 2.04. Representations and Warranties of Sellers........................................49
Section 2.05. Execution and Authentication of Certificates; Conveyance of
REMIC-I Regular Interests........................................................51
Section 2.06. Purposes and Powers of the Trust.................................................51
Section 2.07. Agreement Regarding Ability to Disclose..........................................52
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS................................................53
Section 3.01. Master Servicer to Act as Servicer...............................................53
Section 3.02. Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' Obligations...........................55
Section 3.03. Successor Subservicers...........................................................56
Section 3.04. Liability of the Master Servicer.................................................56
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders...............................................................57
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee..................57
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account................................................................57
Section 3.08. Subservicing Accounts; Servicing Accounts........................................60
Section 3.09. Access to Certain Documentation and Information Regarding the
Mortgage Loans...................................................................61
Section 3.10. Permitted Withdrawals from the Custodial Account.................................61
Section 3.11. Maintenance of Primary Insurance Coverage........................................63
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity Coverage................63
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments..................................................64
Section 3.14. Realization Upon Defaulted Mortgage Loans........................................66
Section 3.15. Trustee to Cooperate; Release of Custodial Files.................................68
Section 3.16. Servicing and Other Compensation; Compensating Interest..........................69
Section 3.17. Reports to the Trustee and the Depositor.........................................70
Section 3.18. Annual Statement as to Compliance and Servicing Assessment.......................70
Section 3.19. Annual Independent Public Accountants' Servicing Report..........................71
Section 3.20. Right of the Depositor in Respect of the Master Servicer.........................71
Section 3.21. [Reserved].......................................................................72
Section 3.22. Advance Facility.................................................................72
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS................................................................76
Section 4.01. Certificate Account..............................................................76
Section 4.02. Distributions....................................................................76
Section 4.03. Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting...........................................................79
Section 4.04. Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer..................................................83
Section 4.05. Allocation of Realized Losses....................................................84
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property....................86
Section 4.07. Optional Purchase of Defaulted Mortgage Loans....................................86
Section 4.08. Limited Mortgage Loan Repurchase Right...........................................86
Section 4.09. Derivative Contracts.............................................................87
Section 4.10. Yield Maintenance Agreement......................................................88
ARTICLE V THE CERTIFICATES..............................................................................89
Section 5.01. The Certificates.................................................................89
Section 5.02. Registration of Transfer and Exchange of Certificates............................91
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates................................95
Section 5.04. Persons Deemed Owners............................................................95
Section 5.05. Appointment of Paying Agent......................................................96
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER.........................................................97
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer..................97
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer.................97
Section 6.03. Limitation on Liability of the Depositor, the Master Servicer
and Others.......................................................................98
Section 6.04. Depositor and Master Servicer Not to Resign......................................98
ARTICLE VII DEFAULT......................................................................................100
Section 7.01. Events of Default...............................................................100
Section 7.02. Trustee or Depositor to Act; Appointment of Successor...........................101
Section 7.03. Notification to Certificateholders..............................................102
Section 7.04. Waiver of Events of Default.....................................................103
ARTICLE VIII CONCERNING THE TRUSTEE.......................................................................104
Section 8.01. Duties of Trustee...............................................................104
Section 8.02. Certain Matters Affecting the Trustee...........................................105
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans...........................106
Section 8.04. Trustee May Own Certificates....................................................107
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.................................................................107
Section 8.06. Eligibility Requirements for Trustee............................................107
Section 8.07. Resignation and Removal of the Trustee..........................................108
Section 8.08. Successor Trustee...............................................................109
Section 8.09. Merger or Consolidation of Trustee..............................................109
Section 8.10. Appointment of Co-Trustee or Separate Trustee...................................109
Section 8.11. Appointment of the Custodian....................................................110
Section 8.12. Appointment of Office or Agency.................................................111
Section 8.13. DTC Letter of Representations...................................................111
Section 8.14. Yield Maintenance Agreement.....................................................111
ARTICLE IX TERMINATION..................................................................................112
Section 9.01. Termination Upon Purchase or Liquidation of All Mortgage Loans..................112
Section 9.02. Additional Termination Requirements.............................................115
ARTICLE X REMIC PROVISIONS.............................................................................117
Section 10.01. REMIC Administration............................................................117
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification................120
ARTICLE XI MISCELLANEOUS PROVISIONS.....................................................................121
Section 11.01. Amendment.......................................................................121
Section 11.02. Recordation of Agreement; Counterparts..........................................123
Section 11.03. Limitation on Rights of Certificateholders......................................123
Section 11.04. Governing Law...................................................................124
Section 11.05. Notices.........................................................................124
Section 11.06. Notices to Rating Agencies......................................................125
Section 11.07. Severability of Provisions......................................................125
Section 11.08. Supplemental Provisions for Resecuritization....................................125
Section 11.09. Third-Party Beneficiary.........................................................126
ARTICLE XII COMPLIANCE WITH REGULATION AB................................................................126
Section 12.01. Intent of Parties; Reasonableness...............................................126
Section 12.02. Additional Representations and Warranties of the Trustee........................127
Section 12.03. Information to be Provided by the Trustee.......................................127
Section 12.04. Report on Assessment of Compliance and Attestation..............................128
Section 12.05. Indemnification; Remedies.......................................................128
EXHIBIT A FORM OF CLASS A CERTIFICATE..................................................................A-1
EXHIBIT B FORM OF CLASS M CERTIFICATE..................................................................B-1
EXHIBIT C FORM OF CLASS SB CERTIFICATE.................................................................C-1
EXHIBIT D FORM OF CLASS R CERTIFICATE..................................................................D-1
EXHIBIT E FORM OF CUSTODIAL AGREEMENT..................................................................E-1
EXHIBIT F MORTGAGE LOAN SCHEDULE.......................................................................F-1
EXHIBIT G FORM OF REQUEST FOR RELEASE..................................................................G-1
EXHIBIT H-1 FORM OF TRANSFER AFFIDAVIT AND AGREEMENT...................................................H-1-1
EXHIBIT H-2 FORM OF TRANSFEROR CERTIFICATE.............................................................H-2-1
EXHIBIT I FORM OF INVESTOR REPRESENTATION LETTER.......................................................I-1
EXHIBIT J FORM OF TRANSFEROR REPRESENTATION LETTER.....................................................J-1
EXHIBIT K TEXT OF AMENDMENT TO POOLING AND SERVICING AGREEMENT PURSUANT TO
SECTION 11.01(E) FOR A LIMITED GUARANTY......................................................K-1
EXHIBIT L FORM OF LIMITED GUARANTY.....................................................................L-1
EXHIBIT M FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN.................................M-1
EXHIBIT N FORM OF RULE 144A INVESTMENT REPRESENTATION..................................................N-1
EXHIBIT O [RESERVED]...................................................................................O-1
EXHIBIT P FORM OF ERISA LETTER.........................................................................P-1
EXHIBIT Q [RESERVED]...................................................................................Q-1
EXHIBIT R ASSIGNMENT AGREEMENT.........................................................................R-1
EXHIBIT S SERVICING CRITERIA...........................................................................S-1
EXHIBIT T-1 FORM OF 10-K CERTIFICATION.................................................................T-1-1
EXHIBIT T-2 FORM OF BACK-UP CERTIFICATION..............................................................T-2-1
EXHIBIT U INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING AGENCIES
RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS...............................................U-1
This Pooling and Servicing Agreement, effective as of August 1, 2006, among RESIDENTIAL ASSET
SECURITIES CORPORATION, as the depositor (together with its permitted successors and assigns, the
"Depositor"), RESIDENTIAL FUNDING CORPORATION, as master servicer (together with its permitted successors
and assigns, the "Master Servicer"), and U.S. BANK NATIONAL ASSOCIATION, a banking association organized
under the laws of the United States, as trustee (together with its permitted successors and assigns, the
"Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage asset-backed pass-through certificates (collectively,
the "Certificates"), to be issued hereunder in fifteen Classes, which in the aggregate will evidence the
entire beneficial ownership interest in the Mortgage Loans (as defined herein) and certain other related
assets.
REMIC I
As provided herein, the REMIC Administrator will make an election to treat the segregated pool
of assets consisting of the Mortgage Loans and certain other related assets (exclusive of the Yield
Maintenance Agreement) subject to this Agreement as a real estate mortgage investment conduit (a
"REMIC") for federal income tax purposes, and such segregated pool of assets will be designated as
"REMIC I." Component I of the Class R Certificates will represent the sole Class of "residual interests"
in REMIC I for purposes of the REMIC Provisions (as defined herein) under federal income tax law. The
following table irrevocably sets forth the designation, remittance rate (the "Uncertificated REMIC I
Pass-Through Rate") and initial Uncertificated Principal Balance for each of the "regular interests" in
REMIC I (the "REMIC I Regular Interests"). The "latest possible maturity date" (determined solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) for each REMIC I Regular
Interest shall be the Maturity Date. None of the REMIC I Regular Interests will be certificated.
Uncertificated REMIC I Initial Uncertificated REMIC I Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date
__________________________________________________________________________________________________________________
LT-1 Variable(1) $ 519,913,500.29 August 25, 2036
LT-2 Variable(1) $ 17,394.27 August 25, 2036
LT-3 0.00% $ 34,605.74 August 25, 2036
LT-4 Variable(1) $ 34,605.74 August 25, 2036
_______________
(1) Calculated as provided in the definition of Uncertificated REMIC I Pass-Through Rate.
REMIC II
As provided herein, the REMIC Administrator will make an election to treat the segregated pool
of assets consisting of the REMIC I Regular Interests as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as REMIC II. Component II of the Class R Certificates
will represent the sole Class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the designation, Pass-Through
Rate, aggregate Initial Certificate Principal Balance, certain features, month of Final Scheduled
Distribution Date and initial ratings for each Class of Certificates comprising the interests
representing "regular interests" in REMIC II. The "latest possible maturity date" (determined solely
for purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii)) for each Class of REMIC II
Regular Interests shall be the Maturity Date.
Aggregate Initial Month of
Certificate Principal Final Scheduled
Designation Type Pass-Through Rate Balance Features Distribution Date
_________________________________________________________________________________________________________________________
S&P Xxxxx'x
___________________
Class A-1 Regular(1) Adjustable(2)(3) $ 201,532,000.00 Senior/Adjustable Rate May 2030 AAA Aaa
Class A-2 Regular(1) Adjustable(2)(3) $ 78,639,000.00 Senior/Adjustable Rate February 2035 AAA Aaa
Class A-3 Regular(1) Adjustable(2)(3) $ 81,129,000.00 Senior/Adjustable Rate June 2036 AAA Aaa
Class A-4 Regular(1) Adjustable(2)(3) $ 30,000,000.00 Senior/Adjustable Rate August 2036 AAA Aaa
Class M-1 Regular(1) Adjustable(2)(3) $ 23,140,000.00 Mezzanine/Adjustable Rate August 2036 AA+ Aa1
Class M-2 Regular(1) Adjustable(2)(3) $ 22,620,000.00 Mezzanine/Adjustable Rate August 2036 AA Aa2
Class M-3 Regular(1) Adjustable(2)(3) $ 11,180,000.00 Mezzanine/Adjustable Rate August 2036 AA- Aa3
Class M-4 Regular(1) Adjustable(2)(3) $ 10,400,000.00 Mezzanine/Adjustable Rate August 2036 A+ A1
Class M-5 Regular(1) Adjustable(2)(3) $ 9,620,000.00 Mezzanine/Adjustable Rate August 2036 A A2
Class M-6 Regular(1) Adjustable(2)(3) $ 6,500,000.00 Mezzanine/Adjustable Rate August 2036 A- A3
Class M-7 Regular(1) Adjustable(2)(3) $ 7,280,000.00 Mezzanine/Adjustable Rate August 2036 BBB+ Baa1
Class M-8 Regular(1) Adjustable(2)(3) $ 5,720,000.00 Mezzanine/Adjustable Rate August 2036 BBB Baa2
Class M-9 Regular(1) Adjustable(2)(3) $ 7,540,000.00 Mezzanine/Adjustable Rate August 2036 BBB- Baa2
Class SB Regular (4) (4) $ 24,700,106.05 Xxxxxxxxxxx X/X X/X X/X
_______________
(1) The Class A Certificates and Class M Certificates will represent ownership of REMIC II Regular
Interests together with certain rights to payments to be made from amounts received under the Yield
Maintenance Agreement which will be deemed made for federal income tax purposes outside of REMIC II
by the holder of the Class SB Certificates as the owner of the Yield Maintenance Agreement.
(2) The REMIC II Regular Interests ownership of which is represented by the Class A and Class M
Certificates, will accrue interest at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Margin and (ii) the Net WAC Cap Rate and the provisions for the payment of Basis Risk
Shortfalls herein, which payments will not be part of the entitlement of the REMIC II Regular
Interests related to such Certificates.
(3) The Class A Certificates and Class M Certificates will also entitle their holders to certain
payments from the Holder of the Class SB Certificates from amounts to which the related REMIC II
Regular Interest is entitled and from amounts received under the Yield Maintenance Agreement,
which will not be a part of their ownership of the REMIC II Regular Interests.
(4) The Class SB Certificates will accrue interest as described in the definition of Accrued
Certificate Interest. The Class SB Certificates will not accrue interest on their Certificate
Principal Balance. The Class SB Certificates will represent ownership of two REMIC II Regular
Interests, a principal only regular interest designated REMIC II Regular Interest SB-PO and an
interest only regular interest designated REMIC II Regular Interest SB-IO, which will be entitled
to distributions as set forth herein. The rights of the Holder of the Class SB Certificates to
payments from the Yield Maintenance Agreement shall be outside and apart from its rights under the
REMIC II Regular Interests SB-IO and SB-PO.
In consideration of the mutual agreements herein contained, the Depositor, 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.
Accrued Certificate Interest: With respect to each Distribution Date and each Class of Class A
Certificates and Class M Certificates, interest accrued during the related Interest Accrual Period on
the Certificate Principal Balance thereof immediately prior to such Distribution Date at the
Pass-Through Rate for that Distribution Date.
The amount of Accrued Certificate Interest on each Class of Certificates shall be reduced by
the amount of Prepayment Interest Shortfalls on the related Mortgage Loans during the prior calendar
month to the extent not covered by Compensating Interest pursuant to Section 3.16, and by Relief Act
Shortfalls on the related Mortgage Loans during the related Due Period. All such reductions with
respect to the related Mortgage Loans will be allocated among the Certificates on a pro-rata basis in
proportion to the amount of Accrued Certificate Interest payable on such Certificates on such
Distribution Date absent such reductions.
Accrued Certificate Interest for any Distribution Date shall further be reduced by the interest
portion of Realized Losses allocated to any Class of Certificates pursuant to Section 4.05.
Accrued Certificate Interest shall accrue on the basis of a 360-day year and the actual number
of days in the related Interest Accrual Period.
With respect to each Distribution Date and the Class SB Certificates, interest accrued during
the preceding Interest Accrual Period at the Pass-Through Rate on the Notional Amount as specified in
the definition of Pass-Through Rate, immediately prior to such Distribution Date, reduced by any
interest shortfalls with respect to the Mortgage Loans, including Prepayment Interest Shortfalls to the
extent not covered by Compensating Interest pursuant to Section 3.16 or by Excess Cash Flow pursuant to
Section 4.02(c)(v) and (vi). Accrued Certificate Interest on the Class SB Certificates shall accrue on
the basis of a 360-day year and the actual number of days in the related Interest Accrual Period.
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.
Adjustment Date: With respect to each adjustable-rate Mortgage Loan, each date set forth in
the related Mortgage Note on which an adjustment to the interest rate on such Mortgage Loan becomes
effective.
Advance: With respect to any Mortgage Loan, any advance made by the Master Servicer, pursuant
to Section 4.04.
Affiliate: With respect to any Person, any other Person controlling, controlled by or under
common control with such first Person. For 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.
Agreement: This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
Amount Held for Future Distribution: With respect to any Distribution Date, 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, REO Proceeds, Principal
Prepayments, 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, Subsequent Recoveries, Insurance Proceeds, REO 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 (ii) payments which represent early receipt of scheduled
payments of principal and interest due on a date or dates subsequent to the Due Date in the related Due
Period.
Appraised Value: With respect 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 based upon the appraisal made at the time of origination of the loan which
was refinanced or modified or the appraised value determined in an appraisal at the time of refinancing
or modification, as the case may be.
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 Depositor relating to the transfer and assignment of the Mortgage Loans,
attached hereto as Exhibit R.
Available Distribution Amount: With respect to any Distribution Date, 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 with respect to the Mortgage Loans, (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) in respect of the Mortgage Loans, (iv) any amount that the Master Servicer is not
permitted to withdraw from the Custodial Account pursuant to Section 3.16(e) in respect of the Mortgage
Loans, and (v) any amount deposited in the Certificate Account pursuant to Section 4.07 or 9.01 in
respect of the Mortgage Loans, 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 with respect to the Mortgage
Loans, 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).
Balloon Loan: Each of the Mortgage Loans having an original term to maturity that is shorter
than the related amortization term.
Balloon Payment: With respect to any Balloon Loan, the related Monthly Payment payable on the
stated maturity date of such Balloon Loan.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Basis Risk Shortfalls: With respect to each Class of the Class A Certificates and Class M
Certificates, and any Distribution Date, the sum of (a) with respect to any Distribution Date on which
the Net WAC Cap Rate is used to determine the Pass-Through Rate of such Class, an amount equal to the
excess of (x) Accrued Certificate Interest for such Class calculated at a per annum rate equal to LIBOR
plus the related Margin for such Distribution Date (which shall not exceed 14.000% per annum), over
(y) Accrued Certificate Interest for such Class calculated using the Net WAC Cap Rate, (b) any Basis Risk
Shortfalls for such Class calculated pursuant to clause (a) above remaining unpaid from prior
Distribution Dates, and (c) one month's interest on the amount in clause (b) (based on the number of
days in the preceding Interest Accrual Period) at a per annum rate equal to LIBOR plus the related
Margin for such Distribution Date (which shall not exceed 14.000% per annum).
Book-Entry Certificate: Any Certificate registered in the name of the Depository or its
nominee.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in the State of California, the State of Minnesota, the State of Texas, the State of New
York or the State of Illinois (and such other state or states in which the Custodial Account or the
Certificate Account are at the time located) are required or authorized by law or executive order to be
closed.
Capitalization Reimbursement Amount: With respect to any Distribution Date, the amount of
Advances or Servicing Advances that were added to the Stated Principal Balance of the Mortgage Loans
during the prior calendar month and reimbursed to the Master Servicer or Subservicer on or prior to such
Distribution Date pursuant to Section 3.10(a)(vii).
Cash Liquidation: With respect 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: Any Class A Certificate, Class M Certificate, Class SB Certificate or Class R
Certificate.
Certificate Account: The account or accounts created and maintained pursuant to Section 4.01,
which shall be entitled "U.S. Bank National Association, as trustee, in trust for the registered holders
of Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-EMX7" and which account shall be held for the benefit of the
Certificateholders and which must be an Eligible Account.
Certificate Account Deposit Date: With respect 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, except that neither a Disqualified Organization nor a Non-United States Person
shall be a holder of a Class R Certificate for any purpose hereof. 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 Depositor, 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 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 any Class A Certificate or Class M Certificate,
on any date of determination, an amount equal to (i) the Initial Certificate Principal Balance of such
Certificate as specified on the face thereof, minus (ii) the sum of (x) the aggregate of all amounts
previously distributed with respect to such Certificate (or any predecessor Certificate) and applied to
reduce the Certificate Principal Balance thereof pursuant to Section 4.02(c) 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 with respect to any Distribution Date, the Certificate Principal Balance of
any outstanding Class of Class A Certificates and Class M Certificates (with respect to the Class A
Certificates, on a pro rata basis based on the amount of Realized Loss previously allocated thereto and
remaining unreimbursed) to which a Realized Loss was previously allocated and remains unreimbursed will
be increased, to the extent of Realized Losses previously allocated thereto and remaining unreimbursed,
but only to the extent of Subsequent Recoveries received during the preceding calendar month. With
respect to any Class SB Certificate, on any date of determination, an amount equal to the Percentage
Interest evidenced by such Certificate, multiplied by an amount equal to (i) the excess, if any, of (A)
the then aggregate Stated Principal Balance of the Mortgage Loans over (B) the then aggregate
Certificate Principal Balance of the Class A Certificates and Class M Certificates then outstanding,
which represents the sum of (i) the Initial Principal Balance of the REMIC II Regular Interest SB-PO, as
reduced by Realized Losses allocated thereto and payments deemed made thereon, and (ii) accrued and
unpaid interest on the REMIC II Regular Interest SB-IO, as reduced by Realized Losses allocated
thereto. The Class R Certificates will not have a Certificate Principal Balance.
Certificate Register and Certificate Registrar: The register maintained and the registrar
appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates or uncertificated interests bearing the same
designation.
Class A Certificates: Collectively, the Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates and Class A-4 Certificates.
Class A Principal Distribution Amount: With respect to any Distribution Date (a) prior to the
Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the Principal Distribution Amount for that Distribution Date or (b) on or after the Stepdown Date
if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the Principal Distribution Amount for that Distribution Date; and
(ii) the excess, if any, of (A) the aggregate Certificate Principal Balance of the Class A
Certificates immediately prior to that Distribution Date over (B) the lesser of (x) the
product of (1) the applicable Subordination Percentage and (2) the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to distributions to be made on
that Distribution Date and (y) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to distributions to be made on that
Distribution Date, over the Overcollateralization Floor.
Class A-1 Certificate: Any one of the Class A-1 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit A, senior
to the Class M Certificates, Class SB Certificates and Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section 4.05, and evidencing an
interest designated as a "regular interest" in REMIC II for purposes of the REMIC Provisions.
Class A-1 Margin: 0.060% per annum.
Class A-2 Certificate: Any one of the Class A-2 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit A, senior
to the Class M Certificates, Class SB Certificates and Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section 4.05, and evidencing an
interest designated as a "regular interest" in REMIC II for purposes of the REMIC Provisions.
Class A-2 Margin: 0.110% per annum.
Class A-3 Certificate: Any one of the Class A-3 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit A, senior
to the Class M Certificates, Class SB Certificates and Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section 4.05, and evidencing an
interest designated as a "regular interest" in REMIC III for purposes of the REMIC Provisions.
Class A-3 Margin: Initially, 0.150% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.300% per annum.
Class A-4 Certificate: Any one of the Class A-4 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit A, senior
to the Class M Certificates, Class SB Certificates and Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in Section 4.05, and evidencing an
interest designated as a "regular interest" in REMIC III for purposes of the REMIC Provisions.
Class A-4 Margin: Initially, 0.240% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.480% per annum.
Class M Certificates: Collectively, the Class M-1 Certificates, Class M-2 Certificates,
Class M-3 Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class M-7
Certificates, Class M-8 Certificates and Class M-9 Certificates.
Class M-1 Certificate: Any one of the Class M-1 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-1 Margin: Initially, 0.290% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.435% per annum.
Class M-1 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event is not in
effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance
of the Class A Certificates (after taking into account the payment of the Class A
Principal Distribution Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-1 Certificates immediately prior to that Distribution
Date over (B) the lesser of (x) the product of (1) the applicable Subordination
Percentage and (2) the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-2 Certificate: Any one of the Class M-2 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-2 Margin: Initially, 0.310% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.465% per annum.
Class M-2 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount and the Class M-1 Principal Distribution Amount or (b) on or after
the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after distribution
of the Class A Principal Distribution Amount and the Class M-1 Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates and Class M-1 Certificates (after taking into account the payment
of the Class A Principal Distribution Amount and the Class M-1 Principal Distribution
Amount for that Distribution Date) and (2) the Certificate Principal Balance of the
Class M-2 Certificates immediately prior to that Distribution Date over (B) the lesser of
(x) the product of (1) the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving effect to distributions to be
made on that Distribution Date and (y) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to distributions to be made on
that Distribution Date, over the Overcollateralization Floor.
Class M-3 Certificate: Any one of the Class M-3 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-3 Margin: Initially, 0.330% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.495% per annum.
Class M-3 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount and the Class M-2
Principal Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event is not in effect
for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after distribution
of the Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount
and the Class M-2 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates, Class M-1 Certificates and Class M-2 Certificates (after taking
into account the payment of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount and the Class M-2 Principal Distribution Amount for that
Distribution Date) and (2) the Certificate Principal Balance of the Class M-3 Certificates
immediately prior to that Distribution Date over (B) the lesser of (x) the product of (1)
the applicable Subordination Percentage and (2) the aggregate Stated Principal Balance of
the Mortgage Loans after giving effect to distributions to be made on that Distribution
Date and (y) the excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-4 Certificate: Any one of the Class M-4 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-4 Margin: Initially, 0.380% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.570% per annum.
Class M-4 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2
Principal Distribution Amount and the Class M-3 Principal Distribution Amount or (b) on or after the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after distribution
of the Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the Class M-2 Principal Distribution Amount and the Class M-3 Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates and Class M-3
Certificates (after taking into account the payment of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the Class M-2 Principal Distribution
Amount and the Class M-3 Principal Distribution Amount for that Distribution Date) and
(2) the Certificate Principal Balance of the Class M-4 Certificates immediately prior to
that Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
after giving effect to distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-5 Certificate: Any one of the Class M-5 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-5 Margin: Initially, 0.420% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.630% per annum.
Class M-5 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2
Principal Distribution Amount, the Class M-3 Principal Distribution Amount and the Class M-4 Principal
Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after distribution
of the Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution Amount
and the Class M-4 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates and Class M-4 Certificates (after taking into account the payment of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution Amount and
the Class M-4 Principal Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-5 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
after giving effect to distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-6 Certificate: Any one of the Class M-6 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-6 Margin: Initially, 0.480% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 0.720% per annum.
Class M-6 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2
Principal Distribution Amount, the Class M-3 Principal Distribution Amount, the Class M-4 Principal
Distribution Amount and the Class M-5 Principal Distribution Amount or (b) on or after the Stepdown Date
if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(iii)the remaining Principal Distribution Amount for that Distribution Date after distribution
of the Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution Amount,
the Class M-4 Principal Distribution Amount and the Class M-5 Principal Distribution
Amount; and
(iv) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates and Class M-5 Certificates (after taking into account
the payment of the Class A Principal Distribution Amount, the Class M-1 Principal
Distribution Amount, the Class M-2 Principal Distribution Amount, the Class M-3 Principal
Distribution Amount, the Class M-4 Principal Distribution Amount and the Class M-5
Principal Distribution Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-6 Certificates immediately prior to that Distribution
Date over (B) the lesser of (x) the product of (1) the applicable Subordination Percentage
and (2) the aggregate Stated Principal Balance of the Mortgage Loans after giving effect
to distributions to be made on that Distribution Date and (y) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the Overcollateralization Floor.
Class M-7 Certificate: Any one of the Class M-7 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-7 Margin: Initially, 0.900% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 1.350% per annum.
Class M-7 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2
Principal Distribution Amount, the Class M-3 Principal Distribution Amount, the Class M-4 Principal
Distribution Amount, the Class M-5 Principal Distribution Amount and the Class M-6 Principal
Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1 Principal Distribution
Amount, the Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal Distribution
Amount and the Class M-6 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates and Class M-6 Certificates
(after taking into account the payment of the Class A Principal Distribution Amount, the
Class M-1 Principal Distribution Amount, the Class M-2 Principal Distribution Amount, the
Class M-3 Principal Distribution Amount, the Class M-4 Principal Distribution Amount, the
Class M-5 Principal Distribution Amount and the Class M-6 Principal Distribution Amount
for that Distribution Date) and (2) the Certificate Principal Balance of the Class M-7
Certificates immediately prior to that Distribution Date over (B) the lesser of (x) the
product of (1) the applicable Subordination Percentage and (2) the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to distributions to be made on
that Distribution Date and (y) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to distributions to be made on that
Distribution Date, over the Overcollateralization Floor.
Class M-8 Certificate: Any one of the Class M-8 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-8 Margin: Initially, 1.000% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 1.500% per annum.
Class M-8 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2
Principal Distribution Amount, the Class M-3 Principal Distribution Amount, the Class M-4 Principal
Distribution Amount, the Class M-5 Principal Distribution Amount, the Class M-6 Principal Distribution
Amount and the Class M-7 Principal Distribution Amount or (b) on or after the Stepdown Date if a Trigger
Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after distribution
of the Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution Amount,
the Class M-4 Principal Distribution Amount, the Class M-5 Principal Distribution Amount,
the Class M-6 Principal Distribution Amount and the Class M-7 Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates and
Class M-7 Certificates (after taking into account the payment of the Class A Principal
Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2 Principal
Distribution Amount, the Class M-3 Principal Distribution Amount, the Class M-4 Principal
Distribution Amount, the Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount and the Class M-7 Principal Distribution Amount for that Distribution
Date) and (2) the Certificate Principal Balance of the Class M-8 Certificates immediately
prior to that Distribution Date over (B) the lesser of (x) the product of (1) the
applicable Subordination Percentage and (2) the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on that Distribution Date
and (y) the excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class M-9 Certificate: Any one of the Class M-9 Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit B, and
evidencing (i) an interest designated as a "regular interest" in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Yield Maintenance Agreement.
Class M-9 Margin: Initially, 1.800% per annum, and on any Distribution Date on and after the
second Distribution Date after the first possible Optional Termination Date, 2.700% per annum.
Class M-9 Principal Distribution Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date or on or after the Stepdown Date if a Trigger Event is in effect for that Distribution
Date, the remaining Principal Distribution Amount for that Distribution Date after distribution of the
Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount, the Class M-2
Principal Distribution Amount, the Class M-3 Principal Distribution Amount, the Class M-4 Principal
Distribution Amount, the Class M-5 Principal Distribution Amount, the Class M-6 Principal Distribution
Amount, the Class M-7 Principal Distribution Amount and the Class M-8 Principal Distribution Amount or
(b) on or after the Stepdown Date if a Trigger Event is not in effect for that Distribution Date, the
lesser of:
(i) the remaining Principal Distribution Amount for that Distribution Date after distribution
of the Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution Amount,
the Class M-4 Principal Distribution Amount, the Class M-5 Principal Distribution Amount,
Class M-6 Principal Distribution Amount, the Class M-7 Principal Distribution Amount and
the Class M-8 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate Certificate Principal Balance of
the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates,
Class M-7 Certificates and Class M-8 Certificates (after taking into account the payment of
the Class A Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution Amount,
the Class M-4 Principal Distribution Amount, the Class M-5 Principal Distribution Amount,
the Class M-6 Principal Distribution Amount, the Class M-7 Principal Distribution Amount
and the Class M-8 Principal Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-9 Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
after giving effect to distributions to be made on that Distribution Date, over the
Overcollateralization Floor.
Class R Certificate: Any one of the Class R Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit D and
evidencing an interest designated as a "residual interest" in a REMIC for purposes of the REMIC
Provisions.
Class SB Certificate: Any one of the Class SB Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed hereto as Exhibit C,
subordinate to the Class A Certificates and Class M Certificates with respect to distributions and the
allocation of Realized Losses as set forth in Section 4.05, and evidencing an interest comprised of
"regular interests" in REMIC II together with certain rights to payments under the Yield Maintenance
Agreement for purposes of the REMIC Provisions.
Closing Date: August 25, 2006.
Code: The Internal Revenue Code of 1986.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date, any amount paid by the Master
Servicer in accordance with Section 3.16(f).
Corporate Trust Office: The principal office of the Trustee at which at any particular time
its corporate trust business with respect to this Agreement shall be administered, which office at the
date of the execution of this instrument is located at U.S. Bank National Association, EP-MN-WS3D,
00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attn: Structured Finance/RASC 2006-EMX7.
Credit Repository: Equifax, Transunion and Experian, or their successors in interest.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a Principal Prepayment
in Full.
Custodial Account: The custodial account or accounts created and maintained pursuant to
Section 3.07 in the name of a depository institution, as custodian for the holders of the Certificates,
for the holders of certain other interests in mortgage loans serviced or sold by the Master Servicer and
for the Master Servicer, into which the amounts set forth in Section 3.07 shall be deposited directly.
Any such account or accounts shall be an Eligible Account.
Custodial Agreement: An agreement that may be entered into among the Depositor, the Master
Servicer, the Trustee and a Custodian in substantially the form of Exhibit E hereto.
Custodial File: Any mortgage loan document in the Mortgage File that is required to be
delivered to the Trustee or the Custodian pursuant to Section 2.01(b) of this Agreement.
Custodian: Xxxxx Fargo Bank, N.A., or any successor custodian appointed pursuant to a
Custodial Agreement.
Cut-off Date: August 1, 2006.
Cut-off Date Balance: $520,000,106.05.
Cut-off Date Principal Balance: With respect 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 in 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 definitive, fully registered 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 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 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 August 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.
Depositor: As defined in the preamble hereto.
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 Exchange Act.
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.
Derivative Contract: Any ISDA Master Agreement, together with the related Schedule and
Confirmation, entered into by the Trustee and a Derivative Counterparty in accordance with Section 4.09.
Derivative Counterparty: Any counterparty to a Derivative Contract as provided in Section 4.09
Destroyed Mortgage Note: A Mortgage Note the original of which was permanently lost or
destroyed and has not been replaced.
Determination Date: With respect to any Distribution Date, the 20th day (or if such 20th day
is not a Business Day, the Business Day immediately following such 20th day) of the month of the related
Distribution Date.
Disqualified Organization: Any organization defined as a "disqualified organization" under
Section 860E(e)(5) of the Code, including, 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 Xxxxxxx 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) and (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code. A Disqualified Organization also includes any "electing large
partnership," as defined in Section 775(a) of the Code and 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 any REMIC 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 September 2006 or, if such 25th day
is not a Business Day, the Business Day immediately following such 25th day.
DTC Letter: The Letter of Representations, dated August 24, 2006, among the Trustee on behalf
of the Trust Fund, U.S. Bank National Association, in its individual capacity as agent thereunder and
the Depository.
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 calendar month of such Distribution
Date.
Eligible Account: An account that is any of the following: (i) maintained with a depository
institution the debt obligations of which have been rated by each Rating Agency in its highest rating
available, or (ii) an account or accounts in a depository institution in which such accounts are fully
insured to the limits established by the FDIC, provided that any deposits not so insured shall, to the
extent acceptable to each Rating Agency, as evidenced in writing, be maintained such that (as evidenced
by an Opinion of Counsel delivered to the Trustee and each Rating Agency) the registered Holders of
Certificates have a claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted Investments) securing such funds
that is superior to claims of any other depositors or creditors of the depository institution with which
such account is maintained, or (iii) in the case of the Custodial Account, a trust account or accounts
maintained in the corporate trust department of U.S. Bank National Association, or (iv) in the case of
the Certificate Account, a trust account or accounts maintained in the corporate trust department of
U.S. Bank National Association, or (v) an account or accounts of a depository institution acceptable to
each Rating Agency (as evidenced in writing by each Rating Agency that use of any such account as the
Custodial Account or the Certificate Account will not reduce the rating assigned to any Class of
Certificates by such Rating Agency below the then-current rating assigned to such Certificates by such
Rating Agency).
Eligible Master Servicing Compensation: With respect to any Distribution Date, the lesser of
(a) one-twelfth of 0.125% of the Stated Principal Balance of the related Mortgage Loans immediately
preceding such Distribution Date and (b) the sum of the Servicing Fee and all income and gain on amounts
held in the Custodial Account and the Certificate Account and payable to the Certificateholders with
respect to such Distribution Date; provided that for purposes of this definition the amount of the
Servicing Fee will not be reduced pursuant to Section 7.02(a) except as may be required pursuant to the
last sentence of such Section.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 7.01.
Excess Cash Flow: With respect to any Distribution Date, an amount equal to the sum of (A) the
excess of (i) the Available Distribution Amount for that Distribution Date over (ii) the sum of (a) the
Interest Distribution Amount for that Distribution Date and (b) the lesser of (1) the aggregate
Certificate Principal Balance of Class A Certificates and Class M Certificates immediately prior to such
Distribution Date and (2) the Principal Remittance Amount for that Distribution Date to the extent not
applied to pay interest on the Class A Certificates and Class M Certificates on such Distribution Date,
(B) the Overcollateralization Reduction Amount, if any, for that Distribution Date and (C) any Yield
Maintenance Agreement Payment received by the Trustee for that Distribution Date.
Excess Overcollateralization Amount: With respect to any Distribution Date, the excess, if
any, of (a) the Overcollateralization Amount on such Distribution Date over (b) the Required
Overcollateralization Amount for such Distribution Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: With respect to any Mortgage Loan as of any date of determination, the sum
of the applicable Servicing Fee Rate and the per annum rate at which the applicable Subservicing Fee
accrues.
Xxxxxx Xxx: Xxxxxx Xxx, 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.
Final Scheduled Distribution Date: Solely for purposes of the face of the Certificates, as
follows: with respect to the Class A-1 Certificates, the Distribution Date occurring in May 2030; with
respect to the Class A-2 the Distribution Date occurring in February 2035; with respect to the Class A-3
the Distribution Date occurring in June 2036; and with respect to the Class A-4 Certificates and each
Class of Class M Certificates, the Distribution Date occurring in August 2036. No event of default
under this Agreement will arise or become applicable solely by reason of the failure to retire the
entire Certificate Principal Balance of any Class of Class A Certificates or Class M Certificates on or
before its Final Scheduled Distribution Date.
Fitch: Fitch Ratings, or its successors in interest.
Foreclosure Profits: With respect 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.
Form 10-K Certification: As defined in Section 4.03(e).
Xxxxxxx Mac: Xxxxxxx Mac, a corporate instrumentality of the United States created and
existing under Title III of the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Gross Margin: With respect to each adjustable-rate Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note and indicated on the Mortgage Loan Schedule as the "NOTE MARGIN,"
which percentage is added to the related Index on each Adjustment Date to determine (subject to rounding
in accordance with the related Mortgage Note, the Periodic Cap, the Maximum Mortgage Rate and the
Minimum Mortgage Rate) the interest rate to be borne by such Mortgage Loan until the next Adjustment
Date.
HUD: The United States Department of Housing and Urban Development.
Independent: When used with respect to any specified Person, means such a Person who (i) is in
fact independent of the Depositor, 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
Depositor, the Master Servicer or the Trustee or in an Affiliate thereof, and (iii) is not connected
with the Depositor, the Master Servicer or the Trustee as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Index: With respect to any adjustable-rate Mortgage Loan and as to any Adjustment Date
therefor, the related index as stated in the related Mortgage Note.
Initial Certificate Principal Balance: With respect to each Class of Certificates (other than
the Class R Certificates), the Certificate Principal Balance of such Class of Certificates as of the
Closing Date as set forth in the Preliminary Statement hereto.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans pursuant to any Primary
Insurance Policy or any other related insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, any Subservicer, the Master Servicer or the
Trustee and are not applied to the restoration of the related Mortgaged Property 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.
Interest Accrual Period: With respect to the Distribution Date in September 2006, the period
commencing the Closing Date and ending on the day preceding the Distribution Date in September 2006, and
with respect to any Distribution Date after the Distribution Date in September 2006, the period
commencing on the Distribution Date in the month immediately preceding the month in which such
Distribution Date occurs and ending on the day preceding such Distribution Date.
Interest Distribution Amount: For any Distribution Date, the amounts payable pursuant to
Section 4.02(c)(i) and (ii).
Interim Certification: As defined in Section 2.02.
Late Collections: With respect to any Mortgage Loan, all amounts received during any Due
Period, whether as late payments of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds or
otherwise, which represent late payments or collections of Monthly Payments due but delinquent for a
previous Due Period and not previously recovered.
LIBOR: With respect to any Distribution Date, the arithmetic mean of the London interbank
offered rate quotations for one-month U.S. Dollar deposits, expressed on a per annum basis, determined
in accordance with Section 1.02.
LIBOR Business Day: Any day other than (i) a Saturday or Sunday or (ii) a day on which banking
institutions in London, England are required or authorized by law to be closed.
LIBOR Certificates: Collectively, the Class A Certificates and Class M Certificates.
LIBOR Rate Adjustment Date: With respect to each Distribution Date, the second LIBOR Business
Day immediately preceding the commencement of the related Interest Accrual Period.
Limited Repurchase Right Holder: RFC Asset Holdings II, Inc., or its successor.
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 and Subsequent Recoveries.
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.
Margin: The Class A-1 Margin, Class A-2 Margin, Class A-3 Margin, Class A-4 Margin, Class M-1
Margin, Class M-2 Margin, Class M-3 Margin, Class M-4 Margin, Class M-5 Margin, Class M-6 Margin,
Class M-7 Margin, Class M-8 Margin or Class M-9 Margin, as applicable.
Marker Rate: With respect to the Class SB Certificates or the REMIC II Regular Interest SB-IO
and any Distribution Date, a per annum rate equal to two (2) times the weighted average of the
Uncertificated REMIC I Pass-Through Rates for REMIC I Regular Interest LT2 and REMIC I Regular Interest
LT3.
Master Servicer: As defined in the preamble hereto.
Maturity Date: With respect to each Class of Certificates representing ownership of REMIC II
Regular Interests or REMIC I Regular Interests issued by each of REMIC I and REMIC II 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 such Class of Certificates representing a regular
interest in the Trust Fund would be reduced to zero, which is, for each such regular interest, August
25, 2036, which is the Distribution Date occurring in the month following the last scheduled monthly
payment of the Mortgage Loans.
Maximum Mortgage Rate: With respect to any adjustable-rate Mortgage Loan, the per annum rate
indicated on the Mortgage Loan Schedule as the "NOTE CEILING," which rate is the maximum interest rate
that may be applicable to such Mortgage Loan at any time during the life of such Mortgage Loan.
Maximum Net Mortgage Rate: With respect to any adjustable-rate Mortgage Loan and any date of
determination, the Maximum Mortgage Rate minus the Expense Fee Rate. With respect to any fixed-rate
Mortgage Loan and any date of determination, the Net Mortgage Rate.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor thereto.
MERS® 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®
System.
Minimum Mortgage Rate: With respect to any adjustable-rate Mortgage Loan, a per annum rate
equal to the greater of (i) the Note Margin and (ii) the rate indicated on the Mortgage Loan Schedule as
the "NOTE FLOOR," which rate may be applicable to such Mortgage Loan at any time during the life of such
Mortgage Loan.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a Servicing
Modification.
Modified Net Mortgage Rate: With respect 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 the Due
Date in any Due Period, 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 successors in interest.
Mortgage: With respect to each Mortgage Note, the mortgage, deed of trust or other comparable
instrument creating a first or junior lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the Trustee pursuant to
Section 2.01 as from time to time are held or deemed to be held as a part of the Trust Fund, the
Mortgage Loans originally so held being identified in the initial Mortgage Loan Schedule, and Qualified
Substitute Mortgage Loans held or deemed held as part of the Trust Fund including, without limitation,
each related Mortgage Note, Mortgage and Mortgage File and all rights appertaining thereto.
Mortgage Loan Schedule: The lists of the Mortgage Loans attached hereto as Exhibit F (as
amended from time to time to reflect the addition of Qualified Substitute Mortgage Loans), which lists
shall set forth at a minimum the following information as to each Mortgage Loan:
(i) the Mortgage Loan identifying number ("RFC LOAN #");
(ii) [reserved];
(iii) the maturity of the Mortgage Note ("MATURITY DATE," or "MATURITY DT");
(iv) for the adjustable-rate Mortgage Loans, the Mortgage Rate as of origination ("ORIG RATE");
(v) the Mortgage Rate as of the Cut-off Date ("CURR RATE");
(vi) the Net Mortgage Rate as of the Cut-off Date ("CURR NET");
(vii) the scheduled monthly payment of principal, if any, and interest as of the Cut-off Date
("ORIGINAL P & I" or "CURRENT P & I");
(viii)the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(ix) the Loan-to-Value Ratio at origination ("LTV");
(x) a code "T," "BT" or "CT" under the column "LN FEATURE," indicating that the Mortgage Loan
is secured by a second or vacation residence (the absence of any such code means the
Mortgage Loan is secured by a primary residence);
(xi) a code "N" under the column "OCCP CODE," indicating that the Mortgage Loan is secured by
a non-owner occupied residence (the absence of any such code means the Mortgage Loan is
secured by an owner occupied residence);
(xii) for the adjustable-rate Mortgage Loans, the Maximum Mortgage Rate ("NOTE CEILING");
(xiii)for the adjustable-rate Mortgage Loans, the maximum Net Mortgage Rate ("NET CEILING");
(xiv) for the adjustable-rate Mortgage Loans, the Note Margin ("NOTE MARGIN");
(xv) for the adjustable-rate Mortgage Loans, the first Adjustment Date after the Cut-off Date
("NXT INT CHG DT");
(xvi) for the adjustable-rate Mortgage Loans, the Periodic Cap ("PERIODIC DECR" or "PERIODIC
INCR");
(xvii)[reserved]; and
(xviii) for the adjustable-rate Mortgage Loans, the rounding of the semi-annual or annual
adjustment to the Mortgage Rate ("NOTE METHOD").
Such schedules may consist of multiple reports that collectively set forth all of the
information required.
Mortgage Note: The originally executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any modification thereto.
Mortgage Rate: With respect to any Mortgage Loan, the interest rate borne by the related
Mortgage Note, or any modification thereto other than a Servicing Modification. The Mortgage Rate on
the adjustable-rate Mortgage Loans will adjust on each Adjustment Date to equal the sum (rounded to the
nearest multiple of one-eighth of one percent (0.125%) or up to the nearest one-eighth of one percent,
which are indicated by a "U" on the Mortgage Loan Schedule, except in the case of the adjustable-rate
Mortgage Loans indicated by an "X" on the Mortgage Loan Schedule under the heading "NOTE METHOD"), of
the related Index plus the Note Margin, in each case subject to the applicable Periodic Cap, Maximum
Mortgage Rate and Minimum Mortgage Rate.
Mortgaged Property: The underlying real property securing a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: With respect to any Mortgage Loan as of any date of determination, a per
annum rate equal to the Mortgage Rate for such Mortgage Loan as of such date minus the related Expense
Fee Rate.
Net WAC Cap Rate: With respect to any Distribution Date, the product of (i) a per annum rate
equal to the weighted average of the Net Mortgage Rates (or, if applicable, the Modified Net Mortgage
Rates) using the Net Mortgage Rates in effect for the Monthly Payments due on such Mortgage Loans during
the related Due Period, weighted on the basis of the respective Stated Principal Balances thereof for
such Distribution Date and (ii) a fraction equal to 30 divided by the actual number of days in the
related Interest Accrual Period.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be made by the Master
Servicer or Subservicer in respect of a Mortgage Loan (other than a Deleted Mortgage Loan) which, in the
good faith judgment of the Master Servicer, will not, or, in the case of a proposed Advance, would not,
be ultimately recoverable by the Master Servicer from related Late Collections, Insurance Proceeds,
Liquidation Proceeds or REO Proceeds. 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 shall be
evidenced by a certificate of a Servicing Officer, Responsible Officer or Vice President or its
equivalent or senior officer of the Master Servicer, delivered to the Depositor, the Trustee, and the
Master Servicer setting forth such determination, which shall include any other information or reports
obtained by the Master Servicer such as property operating statements, rent rolls, property inspection
reports and engineering reports, which may support such determinations. Notwithstanding the above, the
Trustee shall be entitled to rely upon any determination by the Master Servicer that any Advance
previously made is a Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of reference thereto, is not
subject to a Subservicing Agreement.
Note Margin: With respect to each adjustable-rate Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note and indicated on the Mortgage Loan Schedule as the "NOTE MARGIN,"
which percentage is added to the Index on each Adjustment Date to determine (subject to rounding in
accordance with the related Mortgage Note, the Periodic Cap, the Maximum Mortgage Rate and the Minimum
Mortgage Rate) the interest rate to be borne by such adjustable-rate Mortgage Loan until the next
Adjustment Date.
Notional Amount: With respect to the Class SB Certificates or the REMIC II Regular Interest
SB-IO, immediately prior to any Distribution Date, the aggregate of the Uncertificated Principal
Balances of the REMIC I Regular Interests.
Officers' Certificate: A certificate signed by the Chairman of the Board, the President, a
Vice President, Assistant Vice President, Director, Managing Director, the Treasurer, the Secretary, an
Assistant Treasurer or an Assistant Secretary of the Depositor 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 and which counsel may be counsel for the Depositor 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 hereunder as a REMIC or compliance with the REMIC Provisions must, unless
otherwise specified, be an opinion of Independent counsel.
Optional Termination Date: Any Distribution Date on or after which the Stated Principal
Balance (after giving effect to distributions to be made on such Distribution Date) of the Mortgage
Loans is less than 10.00% of the Cut-off Date Balance.
Outstanding Mortgage Loan: With respect to the Due Date in any Due Period, a Mortgage Loan
(including an REO Property) that was not the subject of a Principal Prepayment in Full, Cash Liquidation
or REO Disposition and that was not purchased, deleted or substituted for prior to such Due Date
pursuant to Section 2.02, 2.03, 2.04 or 4.07.
Overcollateralization Amount: With respect to any Distribution Date, the excess, if any, of
(a) the aggregate Stated Principal Balance of the Mortgage Loans before giving effect to distributions of
principal to be made on such Distribution Date over (b) the aggregate Certificate Principal Balance of
the Class A Certificates and Class M Certificates immediately prior to such date.
Overcollateralization Floor: An amount equal to the product of 0.50% and the Cut-off Date
Balance.
Overcollateralization Increase Amount: With respect to any Distribution Date, the lesser of
(a) Excess Cash Flow for that Distribution Date (to the extent not used to cover the amounts described
in clauses (iv) and (v) of the definition of Principal Distribution Amount as of such Distribution
Date) and (b) the excess of (1) the Required Overcollateralization Amount for such Distribution Date
over (2) the Overcollateralization Amount for such Distribution Date.
Overcollateralization Reduction Amount: With respect to any Distribution Date on which the
Excess Overcollateralization Amount is, after taking into account all other distributions to be made on
such Distribution Date, greater than zero, the Overcollateralization Reduction Amount shall be equal to
the lesser of (i) the Excess Overcollateralization Amount for that Distribution Date and (ii) the
Principal Remittance Amount on such Distribution Date.
Ownership Interest: With respect to any Certificate, any ownership or security interest in
such Certificate, including any interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to each Class of Class A Certificates and Class M Certificates
and any Distribution Date, the least of (i) a per annum rate equal to LIBOR plus the related Margin for
such Distribution Date, (ii) 14.000% per annum and (iii) the Net WAC Cap Rate for such Distribution Date.
With respect to the Class SB Certificates and any Distribution Date or the REMIC II Regular
Interest SB-IO, a per annum rate equal to the percentage equivalent of a fraction, the numerator of
which is the sum of the amounts calculated pursuant to clauses (i) through (iii) below, and the
denominator of which is the aggregate principal balance of the REMIC I Regular Interests. For purposes
of calculating the Pass-Through Rate for the Class SB Certificates or the REMIC II Regular Interest
SB-IO, the numerator is equal to the sum of the following components:
(i) the Uncertificated Pass-Through Rate for REMIC I Regular Interest LT1 minus
the related Marker Rate, applied to a notional amount equal to the Uncertificated Principal
Balance of REMIC I Regular Interest LT1;
(ii) the Uncertificated Pass-Through Rate for REMIC I Regular Interest LT2 minus
the related Marker Rate, applied to a notional amount equal to the Uncertificated Principal
Balance of REMIC I Regular Interest LT2; and
(iii) the Uncertificated Pass-Through Rate for REMIC I Regular Interest LT4 minus
twice the related Marker Rate, applied to a notional amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT4.
Paying Agent: U.S. Bank National Association or any successor Paying Agent appointed by the
Trustee.
Percentage Interest: With respect to any Class A Certificate or Class M 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
divided by the aggregate Initial Certificate Principal Balance of all of the Certificates of the same
Class. The Percentage Interest with respect to a Class SB Certificate or Class R Certificate shall be
stated on the face thereof.
Periodic Cap: With respect to each adjustable-rate Mortgage Loan, the periodic rate cap that
limits the increase or the decrease of the related Mortgage Rate on any Adjustment Date pursuant to the
terms of the related Mortgage Note.
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 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 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 a Rating Agency;
(iv) commercial paper and demand notes (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States or any state
thereof which on the date of acquisition has been rated by each Rating Agency in its
highest short term rating available; provided that such commercial paper and demand
notes 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 (which may be managed by the Trustee or one of its
Affiliates); 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 then-current rating assigned to such
Certificates by such Rating Agency, as evidenced in writing;
provided, however, that 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
Aaa in the case of Moody's, and for purposes of this Agreement, any references herein to the highest
rating available on unsecured commercial paper and short-term debt obligations shall mean the following:
A-1 in the case of Standard & Poor's and P-1 in the case of Moody's; 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) the terms of the debt must have a predetermined fixed dollar amount of principal due at maturity
that cannot vary; and (iv) 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
purchased 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.
Prepayment Assumption: With respect to the Class A Certificates and Class M Certificates, the
prepayment assumption to be used for determining the accrual of original issue discount and premium and
market discount on such Certificates for federal income tax purposes, which (a) with respect to the
fixed-rate Mortgage Loans, assumes a constant prepayment rate of one-tenth of 23% per annum of the then
outstanding Stated Principal Balance of the fixed-rate Mortgage Loans in the first month of the life of
such Mortgage Loans and an additional one-tenth of 23% per annum in each month thereafter until the
tenth month, and beginning in the tenth month and in each month thereafter during the life of the
fixed-rate Mortgage Loans, a constant prepayment rate of 23% per annum each month ("23% HEP") and (b)
with respect to the adjustable-rate Mortgage Loans assumes a prepayment assumption of 2% of the constant
prepayment rate in month one, increasing by approximately 2.545% from month 2 until month 12, a constant
prepayment rate of 30% from month 12 to month 22, a constant prepayment rate of 50% from month 23 to
month 27, and a constant prepayment rate of 35% thereafter, used for determining the accrual of original
issue discount and premium and market discount on the Class A Certificates and Class M Certificates for
federal income tax purposes. The constant prepayment rate assumes that the stated percentage of the
outstanding Stated Principal Balance of the adjustable-rate Mortgage Loans is prepaid over the course of
a year.
Prepayment Interest Shortfall: With respect to any Distribution Date and any Mortgage Loan
(other than a Mortgage Loan relating to an REO Property) that was the subject of (a) a Principal
Prepayment in Full during the related Prepayment Period, an amount equal to the excess of one month's
interest at the related 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 related Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan)) paid by the Mortgagor for such Prepayment Period 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 related Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan) on the amount of such Curtailment.
Prepayment Period: With respect to any Distribution Date, the calendar month preceding the
month of distribution.
Primary Insurance Policy: Each primary policy of mortgage guaranty insurance as indicated by a
numeric code on the Mortgage Loan Schedule with the exception of code "A23," "A34" or "A96" under the
column "MI CO CODE."
Principal Distribution Amount: With respect to any Distribution Date, the lesser of (a) the
excess of (x) the sum of (A) the Available Distribution Amount and (B) with respect to clauses (b)(v)
and (vi) below, the Yield Maintenance Agreement Payment for that Distribution Date, over (y) the
Interest Distribution Amount, and (b) the sum of:
(i) the principal portion of each Monthly Payment received or Advanced with respect to the
related Due Period on each Outstanding Mortgage Loan;
(ii) the Stated Principal Balance of any Mortgage Loan repurchased during the related
Prepayment Period (or deemed to have been so repurchased in accordance with
Section 3.07(b)) pursuant to Section 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 pursuant to Section 2.03 or 2.04 during the related Prepayment
Period;
(iii)the principal portion of all other unscheduled collections, other than Subsequent
Recoveries, on the Mortgage Loans (including, without limitation, Principal Prepayments in
Full, Curtailments, Insurance Proceeds, Liquidation Proceeds and REO Proceeds) received
during the related Prepayment Period (or deemed to have been so received) to the extent
applied by the Master Servicer as recoveries of principal of the Mortgage Loans pursuant
to Section 3.14;
(iv) the lesser of (1) Subsequent Recoveries for such Distribution Date and (2) the principal
portion of any Realized Losses allocated to any Class of Certificates on a prior
Distribution Date and remaining unpaid;
(v) the lesser of (1) the Excess Cash Flow for such Distribution Date (to the extent not used
pursuant to clause (iv) of this definition on such Distribution Date) and (2) the
principal portion of any Realized Losses incurred (or deemed to have been incurred) on any
Mortgage Loans in the calendar month preceding such Distribution Date; and
(vi) the lesser of (1) the Excess Cash Flow for that Distribution Date (to the extent not
used pursuant to clauses (iv) and (v) of this definition on such Distribution Date) and
(2) the Overcollateralization Increase Amount for such Distribution Date;
minus
(vii)(A) the amount of any Overcollateralization Reduction Amount for such Distribution Date
and (B) the amount of any Capitalization Reimbursement Amount for such Distribution Date.
Principal Prepayment: Any payment of principal or other recovery on a Mortgage Loan, including
a recovery that takes the form of Liquidation Proceeds or Insurance Proceeds, which is received in
advance of its scheduled Due Date and is not accompanied by an amount as to interest representing
scheduled interest on such payment due on any date or dates in any month or months subsequent to the
month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor of the entire
principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date, all amounts described in
clauses (b)(i) through (iii) of the definition of Principal Distribution Amount for that Distribution
Date.
Program Guide: The AlterNet Seller Guide as incorporated into the Residential Funding Seller
Guide for mortgage collateral sellers that participate in Residential Funding's AlterNet Mortgage
Program, and Residential Funding's Servicing Guide and any other subservicing arrangements which
Residential Funding has arranged to accommodate the servicing of the Mortgage Loans and in each case all
supplements and amendments thereto published by Residential Funding.
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 either (a) the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) plus the rate per annum at which the
Servicing Fee is calculated, or (b) in the case of a purchase made by the Master Servicer, at the Net
Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), in each case on
the Stated Principal Balance thereof to the first day of the month following the month of purchase from
the Due Date to which interest was last paid by the Mortgagor. With respect to any Mortgage Loan (or
REO Property) required to be or otherwise purchased on any date pursuant to Section 4.08, an amount
equal to the greater of (i) the sum of (a) 100% of the Stated Principal Balance thereof plus the
principal portion of any related unreimbursed Advances of such Mortgage Loan (or REO Property) and (b)
unpaid accrued interest at either (1) the Adjusted Mortgage Rate (or Modified Net Mortgage Rate in the
case of a Modified Mortgage Loan) plus the rate per annum at which the Servicing Fee is calculated, or
(2) in the case of a purchase made by the Master Servicer, at the Net Mortgage Rate (or Modified Net
Mortgage Rate in the case of a Modified Mortgage Loan), in each case on the Stated Principal Balance
thereof to the first day of the month following the month of purchase from the Due Date to which
interest was last paid by the Mortgagor, and (ii) the fair market value of such Mortgage Loan (or REO
Property).
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by Residential Funding or the
Depositor for a Deleted Mortgage Loan which must, on the date of such substitution, as confirmed in an
Officers' Certificate delivered to the Trustee, (i) have an outstanding principal balance, after
deduction of the principal portion of the monthly payment due in the month of substitution (or in the
case of a substitution of more than one Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan (the amount of any shortfall to be deposited by Residential Funding, in the
Custodial Account in the month of substitution); (ii) have a Mortgage Rate and a Net Mortgage Rate no
lower than and not more than 1% per annum higher than the Mortgage Rate and Net Mortgage Rate,
respectively, of the Deleted Mortgage Loan as of the date of substitution; (iii) have a Loan-to-Value
Ratio at the time of substitution no higher than that of the Deleted Mortgage Loan at the time of
substitution; (iv) have a remaining term to stated maturity not greater than (and not more than one year
less than) that of the Deleted Mortgage Loan; (v) comply with each representation and warranty set forth
in Sections 2.03 and 2.04 hereof and Section 4 of the Assignment Agreement, (other than the
representations and warranties set forth therein with respect to the number of loans (including the
related percentage) in excess of zero which meet or do not meet a specified criteria); (vi) not be 30
days or more Delinquent; (vii) not be subject to the requirements of HOEPA (as defined in the Assignment
Agreement); (viii) have a policy of title insurance, in the form and amount that is in material
compliance with the Program Guide, that was effective as of the closing of such Mortgage Loan, is valid
and binding, and remains in full force and effect, unless the Mortgage Property is located in the State
of Iowa where an attorney's certificate has been provided as described in the Program Guide; (ix) if the
Deleted Loan is not a Balloon Loan, not be a Balloon Loan; (x) with respect to adjustable rate Mortgage
Loans, have a Mortgage Rate that adjusts with the same frequency and based upon the same Index as that
of the Deleted Mortgage Loan; (xi) with respect to adjustable rate Mortgage Loans, have a Note Margin
not less than that of the Deleted Mortgage Loan; (xii) with respect to adjustable rate Mortgage Loans,
have a Periodic Rate Cap that is equal to that of the Deleted Mortgage Loan; (xiii) with respect to
adjustable rate Mortgage Loans, have a next Adjustment Date no later than that of the Deleted Mortgage
Loan, and (xiv) be secured by a lien with the same lien priority as the Deleted Loan.
Rating Agency: Each of Standard & Poor's and Moody's. 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 Depositor, 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) 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 last day of the
month in which the Cash Liquidation (or REO Disposition) occurred on the Stated Principal Balance of
such Mortgage Loan (or REO Property) outstanding during each Due Period that such interest was not paid
or advanced, minus (iii) the proceeds, if any, received during the month in which such Cash Liquidation
(or REO Disposition) occurred, to the extent applied as recoveries of interest at the Net Mortgage Rate
and to principal of the Mortgage Loan, net of the portion thereof reimbursable to the Master Servicer or
any Subservicer with respect to related Advances, Servicing Advances or other expenses as to which the
Master Servicer or Subservicer is entitled to reimbursement thereunder but which have not been
previously reimbursed. With respect to each Mortgage Loan which is the subject of a Servicing
Modification, (a) (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 (b) 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. With respect to
each Mortgage Loan which has become the subject of a Deficient Valuation, the difference between the
principal balance of the Mortgage Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the 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.
Realized Losses allocated to the Class SB Certificates shall be allocated first to the REMIC II
Regular Interest SB-IO in reduction of the accrued but unpaid interest thereon until such accrued and
unpaid interest shall have been reduced to zero and then to the REMIC II Regular Interest SB-PO in
reduction of the Principal Balance thereof.
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 and the LIBOR Certificates, the Business
Day immediately preceding such Distribution Date. With respect to each Distribution Date and the
Certificates (other than the LIBOR Certificates), the close of business on the last Business Day of the
month next preceding the month in which the related Distribution Date occurs, except in the case of the
first Record Date which shall be the Closing Date.
Reference Bank Rate: As defined in Section 1.02.
Regular Certificates: The Class A Certificates, Class M Certificates and Class SB Certificates.
Regulation AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R.
§§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.
Relief Act: The Servicemembers Civil Relief Act, formerly known as the Soldiers' and Sailors'
Civil Relief Act of 1940.
Relief Act Shortfalls: Interest shortfalls on the Mortgage Loans resulting from the Relief Act
or similar legislation or regulations.
REMIC: A "real estate mortgage investment conduit" within the meaning of Section 860D of the
Code. As used herein, the term "REMIC" shall mean REMIC I or REMIC II.
REMIC Administrator: Residential Funding Corporation. If Residential Funding Corporation is
found by a court of competent jurisdiction to no longer be able to fulfill its obligations as REMIC
Administrator under this Agreement the Master Servicer or Trustee acting as successor Master Servicer
shall appoint a successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
REMIC I: The segregated pool of assets subject hereto, constituting a portion of the primary
trust created hereby and to be administered hereunder, exclusive of the Yield Maintenance Agreement,
which are not assets of any REMIC, with respect to which a separate REMIC election is to be made,
consisting of:
(i) the Mortgage Loans and the related Mortgage Files;
(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;
(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 pertaining to the
Mortgage Loans, if any; and
(v) all proceeds of clauses (i) through (iv) above.
REMIC I Distribution Amount: For any Distribution Date, the Available Distribution Amount
shall be distributed to the REMIC I Regular Interests and the Class R Certificates in the following
amounts and priority:
(i) to the extent of the Available Distribution Amount, to REMIC II as the holder
of REMIC I Regular Interests LT1, LT2, LT3 and LT4, pro rata, in an amount equal to (A) their
Uncertificated Accrued Interest for such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates; and
(ii) to the extent of the Available Distribution Amount remaining after the
distributions made pursuant to clause (i) above, to REMIC II as the holder of the REMIC I Regular
Interests, in an amount equal to:
(A) in respect of the REMIC I Regular Interests LT2, LT3 and LT4, their
respective Principal Distribution Amounts;
(B) in respect of the REMIC I Regular Interest LT1 any remainder until
the Uncertificated Principal Balance thereof is reduced to zero;
(C) any remainder in respect of the REMIC I Regular Interests LT2, LT3
and LT4, pro rata according to their respective Uncertificated Principal Balances as reduced by the
distributions deemed made pursuant to (A) above, until their respective Uncertificated Principal
Balances are reduced to zero; and
(iii) any remaining amounts to the Holders of the Class R Certificates.
REMIC I Principal Reduction Amounts: For any Distribution Date, the amounts by which the
principal balances of the REMIC I Regular Interests LT1, LT2, LT3 and LT4, respectively, will be reduced
on such Distribution Date by the allocation of Realized Losses and the distribution of principal,
determined as follows:
For purposes of the succeeding formulas the following symbols shall have the meanings set forth
below:
Y1 = the aggregate principal balance of the REMIC I Regular Interest LT1 after
distributions on the prior Distribution Date.
Y2 = the principal balance of the REMIC I Regular Interest LT2 after distributions on the
prior Distribution Date.
Y3 = the principal balance of the REMIC I Regular Interest LT3 after distributions on the
prior Distribution Date.
Y4 = the principal balance of the REMIC I Regular Interest LT4 after distributions on the
prior Distribution Date (note: Y3 = Y4).
ΔY1 = the REMIC I Regular Interest LT1 Principal Reduction Amount.
ΔY2 = the REMIC I Regular Interest LT2 Principal Reduction Amount.
ΔY3 = the REMIC I Regular Interest LT3 Principal Reduction Amount.
ΔY4 = the REMIC I Regular Interest LT4 Principal Reduction Amount.
P0 = the aggregate principal balance of the REMIC I Regular Interests LT1, LT2, LT3 and LT4
after distributions and the allocation of Realized Losses on the prior Distribution Date.
P1 = the aggregate principal balance of the REMIC I Regular Interests LT1, LT2, LT3 and LT4
after distributions and the allocation of Realized Losses to be made on such Distribution Date.
ΔP = P0 - P1 = the aggregate of the REMIC I Regular Interests LT1, LT2, LT3 and LT4
Principal Reduction Amounts.
= the aggregate of the principal portions of Realized Losses to be allocated to, and the
principal distributions to be made on, the Certificates on such Distribution Date (including
distributions of accrued and unpaid interest on the Class SB Certificates for prior Distribution Dates).
R0 = the Net WAC Cap Rate (stated as a monthly rate) after giving effect to amounts
distributed and Realized Losses allocated on the prior Distribution Date.
R1 = the Net WAC Cap Rate (stated as a monthly rate) after giving effect to amounts to be
distributed and Realized Losses to be allocated on such Distribution Date.
α = (Y2 + Y3)/P0. The initial value of α on the Closing Date for use on the first
Distribution Date shall be 0.0001.
γ0 = the lesser of (A) the sum for all Classes of Certificates, other than the Class SB
Certificates, of the product for each Class of (i) the monthly interest rate (as limited by the REMIC
Net WAC Rate, if applicable) for such Class applicable for distributions to be made on such
Distribution Date and (ii) the aggregate Certificate Principal Balance for such Class after
distributions and the allocation of Realized Losses on the prior Distribution Date and (B) R0*P0.
γ1 = the lesser of (A) the sum for all Classes of Certificates, other than the Class SB
Certificates, of the product for each Class of (i) the monthly interest rate (as limited by the Net WAC
Cap Rate, if applicable) for such Class applicable for distributions to be made on the next succeeding
Distribution Date and (ii) the aggregate Certificate Principal Balance for such Class after
distributions and the allocation of Realized Losses to be made on such Distribution Date and (B) R1*P1.
Then, based on the foregoing definitions:
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4;
ΔY2 = α{ γ0R1P1 - γ1R0P0}/{2R1R0P1 - γ1R0};
ΔY3 = αΔP - ΔY2; and
ΔY4 = ΔY3.
if both ΔY2 and ΔY3, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY2, as so determined, is negative, then
ΔY2 = 0;
ΔY3 = α{γ1R0P0 - γ0R1P1}/{γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
(2) If ΔY3, as so determined, is negative, then
ΔY3 = 0;
ΔY2 = α{γ1R0P0 - γ0R1P1}/{2R1R0P1 - γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
REMIC I Realized Losses: Realized Losses on the Mortgage Loans shall be allocated to the REMIC
I Regular Interests as follows: The interest portion of Realized Losses on the Mortgage Loans, if any,
shall be allocated among the REMIC I Regular Interests LT1, LT2 and LT4 pro rata according to the amount
of interest accrued but unpaid thereon, in reduction thereof. Any interest portion of such Realized
Losses in excess of the amount allocated pursuant to the preceding sentence shall be treated as a
principal portion of Realized Losses not attributable to any specific Mortgage Loan and allocated
pursuant to the succeeding sentences. The principal portion of Realized Losses on the Mortgage Loans, if
any, shall be allocated first, to the REMIC I Regular Interests LT2, LT3 and LT4 pro rata according to
their respective Principal Reduction Amounts to the extent thereof in reduction of the Uncertificated
Principal Balance of such REMIC I Regular Interests and, second, the remainder, if any, of such
principal portion of such Realized Losses shall be allocated to the REMIC I Regular Interest LT1 in
reduction of the Uncertificated Principal Balance thereof.
REMIC I Regular Interests: REMIC I Regular Interest LT1, REMIC II Regular Interest LT2,
REMIC II Regular Interest LT3 and REMIC II Regular Interest LT4.
REMIC I Regular Interest LT1: A regular interest in REMIC I that is held as an asset of
REMIC II, that has an initial principal balance equal to the related Uncertificated Principal Balance,
that bears interest at the related Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest LT1 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the REMIC I Regular Interest LT1 Principal Reduction Amount for such Distribution
Date over the Realized Losses allocated to the REMIC I Regular Interest LT1 on such Distribution Date.
REMIC I Regular Interest LT2: A regular interest in REMIC I that is held as an asset of
REMIC II, that has an initial principal balance equal to the related Uncertificated Principal Balance,
that bears interest at the related Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest LT2 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the REMIC I Regular Interest LT2 Principal Reduction Amount for such Distribution
Date over the Realized Losses allocated to the REMIC I Regular Interest LT2 on such Distribution Date.
REMIC I Regular Interest LT3: A regular interest in REMIC II that is held as an asset of
REMIC II, that has an initial principal balance equal to the related Uncertificated Principal Balance,
that bears interest at the related Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest LT3 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the REMIC I Regular Interest LT3 Principal Reduction Amount for such Distribution
Date over the Realized Losses allocated to the REMIC I Regular Interest LT3 on such Distribution Date.
REMIC I Regular Interest LT4: A regular interest in REMIC II that is held as an asset of
REMIC II, that has an initial principal balance equal to the related Uncertificated Principal Balance,
that bears interest at the related Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.
REMIC I Regular Interest LT4 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the REMIC I Regular Interest LT4 Principal Reduction Amount for such Distribution
Date over the Realized Losses allocated to the REMIC I Regular Interest LT4 on such Distribution Date.
REMIC II: The segregated pool of assets subject hereto, constituting a portion of the primary
trust created hereby and to be administered hereunder, with respect to which a separate REMIC election
is to be made, consisting of the REMIC I Regular Interests.
REMIC II Regular Interest SB-PO: A separate non-certificated beneficial ownership interest in
REMIC II issued hereunder and designated as a REMIC II Regular Interest. REMIC II Regular Interest
SB-PO shall have no entitlement to interest, and shall be entitled to distributions of principal subject
to the terms and conditions hereof, in aggregate amount equal to the initial Certificate Principal
Balance of the Class SB Certificates as set forth in the Preliminary Statement hereto.
REMIC II Regular Interest SB-IO: A separate non-certificated beneficial ownership interest in
REMIC II issued hereunder and designated as a REMIC II Regular Interest. REMIC II Regular Interest
SB-IO shall have no entitlement to principal, and shall be entitled to distributions of interest subject
to the terms and conditions hereof, in aggregate amount equal to the interest distributable with respect
to the Class SB Certificates pursuant to the terms and conditions hereof.
REMIC II Regular Interests: REMIC II Regular Interests SB-IO and SB-PO, together with the
regular interests in REMIC II represented by the Class A Certificates and Class M Certificates exclusive
of the rights of such Certificates to payments of Basis Risk Shortfall Amounts and to payments derived
from the Yield Maintenance Agreement.
REMIC Administrator: Residential Funding Corporation. If Residential Funding Corporation is
found by a court of competent jurisdiction to no longer be able to fulfill its obligations as REMIC
Administrator under this Agreement the Master Servicer or Trustee acting as successor 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: With respect to any REO Property, a determination by the Master Servicer that
it has received substantially 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: With respect to any REO Property, for any period, an amount equivalent
to interest (at a rate equal to 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) which proceeds are
required to be deposited into the Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer on behalf of the Trust Fund
for the benefit of the Certificateholders through foreclosure or deed in lieu of foreclosure in
connection with a defaulted Mortgage Loan.
Reportable Modified Mortgage Loan: Any Mortgage Loan that (a) has been subject to an interest
rate reduction, (b) has been subject to a term extension or (c) 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 (a) 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.
Repurchase Event: As defined in the Assignment Agreement.
Request for Release: A request for release, the form of which is attached as Exhibit G 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 Overcollateralization Amount: With respect to any Distribution Date, (a) prior to the
Stepdown Date, an amount equal to 4.75% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date, (b) on or after the Stepdown Date if a Trigger Event is not in effect, the
greater of (i) an amount equal to 9.50% of the aggregate outstanding Stated Principal Balance of the
Mortgage Loans after giving effect to distributions made on that Distribution Date and (ii) the
Overcollateralization Floor and (c) on or after the Stepdown Date if a Trigger Event is in effect, an
amount equal to the Required Overcollateralization Amount from the immediately preceding Distribution
Date. The Required Overcollateralization Amount may be reduced so long as written confirmation is
obtained from each Rating Agency that such reduction shall not reduce the ratings 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.
Residential Funding: Residential Funding Corporation, a Delaware corporation, in its capacity
as seller of the Mortgage Loans to the Depositor 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, in each case with direct responsibility for the administration of this Agreement.
RFC Exemption: As defined in Section 5.02(e)(ii).
Rule 144A: Rule 144A under the Securities Act of 1933, as in effect from time to time.
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.
Seller: With respect 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 Depositor.
Senior Enhancement Percentage: For any Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the sum of (i) the aggregate Certificate Principal Balance of the
Class M Certificates and (ii) the Overcollateralization Amount, in each case prior to the distribution
of the Principal Distribution Amount on such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans after giving effect to distributions to be made
on that Distribution Date.
Servicing Accounts: The account or accounts created and maintained pursuant to Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of pocket" costs and expenses
incurred in connection with a default, delinquency or other unanticipated event by the Master Servicer
or a Subservicer in the performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged Property or, with respect to a
cooperative loan, the related cooperative apartment, (ii) any enforcement or judicial proceedings,
including foreclosures, including any expenses incurred in relation to any such proceedings that result
from the Mortgage Loan being registered on the MERS® System, (iii) the management and liquidation of any
REO Property, (iv) any mitigation procedures implemented in accordance with Section 3.07, and
(v) compliance with the obligations under Sections 3.01, 3.08, 3.11, 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 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 equal to the Servicing Fee Rate multiplied by the Stated Principal Balance of such Mortgage Loan as
of the related Due Date in the related Due Period, as may be adjusted pursuant to Section 3.16(e).
Servicing Fee Rate: With respect to any Mortgage Loan, the per annum rate designated on the
Mortgage Loan Schedule as the "MSTR SERV FEE," as may be adjusted with respect to successor Master
Servicers as provided in Section 7.02, which rate shall never be greater than the Mortgage Rate of such
Mortgage Loan.
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 Stated 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 on the Closing Date, as such list may
from time to time be amended.
Sixty-Plus Delinquency Percentage: With respect to any Distribution Date and the Mortgage
Loans, the arithmetic average, for each of the three Distribution Dates ending with such Distribution
Date, of the fraction, expressed as a percentage, equal to (x) the aggregate Stated Principal Balance of
the Mortgage Loans that are 60 or more days delinquent in payment of principal and interest for that
Distribution Date, including Mortgage Loans in foreclosure and REO, over (y) the aggregate Stated
Principal Balance of all of the Mortgage Loans immediately preceding that Distribution Date.
Standard & Poor's: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or its successors in interest.
Startup Date: The day designated as such pursuant to Article X hereof.
Stated Principal Balance: With respect to any Mortgage Loan or related REO Property, as of any
date of determination, (i) the sum of (a) the Cut-off Date Principal Balance of the Mortgage Loan and
(b) any amount by which the Stated Principal Balance of the Mortgage Loan has been 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 with the Due Period
relating to the most recent Distribution Date which were received or with respect to which an Advance
was made, (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 incurred with respect to such Mortgage Loan allocated to
Certificateholders with respect thereto for any previous Distribution Date.
Stepdown Date: That Distribution Date which is the earlier to occur of (a) the Distribution
Date immediately succeeding the Distribution Date on which the aggregate Certificate Principal Balance
of the Class A Certificates has been reduced to zero and (b) the later to occur of (i) the Distribution
Date in September 2009 and (ii) the first Distribution Date on which the Senior Enhancement Percentage
is equal to or greater than 49.50%.
Subordination: The provisions described in Section 4.05 relating to the allocation of Realized
Losses.
Subordination Percentage: With respect to each Class of Class A Certificates and Class M
Certificates, the respective percentage set forth below.
Subordination
Class Percentage
________ ________________
A 50.50%
M-1 59.40%
M-2 68.10%
M-3 72.40%
M-4 76.40%
M-5 80.10%
M-6 82.60%
M-7 85.40%
M-8 87.60%
M-9 90.50%
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 and 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 Depositor.
Subservicing Fee: With respect 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 with respect to each Distribution Date at an annual
rate designated as "SUBSERV FEE" on the Mortgage Loan Schedule.
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 hereunder due to its classification as a REMIC under the REMIC Provisions,
together with any and all other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
Telerate Screen Page 3750: As defined in Section 1.02.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation or other form of
assignment of any Ownership Interest in a Certificate.
Transfer Affidavit and Agreement: As defined in Section 5.02(f).
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.
Trigger Event: A Trigger Event is in effect with respect to any Distribution Date on or after
the Stepdown Date if either (a) the related Sixty-Plus Delinquency Percentage, as determined on that
Distribution Date, equals or exceeds 32.32% of the Senior Enhancement Percentage for that Distribution
Date or (b) on or after the Distribution Date in September 2008, the aggregate amount of Realized Losses
on the Mortgage Loans as a percentage of the Cut-Off Date Balance exceeds the applicable amount set
forth below:
September 2008 to August 2009: 1.85% with respect to September 2008, plus an
additional 1/12th of 2.30% for each month
thereafter.
September 2009 to August 2010: 4.15% with respect to September 2009, plus an
additional 1/12th of 2.30% for each month
thereafter.
September 2010 to August 2011: 6.45% with respect to September 2010, plus an
additional 1/12th of 1.85% for each month
thereafter.
September 2011 to August 2012: 8.30% with respect to September 2011, plus an
additional 1/12th of 1.00% for each month
thereafter.
September 2012 and thereafter: 9.30%.
Trustee: As defined in the preamble hereto.
Trust Fund: The segregated pool of assets subject hereto, consisting of: (i) the Mortgage
Loans and the related Mortgage Files; (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; (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 pertaining to the Mortgage Loans, if any; (v) the
Yield Maintenance Agreement; and (vi) all proceeds of clauses (i) through (v) above.
Uncertificated Accrued Interest: With respect to any REMIC I Regular Interest for any
Distribution Date, one month's interest at the related Uncertificated REMIC I Pass-Through Rate for such
Distribution Date, accrued on its Uncertificated Principal Balance immediately prior to such
Distribution Date. Uncertificated Accrued Interest for the REMIC I Regular Interests shall accrue on the
basis of a 360-day year consisting of twelve 30-day months. For purposes of calculating the amount of
Uncertificated Accrued Interest for the REMIC I Regular Interests for any Distribution Date, any
Prepayment Interest Shortfalls and Relief Act Shortfalls (to the extent not covered by Compensating
Interest) relating to the Mortgage Loans for any Distribution Date shall be allocated among REMIC I
Regular Interests LT1, LT2, LT3 and LT4 pro rata, based on, and to the extent of, Uncertificated Accrued
Interest, as calculated without application of this sentence. Uncertificated Accrued Interest on REMIC
II Regular Interest SB-PO shall be zero. Uncertificated Accrued Interest on REMIC II Regular
Interest SB-IO for each Distribution Date shall equal Accrued Certificate Interest for the Class SB
Certificates.
Uncertificated Principal Balance: The principal amount of any REMIC I Regular Interest
outstanding as of any date of determination. The Uncertificated Principal Balance of each REMIC I
Regular Interest shall never be less than zero. With respect to the REMIC II Regular Interest SB-PO the
initial amount set forth with respect thereto in the Preliminary Statement as reduced by distributions
deemed made in respect thereof pursuant to Section 4.02 and Realized Losses allocated thereto pursuant
to Section 4.05.
Uncertificated REMIC I Pass-Through Rate: With respect to any Distribution Date and (i) REMIC
I Regular Interests LT1 and LT2, the weighted average of the Net Mortgage Rates of the Mortgage Loans,
(ii) REMIC I Regular Interest LT3, zero (0.00%), and (iii) REMIC I Regular Interest LT4, twice the
weighted average of the Net Mortgage Rates of the Mortgage Loans.
Uniform Single Attestation Program for Mortgage Bankers: The Uniform Single Attestation
Program for Mortgage Bankers, as published by the Mortgage Bankers Association of America and effective
with respect to fiscal periods ending on or after December 15, 1995.
Uninsured Cause: Any cause of damage to property subject to a Mortgage such that the complete
restoration of such property is not fully reimbursable by the hazard insurance policies.
United States Person: A citizen or resident of the United States, a corporation, partnership
or other entity (treated as a corporation or partnership for United States federal income tax purposes)
created or organized in, or under the laws of, the United States, any state thereof, or the District of
Columbia (except in the case of a partnership, to the extent provided in Treasury regulations) provided
that, for purposes solely of the restrictions on the transfer of Class R Certificates, 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 operative agreement to be United States Persons, or an estate that is described in
Section 7701(a)(30)(D) of the Code, or a trust that is described in Section 7701(a)(30)(E) of the Code.
Voting Rights: The portion of the voting rights of all of the Certificates which is allocated
to any Certificate. 98.00% of all of the Voting Rights shall be allocated among Holders of the Class A
Certificates and Class M Certificates, in proportion to the outstanding Certificate Principal Balances
of their respective Certificates; 1% of all of the Voting Rights shall be allocated to the Holders of
the Class SB Certificates, and 1% of all of the Voting Rights shall be allocated to the Holders of the
Class R Certificates; in each case to be allocated among the Certificates of such Class in accordance
with their respective Percentage Interests.
Yield Maintenance Agreement: The confirmation, dated as of the Closing Date, between the
Trustee, on behalf of the Trust Fund, and the Yield Maintenance Agreement Provider, relating to the
Class A Certificates and Class M Certificates or any replacement, substitute, collateral or other
arrangement in lieu thereof.
Yield Maintenance Agreement Payment: For any Distribution Date, the payment, if any, due under
the Yield Maintenance Agreement in respect of such Distribution Date.
Yield Maintenance Agreement Provider: HSBC Bank USA, National Association and its successors
and assigns or any party to any replacement, substitute, collateral or other arrangement in lieu thereof.
Yield Maintenance Agreement Shortfall Amount: For any Distribution Date, the amount, if any,
by which the payment on the Class A Certificates and Class M Certificates pursuant to Section 4.02(c) is
paid from the Yield Maintenance Agreement Payment for such Distribution Date pursuant to the provisions
thereof or would have been so paid but for the failure of the Yield Maintenance Agreement Provider to
make a payment required under the Yield Maintenance Agreement.
Yield Maintenance Agreement Shortfall Carry-Forward Amount: For any Distribution Date, the
aggregate Yield Maintenance Agreement Shortfall Amounts for prior Distribution Dates to the extent not
reimbursed to the Class SB Certificates pursuant to Section 4.02(c)(x).
Section 1.02. Determination of LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rate on the LIBOR Certificates for any
Interest Accrual Period will be determined as of each LIBOR Rate Adjustment Date. On each LIBOR Rate
Adjustment Date, or if such LIBOR Rate Adjustment Date is not a Business Day, then on the next
succeeding Business Day, LIBOR shall be established by the Trustee and, as to any Interest Accrual
Period, will equal the rate for one month United States dollar deposits that appears on the Telerate
Screen Page 3750 as of 11:00 a.m., London time, on such LIBOR Rate Adjustment Date. "Telerate Screen
Page 3750" means the display designated as page 3750 on the Bridge Telerate Service (or such other page
as may replace page 3750 on that service for the purpose of displaying London interbank offered rates of
major banks). If such rate does not appear on such page (or such other page as may replace that page on
that service, or if such service is no longer offered, LIBOR shall be so established by use of such
other service for displaying LIBOR or comparable rates as may be selected by the Trustee after
consultation with the Master Servicer), the rate will be the Reference Bank Rate. The "Reference Bank
Rate" will be determined on the basis of the rates at which deposits in U.S. Dollars are offered by the
reference banks (which shall be any three major banks that are engaged in transactions in the London
interbank market, selected by the Trustee after consultation with the Master Servicer) as of 11:00 a.m.,
London time, on the LIBOR Rate Adjustment Date to prime banks in the London interbank market for a
period of one month in amounts approximately equal to the aggregate Certificate Principal Balance of the
LIBOR Certificates then outstanding. The Trustee shall request the principal London office of each of
the reference banks to provide a quotation of its rate. If at least two such quotations are provided,
the rate will be the arithmetic mean of the quotations rounded up to the next multiple of 1/16%. If on
such date fewer than two quotations are provided as requested, the rate will be the arithmetic mean of
the rates quoted by one or more major banks in New York City, selected by the Trustee after consultation
with the Master Servicer, as of 11:00 a.m., New York City time, on such date for loans in U.S. Dollars
to leading European banks for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the LIBOR Certificates then outstanding. If no such quotations can be
obtained, the rate will be LIBOR for the prior Distribution Date; provided however, if, under the
priorities described above, LIBOR for a Distribution Date would be based on LIBOR for the previous
Distribution Date for the third consecutive Distribution Date, the Trustee, shall select an alternative
comparable index (over which the Trustee has no control), used for determining one-month Eurodollar
lending rates that is calculated and published (or otherwise made available) by an independent party.
The establishment of LIBOR by the Trustee on any LIBOR Rate Adjustment Date and the Trustee's subsequent
calculation of the Pass-Through Rates applicable to the LIBOR Certificates for the relevant Interest
Accrual Period, in the absence of manifest error, will be final and binding. Promptly following each
LIBOR Rate Adjustment Date the Trustee shall supply the Master Servicer with the results of its
determination of LIBOR on such date. Furthermore, the Trustee shall supply to any Certificateholder so
requesting by calling 1-800-934-6802, the Pass-Through Rate on the LIBOR Certificates for the current
and the immediately preceding Interest Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof, does hereby assign
to the Trustee in respect of the Trust Fund without recourse all the right, title and interest of the
Depositor in and to (i) the Mortgage Loans, including all interest and principal on or with respect to
the Mortgage Loans due on or after the Cut-off Date (other than Monthly Payments due in the month of the
Cut-off Date); and (ii) all proceeds of the foregoing.
(b) In connection with such assignment, and contemporaneously with the delivery of this
Agreement, the Depositor delivered or caused to be delivered hereunder to the Trustee, the Yield
Maintenance Agreement (the delivery of which shall evidence that the fixed payment for the Yield
Maintenance Agreement has been paid and the Trustee and the Trust Fund shall have no further payment
obligation thereunder and that such fixed payment has been authorized hereby), and except as set forth
in Section 2.01(c) below and subject to Section 2.01(d) below, the Depositor does hereby (1) with
respect to to each Mortgage Loan, deliver to 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 to each MOM Loan, deliver to,
and deposit with, the Trustee, or the Custodian, as the duly appointed agent 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® System, deliver to, and
deposit with, the Trustee, or the Custodian, as the duly appointed agent of the Trustee for such purpose,
the documents or instruments described in clauses (i), (iv) and (v) below and (4) with respect to each
Mortgage Loan that is not a MOM Loan and is not registered on the MERS® System, deliver to, and deposit
with, the Trustee, or the Custodian, as the duly appointed agent of the Trustee for such purpose, the
documents or instruments described in clauses (i), (iii), (iv) and (v) below.
(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 original Mortgage with evidence of recording
indicated thereon.
(iii) The assignment (which may be included in one or more blanket assignments if
permitted by applicable law) 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 to the Person assigning it to the Trustee (or to MERS, if
the Mortgage Loan is registered on the MERS® 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.
The Depositor may, in lieu of delivering the original of the documents set forth in
Section 2.01(b)(iii), (iv) and (v) (or copies thereof) to the Trustee or the Custodian, deliver such
documents to the Master Servicer, and the Master Servicer shall hold such documents in trust for the use
and benefit of all present and future Certificateholders until such time as is set forth in the next
sentence. Within thirty Business Days following the earlier of (i) the receipt of the original of all
of the documents or instruments set forth in Section 2.01(b)(iii), (iv) and (v) (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, as duly appointed agent of the
Trustee.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in connection
with any Mortgage Loan, if the Depositor 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 Depositor shall deliver or cause to be delivered to the Trustee or the respective
Custodian a copy of such Mortgage, assignment, modification, assumption agreement or preferred loan
agreement.
The Depositor shall promptly cause to be recorded in the appropriate public office for real
property records the Assignment referred to in clause (iii) of Section 2.01(b), except (a) in states
where, in an Opinion of Counsel acceptable to the Master Servicer, such recording is not required to
protect the Trustee's interests in the Mortgage Loan or (b) if MERS is identified on the Mortgage or on
a properly recorded assignment of the Mortgage, as applicable, as the mortgagee of record solely as
nominee for Residential Funding and its successors and assigns. If any Assignment is lost or returned
unrecorded to the Depositor because of any defect therein, the Depositor shall prepare a substitute
Assignment or cure such defect, as the case may be, and cause such Assignment to be recorded in
accordance with this paragraph. The Depositor shall promptly deliver or cause to be delivered to the
applicable person described in Section 2.01(b), any Assignment or substitute Assignment (or copy
thereof) recorded in connection with this paragraph, with evidence of recording indicated thereon upon
receipt thereof from the public recording office or from the related Subservicer or Seller.
If the Depositor delivers to the Trustee or Custodian any Mortgage Note or Assignment of
Mortgage in blank, the Depositor shall, or shall cause the Custodian to, complete the endorsement of the
Mortgage Note and the Assignment of Mortgage in the name of the Trustee in conjunction with the Interim
Certification issued by the Custodian, as contemplated by Section 2.02.
Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and (v) and that may be
delivered as a copy rather than the original may be delivered to the Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on the MERS® System, the
Depositor further agrees that it will cause, at the Depositor's own expense, within 30 Business Days
after the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the
Depositor 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 Depositor further agrees that it will not, and will not permit
the Master Servicer to, and the Master Servicer agrees that it will not, alter the codes referenced in
this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(d) It is intended that the conveyances by the Depositor to the Trustee of the Mortgage
Loans as provided for in this Section 2.01 and the Uncertificated Regular Interests be construed as a
sale by the Depositor to the Trustee of the Mortgage Loans and the Uncertificated Regular Interests for
the benefit of the Certificateholders. Further, it is not intended that any such conveyance be deemed
to be a pledge of the Mortgage Loans and the Uncertificated Regular Interests by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is
intended to be and hereby is 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
conveyances provided for in this Section 2.01 shall be deemed to be (1) a grant by the Depositor to the
Trustee of a security interest in all of the Depositor's right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans,
including the related Mortgage Note, the Mortgage, 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 Regular Interests and 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 foregoing, 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 Depositor 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 Depositor pursuant to the Assignment Agreement; (c) the possession by the Trustee, the Custodian or
any other agent of the Trustee of Mortgage Notes or such other items of property as constitute
instruments, money, payment intangibles, negotiable documents, goods, deposit accounts, letters of
credit, advices of credit, investment property, certificated securities or chattel paper shall be deemed
to be "possession by the secured party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to the Minnesota Uniform
Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction as in effect
(including, without limitation, Sections 8-106, 9-313 and 9-106 thereof); and (d) notifications to
persons holding such property, and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, (as applicable) the Trustee for
the purpose of perfecting such security interest under applicable law.
The Depositor and, at the Depositor'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 deemed to create a security interest in the Mortgage Loans and the
Uncertificated Regular Interests and the other property described above, such security interest would be
deemed 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
Depositor 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
Depositor, 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 the Uncertificated Regular Interests, as evidenced by an Officers'
Certificate of the Depositor, 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 Depositor 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 Depositor, (3) any transfer of any interest of
Residential Funding or the Depositor in any Mortgage Loan or (4) any transfer of any interest of
Residential Funding or the Depositor in any Uncertificated Regular Interests.
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) above (except that for purposes of such acknowledgement only, a Mortgage Note may be
endorsed in blank and an Assignment of Mortgage may be in blank) and declares that it, or the 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, in trust for the use and benefit of all
present and future Certificateholders. The Trustee or Custodian (the Custodian being so obligated under
a Custodial Agreement) agrees, for the benefit of Certificateholders, to review each Custodial File
delivered to it pursuant to Section 2.01(b) within 90 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 Depositor 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(b)
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, upon receipt of notification from the Custodian as
specified in the succeeding sentence, the Trustee shall promptly so notify or cause the Custodian to
notify the Master Servicer and the Depositor. Pursuant to Section 2.3 of the Custodial Agreement, the
Custodian will notify the Master Servicer, the Depositor 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 received by it pursuant
to the Custodial Agreement. If such omission or defect materially and adversely affects the interests
in the related Mortgage Loan of the Certificateholders, the Master Servicer shall promptly notify the
related Subservicer or Seller of such omission or defect and request that such Subservicer or Seller
correct or cure such omission or defect within 60 days from the date the Master Servicer was notified of
such omission or defect and, if such Subservicer or Seller does not correct or cure such omission or
defect within such period, that such Subservicer or Seller purchase such Mortgage Loan from the Trust
Fund at its Purchase Price, in either case within 90 days from the date the Master Servicer was notified
of such omission or defect; provided that if the omission or defect would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or
repurchase must occur within 90 days from the date such breach was discovered. The Purchase Price for
any such Mortgage Loan shall be deposited or caused to be deposited by the Master Servicer in the
Custodial Account maintained by it pursuant to Section 3.07 and, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, Master Servicer, the Trustee or the
Custodian, as the case may be, shall release the contents of any related Mortgage File in its possession
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 Subservicer or
Seller or its designee, as the case may be, any Mortgage Loan released pursuant hereto and thereafter
such Mortgage Loan shall not be part of the Trust Fund. In furtherance of the foregoing and
Section 2.04, if the Subservicer or Seller or Residential Funding that repurchases the Mortgage Loan is
not a member of MERS and the Mortgage is registered on the MERS® System, the Master Servicer, at its own
expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of
the Mortgage in recordable form to transfer the Mortgage from MERS to such Subservicer or Seller or
Residential Funding and shall cause such Mortgage to be removed from registration on the MERS® System in
accordance with MERS' rules and regulations. It is understood and agreed that the obligation of the
Subservicer or Seller, 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 Certificateholders.
Section 2.03. Representations, Warranties and Covenants of the Master Servicer and the
Depositor.
(a) The Master Servicer hereby represents and warrants to the Trustee for the benefit of
the Certificateholders that:
(i) The Master Servicer is a corporation duly organized, validly existing and in
good standing under the laws governing its creation and existence and is or will be in compliance with
the laws of each state in which any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan in accordance with the terms of this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not violate the Master Servicer's
Certificate of Incorporation or Bylaws or constitute a material default (or an event which, with notice
or lapse of time, or both, would constitute a material default) under, or result in the material breach
of, any material contract, agreement or other instrument to which the Master Servicer is a party or
which may be applicable to the Master Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and delivery by the
Trustee and the Depositor, 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 shall 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 Depositor, any Affiliate of the Depositor 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;
(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; and
(x) The Servicing Guide of the Master Servicer requires that the Subservicer for
each Mortgage Loan accurately and fully reports its borrower credit files to each of the Credit
Repositories in a timely manner.
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 the Custodian. Upon
discovery by either the Depositor, the Master Servicer, the Trustee or the 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 (the 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
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 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) The Depositor hereby represents and warrants to the Trustee for the benefit of the
Certificateholders that as of the Closing Date (or, if otherwise specified below, as of the date so
specified): (i) immediately prior to the conveyance of the Mortgage Loans to the Trustee, the Depositor
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
conveyance validly transfers ownership of the Mortgage Loans to the Trustee free and clear of any
pledge, lien, encumbrance or security interest; and (ii) 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).
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 Depositor, 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) 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 (the 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)(ii), 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 Depositor shall either (i) cure such breach in all material respects or (ii)
purchase such Mortgage Loan from the Trust Fund at the Purchase Price and in the manner set forth in
Section 2.02; provided that the Depositor 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, substitution or
repurchase must occur within 90 days from the date such breach was discovered. Any such substitution
shall be effected by the Depositor under the same terms and conditions as provided in Section 2.04 for
substitutions by Residential Funding. It is understood and agreed that the obligation of the Depositor
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 Depositor shall not be required to cure breaches or purchase or substitute for Mortgage Loans as
provided in this Section 2.03(b) if the substance of the breach of a representation set forth above also
constitutes fraud in the origination of the Mortgage Loan.
Section 2.04. Representations and Warranties of Sellers.
The Depositor, as assignee of Residential Funding under the Assignment Agreement, hereby
assigns to the Trustee for the benefit of the Certificateholders all of its right, title and interest in
respect of the Assignment Agreement applicable to a Mortgage Loan as and to the extent set forth in the
Assignment Agreement. Insofar as the Assignment Agreement relates to the representations and warranties
made by Residential Funding 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
Depositor, the Master Servicer, the Trustee or the Custodian of a breach of any of the representations
and warranties made in the Assignment Agreement in respect of any Mortgage Loan or of any Repurchase
Event 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 (the
Custodian being so obligated under a Custodial Agreement). The Master Servicer shall promptly notify
Residential Funding of such breach or Repurchase Event and request that Residential Funding either (i)
cure such breach or Repurchase Event in all material respects within 90 days from the date the Master
Servicer was notified of such breach or Repurchase Event or (ii) purchase such Mortgage Loan from the
Trust Fund at the Purchase Price and in the manner set forth in Section 2.02.
Upon the discovery by the Depositor, the Master Servicer, the Trustee or the Custodian of a
breach of any of such representations and warranties set forth in 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
(the Custodian being so obligated under a Custodial Agreement). The Master Servicer shall promptly
notify Residential Funding of such breach of a representation or warranty set forth in the Assignment
Agreement 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 within 90 days of the date of such written notice of such breach at
the Purchase Price and in the manner set forth in 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 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 (xlvii) of Section 4 thereof, then the Master Servicer shall request that
Residential Funding pay to the Trust Fund, concurrently with and in addition to the remedies provided in
the preceding sentence, an amount equal to any liability, penalty or expense that was actually incurred
and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach, or if
incurred and paid by the Trust Fund thereafter, concurrently with such payment. In the event that
Residential Funding elects to substitute a Qualified Substitute Mortgage Loan or Loans for a Deleted
Mortgage Loan pursuant to this Section 2.04, Residential Funding shall deliver to the Trustee for the
benefit of the Certificateholders with respect to such Qualified Substitute Mortgage Loan or Loans, the
original Mortgage Note, the Mortgage, an Assignment of the Mortgage in recordable form, 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 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 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
(other than those of a statistical nature) contained in the Assignment Agreement as of the date of
substitution, and the covenants, representations and warranties set forth in this Section 2.04, and in
Section 2.03(b) hereof.
In connection with the substitution of one or more Qualified Substitute Mortgage Loans for one
or more Deleted Mortgage Loans, the Master Servicer shall 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 or cause the related Seller to 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 created hereunder to fail to qualify as a
REMIC 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 (and in the case of Residential Funding to substitute for) such Mortgage Loan as to which such
a breach has occurred and is continuing and to make any additional payments required under the
Assignment Agreement in connection with a breach of the representation and warranty in clause (xlvii) of
Section 4 thereof shall constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of the 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; Conveyance of REMIC-I Regular
Interests.
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
of the Custodial Files to it, or the Custodian on its behalf, subject to any exceptions noted, together
with the assignment to it of all other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such delivery and in exchange therefor, the Trustee, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has executed and caused to be
authenticated and delivered to or upon the order of the Depositor the Certificates in authorized
denominations which evidence ownership of the entire Trust Fund.
(b) The Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without recourse all the right,
title and interest of the Depositor in and to the REMIC I Regular Interests for the benefit of the
holders of the Regular Certificates and Component II of the Class R Certificates. The Trustee
acknowledges receipt of the REMIC I Regular Interests (each of which are uncertificated) and declares
that it holds and will hold the same in trust for the exclusive use and benefit of the holders of the
Regular Certificates and Component II of the Class R Certificates. The interests evidenced by Component
II of the Class R Certificates, together with the Regular Certificates, constitute the entire beneficial
ownership interest in REMIC II.
Section 2.06. 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 Depositor in exchange for the Mortgage Loans;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(d) subject to compliance with this Agreement, to engage in such other activities as may
be required in connection with conservation of the Trust Fund and the making of distributions to the
Certificateholders.
The trust is hereby authorized to engage in the foregoing activities. Notwithstanding the
provisions of Section 11.01, the trust shall not engage in any activity other than in connection with
the foregoing or other than as required or authorized by the terms of this Agreement while any
Certificate is outstanding, and this Section 2.06 may not be amended, without the consent of the
Certificateholders evidencing a majority of the aggregate Voting Rights of the Certificates.
Section 2.07. Agreement Regarding Ability to Disclose.
The Depositor, the Master Servicer and the Trustee hereby agree that, notwithstanding any other
express or implied agreement to the contrary, 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," "tax treatment," "tax structure," and "tax benefit" are defined under Treasury Regulation §
1.6011-4(c).
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 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 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® System, or cause the
removal from the registration of any Mortgage Loan on the MERS® 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 as set forth in Section 3.10(a)(ii). 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 created hereunder 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 or other documents. 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.
If the Mortgage relating to a Mortgage Loan did not have a lien senior to the Mortgage Loan on
the related Mortgaged Property as of the Cut-off Date, then the Master Servicer, in such capacity, may
not consent to the placing of a lien senior to that of the Mortgage on the related Mortgaged Property.
If the Mortgage relating to a Mortgage Loan had a lien senior to the Mortgage Loan on the related
Mortgaged Property as of the Cut-off Date, then the Master Servicer, in such capacity, may consent to
the refinancing of the prior senior lien, provided that the following requirements are met:
(i) (A) the Mortgagor's debt-to-income ratio resulting from such refinancing
is less than the original debt-to-income ratio as set forth on the Mortgage Loan Schedule; provided,
however, that in no instance shall the resulting Combined Loan-to-Value Ratio ("Combined Loan-to-Value
Ratio") of such Mortgage Loan be higher than that permitted by the Program Guide; or
(B) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan is
no higher than the Combined Loan-to-Value Ratio prior to such refinancing; provided, however, if such
refinanced mortgage loan is a "rate and term" mortgage loan (meaning, the Mortgagor does not receive any
cash from the refinancing), the Combined Loan-to-Value Ratio may increase to the extent of either (x)
the reasonable closing costs of such refinancing or (y) any decrease in the value of the related
Mortgaged Property, if the Mortgagor is in good standing as defined by the Program Guide;
(ii) the interest rate, or, in the case of an adjustable rate existing senior lien,
the maximum interest rate, for the loan evidencing the refinanced senior lien is no more than 2.0%
higher than the interest rate or the maximum interest rate, as the case may be, on the loan evidencing
the existing senior lien immediately prior to the date of such refinancing; provided, however (A) if the
loan evidencing the existing senior lien prior to the date of refinancing has an adjustable rate and the
loan evidencing the refinanced senior lien has a fixed rate, then the current interest rate on the loan
evidencing the refinanced senior lien may be up to 2.0% higher than the then-current loan rate of the
loan evidencing the existing senior lien and (B) if the loan evidencing the existing senior lien prior
to the date of refinancing has a fixed rate and the loan evidencing the refinanced senior lien has an
adjustable rate, then the maximum interest rate on the loan evidencing the refinanced senior lien shall
be less than or equal to (x) the interest rate on the loan evidencing the existing senior lien prior to
the date of refinancing plus (y) 2.0%; and
(iii) the loan evidencing the refinanced senior lien is not subject to negative
amortization.
(b) The Master Servicer shall, to the extent consistent with the servicing standards set
forth herein, take whatever actions as may be necessary to file a claim under or enforce or allow the
Trustee to file a claim under or enforce any title insurance policy with respect to any Mortgage Loan
including, without limitation, joining in or causing any Seller or Subservicer (or any other party in
possession of any title insurance policy) to join in any claims process, negotiations, actions or
proceedings necessary to make a claim under or enforce any title insurance policy. Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not (unless the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment of the Master Servicer,
reasonably foreseeable) make or permit any modification, waiver, or amendment of any term of any
Mortgage Loan that would both (i) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury 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 (ii) cause any REMIC formed
hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on "prohibited
transactions" or "contributions" after the startup date under the REMIC Provisions.
(c) 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 customarily provided by Persons other than 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.
(d) 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).
(e) 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.
(f) The relationship of the Master Servicer (and of any successor to the Master Servicer)
to the Depositor under this Agreement is intended by the parties to be that of an independent contractor
and not that of a joint venturer, partner or agent.
(g) The Master Servicer shall comply with the terms of Section 9 of the Assignment
Agreement.
Section 3.02. Subservicing Agreements Between Master Servicer and Subservicers; Enforcement
of Subservicers' 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 Xxxxxxx Mac, Xxxxxx Mae or HUD approved mortgage 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, 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. 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, to the extent that the non-performance of any such obligation would have a material
and adverse effect on a Mortgage Loan, including, without limitation, the obligation to purchase a
Mortgage Loan on account of defective documentation, as described in Section 2.02, or on account of a
breach of a representation or warranty, as described in Section 2.04. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Subservicing Agreements or Seller's
Agreements, as appropriate, and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time 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 and are reimbursable pursuant to
Section 3.10(a)(vii).
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 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
Depositor and to the same extent and under the same terms and conditions as if the Master Servicer alone
were servicing and administering the Mortgage Loans. The Master Servicer shall be entitled to enter
into any agreement with a Subservicer or Seller for indemnification of the Master Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders.
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
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) In the event the Master Servicer shall for any reason no longer be the master servicer
(including by reason of an Event of Default), the Trustee, as successor Master Servicer, 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 or a Subservicer may in its discretion (subject to the terms and conditions of the
Assignment Agreement) (i) waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the Due Date for payments due on a
Mortgage Loan in accordance with the Program Guide, provided, however, that the Master Servicer shall
first determine that any such waiver or extension will not impair the coverage of any related Primary
Insurance Policy or materially adversely affect the lien of the related Mortgage. Notwithstanding
anything in this Section to the contrary, the Master Servicer or any Subservicer shall not enforce any
prepayment charge to the extent that such enforcement would violate any applicable law. In the event of
any such arrangement, the Master Servicer shall make timely advances on the related Mortgage Loan during
the scheduled period in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements unless otherwise agreed to by the Holders of the
Classes of Certificates affected thereby; provided, however, that no such extension shall be made if any
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. No such
modification shall reduce the Mortgage Rate on a Mortgage Loan below the greater of (A) one-half of the
Mortgage Rate as in effect on the Cut-off Date and (B) one-half of the Mortgage Rate as in effect on the
date of such modification, but not less than the sum of the Servicing Fee Rate and the per annum rate at
which the Subservicing Fee accrues. The final maturity date for any Mortgage Loan shall not be extended
beyond the Maturity Date. Also, the aggregate principal balance of all Reportable Modified Mortgage
Loans subject to Servicing Modifications (measured at the time of the Servicing Modification and after
giving effect to any Servicing Modification) can be no more than five percent of the aggregate principal
balance of the Mortgage Loans as of the Cut-off Date, provided, that such limit may be increased from
time to time if each Rating Agency provides written confirmation that an increase in excess of that
limit 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. 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 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 purposes. 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 re-amortized such that the Monthly
Payment is recalculated as an amount that will fully amortize the remaining principal balance thereof by
the original maturity date based on the original Mortgage Rate; provided, that such reamortization shall
not be permitted if it would constitute a reissuance of the Mortgage Loan for federal income tax
purposes.
(b) The Master Servicer shall establish and maintain a Custodial Account in which the
Master Servicer shall deposit or cause to be deposited on a daily basis, except as otherwise
specifically provided herein, the following payments and collections remitted by Subservicers or
received by it in respect of the Mortgage Loans subsequent to the Cut-off Date (other than in respect of
Monthly Payments due before or in the month of 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 the interest component of any Subservicer Advance or of any REO Proceeds
received in connection with an REO Property for which an REO Disposition has occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds (net of any
related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section 2.02, 2.03,
2.04 or 4.07 (including amounts received from Residential Funding pursuant to the last paragraph of
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 (xlvii) of Section 4 of the Assignment
Agreement) 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; and
(v) Any amounts required to be deposited pursuant to Section 3.07(c) and any
payments or collections received in the nature of prepayment charges.
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 Monthly Payments due before or in the month of the Cut-off
Date) and payments or collections consisting 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. The Custodial
Account may contain funds that belong to one or more trust funds created for mortgage pass-through
certificates of other series and may contain other funds respecting payments on mortgage loans belonging
to the Master Servicer or serviced or master serviced by it on behalf of others. Notwithstanding such
commingling of funds, the Master Servicer shall keep records that accurately reflect the funds on
deposit in the Custodial Account that have been identified by it as being attributable to the Mortgage
Loans. With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds, Subsequent Recoveries
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.
(d) The Master Servicer shall give written notice to the Trustee and the Depositor of any
change in the location of the Custodial Account and the location of the Certificate Account prior to the
use thereof.
Section 3.08. Subservicing Accounts; Servicing Accounts.
(a) In those cases where a Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement, the Master Servicer shall cause the Subservicer, pursuant to the Subservicing
Agreement, to establish and maintain one or more Subservicing Accounts which shall be an Eligible
Account or, if such account is not an Eligible Account, shall generally satisfy the requirements of the
Program Guide and be otherwise acceptable to the Master Servicer and each Rating Agency. The
Subservicer will be required thereby to deposit into the Subservicing Account on a daily basis all
proceeds of Mortgage Loans received by the Subservicer, less its Subservicing Fees and unreimbursed
advances and expenses, to the extent permitted by the Subservicing Agreement. If the Subservicing
Account is not an Eligible Account, the Master Servicer shall be deemed to have received such monies
upon receipt thereof by the Subservicer. The Subservicer shall not be required to deposit in the
Subservicing Account payments or collections in the nature of late charges or assumption fees, or
payments or collections received in the nature of prepayment charges to the extent that the Subservicer
is entitled to retain such amounts pursuant to the Subservicing Agreement. On or before the date
specified in the Program Guide, but in no event later than the Determination Date, the Master Servicer
shall cause the Subservicer, pursuant to the Subservicing Agreement, to remit to the Master Servicer for
deposit in the Custodial Account all funds held in the Subservicing Account with respect to each
Mortgage Loan serviced by such Subservicer that are required to be remitted to the Master Servicer. The
Subservicer will also be required, pursuant to the Subservicing Agreement, to advance on such scheduled
date of remittance amounts equal to any scheduled monthly installments of principal and interest less
its Subservicing Fees on any Mortgage Loans for which payment was not received by the Subservicer. This
obligation to advance with respect to each Mortgage Loan will continue up to and including the first of
the month following the date on which the related Mortgaged Property is sold at a foreclosure sale or is
acquired by the Trust Fund by deed in lieu of foreclosure or otherwise. All such advances received by
the Master Servicer shall be deposited promptly by it in the Custodial Account.
(b) The Subservicer may also be required, pursuant to the Subservicing Agreement, to remit
to the Master Servicer for deposit in the Custodial Account interest at the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate plus the rate per annum at which the Servicing Fee accrues in the case of a
Modified Mortgage Loan) on any Curtailment received by such Subservicer in respect of a Mortgage Loan
from the related Mortgagor during any month that is to be applied by the Subservicer to reduce the
unpaid principal balance of the related Mortgage Loan as of the first day of such month, from the date
of application of such Curtailment to the first day of the following month. Any amounts paid by a
Subservicer pursuant to the preceding sentence shall be for the benefit of the Master Servicer as
additional servicing compensation and shall be subject to its withdrawal or order from time to time
pursuant to Sections 3.10(a)(iv) and (v).
(c) In addition to the Custodial Account and the Certificate Account, the Master Servicer
shall for any Nonsubserviced Mortgage Loan, and shall cause the Subservicers for Subserviced Mortgage
Loans to, establish and maintain one or more Servicing Accounts and deposit and retain therein all
collections from the Mortgagors (or advances from Subservicers) for the payment of taxes, assessments,
hazard insurance premiums, Primary Insurance Policy premiums, if applicable, or comparable items for the
account of the Mortgagors. Each Servicing Account shall satisfy the requirements for a Subservicing
Account and, to the extent permitted by the Program Guide or as is otherwise acceptable to the Master
Servicer, may also function as a Subservicing Account. Withdrawals of amounts related to the Mortgage
Loans from the Servicing Accounts may be made only to effect timely payment of taxes, assessments,
hazard insurance premiums, Primary Insurance Policy premiums, if applicable, or comparable items, to
reimburse the Master Servicer or Subservicer out of related collections for any payments made pursuant
to Sections 3.11 (with respect to the Primary Insurance Policy) and 3.12(a) (with respect to hazard
insurance), to refund to any Mortgagors any sums as may be determined to be overages, to pay interest,
if required, to Mortgagors on balances in the Servicing Account or to clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01 or in accordance with the
Program Guide. As part of its servicing duties, the Master Servicer shall, and the Subservicers will,
pursuant to the Subservicing Agreements, be required to pay to the Mortgagors interest on funds in this
account to the extent required by law.
(d) The Master Servicer shall advance the payments referred to in the preceding subsection
that are not timely paid by the Mortgagors or advanced by the Subservicers on the date when the tax,
premium or other cost for which such payment is intended is due, but the Master Servicer shall be
required so to advance only to the extent that such advances, in the good faith judgment of the Master
Servicer, will be recoverable by the Master Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
Section 3.09. Access to Certain Documentation and Information Regarding the Mortgage Loans.
In the event that compliance with this Section 3.09 shall make any Class of Certificates legal
for investment by federally insured savings and loan associations, the Master Servicer shall provide, or
cause the Subservicers to provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation regarding the Mortgage Loans
required by applicable regulations of the Office of Thrift Supervision, such access being afforded
without charge but only upon reasonable request and during normal business hours at the offices
designated by the Master Servicer. The Master Servicer shall permit such representatives to photocopy
any such documentation and shall provide equipment for that purpose at a charge reasonably approximating
the cost of such photocopying to the Master Servicer.
Section 3.10. Permitted Withdrawals from the Custodial Account.
(a) The Master Servicer may, from time to time as provided herein, make withdrawals from
the Custodial Account of amounts on deposit therein pursuant to Section 3.07 that are attributable to
the Mortgage Loans for the following purposes:
(i) to make deposits into the Certificate Account in the amounts and in the manner
provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer for previously unreimbursed
Advances, Servicing Advances or other expenses made pursuant to Sections 3.01, 3.07(a), 3.08, 3.11,
3.12(a), 3.14 and 4.04 or otherwise reimbursable pursuant to the terms of this Agreement, such
withdrawal right being limited to amounts received on the related Mortgage Loans (including, for this
purpose, REO Proceeds, Insurance Proceeds, Liquidation Proceeds and proceeds from the purchase of a
Mortgage Loan pursuant to Section 2.02, 2.03, 2.04 or 4.07) which represent (A) Late Collections of
Monthly Payments for which any such advance was made in the case of Subservicer Advances or Advances
pursuant to Section 4.04 and (B) recoveries of amounts in respect of which such advances were made in
the case of Servicing Advances;
(iii) to pay to itself or the related Subservicer (if not previously retained by
such Subservicer) out of each payment received by the Master Servicer on account of interest on a
Mortgage Loan as contemplated by Sections 3.14 and 3.16, an amount equal to that remaining portion of
any such payment as to interest (but not in excess of the Servicing Fee and the Subservicing Fee, if not
previously retained) which, when deducted, will result in the remaining amount of such interest being
interest at a rate per annum equal to the Net Mortgage Rate (or Modified Net Mortgage Rate in the case
of a Modified Mortgage Loan) on the amount specified in the amortization schedule of the related
Mortgage Loan as the principal balance thereof at the beginning of the period respecting which such
interest was paid after giving effect to any previous Curtailments;
(iv) to pay to itself as additional servicing compensation any interest or
investment income earned on funds and other property deposited in or credited to the Custodial Account
that it is entitled to withdraw pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any Foreclosure Profits,
and any amounts remitted by Subservicers as interest in respect of Curtailments pursuant to
Section 3.08(b);
(vi) to pay to itself, a Subservicer, a Seller, Residential Funding, the Depositor
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
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;
(viii) to reimburse itself or the Depositor for expenses incurred by and reimbursable
to it or the Depositor pursuant to Section 3.01(a), 3.11, 3.13, 3.14(c), 6.03, 10.01 or otherwise, or in
connection with enforcing any repurchase, substitution or indemnification obligation of any Seller
(other than the Depositor or an Affiliate of the Depositor) pursuant to the related Seller's Agreement;
(ix) to reimburse itself for amounts 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, including any payoff fees or penalties or any
other additional amounts payable to the Master Servicer or Subservicer pursuant to the terms of the
Mortgage Note.
(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 made 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 Primary Insurance Coverage.
(a) The Master Servicer shall not take, or permit any Subservicer to take, any action
which would result in noncoverage 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 at origination 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 Master Servicer had knowledge
of such Primary Insurance Policy. The Master Servicer shall not cancel or refuse to renew any such
Primary Insurance Policy applicable to a Nonsubserviced Mortgage Loan, or consent to any Subservicer
canceling or refusing to renew any such Primary Insurance Policy applicable to a Mortgage Loan
subserviced by it, that is in effect at the date of the initial issuance of the Certificates and is
required to be kept in force hereunder unless the replacement Primary Insurance Policy for such canceled
or non-renewed policy is maintained with an insurer whose claims-paying ability is acceptable to each
Rating Agency for mortgage pass-through certificates having a rating equal to or better than the lower
of the then-current rating or the rating assigned to the Certificates as of the Closing Date by such
Rating Agency.
(b) In connection with its activities as administrator and servicer of the Mortgage Loans,
the Master Servicer agrees to present or to cause the related Subservicer to present, on behalf of the
Master Servicer, the Subservicer, if any, the Trustee and Certificateholders, claims to the 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 fire insurance
with extended coverage in an amount which is equal to the lesser of the principal balance owing on such
Mortgage Loan (together with the principal balance of any mortgage loan secured by a lien that is senior
to the Mortgage Loan) or 100% 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, 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 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 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).
In the event that 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 Certificateholders, claims under any such blanket policy.
(b) The Master Servicer shall obtain and maintain at its own expense and keep in full
force and effect throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions insurance policy covering the Master Servicer's officers and employees and other persons
acting on behalf of the Master Servicer in connection with its activities under this Agreement. The
amount of coverage shall be at least equal to the coverage that would be required by Xxxxxx Xxx or
Xxxxxxx Mac, whichever is greater, with respect to the Master Servicer if the Master Servicer were
servicing and administering the Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac. In the event that any
such bond or policy ceases to be in effect, the Master Servicer shall obtain a comparable replacement
bond or policy from an issuer or insurer, as the case may be, meeting the requirements, if any, of the
Program Guide and acceptable to the Depositor. Coverage of the Master Servicer under a policy or bond
obtained by an Affiliate of the Master Servicer and providing the coverage required by this
Section 3.12(b) shall satisfy the requirements of this Section 3.12(b).
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and Modification Agreements;
Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Master Servicer or
Subservicer, to the extent it has knowledge of such conveyance, shall enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such enforcement will not adversely affect or
jeopardize coverage under any Required Insurance Policy. Notwithstanding the foregoing: (i) the Master
Servicer shall not be deemed to be in default under this Section 3.13(a) by reason of any transfer or
assumption which the Master Servicer is restricted by law from preventing; and (ii) if the Master
Servicer determines that it is reasonably likely that any Mortgagor will bring, or if any Mortgagor does
bring, legal action to declare invalid or otherwise avoid enforcement of a due-on-sale clause contained
in any Mortgage Note or Mortgage, the Master Servicer shall not be required to enforce the due-on-sale
clause or to contest such action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause to the extent
set forth in Section 3.13(a), in any case in which a Mortgaged Property is to be conveyed to a Person by
a Mortgagor, and such Person is to enter into an assumption or modification agreement or supplement to
the Mortgage Note or Mortgage which requires the signature of the Trustee, or if an instrument of
release signed by the Trustee is required releasing the Mortgagor from liability on the 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
both constitute a "significant modification" effecting an exchange or reissuance of such Mortgage Loan
under the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and cause
any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup 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 (or, with respect to any junior lien, a junior lien
of the same priority in relation to any senior lien on such Mortgage Loan) 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, the buyer/transferee of the Mortgaged Property would
be qualified to assume the Mortgage Loan based on generally comparable credit quality and 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 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 deposited with the Mortgage File for such Mortgage Loan. Any fee
collected by the Master Servicer or such related Subservicer for entering into an assumption or
substitution of liability agreement will be retained by the Master Servicer or such Subservicer as
additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the
granting of an easement thereon in favor of another Person, any alteration or demolition of the related
Mortgaged Property or 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 REMIC created hereunder 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 Date would be imposed on any REMIC created hereunder
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 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; (ii) that the substance of the assignment
is, and is intended to be, a refinancing of such Mortgage Loan and that the form of the transaction is
solely to comply with, or facilitate the transaction under, such local laws; (iii) that the Mortgage
Loan following the proposed assignment will have a rate of interest more than the greater of (A) 3% and
(B) 5% of the annual yield of the unmodified Mortgage Loan, below or above the rate of interest on such
Mortgage Loan prior to such proposed assignment; and (iv) 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
Guide; provided that the Master Servicer shall not be liable in any respect hereunder if the Master
Servicer is acting in connection with any such foreclosure or other conversion or action 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 correction of any default on a related
senior mortgage loan, 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 and 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 its funds so expended pursuant to Section 3.10. In addition, 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 the 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 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) In the event that title to any Mortgaged Property is acquired by the Trust Fund as an
REO Property by foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale shall be
issued to the Trustee or to its nominee on behalf of Certificateholders. Notwithstanding any such
acquisition of title and cancellation of the related Mortgage Loan, such REO Property shall (except as
otherwise expressly provided herein) be considered to be an Outstanding Mortgage Loan held in the Trust
Fund until such time as the REO Property shall be sold. Consistent with the foregoing for purposes of
all calculations hereunder so long as such REO Property shall be considered to be an Outstanding
Mortgage Loan it shall be assumed that, notwithstanding that the indebtedness evidenced by the related
Mortgage Note shall have been discharged, such Mortgage Note and the related amortization schedule in
effect at the time of any such acquisition of title (after giving effect to any previous Curtailments
and before any adjustment thereto by reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period) remain in effect.
(c) In the event that 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 each REMIC created hereunder 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 created hereunder 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 any REMIC created hereunder 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); 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.
(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 shall 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 shall 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 the form attached hereto as Exhibit G, or, in the case of a
Custodian, an electronic request in a form acceptable to the Custodian, requesting delivery to it of the
Custodial File. Upon receipt of such certification and request, the Trustee shall promptly 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® 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, including any applicable UCC termination statements. 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 the form attached as Exhibit G hereto, or, in the case of a
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 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 the Trustee's receipt
of notification from the Master Servicer of the 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 shall 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 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. Prepayment charges shall be deposited into the Certificate Account and shall be paid
on each Distribution Date to the holders of the Class SB Certificates.
(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 the 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 clauses (a) and (b) above, 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 the amount of Compensating Interest (if
any) for such Distribution Date used to cover Prepayment Interest Shortfalls as provided in
Section 3.16(f) below. 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(c), respectively. In making such reduction, the Master Servicer shall 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 shall 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(c).
(f) With respect to any Distribution Date, Prepayment Interest Shortfalls on the Mortgage
Loans will be covered first, by the Master Servicer, but only to the extent such Prepayment Interest
Shortfalls do not exceed Eligible Master Servicing Compensation.
Section 3.17. Reports to the Trustee and the Depositor.
Not later than fifteen days after it receives a written request from the Trustee or the
Depositor, the Master Servicer shall forward to the Trustee and the Depositor 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 shall deliver to the Depositor and the Trustee on or before the earlier of
(a) March 31 of each year or (b) with respect to any calendar year during which the Depositor'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, (i) a servicing
assessment as described in Section 4.03(f)(ii) and (ii) 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:
(A) 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.
(B) 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 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 Depositor'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 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
Depositor 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. Right of the Depositor in Respect of the Master Servicer.
The Master Servicer shall afford the Depositor and the Trustee, 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 Depositor 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 Depositor or Residential Funding. The Depositor may enforce the obligation of the Master Servicer
hereunder and may, but it 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 Depositor or its designee. Neither the Depositor nor the Trustee shall have the
responsibility or liability for any action or failure to act by the Master Servicer and they are not
obligated to supervise the performance of the Master Servicer under this Agreement or otherwise.
Section 3.21. [Reserved].
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 Depositor, 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 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 Depositor nor the Trustee shall have any duty or liability with respect to the calculation
of any Reimbursement Amount, nor shall the Depositor or the Trustee have any responsibility to track or
monitor the administration of the Advance Facility and the Depositor 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.
(d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to
execute such acknowledgments, certificates, and other documents reasonably satisfactory to the Trustee
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 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
Servicing 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 Depositor 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 delivery of an Opinion of Counsel as required under
Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this
Agreement.
(h) Any rights of set-off that the Trust Fund, the Trustee, the Depositor, 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 acting as agent of the Trustee shall establish and maintain a
Certificate Account in which the Master Servicer shall cause to be deposited on behalf of the Trustee on
or before 2:00 P.M. New York time on each Certificate Account Deposit Date by wire transfer of
immediately available funds an amount equal to the sum of (i) any Advance for the immediately succeeding
Distribution Date, (ii) any amount required to be deposited in the Certificate Account pursuant to
Section 3.12(a), (iii) any amount required to be deposited in the Certificate Account pursuant to
Section 3.16(e) or Section 4.07, (iv) any amount required to be paid pursuant to Section 9.01, and
(v) other amounts constituting the Available Distribution Amount for the immediately succeeding
Distribution Date.
(b) [Reserved].
(c) 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 not later than the Business Day next preceding the Distribution Date next following
the date of such investment (except that (i) if such Permitted Investment is an obligation of the
institution that maintains such account or fund for which such institution serves as custodian, then
such Permitted Investment may mature on such Distribution Date and (ii) any other investment may mature
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 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. 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.
Section 4.02. Distributions.
(a) On each Distribution Date, the Trustee (or the Paying Agent on behalf of the Trustee)
shall allocate and distribute the Available Distribution Amount, if any, for such date to the interests
issued in respect of REMIC I and REMIC II as specified in this Section.
(b) (1) On each Distribution Date, the REMIC I Distribution Amount shall be
distributed by REMIC I to REMIC II on account of the REMIC I Regular Interests and to the Holders
of the Class R Certificates in the amounts and with the priorities set forth in the definition
thereof.
(2) Notwithstanding the distributions described in this Section 4.02(b),
distribution of funds from the Certificate Account shall be made only in accordance with
Section 4.02(c).
(c) On each Distribution Date (x) the Master Servicer on behalf of the Trustee or (y) the
Paying Agent appointed by the Trustee, shall distribute to each Certificateholder of record on the next
preceding Record Date (other than as provided in Section 9.01 respecting the final distribution) either
in immediately available funds (by wire transfer or otherwise) to the account of such Certificateholder
at a bank or other entity having appropriate facilities therefor, if such Certificateholder has so
notified the Master Servicer or the Paying Agent, as the case may be, or, 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 with respect to each Class of Certificates, shall be based on the
aggregate of the Percentage Interests represented by Certificates of the applicable Class held by such
Holder of the following amounts), in the following order of priority, in each case to the extent of the
Available Distribution Amount on deposit in the Certificate Account (except, with respect to
clauses (iii) through (x) below, to the extent of the remaining Available Distribution Amount plus the
remaining Yield Maintenance Agreement Payment available for that purpose or, with respect to
clause (x)(B) below, to the extent of prepayment charges on deposit in the Certificate Account):
(i) to the Class A Certificateholders, the Accrued Certificate Interest payable on
the Class A Certificates with respect to such Distribution Date, plus any related amounts accrued
pursuant to this clause (i) but remaining unpaid from any prior Distribution Date being paid from and in
reduction of the Available Distribution Amount for such Distribution Date;
(ii) to the Class M Certificateholders, from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, the Accrued Certificate Interest
payable on the Class M Certificates with respect to such Distribution Date, plus any related amounts
accrued pursuant to this clause (ii) but remaining unpaid from any prior Distribution Date,
sequentially, to the Class M-1 Certificateholders, Class M-2 Certificateholders, Class M-3
Certificateholders, Class M-4 Certificateholders, Class M-5 Certificateholders, Class M-6
Certificateholders, Class M-7 Certificateholders, Class M-8 Certificateholders and Class M-9
Certificateholders, in that order, being paid from and in reduction of the Available Distribution Amount
for such Distribution Date;
(iii) [reserved];
(iv) the Principal Distribution Amount shall be distributed as follows, to be
applied to reduce the Certificate Principal Balance of the applicable Certificates in each case to the
extent of the remaining Principal Distribution Amount:
(A) first, the Class A Principal Distribution Amount shall be
distributed, sequentially, to the Class A-1 Certificateholders, Class A-2
Certificateholders, Class A-3 Certificateholders and Class A-4 Certificateholders, in
that order, in each case until the aggregate Certificate Principal Balance thereof is
reduced to zero;
(B) second, to the Class M-1 Certificateholders, the Class M-1 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-1
Certificates has been reduced to zero;
(C) third, to the Class M-2 Certificateholders, the Class M-2 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-2
Certificates has been reduced to zero;
(D) fourth, to the Class M-3 Certificateholders, the Class M-3 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-3
Certificates has been reduced to zero;
(E) fifth, to the Class M-4 Certificateholders, the Class M-4 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-4
Certificates has been reduced to zero;
(F) sixth, to the Class M-5 Certificateholders, the Class M-5 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-5
Certificates has been reduced to zero;
(G) seventh, to the Class M-6 Certificateholders, the Class M-6 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-6
Certificates has been reduced to zero;
(H) eighth, to the Class M-7 Certificateholders, the Class M-7 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-7
Certificates has been reduced to zero;
(I) ninth, to the Class M-8 Certificateholders, the Class M-8 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-8
Certificates has been reduced to zero; and
(J) tenth, to the Class M-9 Certificateholders, the Class M-9 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-9
Certificates has been reduced to zero;
(v) to the Class A Certificateholders and Class M Certificateholders, the amount
of any Prepayment Interest Shortfalls allocated thereto for such Distribution Date, on a pro rata basis
based on Prepayment Interest Shortfalls allocated thereto to the extent not offset by Eligible Master
Servicing Compensation on such Distribution Date;
(vi) to the Class A Certificateholders and Class M Certificateholders, the amount
of any Prepayment Interest Shortfalls previously allocated thereto remaining unpaid from prior
Distribution Dates together with interest thereon at the Pass-Through Rate, on a pro rata basis based on
unpaid Prepayment Interest Shortfalls previously allocated thereto;
(vii) first, to the Class A Certificateholders, the amount of any unpaid Basis Risk
Shortfalls allocated thereto, on a pro rata basis based on the amount of unpaid Basis Risk Shortfalls
allocated thereto, and then, sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class M-9 Certificateholders, in that order, the related Basis Risk
Shortfall, as applicable, for such Class and that Distribution Date;
(viii) to the Class A Certificateholders and Class M Certificateholders, Relief Act
Shortfalls allocated thereto for such Distribution Date, on a pro rata basis based on Relief Act
Shortfalls allocated thereto for such Distribution Date,
(ix) first, to the Class A Certificateholders, the principal portion of any
Realized Losses previously allocated to those Certificates and remaining unreimbursed, on a pro rata
basis based on their respective principal portion of any Realized Losses previously allocated to those
Certificates and remaining unreimbursed, and then, sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Certificateholders, in that order,
the principal portion of any Realized Losses previously allocated to such Class and remaining
unreimbursed;
(x) to the Class SB Certificates, (A) from the amount, if any, of the Excess Cash
Flow remaining after the foregoing distributions, the sum of (I) Accrued Certificate Interest thereon,
(II) the amount of any Overcollateralization Reduction Amount for such Distribution Date, (III) the
amount of any Yield Maintenance Agreement Shortfall Amount for such Distribution Date, (IV) the amount
of any Yield Maintenance Agreement Shortfall Carry-Forward Amount for such Distribution Date and (V) for
any Distribution Date after the Certificate Principal Balance of each Class of Class A Certificates and
Class M Certificates has been reduced to zero, the Overcollateralization Amount and (B) from prepayment
charges on deposit in the Certificate Account, any prepayment charges received on the Mortgage Loans
during the related Prepayment Period; and
(xi) to the Class R Certificateholders, the balance, if any, of the Excess Cash
Flow.
(d) Notwithstanding the foregoing clause (c), upon the reduction of the Certificate
Principal Balance of a Class of Class A Certificates or Class M Certificates to zero, such Class of
Certificates will not be entitled to further distributions pursuant to Section 4.02.
(e) Each distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be 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 Depositor or the Master Servicer shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) Except as otherwise provided in Section 9.01, if the Master Servicer anticipates that
a final distribution with respect to any Class of Certificates will be made on a Distribution Date, the
Master Servicer shall, no later than 40 days' prior to such Distribution Date, notify the Trustee and
the Trustee shall, not earlier than the 15th day and not later than the 25th day of the month preceding
such Distribution Date, distribute, or cause to be distributed, on such date to each Holder of such
Class of Certificates a notice to the effect that: (i) the Trustee anticipates that the final
distribution with respect to such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the Trustee or as otherwise
specified therein, and (ii) no interest shall accrue on such Certificates from and after the end of the
prior calendar month. In the event that Certificateholders required to surrender their Certificates
pursuant to Section 9.01(c) do not surrender their Certificates for final cancellation, the Trustee
shall cause funds distributable with respect to such Certificates to be withdrawn from the Certificate
Account and credited to a separate escrow account for the benefit of such Certificateholders as provided
in Section 9.01(d).
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
forward by mail or otherwise make available electronically on its website (which may be obtained by any
Certificateholder by telephoning the Trustee at (000) 000-0000) to each Holder and the Depositor a
statement setting forth the following information as to each Class of Certificates, in each case to the
extent applicable:
(i) the applicable Record Date, Determination Date and Distribution Date, and the
date on which the applicable Interest Accrual Period commenced;
(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; (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;
(v) the amount of such distribution to Holders of such Class of Certificates
allocable to interest (including amounts payable as a portion of the Excess Cash Flow);
(vi) 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;
(vii) the Certificate Principal Balance of each Class of the 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;
(viii) the Certificate Principal Balance of each Class of Class A Certificates as of
the Closing Date;
(ix) the Certificate Principal Balance of each Class of Class M Certificates as of
the Closing Date;
(x) 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 related Due Period;
(xi) on the basis of the most recent reports furnished to it by Subservicers,
(A) the number and Stated Principal Balances of Mortgage Loans that are Delinquent (1) 30-59 days, (2)
60-89 days and (3) 90 or more days and the number and Stated Principal Balance of Mortgage Loans that
are in foreclosure, (B) the number and Stated Principal Balances of the Mortgage Loans in the aggregate
that are Reportable Modified Mortgage Loans that are in foreclosure and are REO Property, indicating in
each case capitalized Mortgage Loans, other Servicing Modifications and totals, and (C) for all
Reportable Modified Mortgage Loans, the number and Stated Principal Balances of the Mortgage Loans in
the aggregate that have been liquidated, the subject of pay-offs and that have been repurchased by the
Master Servicer or Seller;
(xii) the amount, terms and general purpose of any Advance by the Master Servicer
pursuant to Section 4.04 and the amount of all Advances that have been reimbursed during the related Due
Period;
(xiii) 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;
(xiv) any material breaches of Mortgage Loan representations or warranties or
covenants in the Agreement;
(xv) the amount, if any, of the Yield Maintenance Agreement Payment for such
Distribution Date and any shortfall in amounts previously required to be paid under the Yield
Maintenance Agreement for prior Distribution Dates;
(xvi) the number, aggregate principal balance and Stated Principal Balance of any
REO Properties with respect to the Mortgage Loans;
(xvii) 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;
(xviii) the aggregate amount of Realized Losses with respect to the Mortgage Loans for
such Distribution Date and the aggregate amount of Realized Losses with respect to the Mortgage Loans
incurred since the Cut-off Date;
(xix) the Pass-Through Rate on each Class of Certificates and the Net WAC Cap Rate;
(xx) the Basis Risk Shortfalls and Prepayment Interest Shortfalls;
(xxi) the Overcollateralization Amount and the Required Overcollateralization
Amount following such Distribution Date;
(xxii) the number and aggregate principal balance of the Mortgage Loans repurchased
under Section 4.07;
(xxiii) the aggregate amount of any recoveries with respect to the Mortgage Loans on
previously foreclosed loans from Residential Funding;
(xxiv) the weighted average remaining term to maturity of the Mortgage Loans after
giving effect to the amounts distributed on such Distribution Date;
(xxv) the weighted average Mortgage Rates of the Mortgage Loans after giving effect
to the amounts distributed on such Distribution Date;
(xxvi) the occurrence of the Stepdown Date; and
(xxvii) the amount, if any, required to be paid under any Derivative Contract entered
into pursuant to Section 4.09 hereof.
In the case of information furnished pursuant to clauses (i) and (ii) above, the amounts shall
be expressed as a dollar amount per Certificate with a $1,000 denomination. In addition to the
statement provided to the Trustee as set forth in this Section 4.03(a), 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 U to such Rating Agency within a reasonable period of time; provided,
however, that the Master Servicer shall not be required to provide such information more than four times
in a calendar year to any Rating Agency.
(b) Within a reasonable period of time after 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 (iv) and (v) of 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 Depositor 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
Depositor or the Master Servicer, and (IV) notice of any failure of the Trustee to make any distribution
to the Certificateholders as required pursuant to this Agreement. Neither the Master Servicer nor the
Trustee shall have any liability with respect to the Master Servicer's failure to properly prepare or
file such periodic reports resulting from or relating to the Master Servicer's inability or failure to
obtain any information not resulting from the Master Servicer's own negligence or willful misconduct.
(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:
(i) A certification, signed by the senior officer in charge of the servicing
functions of the Master Servicer, in the form attached as Exhibit T-1 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 T-2.
(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 Depositor under the Exchange Act, as soon as reasonably
practicable upon delivery of such report to the Trustee.
Section 4.04. Distribution of Reports to the Trustee and the Depositor; Advances by the
Master Servicer.
(a) Prior to the close of business on the Business Day next succeeding each Determination
Date, the Master Servicer shall furnish a written statement (which may be in a mutually agreeable
electronic format) to the Trustee, any Paying Agent and the Depositor (the information in such statement
to be made available to Certificateholders by the Master Servicer on request) (provided that the Master
Servicer shall use its best efforts to deliver such written statement not later than 12:00 p.m. New York
time on the second Business Day prior to the Distribution Date) setting forth (i) the Available
Distribution Amount, (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), (iii) the amount of Prepayment Interest Shortfalls and Basis Risk
Shortfalls, (iv) the Yield Maintenance Agreement Payment, if any, for such Distribution Date and (v) the
amount, if any, payable to the Trustee by a Derivative Counterparty. The determination by the Master
Servicer of such amounts shall, in the absence of obvious error, be presumptively deemed to be correct
for all purposes hereunder and the Trustee shall be protected in relying upon the same without any
independent check or verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account Deposit Date, the
Master Servicer shall either (i) remit to the Trustee for 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 sum of (A) the aggregate amount of Monthly Payments other than Balloon Payments
(with each interest portion thereof adjusted to a per annum rate equal to the Net Mortgage Rate), less
the amount of any related Servicing Modifications, Debt Service Reductions or Relief Act Shortfalls, on
the Outstanding Mortgage Loans as of the related Due Date in the related Due Period, which Monthly
Payments were due during the related Due Period and 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 and (B) with respect to each Balloon Loan delinquent in respect of its Balloon Payment as of the
close of business on the related Determination Date, an amount equal to the assumed Monthly Payment
(with each interest portion thereof adjusted to a per annum rate equal to the Net Mortgage Rate) that
would have been due on the related Due Date based on the original amortization schedule for such Balloon
Loan until such Balloon Loan is finally liquidated, over any payments of interest or principal (with
each interest portion thereof adjusted to a per annum rate equal to the Net Mortgage Rate) received from
the related Mortgagor as of the close of business on the related Determination Date and allocable to the
Due Date during the related Due Period for each month until such Balloon Loan is finally liquidated,
(ii) withdraw from amounts on deposit in the Custodial Account and remit to the Trustee for 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 clauses (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 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 a
certificate of a Servicing Officer delivered to the Depositor and the Trustee. In the event that the
Master Servicer determines as of the Business Day preceding any Certificate Account Deposit Date that it
will be unable to deposit in the Certificate Account an amount equal to the Advance required to be made
for the immediately succeeding Distribution Date, it shall give notice to the Trustee of its inability
to advance (such notice may be given by telecopy), not later than 3:00 P.M., New York time, on such
Business Day, specifying the portion of such amount that it will be unable to deposit. Not later than
3:00 P.M., New York time, on the Certificate Account Deposit Date the Trustee shall, unless by 12:00
Noon, New York time, on such day the Trustee shall have been notified in writing (by telecopy) that the
Master Servicer shall have directly or indirectly deposited in the Certificate Account such portion of
the amount of the Advance as to which the Master Servicer shall have given notice pursuant to the
preceding sentence, pursuant to Section 7.01, (a) terminate all of the rights and obligations of the
Master Servicer under this Agreement in accordance with Section 7.01 and (b) assume the rights and
obligations of the Master Servicer hereunder, including the obligation to deposit in the Certificate
Account an amount equal to the Advance for the immediately succeeding Distribution Date. The Trustee
shall deposit all funds it receives pursuant to this Section 4.04(b) into the Certificate Account.
Section 4.05. Allocation of Realized Losses.
(a) 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 Modifications, 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 in the
month in which such Distribution Date occurs. The amount of each Realized Loss shall be evidenced by an
Officers' Certificate.
(b) All Realized Losses on the Mortgage Loans shall be allocated as follows:
(i) first, to Excess Cash Flow in the amounts and priority as provided in
Section 4.02;
(ii) second, in reduction of the Overcollateralization Amount, until such amount
has been reduced to zero;
(iii) third, to the Class M-9 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(iv) fourth, to the Class M-8 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(v) fifth, to the Class M-7 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(vi) sixth, to the Class M-6 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(vii) seventh, to the Class M-5 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(viii) eighth, to the Class M-4 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(ix) ninth, to the Class M-3 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(x) tenth, to the Class M-2 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero;
(xi) eleventh, to the Class M-1 Certificates, until the aggregate Certificate
Principal Balance thereof has been reduced to zero; and
(xii) twelfth, to the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates on
a pro rata basis, based on their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such
Distribution Date, until the aggregate Certificate Principal Balance of each
such Class has been reduced to zero.
(c) An allocation of a Realized Loss on a "pro rata basis" among two or more specified
Classes of Certificates means an allocation on a pro rata basis, among the various Classes so specified,
to each such Class of Certificates on the basis of their then outstanding Certificate Principal Balances
prior to giving effect to distributions to be made on such Distribution Date in the case of the
principal portion of a Realized Loss or based on the Accrued Certificate Interest thereon payable on
such Distribution Date in the case of an interest portion of a Realized Loss. Any allocation of the
principal portion of Realized Losses (other than Debt Service Reductions) to the Class A Certificates or
Class M Certificates shall be made by reducing the Certificate Principal Balance thereof by the amount
so allocated, which allocation shall be deemed to have occurred on such Distribution Date; provided,
that no such reduction shall reduce the aggregate Certificate Principal Balance of the Certificates
below the aggregate Stated Principal Balance of the Mortgage Loans. Allocations of the interest
portions of Realized Losses (other than any interest rate reduction resulting from a Servicing
Modification) shall be made by operation of the definition of "Accrued Certificate Interest" for each
Class for such Distribution Date. 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
priority of payment provisions of Section 4.02(c). Allocations of the principal portion of Debt Service
Reductions shall be made by operation of the priority of payment provisions of Section 4.02(c). 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.
(d) All Realized Losses on the Mortgage Loans shall be allocated on each Distribution Date
to the REMIC I Regular Interests as provided in the definition of REMIC I Realized Losses.
(e) Realized Losses allocated to the Excess Cash Flow or the Overcollateralization Amount
pursuant to paragraphs (a), (b) or (c) of this Section, the definition of Accrued Certificate Interest
and the operation of Section 4.02(c) shall be deemed allocated to the Class SB Certificates. Realized
Losses allocated to the Class SB Certificates shall, to the extent such Realized Losses represent
Realized Losses on an interest portion, be allocated to the REMIC II Regular Interest SB-IO. Realized
Losses allocated to the Excess Cash Flow pursuant to paragraph (b) of this Section shall be deemed to
reduce Accrued Certificate Interest on the REMIC II Regular Interest SB-IO. Realized Losses allocated
to the Overcollateralization Amount pursuant to paragraph (b) of this Section shall be deemed first to
reduce the principal balance of the REMIC II Regular Interest SB-PO until such principal balance shall
have been reduced to zero and thereafter to reduce accrued and unpaid interest on the REMIC II Regular
Interest SB-IO.
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 interest received in a trade or business, the reports of foreclosures and
abandonments of any Mortgaged Property and the informational returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P
of the Code, respectively, and deliver to the Trustee an Officers' Certificate on or before March 31 of
each year, beginning with the first March 31 that occurs at least six months after the Cut-off Date,
stating that such reports have been filed. Such reports shall be in form and substance sufficient to
meet the reporting requirements imposed by such 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 is 90 days or more delinquent at the time of
repurchase.
(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.
Section 4.08. Limited Mortgage Loan Repurchase Right.
The Limited Repurchase Right Holder will have the option at any time to purchase any of the
Mortgage Loans from the Trustee at the Purchase Price, up to a maximum of five Mortgage Loans. In the
event that this option is exercised as to any five Mortgage Loans in the aggregate, this option will
thereupon terminate. If at any time the Limited Repurchase Right Holder makes a payment to the
Certificate Account covering the amount of the Purchase Price for such a Mortgage Loan, and the Limited
Repurchase Right Holder 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 Limited Repurchase Right Holder
without recourse to the Limited Repurchase Right Holder 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 Limited Repurchase Right Holder
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. Any tax on "prohibited transactions" (as
defined in Section 860F(a)(2) of the Code) imposed on any REMIC resulting from the exercise of the
optional repurchase in this Section 4.08 shall in no event be payable by the Trustee.
Section 4.09. Derivative Contracts.
(a) The Trustee shall, at the written direction of the Master Servicer, on behalf of the
Trust Fund, enter into Derivative Contracts, solely for the benefit of the Class SB Certificates. Any
such Derivative Contract shall constitute a fully prepaid agreement. The Master Servicer shall
determine, in its sole discretion, whether any Derivative Contract conforms to the requirements of
clauses (b) and (c) of this Section 4.09. Any acquisition of a Derivative Contract shall be accompanied
by an appropriate amendment to this Agreement, including an Opinion of Counsel, as provided in Section
11.01, and either (i) an Opinion of Counsel to the effect that the existence of the Derivative Contract
will not adversely affect the availability of the exemptive relief afforded under ERISA by U.S.
Department of Labor Prohibited Transaction Exemption ("PTE") 94-29, as most recently amended, 67 Fed.
Reg. 54487 (Aug. 22, 2002), to the Holders of the Class A Certificates or the Class M Certificates, as
of the date the Derivative Contract is acquired by the Trustee; or (ii) the consent of each holder of a
Class A Certificate or Class M Certificate to the acquisition of such Derivative Contract. All
collections, proceeds and other amounts in respect of the Derivative Contracts payable by the Derivative
Counterparty shall be distributed to the Class SB Certificates on the Distribution Date following
receipt thereof by the Trustee. In no event shall such an instrument constitute a part of any REMIC
created hereunder. In addition, in the event any such instrument is deposited, the Trust Fund shall be
deemed to be divided into two separate and discrete sub-trusts. The assets of one such sub-trust shall
consist of all the assets of the Trust Fund other than such instrument and the assets of the other
sub-trust shall consist solely of such instrument.
(b) Any Derivative Contract that provides for any payment obligation on the part of the
Trust Fund must (i) be without recourse to the assets of the Trust Fund, (ii) contain a non-petition
covenant provision from the Derivative Counterparty, (iii) limit payment dates thereunder to
Distribution Dates and (iv) contain a provision limiting any cash payments due to the Derivative
Counterparty on any day under such Derivative Contract solely to funds available therefor in the
Certificate Account to make payments to the Holders of the Class SB Certificates on such Distribution
Date.
(c) Each Derivative Contract must (i) provide for the direct payment of any amounts by the
Derivative Counterparty thereunder to the Certificate Account at least one Business Day prior to the
related Distribution Date, (ii) contain an assignment of all of the Trust Fund's rights (but none of its
obligations) under such Derivative Contract to the Trustee on behalf the Class SB Certificates and shall
include an express consent of the Derivative Counterparty to such assignment, (iii) provide that in the
event of the occurrence of an Event of Default, such Derivative Contract shall terminate upon the
direction of a majority Percentage Interest of the Class SB Certificates, and (iv) prohibit the
Derivative Counterparty from "setting-off" or "netting" other obligations of the Trust Fund and its
Affiliates against such Derivative Counterparty's payment obligations thereunder.
Section 4.10. Yield Maintenance Agreement.
(a) In the event that the Trustee does not receive by the Business Day preceding a
Distribution Date the amount as specified by the Master Servicer pursuant to Section 4.04(a)(iv) hereof
as the amount to be paid with respect to such Distribution Date by the Yield Maintenance Agreement
Provider under the Yield Maintenance Agreement, the Trustee shall enforce the obligation of the Yield
Maintenance Agreement Provider thereunder. The parties hereto acknowledge that the Yield Maintenance
Agreement Provider shall be making all calculations, and determine the amounts to be paid, under the
Yield Maintenance Agreement. Absent manifest error, the Trustee may conclusively rely on such
calculations and determination and any notice received by it from the Master Servicer pursuant to
Section 4.04(a)(iv) hereof.
(b) The Trustee shall deposit or cause to be deposited any amount received under the Yield
Maintenance Agreement into the Certificate Account on the date such amount is received from the Yield
Maintenance Agreement Provider under the Yield Maintenance Agreement (including termination payments, if
any). All payments received under the Yield Maintenance Agreement shall be distributed in accordance
with the priorities set forth in Section 4.02(c) hereof.
(c) In the event that the Yield Maintenance Agreement, or any replacement thereof,
terminates prior to the Distribution Date in August 2011, the Master Servicer, but at no expense to the
Master Servicer, on behalf of the Trustee, to the extent that the termination value under the Yield
Maintenance Agreement is sufficient therefor and only to the extent of the termination payment received
from the Yield Maintenance Agreement Provider, shall (i) cause a new yield maintenance agreement
provider to assume the obligations of such terminated yield maintenance agreement provider or (ii) cause
a new yield maintenance agreement provider to enter into a new yield maintenance agreement with the
Trust Fund having substantially similar terms as those set forth in the Yield Maintenance Agreement.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Class A Certificates, Class M Certificates, Class SB Certificates and Class R
Certificates shall be substantially in the forms set forth in Exhibits A, B, C and D, respectively, and
shall, on original issue, be executed and delivered by the Trustee to the Certificate Registrar for
authentication and delivery to or upon the order of the Depositor upon receipt by the Trustee or the
Custodian of the documents specified in Section 2.01. Each Class of Class A Certificates and the
Class M-1 Certificates, Class M-2 Certificates and Class M-3 Certificates shall be issuable in minimum
dollar denominations of $100,000 and integral multiples of $1 in excess thereof. The Class M-4
Certificates, Class M-5 Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates and Class M-9 Certificates shall be issuable in minimum dollar denominations of $250,000
and integral multiples of $1 in excess thereof. The Class SB Certificates shall be issuable in
registered, certificated form in minimum percentage interests of 5.00% and integral multiples of 0.01%
in excess thereof. The Class R Certificates shall be issued in registered, certificated form in minimum
percentage interests of 20.00% and integral multiples of 0.01% in excess thereof; provided, however,
that one Class R Certificate of each Class will be issuable to the REMIC Administrator as "tax matters
person" pursuant to Section 10.01(c) in a minimum denomination representing a Percentage Interest of not
less than 0.01%. 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.
(b) The Class A Certificates and Class M Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and, except as provided below,
registration of such 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 Certificate Owners shall hold their respective Ownership Interests in and to each Class A
Certificate and Class M Certificate 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 Depositor 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 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 Depositor 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 Depositor 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 Depository 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
Owners 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 issue the Definitive
Certificates.
In addition, if an Event of Default has occurred and is continuing, each Certificate Owner
materially adversely affected thereby may at its option request a Definitive Certificate evidencing such
Certificate Owner's Percentage Interest in the related Class of Certificates. In order to make such
request, such Certificate Owner shall, subject to the rules and procedures of the Depository, provide
the Depository or the related Depository Participant with directions for the Certificate Registrar 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 Certificate
Registrar of instructions from the Depository directing the Certificate Registrar to effect such
exchange (such instructions to contain information regarding the Class of Certificates and the
Certificate Principal Balance being exchanged, the Depository Participant account to be debited with the
decrease, the registered holder of and delivery instructions for the Definitive Certificate, and any
other information reasonably required by the Certificate Registrar), (i) the Certificate Registrar shall
instruct the Depository to reduce the related Depository Participant's account by the aggregate
Certificate Principal Balance of the Definitive Certificate, (ii) the Trustee shall execute and the
Certificate Registrar shall 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 the
Certificate Registrar shall 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 Depositor, 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 this 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) Each of the Certificates is intended to be a "security" governed by Article 8 of the
Uniform Commercial Code as in effect in the State of New York and any other applicable jurisdiction, to
the extent that any of such laws may be applicable.
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 SB
Certificate 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 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 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 SB Certificate or Class R
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 (the "1933 Act"), and any applicable
state securities laws or is made in accordance with said Act and laws. Except as otherwise provided in
this Section 5.02(d), in the event that a transfer of a Class SB Certificate or Class R Certificate is
to be made, (i) unless the Depositor directs the Trustee otherwise, the Trustee shall require a written
Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor
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 Trust Fund, the Depositor or the Master Servicer,
and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in
the form of Exhibit I hereto, and the Trustee shall require the transferor to execute a representation
letter, substantially in the form of Exhibit J hereto, each acceptable to and in form and substance
satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts
surrounding such transfer, which representation letters shall not be an expense of the Trustee, the
Trust Fund, the Depositor or the Master Servicer. In lieu of the requirements set forth in the
preceding sentence, transfers of Class SB Certificates or Class R Certificates may be made in accordance
with this Section 5.02(d) if the prospective transferee of such a Certificate provides the Trustee and
the Master Servicer with an investment letter substantially in the form of Exhibit N attached hereto,
which investment letter shall not be an expense of the Trustee, the Depositor, or the Master Servicer,
and which investment letter states that, among other things, such transferee (i) 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 (ii) is aware that the proposed
transferor intends to rely on the exemption from registration requirements under the 1933 Act provided
by Rule 144A. The Holder of a Class SB Certificate or Class R Certificate desiring to effect any
transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the
Depositor, 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 and this Agreement.
(e) (i) In the case of any Class SB Certificate 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 Depositor and the Master
Servicer to the effect that the purchase or holding of such Class SB Certificate or Class R Certificate
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 Depositor 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 Depositor or the Master Servicer, or (B) the prospective transferee shall be required
to provide the Trustee, the Depositor and the Master Servicer with a certification to the effect set
forth in Exhibit P (with respect to a Class SB Certificate) or in paragraph fifteen of Exhibit H-1 (with
respect to a 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 is not an
employee benefit plan or other plan or arrangement subject to the prohibited transaction provisions of
ERISA or Section 4975 of the Code, or any Person (including an insurance company investing its general
accounts, 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 of the foregoing, a "Plan Investor").
(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
U.S. Department of Labor Prohibited Transaction Exemption ("PTE") 94-29, as most recently amended by PTE
2002-41, 67 Fed. Reg. 54487 (Aug. 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 Fitch, Standard & Poor's or
Moody's or (c) (x) such Transferee is an insurance company, (y) the source of funds used to purchase or
hold such Certificate (or interest therein) is an "insurance company general account" (as defined in
Prohibited Transaction Class Exemption ("PTCE") 95-60), and (z) 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").
(iii) 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 (x) is not a Plan Investor, (y) acquired such Certificate in compliance
with the RFC Exemption or (z) 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.
(iv) Any purported Certificate Owner whose acquisition or holding of any Class SB
Certificate or 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 Depositor, the Trustee, the Master
Servicer, any Subservicer, any underwriter and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such acquisition or holding.
(f) (i) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed
to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee
under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the
terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and
to do all other things necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change
or impending change in its status as a Permitted Transferee.
(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 H-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 H-2,
from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the
Master Servicer, representing and warranting, among other things, that no purpose of the proposed
Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who
is assigned to this Agreement has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person
to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to
transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached
hereto as Exhibit H-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 H-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.
(A) If any Disqualified Organization shall become a holder of a
Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a
holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is
disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date of registration of such Transfer of
such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of
Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02(f) or for making
any payments due on such Certificate to the holder thereof or for taking any other action with respect
to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this Section 5.02(f) and to the extent that the
retroactive restoration of the rights of the Holder of such Class R Certificate as described in clause
(iii)(A) above shall be invalid, illegal or unenforceable, then the Master Servicer shall have the
right, without notice to the holder or any prior holder of such Class R Certificate, to sell such
Class R Certificate to a purchaser selected by the Master Servicer on such terms as the Master Servicer
may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in
accordance with the instructions of the Master Servicer. Such purchaser may be the Master Servicer
itself or any Affiliate of the Master Servicer. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Master Servicer or its Affiliates), expenses and taxes
due, if any, will be remitted by the Master Servicer to such purported Transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the
Master Servicer, and the Master Servicer shall not be liable to any Person having an Ownership Interest
in a Class R Certificate as a result of its exercise of such discretion.
(iii) 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.
(iv) The provisions of this Section 5.02(f) set forth prior to this clause
(iv) 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 the Class A Certificates or Class M Certificates below
the lower of the then-current rating or the rating assigned to such Certificates as of the Closing Date
by such Rating Agency; and
(B) a 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 REMIC
created hereunder to cease to qualify as a REMIC and will not cause (x) any REMIC created hereunder 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 Depositor, the
Master Servicer, the Trustee, the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Trustee 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 Depositor, the Master Servicer, the Trustee, the
Certificate Registrar nor any agent of the Depositor, the Master Servicer, the Trustee 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
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 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
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 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.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master Servicer.
The Depositor 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 Depositor and
the Master Servicer herein. By way of illustration and not limitation, the Depositor is not liable for
the servicing and administration of the Mortgage Loans, nor is it obligated by Section 7.01 or
Section 10.01 to assume any obligations of the Master Servicer or to appoint a designee to assume such
obligations, nor is it liable for any other obligation hereunder that it may, but is not obligated to,
assume unless it elects to assume such obligation in accordance herewith.
Section 6.02. Merger or Consolidation of the Depositor or the Master Servicer; Assignment of
Rights and Delegation of Duties by Master Servicer.
(a) The Depositor and the Master Servicer shall each keep in full effect its existence,
rights and franchises as a corporation under the laws of the state of its incorporation, and will each
obtain and preserve its qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and enforceability of this
Agreement, the Certificates or any of the Mortgage Loans and to perform its respective duties under this
Agreement.
(b) Any Person into which the Depositor 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 Depositor or the Master Servicer shall be a party, or any Person succeeding
to the business of the Depositor or the Master Servicer, shall be the successor of the Depositor 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 Mae or Xxxxxxx Mac; and provided further that
the Master Servicer (or the Depositor, as applicable) shall notify each Rating Agency 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 Mae or Xxxxxxx Mac, is reasonably satisfactory to the Trustee
and the Depositor, is willing to service the Mortgage Loans and executes and delivers to the Depositor
and the Trustee an agreement, in form and substance reasonably satisfactory to the Depositor 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. Notwithstanding
the foregoing, in the event of a pledge or assignment by the Master Servicer solely of its rights to
purchase all assets of the Trust Fund under Section 9.01(a) (or, if so specified in Section 9.01(a), its
rights to purchase the Mortgage Loans and property acquired related to such Mortgage Loans or its rights
to purchase the Certificates related thereto), the provisos of the first sentence of this paragraph will
not apply.
(d) Notwithstanding anything else in this Section 6.02 to the contrary, the conversion of
Residential Funding Corporation's or Residential Asset Securities Corporation's organizational structure
from a Delaware corporation to a limited liability company shall not require the consent of any party or
notice to any party and shall not in any way affect the rights or obligations of Residential Funding
Corporation or Residential Asset Securities Corporation hereunder.
Section 6.03. Limitation on Liability of the Depositor, the Master Servicer and Others.
None of the Depositor, the Master Servicer or any of the directors, officers, employees or
agents of the Depositor 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 Depositor, the Master Servicer or any such Person against any breach of warranties,
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 Depositor, the Master Servicer and any director,
officer, employee or agent of the Depositor 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 Depositor, the Master Servicer and any director, officer, employee or agent of
the Depositor 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 Depositor 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 Depositor 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 Depositor 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. Depositor and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Depositor 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 Depositor or the Master Servicer shall be evidenced by an Opinion of Counsel (at
the expense of the resigning party) to such effect delivered to the Trustee. No such resignation by the
Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the
Master Servicer's responsibilities and obligations in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
Event of Default, wherever used herein, means any one of the following events (whatever reason
for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be distributed to
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 Depositor or to the Master Servicer, the Depositor 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 Depositor, or to the Master Servicer, the Depositor and the Trustee by the
Holders of Certificates of any Class evidencing, as to 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
(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
Depositor or the Trustee shall at the direction of Holders of Certificates entitled to at least 51% of
the Voting Rights by notice in writing to the Master Servicer (and to the Depositor), 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; provided, however,
that a successor to the Master Servicer is appointed pursuant to Section 7.02 and such successor Master
Servicer shall have accepted the duties of Master Servicer effective upon the resignation of the Master
Servicer. If an Event of Default described in clause (vi) hereof shall occur, the Trustee shall, by
notice to the Master Servicer and the Depositor, 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 Master Servicer hereunder the Depositor shall deliver to the
Trustee, as successor Master Servicer, a copy of the Program Guide.
Section 7.02. Trustee or Depositor 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 Depositor
and with the Depositor'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 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(c) 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 successor Master Servicer.
As compensation therefor, the Trustee as successor Master Servicer shall be entitled to all funds
relating to the Mortgage Loans which the Master Servicer would have been entitled to charge to the
Custodial Account or the Certificate Account if the Master Servicer had continued to act hereunder and,
in addition, shall be entitled to the income from any Permitted Investments made with amounts
attributable to the Mortgage Loans held in the Custodial Account or the Certificate Account. If the
Trustee has become the successor to the Master Servicer in accordance with Section 6.04 or Section 7.01,
then notwithstanding the above, the Trustee may, if it shall be unwilling to so act, or shall, if it is
unable to so act, appoint, or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution, which is also a Xxxxxx Xxx or Xxxxxxx Mac-approved mortgage
servicing institution, having a net worth of not less than $10,000,000 as the successor to the Master
Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer hereunder. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee shall become successor to the Master Servicer and shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that permitted the initial
Master Servicer hereunder. The Depositor, the Trustee, the Custodian and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any such succession. Any
successor Master Servicer appointed pursuant to this Section 7.02 shall not receive a Servicing Fee with
respect any Mortgage Loan not directly serviced by the Master Servicer on which the Subservicing Fee (i)
accrues at a rate of less than 0.50% per annum and (ii) has to be increased to a rate of 0.50% per annum
in order to hire a Subservicer. The Master Servicer shall pay the reasonable expenses of the Trustee in
connection with any servicing transfer hereunder.
(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® 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 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 as provided in Section 7.04
hereof.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights of Certificates affected by a
default or Event of Default hereunder may waive any 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),
(ii) or (iii). Upon any such waiver of a default or Event of Default by the Holders representing the
requisite percentage of Voting Rights of Certificates 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.
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 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, 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 each REMIC created hereunder as a REMIC under the REMIC Provisions and (subject
to Section 10.01(f)) to prevent the imposition of any federal, state or local income, prohibited
transaction, contribution or other tax on the Trust Fund to the extent that maintaining such status and
avoiding such taxes are reasonably within the control of the Trustee and are reasonably within the scope
of its duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or waiver
of all such Events of Default which may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this Agreement, the Trustee
shall not be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee by the Depositor 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 the
Certificateholders holding Certificates which evidence, Percentage Interests aggregating not
less than 25% of the affected Classes 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 Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 7.02, no provision in this Agreement
shall require the Trustee to expend or risk its own funds (including, without limitation, the
making of any Advance) or otherwise incur any personal financial liability in the performance
of any of its duties as Trustee hereunder, or in the exercise of any of its rights or powers,
if the Trustee shall have reasonable grounds for believing that repayment of funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal,
state and local taxes imposed on the Trust Fund or its assets or transactions including, without
limitation, (A) "prohibited transaction" penalty taxes as defined in Section 860F of the Code, if, when
and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of
its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(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), 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
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 to do so by the 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 provided that the Trustee
shall remain liable for any acts of such agents or attorneys; and
(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 (and except as provided for in
Section 2.04), 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 REMIC created hereunder 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 Depositor 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® System. Except as otherwise provided herein, the Trustee shall not be
accountable for the use or application by the Depositor 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 Depositor 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 Depositor 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 shall pay or reimburse the Trustee and any co-trustee upon request
for all reasonable expenses, disbursements and advances incurred or made by the Trustee or any
co-trustee in accordance with any of the provisions of this Agreement (including the reasonable
compensation and the expenses and disbursements of its counsel and of all persons not regularly in its
employ, and the expenses incurred by the Trustee or any co-trustee in connection with the appointment of
an office or agency pursuant to Section 8.12) except any such expense, disbursement or advance as may
arise from its negligence or bad faith.
(b) The Master Servicer agrees to indemnify the Trustee for, and to hold the Trustee
harmless against, any loss, liability or expense incurred without negligence or willful misconduct on
its part, arising out of, or in connection with, the acceptance and administration of the Trust Fund,
including its obligation to execute the DTC Letter in its individual capacity, and 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
Yield Maintenance Agreement, provided that:
(i) with respect to any such claim, the Trustee shall have given the Master
Servicer written notice thereof promptly after the Trustee shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall cooperate
and consult fully with the Master Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for settlement of any claim by the Trustee entered into without the prior
consent of the Master Servicer which consent shall not be unreasonably withheld. No termination of this
Agreement shall affect the obligations created by this Section 8.05(b) of the Master Servicer to
indemnify the Trustee under the conditions and to the extent set forth herein. Notwithstanding the
foregoing, the indemnification provided by the Master Servicer in this Section 8.05(b) shall not pertain
to any loss, liability or expense of the Trustee, including the costs and expenses of defending itself
against any claim, incurred in connection with any actions taken by the Trustee at the direction of
Certificateholders pursuant to the terms of this Agreement.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a national banking association or a New York
banking corporation having its principal office in a state and city acceptable to the Depositor and
organized and doing business under the laws of such state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state authority. If such
corporation or national banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining authority, then for 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 Depositor and the Master Servicer. Upon receiving such notice of
resignation, the Depositor 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, then 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 Depositor, 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 Depositor 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 Depositor determines
that the Trustee has failed (i) to distribute or cause to be distributed to 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 Depositor) 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 Depositor,
then the Depositor 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 Depositor shall, on or before the date on which any such
appointment becomes effective, obtain from each Rating Agency written confirmation that the appointment
of any such successor trustee will not result in the reduction of the ratings on any Class of the
Certificates below the lesser of the then current or original ratings on such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting Rights may at any
time remove the Trustee and appoint a successor trustee by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Depositor, 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 Depositor 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 Depositor, 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
Depositor 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 Depositor 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 Depositor.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee may be merged or
converted or with which it may be consolidated or any corporation or national banking association
resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation or national banking association shall be
eligible under the provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
The Trustee shall mail notice of any such merger or consolidation to the Certificateholders at their
address as shown in the Certificate Register.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund or property securing the
same may at the time be located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons approved by the Trustee to
act as co-trustee or co-trustees, jointly with the Trustee, or separate trustee or separate trustees, of
all or any part of the Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Master Servicer and the Trustee may consider
necessary or desirable. If the Master Servicer shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder, and no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee pursuant to this
Section 8.10, all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be
conferred or imposed upon and exercised or performed by the Trustee, and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed (whether as Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to have been
given to each of the then separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the Trustee, its agent
or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Section 8.11. Appointment of the Custodian.
The Trustee may, with the consent of the Master Servicer and the Depositor, or shall, at the
direction of the Master Servicer and the Depositor, appoint custodians who are not Affiliates of the
Depositor or the Master Servicer to hold all or a portion of the Custodial Files as agent for the
Trustee, by entering into a Custodial Agreement. The Trustee is hereby directed to enter into a
Custodial Agreement with Xxxxx Fargo Bank, N.A. 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 related custodian for the benefit of the Certificateholders. The
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 the 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 shall maintain an office or agency in the City of St. Xxxx, Minnesota where
Certificates may be surrendered for registration of transfer or exchange. The Trustee initially
designates its offices located at the Corporate Trust Office for the purpose of keeping the Certificate
Register. The Trustee shall maintain an office at the address stated in Section 11.05(c) hereof where
notices and demands to or upon the Trustee in respect of this Agreement may be served.
Section 8.13. DTC Letter of Representations.
The Trustee is hereby authorized and directed to, and agrees that it shall, enter into the DTC
Letter on behalf of the Trust Fund and in its individual capacity as agent thereunder.
Section 8.14. Yield Maintenance Agreement.
The Trustee is hereby authorized and directed to, and agrees that it shall, enter into the
Yield Maintenance Agreement on behalf of the Trust Fund.
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and responsibilities of the
Depositor, 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 Depositor to send certain notices as hereinafter set forth)
shall terminate upon the last action required to be taken by the Trustee on the Final Distribution Date
pursuant to this Article IX following the earlier of:
(i) the later of the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund or the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan, or
(ii) at the option of the Master Servicer, the purchase 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) (and if such purchase is made by the
Master Servicer only, net of any unreimbursed Advances attributable to principal) on the day of
repurchase, plus accrued interest thereon at the Net Mortgage Rate (or Modified Net Mortgage
Rate in the case of any Modified Mortgage Loan), to, but not including, the first day of the
month in which such repurchase price is distributed;
provided, however, that in no event shall the trust created hereby continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador
of the United States to the Court of St. Xxxxx, living on the date hereof; and provided further, that
the purchase price set forth above shall be increased as is necessary, as determined by the Master
Servicer, to avoid disqualification of any REMIC created hereunder as a REMIC.
The purchase price paid by the Master Servicer pursuant to Section 9.01(a)(ii) shall also
include any amounts owed by Residential Funding pursuant to the last paragraph of 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 (xlvii) of Section 4 of the Assignment Agreement that
remain unpaid on the date of such purchase.
The right of the Master Servicer to purchase all of the Mortgage Loans pursuant to clause (ii)
above is conditioned upon the date of such purchase occurring on or after the Optional Termination
Date. If such right is exercised by the Master Servicer, the Master Servicer shall be deemed to have
been reimbursed for the full amount of any unreimbursed Advances theretofore made by it with respect to
the Mortgage Loans being purchased. In addition, the Master Servicer shall provide to the Trustee the
certification required by Section 3.15, and the Trustee and the 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 or after the Optional Termination
Date, the Master Servicer shall have the right, at its option, to purchase the Class A Certificates,
Class M Certificates and Class SB Certificates in whole, but not in part, at a price equal to the sum of
the outstanding Certificate Principal Balance of such Certificates plus the sum of one month's Accrued
Certificate Interest thereon, any previously unpaid Accrued Certificate Interest, and any unpaid
Prepayment Interest Shortfalls previously allocated thereto and, in the case of Prepayment Interest
Shortfalls, accrued interest thereon at the applicable Pass-Through Rate through the date of such
optional termination. If the Master Servicer exercises this right to purchase the outstanding Class A
Certificates, Class M Certificates and Class SB Certificates, the Master Servicer will promptly
terminate the respective obligations and responsibilities created hereby in respect of these
Certificates pursuant to this Article IX.
(b) The Master Servicer shall give the Trustee not less than 40 days' prior notice of the
Distribution Date on which (1) the Master Servicer anticipates that the final distribution will be made
to Certificateholders as a result of the exercise by the Master Servicer of its right to purchase the
Mortgage Loans or on which (2) the Master Servicer anticipates that the Certificates will be purchased
as a result of the exercise by the Master Servicer to purchase the outstanding Certificates. Notice of
any termination, specifying the anticipated Final Distribution Date (which shall be a date that would
otherwise be a Distribution Date) upon which the Certificateholders may surrender their Certificates to
the Trustee (if so required by the terms hereof) for payment of the final distribution and cancellation
or notice of any purchase of the outstanding Certificates, specifying the Distribution Date upon which
the Holders may surrender their Certificates to the Trustee for payment, shall be given promptly by the
Master Servicer (if it is exercising the right to purchase the Mortgage Loans or to purchase the
outstanding Certificates), or by the Trustee (in any other case) by letter to the Certificateholders
(with a copy to the Certificate Registrar) mailed not earlier than the 15th day and not later than the
25th day of the month next preceding the month of such final distribution specifying:
(i) the anticipated Final Distribution Date upon which final payment of the
Certificates is anticipated to be made upon presentation and surrender of Certificates at the office or
agency of the Trustee therein designated where required pursuant to this Agreement or, in the case of
the purchase by the Master Servicer of the outstanding Certificates, the Distribution Date on which such
purchase is 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 or the Trustee is obligated to give notice to Certificateholders as
required above, it shall give such notice to the Certificate Registrar at the time such notice is given
to Certificateholders. In the event of a purchase of the Mortgage Loans by the Master Servicer, the
Master Servicer shall deposit in the Certificate Account before the Final Distribution Date in
immediately available funds an amount equal to the purchase price computed as provided above. As a
result of the exercise by the Master Servicer of its right to purchase the outstanding Certificates, the
Master Servicer shall deposit in the Certificate Account, before the Distribution Date on which such
purchase is to occur, in immediately available funds, an amount equal to the purchase price for the
Certificates computed as provided above, and provide notice of such deposit to the Trustee. The Trustee
shall withdraw from such account the amount specified in subsection (c) below and distribute such amount
to the Certificateholders as specified in subsection (c) below. The Master Servicer shall provide to
the Trustee written notification of any change to the anticipated Final Distribution Date as soon as
practicable. If the Trust Fund is not terminated on the anticipated Final Distribution Date, for any
reason, the Trustee shall promptly mail notice thereof to each affected Certificateholder.
(c) Upon presentation and surrender of the Class A Certificates, Class M Certificates and
Class SB Certificates by the Certificateholders thereof, the Trustee shall distribute to such
Certificateholders (i) the amount otherwise distributable on such Distribution Date, if not in
connection with the Master Servicer's election to repurchase the Mortgage Loans or the outstanding Class
A Certificates, Class M Certificates and Class SB Certificates, or (ii) if the Master Servicer elected
to so repurchase the Mortgage Loans or the outstanding Class A Certificates, Class M Certificates and
Class SB Certificates, an amount equal to the price paid pursuant to Section 9.01(a) as follows: first,
with respect to the Class A Certificates, pari passu, the outstanding Certificate Principal Balance
thereof, plus Accrued Certificate Interest thereon for the related Interest Accrual Period and any
previously unpaid Accrued Certificate Interest, second, with respect to the Class M-1 Certificates, the
outstanding Certificate Principal Balance thereof, plus Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate Interest, third, with
respect to the Class M-2 Certificates, the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest thereon for the related Interest Accrual Period and any previously unpaid
Accrued Certificate Interest, fourth, with respect to the Class M-3 Certificates, the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest thereon for the related
Interest Accrual Period and any previously unpaid Accrued Certificate Interest, fifth, with respect to
the Class M-4 Certificates, the outstanding Certificate Principal Balance thereof, plus Accrued
Certificate Interest thereon for the related Interest Accrual Period and any previously unpaid Accrued
Certificate Interest, sixth, with respect to the Class M-5 Certificates, the outstanding Certificate
Principal Balance thereof, plus Accrued Certificate Interest thereon for the related Interest Accrual
Period and any previously unpaid Accrued Certificate Interest, seventh, with respect to the Class M-6
Certificates, the outstanding Certificate Principal Balance thereof, plus Accrued Certificate Interest
thereon for the related Interest Accrual Period and any previously unpaid Accrued Certificate Interest,
eighth, with respect to the Class M-7 Certificates, the outstanding Certificate Principal Balance
thereof, plus Accrued Certificate Interest thereon for the related Interest Accrual Period and any
previously unpaid Accrued Certificate Interest, ninth, with respect to the Class M-8 Certificates, the
outstanding Certificate Principal Balance thereof, plus Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate Interest, tenth, with
respect to the Class M-9 Certificates, the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest thereon for the related Interest Accrual Period and any previously unpaid
Accrued Certificate Interest, eleventh, with respect to the Class A Certificates and Class M
Certificates, the amount of any Prepayment Interest Shortfalls allocated thereto for such Distribution
Date or remaining unpaid from prior Distribution Dates and accrued interest thereon at the applicable
Pass-Through Rate, on a pro rata basis based on Prepayment Interest Shortfalls allocated thereto for
such Distribution Date or remaining unpaid from prior Distribution Dates, and twelfth, with respect to
the Class SB Certificates, all remaining amounts.
(d) In the event that any Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before the Final Distribution Date, the Master Servicer (if it
exercised its right to purchase the Mortgage Loans) 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 Certificate
Account and of contacting Certificateholders shall be paid out of the assets which remain in the
Certificate 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
Certificate 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 and the
Certificateholders shall look only to the Master Servicer for such payment.
(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 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 Certificate Account and of contacting
Certificateholders shall be paid out of the assets which remain in the Certificate 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 shall have no further obligation or liability therefor 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 Certificate 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
Certificate Account and notices allocated thereto. Any Certificates so purchased or deemed to have been
purchased on such Distribution Date shall remain outstanding hereunder. The Master Servicer shall be
for all purposes the Holder thereof as of such date.
Section 9.02. Additional Termination Requirements.
(a) Each of REMIC I and REMIC II as the case may be, shall be terminated in accordance
with the following additional requirements, unless 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 any REMIC created hereunder 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 REMIC created hereunder 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 of
REMIC I and REMIC II, and specify the first day of such period in a statement attached to the
Trust Fund's final Tax Return pursuant to Treasury regulations §1.860F-1. The Master Servicer
also shall satisfy all of the requirements of a qualified liquidation for each of REMIC I and
REMIC II, under Section 860F of the Code and the regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the commencement of such
90-day liquidation period and, at or prior to the time of making of the final payment on the
Certificates, the Trustee shall sell or otherwise dispose of all of the remaining assets of the
Trust Fund in accordance with the terms hereof; and
(iii) If the Master Servicer is exercising its right to purchase the assets of the
Trust Fund, the Master Servicer shall, during the 90-day liquidation period and at or prior to
the Final Distribution Date, purchase all of the assets of the Trust Fund for cash;
(b) Each Holder of a Certificate and the Trustee hereby irrevocably approves and appoints
the Master Servicer as its attorney-in-fact to adopt a plan of complete liquidation for each of REMIC I
and REMIC II at the expense of the Trust Fund in accordance with the terms and conditions of this
Agreement.
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The REMIC Administrator shall make an election to treat each of REMIC I and REMIC II
as a REMIC under the Code and, if necessary, under applicable state law. 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. The REMIC I Regular Interests shall be designated as the "regular interests"
and Component I of the Class R Certificates shall be designated as the sole Class of "residual
interests" in REMIC I. The REMIC II Regular Interests shall be designated as the "regular interests" and
Component II of the Class R Certificates shall be designated as the sole Class of "residual interests"
in REMIC II. The REMIC Administrator and the Trustee shall not permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the REMIC I or REMIC II other than the REMIC I
Regular Interests, the REMIC II Regular Interests and the Certificates.
(b) The Closing Date is hereby designated as the "startup day" of each of REMIC I, and
REMIC II within the meaning of Section 860G(a)(9) of the Code (the "Startup Date").
(c) The REMIC Administrator shall hold a Class R Certificate in each REMIC representing a
0.01% Percentage Interest of the Class R Certificates in each REMIC and shall be designated as the "tax
matters person" with respect to each of REMIC I and REMIC II 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 of REMIC I and REMIC II in
relation to any tax matter or controversy involving the Trust Fund and (ii) represent the Trust Fund in
any administrative or judicial proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. The legal expenses, including without limitation attorneys' or
accountants' fees, and costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the REMIC Administrator shall be entitled to reimbursement therefor out
of amounts attributable to the Mortgage Loans on deposit in the Custodial Account as provided by
Section 3.10 unless such legal expenses and costs are incurred by reason of the REMIC Administrator's
willful misfeasance, bad faith or gross negligence. If the REMIC Administrator is no longer the Master
Servicer hereunder, at its option the REMIC Administrator may continue its duties as REMIC Administrator
and shall be paid reasonable compensation not to exceed $3,000 per year by any successor Master Servicer
hereunder for so acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all of the Tax Returns
that it determines are required with respect to the REMICs 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, if any, 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 created
hereunder.
(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 thereof 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). In performing their duties as
more specifically set forth herein, 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 and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not taken, as the case may
be, could (i) endanger the status of any REMIC created hereunder as a REMIC or (ii) result in the
imposition of a tax upon any REMIC created hereunder (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code (except as provided in Section 2.04) and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code) (either such event, in the
absence of an Opinion of Counsel or the indemnification referred to in this sentence, an "Adverse REMIC
Event") unless the Master Servicer or the REMIC Administrator, as applicable, has received an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such party fails to pay such
expense, and the Master Servicer or the REMIC Administrator, as applicable, determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders, at the expense of the Trust
Fund, but in no event at the expense of the Master Servicer, the REMIC Administrator or the Trustee) to
the effect that the contemplated action will not, with respect to the Trust Fund created hereunder,
endanger such status or, unless the Master Servicer or 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 or inaction, as the case
may be. In addition, prior to taking any action with respect to the Trust Fund or its assets, or
causing the Trust Fund to take any action, which is not expressly permitted under the terms of this
Agreement, the Trustee shall 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 the Trust Fund and the Trustee shall not take any such action or cause the Trust
Fund 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 or the REMIC Administrator, as applicable, 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 the REMIC 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
REMIC as defined in Section 860G(c) of the Code, on any contributions to any REMIC after the Startup
Date therefor pursuant to Section 860G(d) of the Code, or any other tax 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 in its role as Master Servicer
or REMIC Administrator of any of its obligations under this Agreement or the Master Servicer has in its
sole discretion determined to indemnify the Trust Fund against such tax, (ii) to the Trustee, if such
tax arises out of or results from a breach by the Trustee of any of its obligations under this
Article X, or (iii) otherwise against amounts on deposit in the Custodial Account as provided by
Section 3.10 and on the Distribution Date(s) following such reimbursement the aggregate of such taxes
shall be allocated in reduction of the Accrued Certificate Interest on each Class entitled thereto in
the same manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Master Servicer shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an accrual basis or as otherwise
may be required by the REMIC Provisions.
(i) Following the Startup Date, neither the Master Servicer nor the Trustee shall accept
any contributions of assets to any REMIC 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 any REMIC will not cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any Certificates are outstanding
or subject any such 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 REMIC created hereunder 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 purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
"latest possible maturity date" by which the principal balance of each regular interest in each REMIC
would be reduced to zero is August 25, 2036, which is the Distribution Date in the month following the
last scheduled payment on any Mortgage Loan.
(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 the Trust Fund.
(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 the Trust Fund, (iii) the termination of any
REMIC pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans pursuant to
Article II or III of this Agreement) or acquire any assets for any REMIC or sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain, or accept any contributions to
any 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 any REMIC created
hereunder as a REMIC or (b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause any 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 Depositor, 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 Depositor or the Master Servicer, as a result of a
breach of the Trustee's covenants set forth in Article VIII or this Article X. In the event that
Residential Funding is no longer the Master Servicer, the Trustee shall indemnify Residential Funding
for any taxes and costs including, without limitation, any reasonable attorneys fees imposed on or
incurred by Residential Funding 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 Depositor, 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 Depositor, 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 Depositor, 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 Depositor, 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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to time by the
Depositor, 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 any REMIC created hereunder 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 the Trust Fund 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 the Trust Fund 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, or
(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 and is authorized or permitted under Section 11.01.
(b) This Agreement or any Custodial Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Trustee and 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) adversely affect in any material respect the interest of the Holders of
Certificates of any Class in a manner other than as described in clause (i) hereof without the consent
of Holders of Certificates of such Class evidencing, as to such Class, Percentage Interests aggregating
not less than 66%, or
(iii) 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 (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 Depositor or the Trustee in accordance with such amendment
will not result in the imposition of a federal tax on the Trust Fund or cause any REMIC created
hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding; provided, that
if the indemnity described in Section 10.01(f) with respect to any taxes that might be imposed on the
Trust Fund has been given, the Trustee shall not require the delivery to it of the Opinion of Counsel
described in this Section 11.01(c). The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and immunities and this Agreement or
otherwise; provided, however, such consent shall not be unreasonably withheld.
(d) Promptly after the execution of any such amendment the Trustee shall furnish written
notification of the substance of such amendment to 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.
(e) The Depositor 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 SB 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 SB Certificateholders, but shall not be and shall not be deemed to be under any circumstances
included in any REMIC. 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 such REMIC, (ii) any such reserve fund shall be owned by the Depositor, and (iii)
amounts transferred by such REMIC to any such reserve fund shall be treated as amounts distributed by
such REMIC to the Depositor or any successor, all within the meaning of Treasury regulations
Section 1.860G-2(h) in effect 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 Depositor and such related insurer 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
Certificateholders, the Master Servicer or the Trustee, as applicable; provided that the Depositor
obtains 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 Depositor elects to provide such coverage in the form of a limited guaranty provided by General
Motors Acceptance Corporation, the Depositor 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 L, with such changes as the Depositor 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.
(f) In addition to the foregoing, any amendment of Section 4.08 of this Agreement shall
require the consent of the Limited Repurchase Right Holder as a third-party beneficiary of Section 4.08
of this Agreement.
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 the 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.
(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, without regard to the conflict of law principles thereof, other than
Sections 5-1401 and 5-1402 of the New York General Obligations Law, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such laws.
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 (a) in the case of the
Depositor, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: President
(RASC), or such other address as may hereafter be furnished to the Master Servicer and the Trustee in
writing by the Depositor; (b) in the case of the Master Servicer, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000-0000, Attention: Bond Administration or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing; (c) in the case of the
Trustee, the Corporate Trust Office or such other address as may hereafter be furnished to the Depositor
and the Master Servicer in writing by the Trustee; (d) in the case of Standard & Poor's, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Mortgage Surveillance or such other address as may be
hereafter furnished to the Depositor, Trustee and Master Servicer by Standard & Poor's; (e) in the case
of Moody's, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring Department, or such
other address as may be hereafter furnished to the Depositor, the Trustee and the Master Servicer in
writing by Moody's, and (f) in the case of the Yield Maintenance Agreement Provider, HSBC Bank USA,
National Association, 000 0xx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx 00000, or such other address as may
be hereafter furnished to the Depositor, the Trustee and the Master Servicer in writing by the Yield
Maintenance Agreement Provider. 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.
Section 11.06. Notices to Rating Agencies.
The Depositor, the Master Servicer or the Trustee, as applicable, shall notify each Rating
Agency and each Subservicer at such time as it is otherwise required pursuant to this Agreement to give
notice of the occurrence of, any of the events described in clause (a), (b), (c), (d), (g), (h), (i) or
(j) below or provide a copy to each Rating Agency and each 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 each Subservicer of any such
event known to the Master Servicer.
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.
(a) 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 Depositor or any of its
Affiliates (or any designee thereof) is the registered Holder (the "Resecuritized Certificates"), the
Depositor 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 Depositor, 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
to the purposes thereof. In connection with each Supplemental Article, the Depositor 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 any REMIC created hereunder as
a REMIC or result in the imposition of a tax upon the Trust Fund (including but not limited to the tax
on prohibited transaction 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. Third-Party Beneficiary.
The Limited Repurchase Right Holder is an express third-party beneficiary of Section 4.08 of
this Agreement, and shall have the right to enforce the related provisions of Section 4.08 of this
Agreement as if it were a party hereto.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of Parties; Reasonableness.
The Depositor, the Trustee and the Master Servicer acknowledge and agree that the purpose of
this Article XII is to facilitate compliance by the Depositor with the provisions of Regulation AB and
related rules and regulations of the Commission. The Depositor 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 requests made by the Depositor 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 Depositor to deliver to the Depositor (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 Depositor to permit
the Depositor 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 to the Depositor as of the date hereof and on
each date on which information is provided to the Depositor under Sections 12.01, 12.02(b) or 12.03
that, except as disclosed in writing to the Depositor 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 relating to the Trustee with respect to the Depositor or any sponsor, issuing entity,
servicer, trustee, originator, significant obligor, enhancement or support provider or other material
transaction party (as such terms are used in Regulation AB) relating to the Securitization Transaction
contemplated by the Agreement, as identified by the Depositor 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 of any Transaction Party. The Depositor shall
notify the Trustee of any change in the identity of a Transaction Party after the Closing Date.
(b) If so requested by the Depositor 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 Depositor. Any such request from the Depositor shall not be given more than once each
calendar quarter, unless the Depositor 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 Depositor's
reporting obligation under the Exchange Act with respect to any class of Certificates, the Trustee shall
provide to the Depositor 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 Depositor 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 that any information previously provided 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 Depositor 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
Depositor 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 Depositor a report (in form and substance reasonably satisfactory to
the Depositor) 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 Depositor and signed
by an authorized officer of the Trustee, and shall address each of the Servicing Criteria specified on
Exhibit S hereto; and
(b) deliver to the Depositor a report of a registered public accounting firm reasonably
acceptable to the Depositor 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.
Section 12.05. Indemnification; Remedies.
(a) The Trustee shall indemnify the Depositor, each affiliate of the Depositor, the Master
Servicer and each broker dealer acting as underwriter, placement agent or initial purchaser of the
Certificates or each Person who controls any of such parties (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 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; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the Trustee Information and not
to any other information communicated in connection with a sale or purchase of securities, without
regard to whether the Trustee Information or any portion thereof is presented together with or
separately from such other information; 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 the 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 Depositor for all costs reasonably incurred by
the Depositor 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 Depositor to
mitigate any damages that may result from such failure.
(c) The Depositor 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 Depositor 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.
IN WITNESS WHEREOF, the Depositor, the Master Servicer and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of the day and year first
above written.
RESIDENTIAL ASSET SECURITIES CORPORATION
By:_____________________________________
Name:
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
By:_____________________________________
Name:
Title: Associate
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:_____________________________________
Name:
Title:
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of August 2006 before me, a notary public in and for said State, personally
appeared _______________, known to me to be a Vice President of Residential Asset Securities
Corporation, one of the corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
Notary Public
________________________________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of August 2006 before me, a notary public in and for said State, personally
appeared _______________, known to me to be an Associate of Residential Funding Corporation, one of the
corporations that executed the within instrument, and also known to me to be the person who executed it
on behalf of said corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
Notary Public
_______________________________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF XXXXXX )
On the ____ day of August 2006 before me, a notary public in and for said State, personally
appeared _____________________, known to me to be a _____________________ of U.S. Bank National
Association, a banking association organized under the laws of the United States that executed the
within instrument, and also known to me to be the person who executed it on behalf of said banking
association and acknowledged to me that such 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 A
FORM OF CLASS A-[_] 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 COUPLED WITH THE
RIGHT TO RECEIVE PAYMENTS UNDER THE YIELD MAINTENANCE AGREEMENT.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES
ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
CUSIP: _____________________ Certificate No. A-[__]-[__]
Date of Pooling and Servicing Agreement: August 1, 2006 Adjustable Pass-Through Rate
Cut-off Date: August 1, 2006
First Distribution Date: September 25, 2006 Aggregate Initial Certificate Principal
Balance of the Class A-[_] Certificates:
$___________________________
Master Servicer: Initial Certificate Principal Balance of this
Residential Funding Corporation Class A-[_] Certificate:
$___________________________
Final Scheduled Distribution Date:
__________ __, 20__
HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2006-EMX7
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 fixed and adjustable interest rate,
first and junior lien mortgage loans on one- to four-family residential properties sold by
RESIDENTIAL ASSET SECURITIES CORPORATION
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in
Residential Asset Securities Corporation, the Master Servicer, the Trustee referred to below or GMAC Mortgage Group, Inc. or any of
their affiliates. Neither this Certificate nor the underlying mortgage loans are guaranteed or insured by any governmental agency or
instrumentality or by Residential Asset Securities Corporation, the Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any
of their affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group, Inc. or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that CEDE & CO. 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 fixed and adjustable interest rate,
first and junior lien mortgage loans on one- to four- family residential properties (the “;Mortgage Loans”), sold by Residential Asset
Securities Corporation (hereinafter called the “Depositor,” 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
Depositor, the Master Servicer and U.S. Bank National Association, 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 Business Day immediately preceding that
Distribution Date (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.
Distributions on this Certificate will be made either by the Master Servicer acting on behalf of the Trustee or by a Paying
Agent appointed by the Trustee in immediately available funds (by wire transfer or otherwise) for the account of the Person entitled
thereto if such Person shall have so notified the Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be made after due notice of the pendency of such
distribution and only upon presentation and surrender of, this Certificate at the office or agency appointed by the Trustee for that
purpose in St. Xxxx, Minnesota. The Initial Certificate Principal Balance of this Certificate is set forth above. The Certificate
Principal Balance hereof will be reduced from time to time pursuant to the Agreement.
This Certificate is one of a duly authorized issue of Certificates issued in several Classes designated as Home Equity
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 Depositor 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 Depositor, the Master Servicer and the Trustee and the rights of the Certificateholders under the
Agreement from time to time by the Depositor, the Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of each Class of Certificates affected thereby. Any such
consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the amendment thereof in certain circumstances without the
consent of the Holders of any of the Certificates and, in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies
appointed by the Trustee in St. Xxxx, Minnesota, 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 there upon 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 Depositor, the Master Servicer, the Trustee, and the Certificate Registrar and any agent of the Depositor, 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 none of the Depositor, the Master Servicer, the Trustee or 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
or the Certificates, in either case 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 Balance.
Unless the certificate of authentication hereon has been executed by the Certificate Registrar, by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: __________________________________
Authorized Signatory
Dated: ___________________
Certificate of Authentication
This is one of the Class A-[_] Certificates referred to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee) the beneficial interest evidenced by the within
Trust 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 fund to
______________________________________________________________________________________________________________________________________
for the account of ___________________________________________________________________________________________________________________
account number _______________________________________________________________________________________________________________________
or, if mailed by check, to ___________________________________________________________________________________________________________
Applicable statements should be mailed to:___________________________________________________________________________________
______________________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________________
This information is provided by ___________________________________, the assignee named above, or
______________________________, as its agent.
EXHIBIT B
FORM OF CLASS M-[_] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A AND CLASS M-[_] CERTIFICATES AS DESCRIBED IN THE
AGREEMENT (AS DEFINED HEREIN).
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES
ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
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.
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”)
COUPLED WITH A RIGHT TO RECEIVE PAYMENTS UNDER THE YIELD MAINTENANCE AGREEMENT.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED BY VIRTUE OF ITS PURCHASE OR HOLDING OF THIS
CERTIFICATE (OR INTEREST THEREIN) THAT EITHER (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT
SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE CODE OR A PERSON (INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, 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 OF THE
FOREGOING, A “PLAN INVESTOR”), (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 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) (I) THE TRANSFEREE IS AN INSURANCE COMPANY, (II) THE SOURCE OF FUNDS USED TO PURCHASE OR
HOLD THIS CERTIFICATE 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 THEREIN) IS ACQUIRED OR HELD BY ANY PERSON THAT DOES NOT SATISFY THE CONDITIONS
DESCRIBED IN THE PRECEDING PARAGRAPH, THEN THE LAST PRECEDING TRANSFEREE THAT EITHER (I) IS NOT A PLAN INVESTOR, (II) ACQUIRED SUCH
CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION, OR (III) IS A COMPLYING INSURANCE COMPANY SHALL BE RESTORED, TO THE EXTENT
PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF THIS
CERTIFICATE. THE TRUSTEE SHALL BE UNDER NO LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO SUCH PRECEDING
TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN
VIOLATION OF THE RESTRICTIONS IN SECTION 5.02(e)(ii) OF THE POOLING AND SERVICING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE
DEPOSITOR, 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.
CUSIP: _____________________ Certificate No. M-[__]-__
Date of Pooling and Servicing Agreement: August 1, 2006 Adjustable Pass-Through Rate
Cut-off Date: August 1, 2006
First Distribution Date: September 25, 2006 Aggregate Initial Certificate Principal
Balance of the Class M-[_] Certificates:
$___________________________
Master Servicer: Initial Certificate Principal Balance of this
Residential Funding Corporation Class M-[_] Certificate:
$___________________________
Final Scheduled Distribution Date:
__________ __, 20__
HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2006-EMX7
evidencing a percentage interest in the distributions allocable to the Class M-[_] Certificates
with respect to a Trust Fund consisting primarily of a pool of fixed and adjustable interest rate,
first and junior lien mortgage loans on one- to four-family residential properties sold by
RESIDENTIAL ASSET SECURITIES CORPORATION
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in
Residential Asset Securities Corporation, the Master Servicer, the Trustee referred to below or GMAC Mortgage Group, Inc. or any of
their affiliates. Neither this Certificate nor the underlying mortgage loans are guaranteed or insured by any governmental agency or
instrumentality or by Residential Asset Securities Corporation, the Master Servicer, the Trustee or GMAC Mortgage Group, Inc. or any
of their affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group, Inc. or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or payable from payments on the Certificates.
This certifies that CEDE & CO. 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 fixed and adjustable interest rate,
first and junior lien mortgage loans on one- to four- family residential properties (the “Mortgage Loans”), sold by Residential Asset
Securities Corporation (hereinafter called the “Depositor,” 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
Depositor, the Master Servicer and U.S. Bank National Association, 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 Business Day immediately preceding that
Distribution Date (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 in St. Xxxx, Minnesota. 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.
Any Transferee of this Certificate will be deemed to have made representations relating to the permissibility of such
transfer under ERISA and Section 4975 of the Code, as described in Section 5.02(e)(ii) of the Agreement. In addition, any purported
Certificate Owner whose acquisition or holding of this Certificate (or interest therein) was effected in violation of the
restrictions in Section 5.02(e)(ii) of the Agreement shall indemnify and hold harmless the Depositor, the Trustee, the Master
Servicer, any Subservicer, any 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.
This Certificate is one of a duly authorized issue of Certificates issued in several Classes designated as Home Equity
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 Depositor 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 Depositor, the Master Servicer and the Trustee and the rights of the Certificateholders under the
Agreement from time to time by the Depositor, the Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of each Class of Certificates affected thereby. Any such
consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the amendment thereof in certain circumstances without the
consent of the Holders of any of the Certificates and, in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies
appointed by the Trustee in St. Xxxx, Minnesota, 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 there upon 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 Depositor, the Master Servicer, the Trustee, and the Certificate Registrar and any agent of the Depositor, 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 none of the Depositor, the Master Servicer, the Trustee or 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
or the Certificates, in either case 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 Balance.
Unless the certificate of authentication hereon has been executed by the Certificate Registrar, by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: __________________________________
Authorized Signatory
Dated: ______________________
Certificate of Authentication
This is one of the Class M-[_] Certificates referred to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee) the beneficial interest evidenced by the within
Trust 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 fund to
_______________________________________________________________________________________________________________________________________
for the account of ____________________________________________________________________________________________________________________
account number ________________________________________________________________________________________________________________________
or, if mailed by check, to ____________________________________________________________________________________________________________
Applicable statements should be mailed to:____________________________________________________________________________________
_______________________________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________________________
This information is provided by ___________________________________, the assignee named above, or
______________________________, as its agent.
EXHIBIT C
FORM OF CLASS SB CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A AND CLASS M 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 (THE “CODE”)
COUPLED WITH THE RIGHT TO RECEIVE PAYMENTS UNDER THE YIELD MAINTENANCE 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 THEREIN SHALL BE MADE TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE CODE, OR ANY PERSON (INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, 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 OF THE FOREGOING, A “PLAN INVESTOR”) UNLESS THE TRUSTEE, THE DEPOSITOR AND THE MASTER SERVICER ARE PROVIDED WITH EITHER (I) A
CERTIFICATION PURSUANT TO SECTION 5.02(e)(i)(B) OF THE AGREEMENT OR (II) AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, THE DEPOSITOR AND THE MASTER SERVICER TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE 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 DEPOSITOR 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
DEPOSITOR OR THE MASTER SERVICER.
CUSIP: _____________________ Certificate No. SB-1
Date of Pooling and Servicing Agreement: August 1, 2006 Percentage Interest: 100.00%
Cut-off Date: August 1, 2006
First Distribution Date: September 25, 2006 Aggregate Initial Notional Balance
of the Class SB Certificates:
$___________________________
Master Servicer: Initial Notional Balance
Residential Funding Corporation of this Class SB Certificate:
$___________________________
Maturity Date:
__________ __, 20__
HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2006-EMX7
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 fixed and adjustable interest rate,
first and junior lien mortgage loans on one- to four-family residential properties sold by
RESIDENTIAL ASSET SECURITIES CORPORATION
This Certificate is payable solely from the assets of the Trust Fund, and does not represent an obligation of or interest in
Residential Asset Securities Corporation, the Master Servicer, the Trustee referred to below 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 Asset Securities Corporation, the Master Servicer, the Trustee or any of their affiliates. None of the Depositor, the
Master Servicer 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 adjustable interest rate, first and
junior lien mortgage loans on one- to four-family residential properties (the “Mortgage Loans”), sold by Residential Asset Securities
Corporation (hereinafter called the “Depositor,” 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 Depositor,
the Master Servicer and U.S. Bank National Association, 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 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 in St. Xxxx, Minnesota.
No transfer of this 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 Depositor may require an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee and the Depositor 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 Depositor,
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.
No transfer of this Certificate or any interest therein shall be made to any employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any person (including an
insurance company investing its general account, 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 of the foregoing, a “Plan Investor”) unless the Trustee, the
Depositor and the Master Servicer are provided with either (i) a certification pursuant to Section 5.02(e)(i)(B) of the Agreement or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Depositor and the Master Servicer
to the effect that the purchase or holding of this Certificate 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 Depositor 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 Depositor or the Master Servicer.
This Certificate is one of a duly authorized issue of Certificates issued in several Classes designated as Home Equity
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 Depositor 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 Depositor, the Master Servicer and the Trustee and the rights of the Certificateholders under the
Agreement from time to time by the Depositor, the Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of each Class of Certificates affected thereby. Any such
consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the amendment thereof in certain circumstances without the
consent of the Holders of any of the Certificates and, in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies
appointed by the Trustee in St. Xxxx, Minnesota, 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 Depositor, the Master Servicer, the Trustee, the Certificate Registrar and any agent of the Depositor, 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 none of the Depositor, the Master Servicer, the Trustee or 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
or the Certificates, in either case 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 Balance.
Unless the certificate of authentication hereon has been executed by the Certificate Registrar by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Authorized Signatory
Dated: ________________________________
Certificate of Authentication
This is one of the Class SB Certificates referred to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee) the beneficial interest evidenced by the within
Trust 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 fund
to_____________________________________________________________________________________________________________________________________
for the account of ____________________________________________________________________________________________________________________
account number ________________________________________________________________________________________________________________________
or, if mailed by check, to ____________________________________________________________________________________________________________
Applicable statements should be mailed to:____________________________________________________________________________________
_______________________________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________________________
This information is provided by ___________________________________, the assignee named above, or
______________________________, as its agent.
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THE CLASS R CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS CONSTITUTING THE AVAILABLE DISTRIBUTION AMOUNT UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN (THE “AGREEMENT”).
THIS CLASS R CERTIFICATE IS SUBORDINATE TO THE CLASS A, CLASS M AND CLASS SB CERTIFICATES, TO THE EXTENT DESCRIBED HEREIN
AND IN THE AGREEMENT.
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”).
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 THEREIN SHALL BE MADE TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR SECTION 4975 OF THE CODE, OR ANY PERSON (INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, 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 OF THE FOREGOING, A “PLAN INVESTOR”) UNLESS THE TRUSTEE, THE DEPOSITOR AND THE MASTER SERVICER ARE PROVIDED WITH EITHER (I) A
CERTIFICATION PURSUANT TO SECTION 5.02(e)(i)(B) OF THE AGREEMENT OR (II) AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE, THE DEPOSITOR AND THE MASTER SERVICER TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE 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 DEPOSITOR 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
DEPOSITOR 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 XXXXXXX MAC, A MAJORITY OF
ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY
AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN
SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME),
(D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER
SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS
A “DISQUALIFIED ORGANIZATION”), OR (F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION
OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION
OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO
BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. R-1 Percentage Interest: 100.00%
Date of Pooling and Servicing Agreement: August 1, 2006 Master Servicer:
Residential Funding Corporation
Cut-off Date: August 1, 2006
HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 2006-EMX7
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 fixed and adjustable interest rate,
first and junior lien mortgage loans on one- to four-family residential properties sold by
RESIDENTIAL ASSET SECURITIES CORPORATION
This Certificate is payable solely from the assets of the Trust Fund and does not represent an obligation of or interest in
Residential Asset Securities Corporation, the Master Servicer, the Trustee referred to below 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 Asset Securities Corporation, the Master Servicer, the Trustee or any of their affiliates. None of the Depositor, the
Master Servicer 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 a pool of fixed and adjustable interest rate, first and
junior lien mortgage loans on one- to four-family residential properties (the “Mortgage Loans”), sold by Residential Asset Securities
Corporation (hereinafter called the “Depositor,” 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 Depositor,
the Master Servicer and U.S. Bank National Association, 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 Business 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 the 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, (ii) 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 Master Servicer
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 Master Servicer, which purchaser may be the Master Servicer, or any affiliate of the Master Servicer, on
such terms and conditions as the Master Servicer may choose.
Notwithstanding the above, the final distribution on this Certificate will be made after due notice of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that
purpose in St. Xxxx, Minnesota. The Holder of this Certificate may have additional obligations with respect to this Certificate,
including tax liabilities.
No transfer of this 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 Depositor may require an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee and the Depositor 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 Depositor,
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.
No transfer of this Certificate or any interest therein shall be made to any employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any person (including an
insurance company investing its general account, 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 of the foregoing, a “Plan Investor”) unless the Trustee, the
Depositor and the Master Servicer are provided with either (i) a certification pursuant to Section 5.02(e)(i)(B) of the Agreement or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Depositor and the Master Servicer
to the effect that the purchase or holding of this Certificate 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 Depositor 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 Depositor or the Master Servicer.
This Certificate is one of a duly authorized issue of Certificates issued in several Classes designated as Home Equity
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 Depositor 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 Depositor, the Master Servicer and the Trustee and the rights of the Certificateholders under the
Agreement from time to time by the Depositor, the Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of each Class of Certificates affected thereby. Any such
consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the amendment thereof in certain circumstances without the
consent of the Holders of any of the Certificates and, in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies
appointed by the Trustee in St. Xxxx, Minnesota, 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 Depositor, the Master Servicer, the Trustee, the Certificate Registrar and any agent of the Depositor, 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 none of the Depositor, the Master Servicer, the Trustee or 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.
Unless the certificate of authentication hereon has been executed by the Certificate Registrar, by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: __________________________________
Authorized Signatory
Dated: ____________________________
Certificate of Authentication
This is one of the Class R Certificates referred to in the within-mentioned Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee) the beneficial interest evidenced by the within
Trust 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 fund
to_____________________________________________________________________________________________________________________________________
for the account of ____________________________________________________________________________________________________________________
account number ________________________________________________________________________________________________________________________
or, if mailed by check, to ____________________________________________________________________________________________________________
Applicable statements should be mailed to:____________________________________________________________________________________
_______________________________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________________________
This information is provided by ___________________________________, the assignee named above, or
______________________________, as its agent.
EXHIBIT E
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to time, the “Agreement”), dated as of August 1,
2006, by and among U.S. BANK NATIONAL ASSOCIATION, as Trustee (including its successors under the Pooling Agreement defined below, the
“Trustee”), RESIDENTIAL ASSET SECURITIES CORPORATION (together with any successor in interest, the “Company”), RESIDENTIAL FUNDING
CORPORATION, as master servicer (together with any successor in interest or successor under the Pooling Agreement referred to below,
the “Master Servicer”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION (together with any successor in interest or any successor
appointed hereunder, the “Custodian”).
W I T N E S S E T H T H A T :
WHEREAS, the Company, the Master Servicer, and the Trustee have entered into a Pooling and Servicing Agreement,
dated as of August 1, 2006, relating to the issuance of Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed
Pass-Through Certificates, Series 2006-EMX7 (as in effect on the date of this Agreement, the “Original Pooling Agreement,” and as
amended and supplemented from time to time, the “Pooling Agreement”); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for the purposes of receiving and holding certain
documents and other instruments delivered by the Company and the Master Servicer under the Pooling Agreement, all upon the terms and
conditions and subject to the limitations hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, the
Trustee, the Company, the Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms used in this Agreement and not defined herein shall have the meanings assigned in the Original
Pooling Agreement, unless otherwise required by the context herein.
ARTICLE II
Custody of Mortgage Documents
Section 2.1. Custodian to Act as Agent; Acceptance of Custodial Files. The Company and the Master Servicer hereby
direct the Trustee to appoint Xxxxx Fargo Bank National Association as the Custodian hereunder. The Custodian, as the duly appointed
agent of the Trustee for these purposes, acknowledges receipt of the Custodial Files relating to the Mortgage Loans identified on the
schedule attached hereto (the “Custodial Files”) and declares that it holds and will hold the Custodial Files as agent for the
Trustee, in trust, for the use and benefit of all present and future Certificateholders.
Section 2.2. Recordation of Assignments. If any Custodial File includes one or more assignments of the related
Mortgages to the Trustee that have not been recorded, each such assignment shall be delivered by the Custodian to the Company for the
purpose of recording it in the appropriate public office for real property records, and the Company, at no expense to the Custodian,
shall promptly cause to be recorded in the appropriate public office for real property records each such assignment and, upon receipt
thereof from such public office, shall return each such assignment to the Custodian.
Section 2.3. Review of Custodial Files.
(a) On or prior to the Closing Date, the Custodian shall deliver to the Trustee an Initial Certification in the
form annexed hereto as Exhibit One evidencing receipt of a Custodial File for each Mortgage Loan listed on the Schedule attached
hereto (the “Mortgage Loan Schedule”). The parties hereto acknowledge that certain documents referred to in Subsection 2.01(b)(i) of
the Pooling Agreement may be missing on or prior to the Closing Date and such missing documents shall be listed as a Schedule to
Exhibit One.
(b) Within 45 days after the Closing Date, the Custodian agrees, for the benefit of Certificateholders, to review
each Custodial File and to deliver to the Trustee an Interim Certification in the form annexed hereto as Exhibit Two to the effect
that all documents required to be delivered pursuant to Section 2.01(b) of the Pooling Agreement 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. For purposes of such review, the Custodian shall compare the following
information in each Custodial File to the corresponding information in the Mortgage Loan Schedule: (i) the loan number, (ii) the
borrower name and (iii) the original principal balance. In the event that any Mortgage Note or Assignment of Mortgage has been
delivered to the Custodian by the Company in blank, the Custodian, upon the direction of the Company, shall cause each such Mortgage
Note to be endorsed to the Trustee and each such Assignment of Mortgage to be completed in the name of the Trustee prior to the date
on which such Interim Certification is delivered to the Trustee. Within 45 days of receipt of the documents required to be delivered
pursuant to Section 2.01(c) of the Pooling Agreement, the Custodian agrees, for the benefit of the Certificateholders, to review each
such document, and upon the written request of the Trustee to deliver to the Trustee an updated Schedule A to the Interim
Certification. The Custodian shall be under no duty or obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine, enforceable, or appropriate for the represented purpose or that
they have actually been recorded or that they are other than what they purport to be on their face, or that the MIN is accurate. If
in performing the review required by this Section 2.3 the Custodian finds any document or documents constituting a part of a
Custodial File to be missing or defective in respect of the items reviewed as described in this Section 2.3(b), the Custodian shall
promptly so notify the Company, the Master Servicer and the Trustee.
(c) Upon receipt of all documents required to be in the Custodial Files the Custodian shall deliver to the Trustee
a Final Certification in the form annexed hereto as Exhibit Three evidencing the completeness of the Custodial Files.
Upon receipt of written request from the Trustee, the Company or the Master Servicer, the Custodian shall as soon as
practicable supply the Trustee with a list of all of the documents relating to the Mortgage Loans required to be delivered pursuant
to Section 2.01(b) of the Pooling Agreement not then contained in the Custodial Files.
Section 2.4. Notification of Breaches of Representations and Warranties. If the Custodian discovers, in the course
of performing its custodial functions, a breach of a representation or warranty made by the Master Servicer or the Company as set
forth in the Pooling Agreement with respect to a Mortgage Loan relating to a Custodial File, the Custodian shall give prompt written
notice to the Company, the Master Servicer and the Trustee.
Section 2.5. Custodian to Cooperate; Release of Custodial Files. Upon the repurchase or substitution of any
Mortgage Loan pursuant to Article II of the Pooling Agreement or payment in full of any Mortgage Loan, or 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 shall
immediately notify the Custodian by delivering to the Custodian a Request for Release (in the form of Exhibit Four attached hereto or
a mutually acceptable electronic form) and shall request delivery to it of the Custodial File. The Custodian agrees, upon receipt of
such Request for Release, promptly to release to the Master Servicer the related Custodial File.
Upon receipt of a Request for Release from the Master Servicer, signed by a Servicing Officer, that (i) the Master
Servicer or a Subservicer, as the case may be, has made a deposit into the Certificate Account in payment for the purchase of the
related Mortgage Loan in an amount equal to the Purchase Price for such Mortgage Loan or (ii) the Company has chosen to substitute a
Qualified Substitute Mortgage Loan for such Mortgage Loan, the Custodian shall release to the Master Servicer the related Custodial
File.
Upon written notification of a substitution, the Master Servicer shall deliver to the Custodian and the Custodian
agrees to accept the Mortgage Note and other documents constituting the Custodial File with respect to any Qualified Substitute
Mortgage Loan, upon receiving written notification from the Master Servicer of such substitution.
From time to time as is appropriate for the servicing or foreclosures of any Mortgage Loan, including, for this
purpose, collection under any Primary Insurance Policy or any Mortgage Pool Insurance Policy, the Master Servicer shall deliver to
the Custodian a Request for Release certifying as to the reason for such release. Upon receipt of the foregoing, the Custodian shall
deliver the Custodial File or such document to the Master Servicer. All Custodial Files so released to the Master Servicer shall be
held by it in trust for the Trustee for the use and benefit of all present and future Certificateholders. The Master Servicer shall
cause each Custodial File or any document therein so released to be returned to the Custodian 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 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
to the Custodian an updated Request for Release signed by 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. Immediately upon receipt of
any Custodial File returned to the Custodian by the Master Servicer, the Custodian shall deliver a signed acknowledgement to the
Master Servicer, confirming receipt of such Custodial File.
Upon the written request of the Master Servicer, the Custodian will send to the Master Servicer copies of any
documents contained in the Custodial File.
Section 2.6. Assumption Agreements. In the event that any assumption agreement or substitution of liability
agreement is entered into with respect to any Mortgage Loan subject to this Agreement in accordance with the terms and provisions of
the Pooling Agreement, the Master Servicer shall notify the Custodian that such assumption or substitution agreement has been
completed by forwarding to the Custodian the original of such assumption or substitution agreement, which shall be added to the
related Custodial File and, for all purposes, shall be considered a part of such Custodial File to the same extent as all other
documents and instruments constituting parts thereof.
ARTICLE III
Concerning the Custodian
Section 3.1. Custodian a Bailee and Agent of the Trustee. With respect to each Mortgage Note, Mortgage and other
documents constituting each Custodial File which are delivered to the Custodian, the Custodian is exclusively the bailee and agent of
the Trustee and has no instructions to hold any Mortgage Note or Mortgage for the benefit of any person other than the Trustee, holds
such documents for the benefit of Certificateholders and undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement. Except upon compliance with the provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage
or other document constituting a part of a Custodial File shall be delivered by the Custodian to the Company or the Master Servicer
or otherwise released from the possession of the Custodian.
The Master Servicer shall promptly notify the Custodian in writing if it shall no longer be a member of MERS, or if
it otherwise shall no longer be capable of registering and recording Mortgage Loans using MERS. In addition, the Master Servicer
shall (i) promptly notify the Custodian in writing when a MERS Mortgage Loan is no longer registered with and recorded under MERS and
(ii) concurrently with any such deregistration of a MERS Mortgage Loan, prepare, execute and record an original assignment from MERS
to the Trustee and deliver such assignment to the Custodian.
Section 3.2. Indemnification. The Company hereby agrees to indemnify and hold the Custodian harmless from and
against all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees or charges of
any character or nature, which the Custodian may incur or with which the Custodian may be threatened by reason of its acting as
custodian under this Agreement, including indemnification of the Custodian against any and all expenses, including attorney's fees if
counsel for the Custodian has been approved by the Company, and the cost of defending any action, suit or proceedings or resisting
any claim. Notwithstanding the foregoing, it is specifically understood and agreed that in the event any such claim, liability,
loss, action, suit or proceeding or other expense, fee or charge shall have been caused by reason of any negligent act, negligent
failure to act or willful misconduct on the part of the Custodian, or which shall constitute a willful breach of its duties
hereunder, the indemnification provisions of this Agreement shall not apply.
Section 3.3. Custodian May Own Certificates. The Custodian 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 Custodian.
Section 3.4. Master Servicer to Pay Custodian's Fees and Expenses. The Master Servicer covenants and agrees to
pay to the Custodian from time to time, and the Custodian shall be entitled to, reasonable compensation for all services rendered by
it in the exercise and performance of any of the powers and duties hereunder of the Custodian, and the Master Servicer shall pay or
reimburse the Custodian upon its request for all reasonable expenses, disbursements and advances incurred or made by the Custodian 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), except any such expense, disbursement or advance as may arise from its
negligence or bad faith.
Section 3.5. Custodian May Resign; Trustee May Remove Custodian. The Custodian may resign from the obligations and
duties hereby imposed upon it as such obligations and duties relate to its acting as Custodian of the Mortgage Loans. Upon receiving
such notice of resignation, the Trustee shall either take custody of the Custodial Files itself and give prompt notice thereof to the
Company, the Master Servicer and the Custodian, or promptly appoint a successor Custodian by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Custodian and one copy to the successor Custodian. If the Trustee shall
not have taken custody of the Custodial Files and no successor Custodian shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee, at the direction of the Master Servicer and the Company, may remove the Custodian at any time. In such
event, the Trustee shall appoint, or petition a court of competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision or examination by federal or state authority and shall
be able to satisfy the other requirements contained in Section 3.7 and shall be unaffiliated with the Master Servicer or the Company.
Any resignation or removal of the Custodian and appointment of a successor Custodian pursuant to any of the
provisions of this Section 3.5 shall become effective upon acceptance of appointment by the successor Custodian. The Trustee shall
give prompt notice to the Company and the Master Servicer of the appointment of any successor Custodian. No successor Custodian
shall be appointed by the Trustee without the prior approval of the Company and the Master Servicer.
Section 3.6. Merger or Consolidation of Custodian. Any Person into which the Custodian 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 Custodian
shall be a party, or any Person succeeding to the business of the Custodian, shall be the successor of the Custodian hereunder,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided that such successor is a depository institution subject to supervision or examination by federal
or state authority and is able to satisfy the other requirements contained in Section 3.7 and is unaffiliated with the Master
Servicer or the Company.
Section 3.7. Representations of the Custodian. The Custodian hereby represents that it is a depository institution
subject to supervision or examination by a federal or state authority, has a combined capital and surplus of at least $15,000,000 and
is qualified to do business in the jurisdictions in which it will hold any Custodial File.
ARTICLE IV
Compliance with Regulation AB
Section 4.1. Intent of the Parties; Reasonableness. The parties hereto acknowledge and agree that the purpose
of this Article IV 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 parties hereto 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 requests made by the Company in good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. The Custodian 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 4.2. Additional Representations and Warranties of the Custodian.
_________(a) The Custodian hereby represents and warrants that the information set forth under the caption "Pooling and
Servicing Agreement - Custodial Arrangements" (the "Custodian Disclosure") does not contain any untrue statement of a material fact
or omit to state a material required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
_________(b) The Custodian shall be deemed to represent to the Company as of the date hereof and on each date on which
information is provided to the Company under Section 4.3 that, except as disclosed in writing to the Company prior to such date: (i)
there are no aspects of its financial condition that could have a material adverse effect on the performance by it of its Custodian
obligations under this Agreement or any other Securitization Transaction as to which it is the custodian; (ii) there are no material
legal or governmental proceedings pending (or known to be contemplated) against it; and (iii) there are no affiliations,
relationships or transactions relating to the Custodian 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 such terms are used
in Regulation AB) relating to the Securitization Transaction contemplated by the Agreement, as identified by the Company to the
Custodian in writing as of the Closing Date (each, a "Transaction Party").
_________(c) If so requested by the Company on any date following the Closing Date, the Custodian 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
reasonably adequate disclosure of the pertinent facts, in writing, to the requesting party. 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 4.3. Additional Information to Be Provided by the Custodian. 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 Custodian shall (a) notify the Company in writing of any material litigation or governmental proceedings pending
against the Custodian that would be material to Certificateholders, and (b) provide to the Company a written description of such
proceedings. Any notices and descriptions required under this Section 4.3 shall be given no later than five Business Days prior to
the Determination Date following the month in which the Custodian has knowledge of the occurrence of the relevant event. As of the
date the Company or Master Servicer files each Report on Form 10-D or Form 10-K with respect to the Certificates, the Custodian will
be deemed to represent that any information previously provided under this Section 4.3, if any, is materially correct and does not
have any material omissions unless the Custodian has provided an update to such information.
_________Section 4.4. Report on Assessment of Compliance and Attestation. On or before March 15 of each calendar year,
the Custodian shall:
_________(a) deliver to the Company a report (in form and substance reasonably satisfactory to the Company) regarding
the Custodian’s assessment of compliance with the 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 Custodian, and shall address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit Five 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 Custodian 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.
_________Section 4.5. Indemnification; Remedies.
_________(a) The Custodian shall indemnify the Company, each affiliate of the Company, the Master Servicer and each
broker dealer acting as underwriter, placement agent or initial purchaser of the Certificates or each Person who controls any of such
parties (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 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 the Custodian Disclosure
and any information, report, certification, accountants’ attestation or other material provided under this Article IV by or on behalf
of the Custodian (collectively, the “Custodian Information”), or (B) the omission or alleged omission to state in the Custodian
Information a material fact required to be stated in the Custodian 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 Custodian to deliver any information, report, certification, accountants’ attestation or other
material when and as required under this Article IV.
_________(b) In the case of any failure of performance described in clause (ii) of Section 4.5(a), the Custodian shall
promptly reimburse the Company for all costs reasonably incurred by the Company in order to obtain the information, report,
certification, accountants’ letter or other material not delivered as required by the Custodian.
ARTICLE V
Miscellaneous Provisions
_________Section 5.1. Notices. All notices, requests, consents and demands and other communications required under this
Agreement or pursuant to any other instrument or document delivered hereunder shall be in writing and, unless otherwise specifically
provided, may be delivered personally, by telegram or telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless changed by the particular party whose address is stated
herein by similar notice in writing), in each case the notice will be deemed delivered when received.
_________Section 5.2. Amendments. No modification or amendment of or supplement to this Agreement shall be valid or
effective unless the same is in writing and signed by all parties hereto, and none of the Company, the Master Servicer or the Trustee
shall enter into any amendment of or supplement to this Agreement except as permitted by the Pooling Agreement. The Trustee shall
give prompt notice to the Custodian of any amendment or supplement to the Pooling Agreement and furnish the Custodian with written
copies thereof.
_________Section 5.3. Governing Law. This Agreement shall be deemed a contract made under the laws of the State of New York
and shall be construed and enforced in accordance with and governed by the laws of the State of New York.
_________Section 5.4. Recordation of Agreement. 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 evidencing undivided interests in the aggregate of not less than 25% of the Trust Fund), but only
upon direction accompanied by an Opinion of Counsel reasonably satisfactory to the Master Servicer to the effect that the failure to
effect such recordation is likely to materially and adversely affect the interests of the Certificateholders.
_________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 5.5. 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.
[Signature page follows]
IN WITNESS WHEREOF, this Agreement is executed as of the date first above written.
Address: U.S. BANK NATIONAL ASSOCIATION, as Trustee
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X _______ By:__________________________________________
Xx. Xxxx, XX 00000 Name:
Attention: Structured Finance, Title:
RASC 2006-EMX7
_________
_________
Address: RESIDENTIAL ASSET SECURITIES CORPORATION
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:__________________________________________
Name:
Title:
Address: RESIDENTIAL FUNDING CORPORATION,
as Master Servicer
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:__________________________________________
Name:
Title:
Address: XXXXX FARGO BANK, NATIONAL ASSOCIATION
Mortgage Document Custody
One Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
By:__________________________________________
Name:
Title:
STATE OF MINNESOTA )
) ss.:
COUNTY OF XXXXXX )
On the ______ day of August 2006, before me, a notary public in and for said State, personally appeared ________________,
known to me to be a(n) _____________ 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]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ______ day of August 2006, before me, a notary public in and for said State, personally appeared
________________, known to me to be a(n) Assistant Vice President of Xxxxx Fargo 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]
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
On the ______ day of August 2006, before me, a notary public in and for said State, personally appeared
[________________], known to me to be a(n) Vice President of Residential Asset Securities Corporation, one of the corporations that
executed the within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged
to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate
first above written.
________________________________________
Notary Public
[Notarial Seal]
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
On the______ day of August 2006, before me, a notary public in and for said State, personally appeared
[________________], known to me to be a(n) Associate of Residential Funding Corporation, one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on behalf of said corporation, and acknowledged to me that
such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate
first above written.
________________________________________
Notary Public
[Notarial Seal]
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
August _____, 2006
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000
Attention: Structured Finance, RASC 2006-EMX7
Re: Custodial Agreement, dated as of August 1, 2006, by and among U.S. Bank National Association, Residential Asset
Securities Corporation, Residential Funding Corporation and Xxxxx Fargo Bank, National Association, relating to Home
Equity Mortgage Asset-Backed Pass-Through Certificates Series 2006-EMX7
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement, and subject to Section 2.02 of the
Pooling Agreement, the undersigned, as Custodian, hereby certifies that it has received a Custodial File (which contains an original
Mortgage Note or an original Lost Note Affidavit with a copy of the related Mortgage Note) to the extent required in Section 2.01(b)
of the Pooling Agreement with respect to each Mortgage Loan listed in the Mortgage Loan Schedule, with any exceptions listed on
Schedule A attached hereto.
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned
Custodial Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:___________________________________
Name:
Title:
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
August _____, 2006
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000
Attention: Structured Finance, RASC 2006-EMX7
Re: Custodial Agreement, dated as of August 1, 2006, by and among U.S. Bank National Association, Residential Asset
Securities Corporation, Residential Funding Corporation and Xxxxx Fargo Bank, National Association, relating to Home
Equity Mortgage Asset-Backed Pass-Through Certificates Series 2006-EMX7
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement, the undersigned, as Custodian, hereby
certifies that it has received a Custodial File to the extent required pursuant to Section 2.01(b) of the Pooling Agreement with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule, and it has reviewed the Custodial File and the Mortgage Loan
Schedule and has determined that: all required documents have been executed and received and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule, with any exceptions listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned
Custodial Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
August _____, 2006
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000
Attention: Structured Finance, RASC 2006-EMX7
Re: Custodial Agreement, dated as of August 1, 2006, by and among U.S. Bank National Association, Residential Asset
Securities Corporation, Residential Funding Corporation and Xxxxx Fargo Bank, National Association, relating to Home
Equity Mortgage Asset-Backed Pass-Through Certificates Series 2006-EMX7
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial Agreement, the undersigned, as Custodian,
hereby certifies that it has received a Custodial File with respect to each Mortgage Loan listed in the Mortgage Loan Schedule and it
has reviewed the Custodial File and the Mortgage Loan Schedule and has determined that: all required documents referred to in
Section 2.01(b) of the Pooling Agreement have been executed and received and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule.
Capitalized words and phrases used herein shall have the respective meanings assigned to them in the above-captioned
Custodial Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:___________________________________
Name:
Title:
EXHIBIT FOUR
FORM 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.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one)
Mortgage Loan Prepaid in Full Mortgage Loan Repurchased
“;We hereby certify that all amounts received or to be received in connection with such payments which are required to be deposited
have been or will be so deposited as provided in the Pooling and Servicing Agreement.”;
_______________________________
Residential Funding Corporation
Authorized Signature
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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 FIVE
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Custodian shall address, at a minimum, the criteria identified as below
as “;Applicable Servicing Criteria”;:
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Applicable Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(1)(i) Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
transaction agreements.
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1122(d)(1)(ii) 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 such servicing
activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the pool assets are maintained.
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1122(d)(1)(iv) 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 the transaction
agreements.
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Cash Collection and Administration
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1122(d)(2)(i) Payments on pool assets are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of
days specified in the transaction agreements.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to
an investor are made only by authorized personnel.
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1122(d)(2)(iii) 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 approved as specified in the
transaction agreements.
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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
respect to commingling of cash) as set forth in the transaction
1122(d)(2)(iv) agreements.
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1122(d)(2)(v) 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) of the Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
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1122(d)(2)(vii) 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 agreements.
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Investor Remittances and Reporting
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1122(d)(3)(i) 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 serviced by the
servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
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Disbursements made to an investor are posted within two business
days to the servicer’s investor records, or such other number of
1122(d)(3)(iii) days specified in the transaction agreements.
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Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
1122(d)(3)(iv) statements.
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Pool Asset Administration
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1122(d)(4)(i) Collateral or security on pool assets is maintained as required by |X|
the transaction agreements or related asset pool documents.
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Pool assets and related documents are safeguarded as required by |X|
1122(d)(4)(ii) the transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
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1122(d)(4)(iv) 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 documents.
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1122(d)(4)(v) The servicer’s records regarding the pool assets agree with the
servicer’s records with respect to an obligor’s unpaid principal
balance.
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1122(d)(4)(vi) 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 asset documents.
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1122(d)(4)(vii) 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 transaction agreements.
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1122(d)(4)(viii) 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 is deemed
temporary (e.g., illness or unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool assets
with variable rates are computed based on the related pool asset
documents.
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1122(d)(4)(x) 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 agreements.
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1122(d)(4)(xi) 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 number of days specified in the transaction agreements.
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1122(d)(4)(xii) 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 omission.
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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 specified in the transaction
1122(d)(4)(xiii) agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
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Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
1122(d)(4)(xv) as set forth in the transaction agreements.
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EXHIBIT F
MORTGAGE LOAN SCHEDULE
[FILED WITH THE SECURITIES AND EXCHANGE COMMISSION BY FORM 8-K]
EXHIBIT G
FORM 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.
Pooling and Servicing Agreement, Dated:
Series#:
Account#:
Pool#:
Loan#:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
“;We hereby certify that all amounts received or to be received in connection with such payments which are required to be deposited
have been or will be so deposited as provided in the Pooling and Servicing Agreement.”;
______________________________
Residential Funding Corporation
Authorized Signature
*****************************************************************************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents being enclosed with a copy of this form. You should
retain this form for your files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other: ________________________
___________________________
Name
___________________________
Title
___________________________
Date
EXHIBIT H-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 Home Equity Mortgage Asset-Backed
Pass-Through Certificates, Series 2006-EMX7, 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 Section 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 an electing large partnership under the Code, that applies to all transfers of Class R Certificates after March 31,
1988; (ii) that such tax would be on the transferor (or, with respect to transfers to electing large partnerships, on each such
partnership), or, if such transfer is through an agent (which person includes a broker, nominee or middleman) for a disqualified
organization, on the agent; (iii) that the person (other than with respect to transfers to electing large partnerships) otherwise
liable for the tax shall be relieved of liability for the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such person does not have actual knowledge that the
affidavit is false; and (iv) that the Class R Certificates may be “noneconomic residual interests” within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a noneconomic residual interest will remain liable for any
taxes due with respect to the income on such residual interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a “pass-through entity” holding Class R Certificates if either the
pass-through entity is an electing large partnership under Section 775 of the Code or if at any time during the taxable year of the
pass-through entity a disqualified organization is the record holder of an interest in such entity. (For this purpose, a “pass
through entity” includes a regulated investment company, a real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.)
5. 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.
6. 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.
7. 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.
8. The Owner’s Taxpayer Identification Number is ____________________.
9. 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.
10. 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 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 Annex I.
11. 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.
12. 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.
13. 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.
14. 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 or another United States
taxpayer.
15. The Owner hereby certifies, represents and warrants to, and covenants with the Depositor, the Trustee and the Master
Servicer that the following statements in (a) or (b) are accurate:
(a) The Certificates are not being acquired by, and will not be transferred to, any employee benefit plan or
other plan or arrangement subject to the prohibited transaction provisions of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any person
(including an insurance company investing its general account, 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 of the foregoing, a “Plan Investor”); or
(b) The Owner has provided the Trustee, the Depositor and the Master Servicer with an Opinion of Counsel
acceptable to and in form and substance satisfactory to the Trustee, the Depositor and the Master Servicer to the effect that the
purchase or 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 Depositor, 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 at the expense of the Trustee, the Depositor or the Master Servicer.
In addition, the Owner hereby certifies, represents and warrants to, and covenants with, the Depositor, the Trustee and the
Master Servicer that the Owner will not transfer such Certificates to any Plan Investor or person unless either such Plan Investor or
person meets the requirements set forth in either (a) or (b) above.
Capitalized terms used but not defined herein shall have the meanings assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on its behalf, pursuant to the authority of its
Board of Directors, by its [Title of Officer] and its corporate seal to be hereunto attached, attested by its [Assistant] Secretary,
this ____ day of ______________ 200__.
[NAME OF OWNER]
By: ___________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or proved to me to be the same person who
executed the foregoing instrument and to be the [Title of Officer] of the Owner, and acknowledged to me that he executed the same as
his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ___________________________ day of __________________, 200_.
__________________________________________
NOTARY PUBLIC
COUNTY OF ______________________________
STATE OF ________________________________
My Commission expires the ___ day of __________, 20__
ANNEX I TO EXHIBIT H-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.
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SUMMARY: This document contains final regulations relating to safe harbor transfers of noneconomic residual interests in real estate
mortgage investment conduits (REMICs). The final regulations provide additional limitations on the circumstances under which
transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and, pending receipt and evaluation of public comments,
approved by the Office of Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number 1545-1675.
The collection of information in this regulation is in Sec. 1.860E-1(c)(5)(ii). This information is required to enable the
IRS to verify that a taxpayer is complying with the conditions of this regulation. The collection of information is mandatory and is
required. Otherwise, the taxpayer will not receive the benefit of safe harbor treatment as provided in the regulation. The likely
respondents are businesses and other for-profit institutions.
Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the
Department of the Treasury, Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX, 00000, with copies to the Internal Revenue
Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the collection of information should
be received by September 17, 2002. Comments are specifically requested concerning:
o 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;
o The accuracy of the estimated burden associated with the collection of information (see below);
o How the quality, utility, and clarity of the information to be collected may be enhanced;
o 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
o 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 enable the transferor to impede the assessment or collection of tax. A purpose to impede the assessment or
collection of tax (a wrongful purpose) exists if the transferor, at the time of the transfer, either knew or should have known that
the transferee would be unwilling or unable to pay taxes due on its share of the REMIC’s taxable income. Under a safe harbor, the
transferor of a REMIC noneconomic residual interest is presumed not to have a wrongful purpose if two requirements are satisfied: (1)
the transferor conducts a reasonable investigation of the transferee’s financial condition (the investigation requirement); and (2)
the transferor secures a representation from the transferee to the effect that the transferee understands the tax obligations
associated with holding a residual interest and intends to pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of noneconomic residual interests claim they satisfy the safe
harbor even in situations where the economics of the transfer clearly indicate the transferee is unwilling or unable to pay the tax
associated with holding the interest. For this reason, on February 7, 2000, the IRS published in the Federal Register (65 FR 5807) a
notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed to clarify the safe harbor by adding the “formula test,” an
economic test. The proposed regulation provides that the safe harbor is unavailable unless the present value of the anticipated tax
liabilities associated with holding the residual interest does not exceed the sum of: (1) The present value of any consideration
given to the transferee to acquire the interest; (2) the present value of the expected future distributions on the interest; and (3)
the present value of the anticipated tax savings associated with holding the interest as the REMIC generates losses.
The notice of proposed rulemaking also contained rules for FASITs. Section 1.860H-6(g) of the proposed regulations provides
requirements for transfers of FASIT ownership interests and adopts a safe harbor by reference to the safe harbor provisions of the
REMIC regulations. In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to set forth an alternative safe harbor
that taxpayers could use while the IRS and the Treasury considered comments on the proposed regulations. Under the alternative safe
harbor, if a transferor meets the investigation requirement and the representation requirement but the transfer fails to meet the
formula test, the transferor may invoke the safe harbor if the transferee meets a two-prong test (the asset test). A transferee
generally meets the first prong of this test if, at the time of the transfer, and in each of the two years preceding the year of
transfer, the transferee’s gross assets exceed $100 million and its net assets exceed $10 million. A transferee generally meets the
second prong of this test if it is a domestic, taxable corporation and agrees in writing not to transfer the interest to any person
other than another domestic, taxable corporation that also satisfies the requirements of the asset test. A transferor cannot rely on
the asset test if the transferor knows, or has reason to know, that the transferee will not comply with its written agreement to
limit the restrictions on subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied in the case of a transfer or assignment of a
noneconomic residual interest to a foreign branch of an otherwise eligible transferee. If such a transfer or assignment were
permitted, a corporate taxpayer might seek to claim that the provisions of an applicable income tax treaty would resource excess
inclusion income as foreign source income, and that, as a consequence, any U.S. tax liability attributable to the excess inclusion
income could be offset by foreign tax credits. Such a claim would impede the assessment or collection of U.S. tax on excess inclusion
income, contrary to the congressional purpose of assuring that such income will be taxable in all events. See, e.g., sections
860E(a)(1), (b), (e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers transferring noneconomic residual interests to foreign branches
have attempted to rely on the formula test to obtain safe harbor treatment in an effort to impede the assessment or collection of
U.S. tax on excess inclusion income. Accordingly, the final regulations provide that if a noneconomic residual interest is
transferred to a foreign permanent establishment or fixed base of a U.S. taxpayer, the transfer is not eligible for safe harbor
treatment under either the asset test or the formula test. The final regulations also require a transferee to represent that it will
not cause income from the noneconomic residual interest to be attributable to a foreign permanent establishment or fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer may use to qualify for safe harbor status under the
formula test. Section 1.860E-1(c)(8)(i) provides that the transferee is presumed to pay tax at a rate equal to the highest rate of
tax specified in section 11(b). Some commentators were concerned that this presumed rate of taxation was too high because it does not
take into consideration taxpayers subject to the alternative minimum tax rate. In light of the comments received, this provision has
been amended in the final regulations to allow certain transferees that compute their taxable income using the alternative minimum
tax rate to use the alternative minimum tax rate applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present values in the formula test are to be computed using a
discount rate equal to the applicable Federal short-term rate prescribed by section 1274(d). This is a change from the proposed
regulation and Rev. Proc. 2001-12. In those publications the provision stated that “present values are computed using a discount
rate equal to the applicable Federal rate prescribed in section 1274(d) compounded semiannually” and that “[a] lower discount rate
may be used if the transferee can demonstrate that it regularly borrows, in the course of its trade or business, substantial funds at
such lower rate from an unrelated third party.” The IRS and the Treasury Department have learned that, based on this provision,
certain taxpayers have been attempting to use unrealistically low or zero interest rates to satisfy the formula test, frustrating the
intent of the test. Furthermore, the Treasury Department and the IRS believe that a rule allowing for a rate other than a rate based
on an objective index would add unnecessary complexity to the safe harbor. As a result, the rule in the proposed regulations that
permits a transferee to use a lower discount rate, if the transferee can demonstrate that it regularly borrows substantial funds at
such lower rate, is not included in the final regulations; and the Federal short-term rate has been substituted for the applicable
Federal rate. To simplify taxpayers’ computations, the final regulations allow use of any of the published short-term rates, provided
that the present values are computed with a corresponding period of compounding. With the exception of the provisions relating to
transfers to foreign branches, these changes generally have the proposed applicability date of February 4, 2000, but taxpayers may
choose to apply the interest rate formula set forth in the proposed regulation and Rev. Proc. 2001-12 for transfers occurring before
August 19, 2002.
It is anticipated that when final regulations are adopted with respect to FASITs, Sec. 1.860H-6(g) of the proposed
regulations will be adopted in substantially its present form, with the result that the final regulations contained in this document
will also govern transfers of FASIT ownership interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of noneconomic residual interests in REMICs occurring on or
after August 19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small
entities. This certification is based on the fact that it is unlikely that a substantial number of small entities will hold REMIC
residual interests. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It also has been determined that sections 553(b) and 553(d) of the
Administrative Procedure Act (5 U.S.C. chapter 5) do not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However, other personnel from the IRS and Treasury
Department participated in their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
______________, 20__
U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Structured Finance/RASC, Series 2006-EMX7
Re: Mortgage Asset-Backed Pass-Through Certificates, Series 2006-EMX7
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 Asset-Backed Pass-Through
Certificates, Series 2006-EMX7, Class R (the “Certificates”), pursuant to Section 5.02 of the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”), dated as of August 1, 2006 among Residential Asset Securities Corporation, as depositor (the
“Depositor”), Residential Funding Corporation, as master servicer, and U.S. Bank National Association, 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 Depositor 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 H-1. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable investigation of the financial condition of the Purchaser
as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Seller has determined
that the Purchaser has historically paid its debts as they become due and has found no significant evidence to indicate that the
Purchaser will not continue to pay its debts as they become due in the future. The Seller understands that the transfer of a Class R
Certificate may not be respected for United States income tax purposes (and the Seller may continue to be liable for United States
income taxes associated therewith) unless the Seller has conducted such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee is not both a United States Person and a Permitted
Transferee.
Very truly yours,
_______________________________________
(Seller)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT I
FORM OF INVESTOR REPRESENTATION LETTER
______________, 20__
Residential Asset Securities Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Structured Finance/RASC 0000-XXX0
Xxxxxxxxxxx Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Corporation Series 2006-EMX7
Re: Home Equity Mortgage Asset-Backed Pass-Through Certificates,
Series 2006-EMX7, Class [SB] [R]
Ladies and Gentlemen:
_________________________ (the “Purchaser”) intends to purchase from ___________________________ (the “Seller”)
$_____________ Initial Certificate Principal Balance of Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series
2006-EMX7, Class [SB] [R-[__]] (the “Certificates”), issued pursuant to the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”), dated as of August 1, 2006 among Residential Asset Securities Corporation, as depositor (the “Depositor”),
Residential Funding Corporation, as master servicer (the “;Master Servicer”;), and U.S. Bank National Association, 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 Depositor, 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 Depositor is not required to so
register or qualify the Certificates, (c) the Certificates may be resold only if registered and qualified pursuant
to the provisions of the Act or any state securities law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing Agreement contains restrictions regarding the transfer of
the Certificates and (e) the Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would violate the Act or any applicable state securities
laws.
3. The Purchaser is (a) a substantial, sophisticated institutional investor having such knowledge and experience in financial
and business matters, and, in particular, in such matters related to securities similar to the Certificates, such
that it is capable of evaluating the merits and risks of investment in the Certificates, (b) able to bear the
economic risks of such an investment and (c) an “accredited investor” within the meaning of Rule 501(a) promulgated
pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity to review (a) [a copy of the Private Placement Memorandum,
dated ___________________, 20__, relating to the Certificates (b)] a copy of the Pooling and Servicing Agreement and
[b] [c] such other information concerning the Certificates, the Mortgage Loans and the Depositor as has been
requested by the Purchaser from the Depositor 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 Depositor 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
Depositor, the Purchaser acknowledges that such Memorandum was provided to it by the Seller, that the Memorandum was
prepared by the Depositor solely for use in connection with the Original Sale and the Depositor 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 Depositor with respect to any damage, liability, claim
or expense arising out of, resulting from or in connection with (a) error or omission, or alleged error or omission,
contained in the Memorandum, or (b) any information, development or event arising after the date of the Memorandum.]
5. The Purchaser has not and will not nor has it authorized or will it authorize any person to (a) offer, pledge, sell, dispose
of or otherwise transfer any Certificate, any interest in any Certificate or any other similar security to any
person in any manner, (b) solicit any offer to buy or to accept a pledge, disposition of other transfer of any
Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (d) make any general solicitation by means of general advertising or
in any other manner or (e) take any other action, that (as to any of (a) through (e) above) would constitute a
distribution of any Certificate under the Act, that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require registration or qualification pursuant
thereto. The Purchaser will not sell or otherwise transfer any of the Certificates, except in compliance with the
provisions of the Pooling and Servicing Agreement.
6. The Purchaser hereby certifies, represents and warrants to, and covenants with the Depositor, the Trustee and the Master
Servicer that the following statements in (a) or (b) are correct:
(a) The Purchaser is not an employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any person
(including an insurance company investing its general account, 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 of
the foregoing, a “Plan Investor”); or
(b) the Purchaser has provided the Trustee, the Depositor and the Master Servicer with an
Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Depositor and
the Master Servicer to the effect that the purchase or 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 Depositor 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
Depositor or the Master Servicer.
In addition, the Purchaser hereby certifies, represents and warrants to, and covenants with, the Depositor, the Trustee and
the Master Servicer that the Purchaser will not transfer such Certificates to any Plan Investor or person unless either such Plan
Investor or person meets the requirements set forth in either (a) or (b) above.
Very truly yours,
____________________________________________________
(Purchaser)
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
EXHIBIT J
FORM OF TRANSFEROR REPRESENTATION LETTER
______________, 20__
Residential Asset Securities Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Structured Finance/RASC 2006-EMX7
Attention: Residential Funding Corporation Series 2006-EMX7
Re: Home Equity Mortgage Asset-Backed Pass-Through Certificates,
Series 2006-EMX7, Class [SB] [R]
Ladies and Gentlemen:
In connection with the sale by __________ (the “Seller”) to __________ (the “Purchaser”) of $__________ Initial
Certificate Principal Balance of Home Equity Mortgage Asset- Backed Pass-Through Certificates, Series 2006-EMX7, Class [SB] [R-[__]]
(the “Certificates”), issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of
August 1, 2006 among Residential Asset Securities Corporation, as depositor (the “Depositor”), Residential Funding Corporation, as
master servicer, and U.S. Bank National Association, as trustee (the “Trustee”). The Seller hereby certifies, represents and
warrants to, and covenants with, the Depositor and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise
transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) has
solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate
or any other similar security from any person in any manner, (c) has otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) has made any general
solicitation by means of general advertising or in any other manner, or (e) has taken any other action, that (as to any of (a)
through (e) above) would constitute a distribution of the Certificates under the Securities Act of 1933 (the “Act”), that would
render the disposition of any Certificate a violation of Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Seller has not and will not sell or otherwise transfer any of the Certificates, except in compliance
with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
____________________________________________________
(Purchaser)
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
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 Subservicer will be entitled to any reimbursement pursuant to Section 3.10 on such Distribution Date for
Advances or Subservicer Advances previously made, (which will not be Advances or Subservicer 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 Subservicer Advances reimbursed pursuant to Section 3.10, to the extent such Advances or Subservicer 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 SB
Certificateholders in the same manner as if such amount were to be distributed pursuant to Section 4.02.
(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 SB 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 SB Certificateholders in the same manner as if such
amount were to be distributed pursuant to Section 4.02; 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 SB 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 SB 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 SB Certificates will not be covered by the Subordinate Certificate Loss Obligation.
(c) Demands for payments pursuant to this Section shall be made prior to the later of the third Business Day
prior to each Distribution Date or the related Determination Date by the Master Servicer with written notice thereof to the Trustee.
The maximum amount that Residential Funding shall be required to pay pursuant to this Section on any Distribution Date (the “Amount
Available”) shall be equal to the lesser of (X) ________ minus the sum of (i) all previous payments made under subsections (a) and
(b) hereof and (ii) all draws under the Limited Guaranty made in lieu of such payments as described below in subsection (d) and
(Y) the then outstanding Certificate Principal Balances of the Class SB 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 General Motors Acceptance Corporation of any failure of Residential
Funding to make any payments hereunder and shall demand payment pursuant to the limited guaranty (the “Limited Guaranty”), executed
by General Motors Acceptance Corporation, of Residential Funding’s obligation to make payments pursuant to this Section, in an amount
equal to the lesser of (i) the Amount Available and (ii) such required payments, by delivering to General Motors Acceptance
Corporation a written demand for payment by wire transfer, not later than the second Business Day prior to the Distribution Date for
such month, with a copy to the Master Servicer.
(e) All payments made by Residential Funding pursuant to this Section or amounts paid under the Limited
Guaranty shall be deposited directly in the Certificate Account, for distribution on the Distribution Date for such month to the
Class SB Certificateholders.
(f) The Depositor 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
Depositor obtains (subject to the provisions of Section 10.01(f) as if the Depositor was substituted for the Master Servicer solely
for the purposes of such provision) an Opinion of Counsel (which need not be an opinion of independent counsel) to the effect that
obtaining such substitute corporate guaranty, irrevocable letter of credit, surety bond, insurance policy or similar instrument or
reserve fund will not cause either (a) any federal tax to be imposed on the Trust Fund, including without limitation, any federal tax
imposed on “prohibited transactions” under Section 860(F)(a)(1) of the Code or on “contributions after the startup date” under
Section 860(G)(d)(1) of the Code or (b) the Trust Fund to fail to qualify as a REMIC at any time that any Certificate is outstanding,
and (ii) no such substitution shall be made unless (A) the substitute Limited Guaranty or Subordinate Certificate Loss Obligation is
for an initial amount not less than the then current Amount Available and contains provisions that are in all material respects
equivalent to the original Limited Guaranty or Subordinate Certificate Loss Obligation (including that no portion of the fees,
reimbursements or other obligations under any such instrument will be borne by the Trust Fund), (B) the long term debt obligations of
any obligor of any substitute Limited Guaranty or Subordinate Certificate Loss Obligation (if not supported by the Limited Guaranty)
shall be rated at least the lesser of (a) the rating of the long term debt obligations of General Motors Acceptance Corporation as of
the date of issuance of the Limited Guaranty and (b) the rating of the long term debt obligations of General Motors Acceptance
Corporation at the date of such substitution and (C) if the Class SB Certificates have been rated, the Depositor obtains written
confirmation from each Rating Agency that rated the Class SB Certificates at the request of the Depositor that such substitution
shall not lower the rating on the Class SB Certificates below the lesser of (a) the then-current rating assigned to the Class SB
Certificates by such Rating Agency and (b) the original rating assigned to the Class SB 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 Depositor, 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 Depositor 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 Depositor shall also obtain a letter from each
Rating Agency that rated the Class SB Certificates at the request of the Depositor to the effect that such amendment, reduction,
deletion or cancellation will not lower the rating on the Class SB Certificates below the lesser of (a) the then-current rating
assigned to the Class SB Certificates by such Rating Agency and (b) the original rating assigned to the Class SB Certificates by such
Rating Agency, unless (A) the Holder of 100% of the Class SB 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 Depositor obtains (subject to the provisions of Section 10.01(f) as if the Depositor 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 L
FORM OF LIMITED GUARANTY
RESIDENTIAL ASSET SECURITIES CORPORATION
Home Equity Mortgage Asset-Backed Pass-Through Certificates
Series 2006-EMX7
__________, 20__
U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Structured Finance/RASC 2006-EMX7
Ladies and Gentlemen:
WHEREAS, Residential Funding Corporation, a Delaware corporation (“Residential Funding”), an indirect wholly-owned
subsidiary of General Motors Acceptance Corporation, a New York corporation (“GMAC”), plans to incur certain obligations as described
under Section 13.01 of the Pooling and Servicing Agreement dated as of August 1, 2006 (the “Servicing Agreement”), among Residential
Asset Securities Corporation (the “Depositor”), Residential Funding and U.S. Bank National Association (the “Trustee”) as amended by
Amendment No. ___ thereto, dated as of ________, with respect to the Home Equity Mortgage Asset-Backed Pass-Through Certificates,
Series 2006-EMX7 (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 SB Certificates with respect to certain losses on the Mortgage Loans as described in the Servicing Agreement; and
WHEREAS, GMAC desires to provide certain assurances with respect to the ability of Residential Funding to secure
sufficient funds and faithfully to perform its Subordinate Certificate Loss Obligation;
NOW THEREFORE, in consideration of the premises herein contained and certain other good and valuable consideration,
the receipt of which is hereby acknowledged, GMAC agrees as follows:
1. Provision of Funds. (a) GMAC agrees to contribute and deposit in the Certificate Account on behalf of Residential Funding
(or otherwise provide to Residential Funding, or to cause to be made available to Residential Funding), either directly or through a
subsidiary, in any case prior to the related Distribution Date, such moneys as may be required by Residential Funding to perform its
Subordinate Certificate Loss Obligation when and as the same arises from time to time upon the demand of the Trustee in accordance
with Section 13.01 of the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall be absolute, irrevocable and unconditional and
shall not be affected by the transfer by GMAC or any other person of all or any part of its or their interest in Residential Funding,
by any insolvency, bankruptcy, dissolution or other proceeding affecting Residential Funding or any other person, by any defense or
right of counterclaim, set-off or recoupment that GMAC may have against Residential Funding or any other person or by any other fact
or circumstance. Notwithstanding the foregoing, GMAC’s obligations under clause (a) shall terminate upon the earlier of
(x) substitution for this Limited Guaranty pursuant to Section 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 non-action 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. __ to the Servicing Agreement and GMAC hereby authorizes the Depositor and the Trustee
to rely on the covenants and agreements set forth herein.
7. Definitions. Capitalized terms used but not otherwise defined herein shall have the meaning given them in the Servicing
Agreement.
8. Counterparts. This Limited Guaranty may be executed in any number of counterparts, each of which shall be deemed to be an
original and such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be executed and delivered by its respective officers
thereunto duly authorized as of the day and year first above written.
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
Acknowledged by:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
RESIDENTIAL ASSET SECURITIES
CORPORATION
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
__________, 20__
Residential Asset Securities Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Structured Finance/RASC 2006-EMX7
Re: Home Equity Mortgage Asset-Backed Pass-Through Certificates,
Series 2006-EMX7 Assignment of Mortgage Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the assignment by U.S Bank National Association (the “Trustee”) to
_______________________ (the “Lender”) of _______________ (the “Mortgage Loan”) pursuant to Section 3.13(d) of the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of August 1, 2006 among Residential Asset Securities
Corporation, as depositor (the “Depositor”), Residential Funding Corporation, as master servicer, and the Trustee. All terms used
herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement. The Lender hereby
certifies, represents and warrants to, and covenants with, the Master Servicer and the Trustee that:
(ii) 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;
(iii) 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;
(iv) 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
(v) such assignment is at the request of the borrower under the related Mortgage Loan.
Very truly yours,
_____________________________________________________
(Lender)
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
EXHIBIT N
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
The undersigned seller, as registered holder (the “Seller”), intends to transfer the Rule 144A Securities described
above to the undersigned buyer (the “Buyer”).
1. In connection with such transfer and in accordance with the agreements pursuant to which the Rule 144A Securities were
issued, the Seller hereby certifies the following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security from, or otherwise approached or negotiated with respect to the
Rule 144A Securities, any interest in the Rule 144A Securities or any other similar security with, any person in any manner, or made
any general solicitation by means of general advertising or in any other manner, or taken any other action, that would constitute a
distribution of the Rule 144A Securities under the Securities Act of 1933, as amended (the “1933 Act”), or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the 1933 Act or require registration pursuant thereto, and that
the Seller has not offered the Rule 144A Securities to any person other than the Buyer or another “qualified institutional buyer” as
defined in Rule 144A under the 0000 Xxx.
2. The Buyer, pursuant to Section 5.02 of the Pooling and Servicing Agreement (the “Agreement”), dated as of August 1, 2006
among Residential Funding Corporation, as master servicer (the “Master Servicer”), Residential Asset Securities Corporation, as
depositor (the “Depositor”), and U.S. Bank National Association, as trustee (the “Trustee”) warrants and represents to, and covenants
with, the Seller, the Trustee and the Master Servicer as follows:
a. The Buyer understands that the Rule 144A Securities have not been registered under the 1933 Act or the securities laws of
any state.
b. The Buyer considers itself a substantial, sophisticated institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The Buyer has been furnished with all information regarding the Rule 144A Securities that it has requested from the Seller,
the Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security from, or otherwise approached or negotiated with respect to the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it
authorize any person to act, in such manner with respect to the Rule 144A Securities.
e. The Buyer is a “qualified institutional buyer” as that term is defined in Rule 144A under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as Annex I or Annex II. 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 of Class SB Certificates or Class R Certificates
a. is not an employee benefit plan or other plan or arrangement subject to the prohibited transaction provisions of ERISA or
Section 4975 of the Code, or any person (including an insurance company investing its general account, 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; or
b. has provided the Trustee, the Depositor and the Master Servicer with the Opinion of Counsel described in Section 5.02(e)(i)
of the Agreement, which shall be acceptable to and in form and substance satisfactory to the Trustee, the Depositor, and the
Master Servicer to the effect that the purchase or holding of this Certificate 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 Depositor, 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 Depositor or the
Master Servicer.
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 Purchaser
By: ___________________________________________________ By: ___________________________________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No._____________________________________________________ No._____________________________________________________
Date:___________________________________________________ Date:___________________________________________________
ANNEX I TO EXHIBIT N
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A Investment Representation to which this
Certification is attached:
1._______As indicated below, the undersigned is the President, Chief Financial Officer, Senior Vice President or other executive
officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a “qualified institutional buyer” as that term is defined in Rule
144A under the Securities Act of 1933 (“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary basis
$______________________ in securities (except for the excluded securities referred to below) as of the end of the Buyer’s most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the category
marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank, savings and loan association or similar
institution), placeStateMassachusetts 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.
___ Investment Adviser. The Buyer is an investment adviser registered under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust company and whose participants are
exclusively (a) plans established and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of its employees, or (b) employee
benefit plans within the meaning of Title I of the Employee Retirement Income Security Act of 1974, but is not a
trust fund that includes as participants individual retirement accounts or H.R. 10 plans.
3. The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Buyer, (ii)
securities that are part of an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer, (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Buyer,
the Buyer used the cost of such securities to the Buyer and did not include any of the securities referred to in the preceding
paragraph. Further, in determining such aggregate amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and understands that the seller to it and other parties related to
the Certificates are relying and will continue to rely on the statements made herein because one or more sales to the Buyer may be in
reliance on Rule 144A.
____ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities for the Buyer’s own account?
6. If the answer to the foregoing question is “no”, the Buyer agrees that, in connection with any purchase of securities sold
to the Buyer for the account of a third party (including any separate account) in reliance on Rule 144A, the Buyer will only purchase
for the account of a third party that at the time is a “qualified institutional buyer” within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party unless the Buyer has obtained a current representation
letter from such third party or taken other appropriate steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of “qualified institutional buyer” set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Buyer’s purchase of Rule 144A Securities will constitute a reaffirmation of this
certification as of the date of such purchase.
_____________________________________________________________
Print Name of Buyer
By: _____________________________________________________
Name:
Title:
Date: _____________________________________________________
ANNEX II TO EXHIBIT N
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:
8. 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.
9. 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).
10. 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).
11. 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.
12. 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.
13. 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 ADVISER:
Print Name of Buyer
Date: _____________________________________________________
EXHIBIT O
[RESERVED]
EXHIBIT P
FORM OF ERISA REPRESENTATION LETTER
__________, 20__
Residential Asset Securities Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
U.S. Bank National Association
EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Structured Finance/RASC 0000-XXX0
Xxxxxxxxxxx Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Home Equity Mortgage Asset-Backed Pass-Through Certificates,
Series 2006-EMX7, Class SB
Ladies and Gentlemen:
[____________________________________] (the “Purchaser”) intends to purchase from [______________________________] (the
“Seller”) $[____________] Initial Certificate Principal Balance of Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series
2006-EMX7, Class ____ (the “Certificates”), issued pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”;), dated as of August 1, 2006 among Residential Asset Securities Corporation, as the depositor (the “Depositor”),
Residential Funding Corporation, as master servicer (the “Master Servicer”) and U.S. Bank National Association, 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 Depositor, the Trustee and the Master Servicer
that:
(a) The Purchaser is not an employee benefit plan or other plan or arrangement subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), or any person (including an insurance company investing its general
account, 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 of the foregoing, a “Plan Investor”); or
(b) The Purchaser has provided the Trustee, the Depositor and the Master Servicer with the Opinion of Counsel
described in Section 5.02(e)(i) of the Agreement, which shall be acceptable to and in form and substance satisfactory to the
Trustee, the Depositor and the Master Servicer to the effect that the purchase or 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
Depositor 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 at the expense of the Trustee, the Depositor or the Master Servicer.
In addition, the Purchaser hereby certifies, represents and warrants to, and covenants with, the Depositor, the Trustee and
the Master Servicer that the Purchaser will not transfer such Certificates to any Plan Investor or person unless such Plan Investor
or person meets the requirements set forth in either (a) or (b) above.
Very truly yours,
_______________________________________
(Purchaser)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT Q
[RESERVED]
EXHIBIT R
ASSIGNMENT AGREEMENT
[ON FILE WITH THE TRUSTEE]
EXHIBIT S
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Trustee shall address, at a minimum, the criteria identified as below as
“;Applicable Servicing Criteria”;:
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
-------------------- --------------------------------------------------------------------- ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
General Servicing Considerations
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(ii) 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 such servicing
activities.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the pool assets are maintained.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iv) 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 the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Cash Collection and Administration
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate |X| (as to accounts
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of
days specified in the transaction agreements. held by Trustee)
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to |X| (as to investors
an investor are made only by authorized personnel. only)
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(iii) 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 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.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(v) 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) of the Securities Exchange Act.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vii) 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 agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Investor Remittances and Reporting
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(3)(i) 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 serviced by the
servicer.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance |X|
with timeframes, distribution priority and other terms set forth in
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 agree with
cancelled checks, or other form of payment, or custodial bank |X|
1122(d)(3)(iv) statements.
-------------------- --------------------------------------------------------------------- ----------------------
Pool Asset Administration
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(i) Collateral or security on pool assets is maintained as required by
the transaction agreements or related asset pool documents.
-------------------- --------------------------------------------------------------------- ----------------------
Pool assets and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iv) 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 documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(v) The servicer’s records regarding the pool assets agree with the
servicer’s records with respect to an obligor’s unpaid principal
balance.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vi) 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 asset documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vii) 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 transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(viii) 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 is deemed
temporary (e.g., illness or unemployment).
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool assets
with variable rates are computed based on the related pool asset
documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(x) 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 agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xi) 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 number of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xii) 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 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 specified in the transaction
1122(d)(4)(xiii) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained |X|
1122(d)(4)(xv) as set forth in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
EXHIBIT T-1
FORM OF FORM 10-K CERTIFICATION
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year [____], and all reports on Form 8-K containing
distribution or servicing reports filed in respect of periods included in the year covered by that annual report, of the trust (the
“Trust”) created pursuant to the Pooling and Servicing Agreement dated as of August 1, 2006 (the “P&S Agreement”) among Residential
Asset Securities Corporation (the “Depositor”), Residential Funding Corporation (the “Master Servicer”) and U.S. Bank National
Association (the “Trustee”);
2. Based on my knowledge, the information in these reports, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be provided to the Trustee by the Master Servicer under the P&S
Agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Master Servicer under the P&S Agreement and based upon my
knowledge and the annual compliance review required under the P&S Agreement, and, except as disclosed in the reports, the Master
Servicer has fulfilled its obligations under the P&S Agreement; and
5. The reports disclose all significant deficiencies relating to the Master Servicer’s compliance with the minimum servicing
standards based upon the report provided by an independent public accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers as set forth in the P&S Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on the information provided to me by the following unaffiliated
parties: [the Trustee].
IN WITNESS WHEREOF, I have duly executed this certificate as of _________, 20__.
____________________________
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions of the Master Servicer
EXHIBIT T-2
FORM OF BACK-UP CERTIFICATE TO FORM 10-K CERTIFICATION
The undersigned, a Responsible Officer of [______________] (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 as of August 1, 2006 (the “Agreement”) by and among Residential Asset Securities
Corporation, as depositor, Residential Funding Corporation, as master servicer, and the 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(e)(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 WHEREOF, I have duly executed this certificate as of _________, 20__.
____________________________
Name:
Title:
EXHIBIT U
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING AGENCIES RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Term (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
