RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.,
Company,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
SERIES SUPPLEMENT,
DATED AS OF DECEMBER 1, 2004,
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
DATED AS OF DECEMBER 1, 2004
Mortgage Pass-Through Certificates
Series 2004-S9
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...............................................................8
Section 1.02 Use of Words and Phrases.................................................32
Section 1.03 Determination of LIBOR...................................................32
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.............................................34
Section 2.02 Acceptance by Trustee....................................................34
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the Company. 34
Section 2.04 Representations and Warranties of Sellers................................37
Section 2.05 Execution and Authentication of Certificates.............................39
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
(SEE ARTICLE III OF THE STANDARD TERMS)
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Certificate Account......................................................41
Section 4.02 Distributions............................................................41
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies; Exchange Act Reporting 51
Section 4.04 Distribution of Reports to the Trustee and the Company; Advances by the Master Servicer.
(See Section 4.04 of the Standard Terms).................................51
Section 4.05 Allocation of Realized Losses............................................51
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property............54
Section 4.07 Optional Purchase of Defaulted Mortgage Loans............................54
ARTICLE V
THE CERTIFICATES
(SEE ARTICLE V OF THE STANDARD TERMS)
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
ARTICLE VIII
CONCERNING THE TRUSTEE
(SEE ARTICLE VIII OF THE STANDARD TERMS)
ARTICLE IX
TERMINATION
Section 9.01 Optional Purchase by the Master Servicer of All Certificates; Termination Upon Purchase by
the Master Servicer or Liquidation of All Mortgage
Loans....................................................................59
Section 9.02 Additional Termination Requirements......................................60
Section 9.03 Termination of Multiple REMICs...........................................60
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration.....................................................61
Section 10.02 Master Servicer; REMIC Administrator and Trustee Indemnification.........61
Section 10.03 Designation of REMIC(s)..................................................61
Section 10.04 Distributions on the Uncertificated Regular Interests....................62
Section 10.05 Distributions on the Uncertificated Class A-V REMIC Regular Interests....63
Section 10.06 Compliance with Withholding Requirements.................................64
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment................................................................65
Section 11.02 Recordation of Agreement.................................................65
Section 11.03 Limitation on Rights of Certificateholders...............................65
Section 11.04 Governing Laws...........................................................65
Section 11.05 Notices..................................................................65
Section 11.06 Required Notices to Rating Agency and Subservicer........................66
Section 11.07 Severability of Provisions. (See Section 11.07 of the Standard Terms)....66
Section 11.08 Supplemental Provisions for Resecuritization ............................66
Section 11.09 Allocation of Voting Rights..............................................66
EXHIBITS
Exhibit One: Mortgage Loan Schedule for Loan Group I
Exhibit Two: Mortgage Loan Schedule for Loan Group II
Exhibit Three: Schedule of Discount Fractions
Exhibit Four: Information to be Included in
Monthly Distribution Date Statement
Exhibit Five: Standard Terms of Pooling and Servicing
Agreement dated as of December 1, 2004
This is a Series Supplement, dated as of December 1, 2004 (the "Series
Supplement"), to the Terms of Pooling and Servicing Agreement, dated as of
December 1, 2004 and attached as Exhibit Five hereto (the "Standard Terms" and,
together with this Series Supplement, the "Pooling and Servicing Agreement" or
"Agreement"), among RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC., as the
company (together with its permitted successors and assigns, the "Company"),
RESIDENTIAL FUNDING CORPORATION, as master servicer (together with its permitted
successors and assigns, the "Master Servicer"), and U.S. BANK NATIONAL
ASSOCIATION, as Trustee (together with its permitted successors and assigns, the
"Trustee").
PRELIMINARY STATEMENT
The Company intends to sell Mortgage Pass-Through Certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Trust Fund. As provided herein, the REMIC Administrator will make an
election to treat the entire segregated pool of assets described in the
definition of REMIC I (as defined herein), and subject to this Agreement
(including the Group I Loans but excluding the Initial Monthly Payment Fund), as
a real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes and such segregated pool of assets will be designated as "REMIC I." The
REMIC I Regular Interests will be "regular interests" in REMIC I and the Class
R-I Certificates will be the sole class of "residual interests" in REMIC I for
purposes of the REMIC Provisions (as defined herein). As provided herein, the
REMIC Administrator will make an election to treat the entire segregated pool of
assets described in the definition of REMIC II (as defined herein), and subject
to this Agreement (including the Group II Loans but excluding the Initial
Monthly Payment Fund), as a real estate mortgage investment conduit (a "REMIC")
for federal income tax purposes and such segregated pool of assets will be
designated as "REMIC II." The REMIC II Regular Interests will be "regular
interests" in REMIC II and the Class R-II Certificates will be the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions). A
segregated pool of assets consisting of the REMIC I Regular Interests and the
REMIC II Regular Interests will be designated as "REMIC III" and the REMIC
Administrator will make a separate REMIC election with respect thereto. The
REMIC III Regular Interests will be "regular interests" in REMIC III and the
Class R-III Certificates will be the sole class of "residual interests" in REMIC
III for purposes of the REMIC Provisions. A segregated pool of assets consisting
of the Uncertificated REMIC III Regular Interests will be designated as "REMIC
IV" and the REMIC Administrator will make a separate REMIC election with respect
thereto. The Class I-A-1 Certificates, Class I-A-2 Certificates, Class I-A-3
Certificates, Class I-A-4 Certificates, Class I-A-5 Certificates, Class I-A-6
Certificates, Class I-A-7 Certificates, Class I-A-8 Certificates, Class I-A-9
Certificates, Class I-A-10 Certificates, Class I-A-11 Certificates, Class I-A-12
Certificates, Class I-A-13 Certificates, Class I-A-14 Certificates, Class I-A-15
Certificates, Class I-A-16 Certificates, Class I-A-17 Certificates, Class I-A-18
Certificates, Class I-A-19 Certificates, Class I-A-20 Certificates, Class I-A-21
Certificates, Class I-A-22 Certificates, Class I-A-23 Certificates, Class I-A-24
Certificates, Class I-A-25 Certificates, Class I-A-26 Certificates, Class I-A-27
Certificates, Class I-A-P Certificates, Class II-A-1 Certificates, Class II-A-P
Certificates, Class I-M-1 Certificates, Class I-M-2 Certificates, Class I-M-3
Certificates, Class II-M-1 Certificates, Class II-M-2 Certificates, Class II-M-3
Certificates, Class I-B-1 Certificates, Class I-B-2 Certificates, Class I-B-3
Certificates, Class II-B-1 Certificates, Class II-B-2 Certificates, Class II-B-3
1
Certificates and the Uncertificated Class A-V REMIC Regular Interests will be
"regular interests" in REMIC IV and the Class R-IV Certificates will be the sole
class of "residual interests" therein for purposes of the REMIC Provisions. The
Class I-A-V and Class II-A-V Certificates or any Subclass thereof issued
pursuant to Section 5.01(c) will represent the entire beneficial ownership
interest in the Uncertificated Class A-V REMIC Regular Interests represented by
such Class or Subclass as of the day immediately preceding such Distribution
Date (or, with respect to the initial Distribution Date, at the close of
business on the Cut-off Date).
The terms and provisions of the Standard Terms are hereby incorporated
by reference herein as though set forth in full herein. If any term or provision
contained herein shall conflict with or be inconsistent with any provision
contained in the Standard Terms, the terms and provisions of this Series
Supplement shall govern. Any cross-reference to a section of the Pooling and
Servicing Agreement, to the extent the terms of the Standard Terms and Series
Supplement conflict with respect to that section, shall be a cross-reference to
the related section of the Series Supplement. All capitalized terms not
otherwise defined herein shall have the meanings set forth in the Standard
Terms. The Pooling and Servicing Agreement shall be dated as of the date of the
Series Supplement.
The following table irrevocably sets forth the designation, the
Uncertificated REMIC I Pass-Through Rate, the initial Uncertificated Principal
Balance, and solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC I
Regular Interests. None of the REMIC I Regular Interests will be certificated.
Uncertificated
REMIC I Initial Uncertificated
Pass-Through ---------------------- Latest
Designation Rate Principal Balance Possible Maturity(1)
REMIC I Regular Interest A 5.50% $ 514,485,801.23 December 25, 2034
REMIC I Regular Interest
I-A-P 0.00% $ 4,367,860.36 December 25, 2034
REMIC I I-A-V Regular
Interests (2) $ (3) December 25, 2034
___________________
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Group I Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
(3) The REMIC I I-A-V Regular Interests have no Uncertificated Principal
Balance.
The following table irrevocably sets forth the designation, the
Uncertificated REMIC II Pass-Through Rate, the initial Uncertificated Principal
Balance, and solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC
II Regular Interests. None of the REMIC II Regular Interests will be
certificated.
Uncertificated
REMIC II Initial Uncertificated
Pass-Through ---------------------- Latest
Designation Rate Principal Balance Possible Maturity(1)
REMIC II Regular Interest B 4.75% $126,771,879.08 December 25, 2019
REMIC II Regular Interest
II-A-P 0.00% $ 228,090.48 December 25, 2019
REMIC II II-A-V Regular
Interests (2) $ (3) December 25, 2019
2
___________________
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
Group II Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC II Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC II
Pass-Through Rate" herein.
(3) The REMIC II II-A-V Regular Interests have no Uncertificated Principal
Balance.
The following table irrevocably sets forth the designation, the
Uncertificated REMIC III Pass-Through Rate, the initial Uncertificated Principal
Balance, and solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC
III Regular Interests. None of the REMIC III Regular Interests will be
certificated.
Uncertificated Initial
REMIC III Uncertificated
Pass-Through --------------------- Latest
Designation Rate Principal Balance Possible Maturity(1)
REMIC III Regular
Interest I-A-1 5.00% $ 142,800,000.00 December 25, 2034
REMIC III Regular
Interest I-A-3 7.50% $ 35,700,000.00 December 25, 2034
REMIC III Regular
Interest I-A-4 5.25% $ 45,003,000.00 December 25, 2034
REMIC III Regular
Interest I-A-5 5.75% $ 45,003,000.00 December 25, 2034
REMIC III Regular
Interest I-A-6 5.50% $ 90,008,000.00 December 25, 2034
REMIC III Regular
Interest I-A-7 5.50% $ 21,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-8 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-9 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-10 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-11 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-12 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-13 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-14 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-15 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-16 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-17 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-18 5.50% $ 1,500,000.00 December 25, 2034
3
REMIC III Regular
Interest I-A-19 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-20 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-21 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-22 5.50% $ 1,500,000.00 December 25, 2034
REMIC III Regular
Interest I-A-23 5.50% $ 31,000,000.00 December 25, 2034
REMIC III Regular
Interest I-A-24 5.50% $ 15,000,000.00 December 25, 2034
REMIC III Regular
Interest I-A-25 5.50% $ 32,000,000.00 December 25, 2034
REMIC III Regular
Interest I-A-26 5.50% $ 1,000,000.00 December 25, 2034
REMIC III Regular
Interest I-A-27 5.50% $ 20,000,000.00 December 25, 2034
REMIC III Regular
Interest II-A-1 4.75% $ 124,930,000.00 December 25, 2019
REMIC III Regular
Interest I-A-P 0.00% $ 4,367,860.36 December 25, 2034
REMIC III I-A-V Regular
Interests Variable (2) $ (4) December 25, 2034
REMIC III Regular
Interest II-A-P 0.00% $ 228,090.48 December 25, 2019
REMIC III II-A-V Regular
Interests Variable (3) $ (4) December 25, 2019
REMIC III Regular
Interest R-IV 5.50% $ 100.00 December 25, 2034
REMIC III Regular
Interest I-M-1 5.50% $ 6,226,400.00 December 25, 2034
REMIC III Regular
Interest I-M-2 5.50% $ 2,594,300.00 December 25, 2034
REMIC III Regular
Interest I-M-3 5.50% $ 1,556,600.00 December 25, 2034
REMIC III Regular
Interest II-M-1 4.75% $ 1,016,300.00 December 25, 2019
REMIC III Regular
Interest II-M-2 4.75% $ 254,000.00 December 25, 2019
REMIC III Regular
Interest II-M-3 4.75% $ 190,500.00 December 25, 2019
REMIC III Regular
Interest I-B-1 5.50% $ 1,037,700.00 December 25, 2034
REMIC III Regular
Interest I-B-2 5.50% $ 1,037,700.00 December 25, 2034
REMIC III Regular
Interest I-B-3 5.50% $ 518,901.23 December 25, 2034
REMIC III Regular
Interest II-B-1 4.75% $ 127,000.00 December 25, 2019
REMIC III Regular
Interest II-B-2 4.75% $ 127,000.00 December 25, 2019
REMIC III Regular
Interest II-B-3 4.75% $ 127,079.08 December 25, 2019
4
___________________
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for the
related Mortgage Loan with the latest maturity date has been designated
as the "latest possible maturity date" for each REMIC III Regular
Interest.
(2) Each REMIC III I-A-V Regular Interest is entitled to 100% of the
interest paid on the related REMIC I I-A-V Regular Interest.
(3) Each REMIC III II-A-V Regular Interest is entitled to 100% of the
interest paid on the related REMIC II II-A-V Regular Interest.
(4) The REMIC III I-A-V Regular Interests and the REMIC III II-A-V Regular
Interests have no Uncertificated Principal Balance.
The following table sets forth the designation, type, Pass-Through Rate,
aggregate Initial Certificate Principal Balance, Maturity Date, initial ratings
and certain features for each Class of Certificates comprising the interests in
the Trust Fund created hereunder.
AGGREGATE
INITIAL
CERTIFICATE MATURITY S&P/FITCH/
PASS-THROUGH PRINCIPAL ---------------- -------------- MINIMUM
DESIGNATION RATE BALANCE FEATURES(1) DATE XXXXX'X DENOMINATIONS(2)
Class I-A-1 5.00% $142,800,000.00 Senior/Fixed Rate December 25, 2034 AAA/AAA/NA $25,000
Class I-A-2 Adjustable $ 0.00 Senior/Inverse December 25, 2034 AAA/AAA/NA $2,000,000
Rate Floater/Interest
Only/ Adjustable Rate
Class I-A-3 Adjustable $35,700,000.00Senior/Floater/AdjustaDecember 25, 2034 AAA/AAA/NA $25,000
Rate Rate
Class I-A-4 5.25% $45,003,000.00 Senior/Fixed Rate December 25, 2034 AAA/AAA/NA $25,000
Class I-A-5 5.75% $45,003,000.00 Senior/Fixed Rate December 25, 2034 AAA/AAA/NA $25,000
Class I-A-6 5.50% $90,008,000.00 Senior/Fixed Rate December 25, 2034 AAA/AAA/NA $25,000
Class I-A-7 5.50% $21,500,000.00 Senior/Fixed Rate December 25, 2034 AAA/AAA/NA $25,000
Class I-A-8 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-9 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-10 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-11 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25 2034 AAA/AAA/NA $1,000
Rate
Class I-A-12 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-13 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-14 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-15 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-16 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-17 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-18 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-19 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-20 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-21 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-22 5.50% $ 1,500,000.00 Senior/Retail/Fixed December 25, 2034 AAA/AAA/NA $1,000
Rate
Class I-A-23 5.50% $31,000,000.00 Senior/Fixed Rate December 25, 2034 AAA/AAA/NA $25,000
5
Class I-A-24 5.50% $15,000,000.00Senior/Lockout/Fixed December 25, 2034 AAA/AAA/NA $25,000
Rate
Class I-A-25 5.50% $32,000,000.00 Super December 25, 2034 AAA/AAA/NA $25,000
Senior/Lockout/Fixed
Rate
Class I-A-26 5.50% $ 1,000,000.00 Senior December 25, 2034 AAA/AAA/NA $25,000
Support/Lockout/Fixed
Rate
Class I-A-27 5.50% $20,000,000.00 Senior/Fixed Rate December 25, 2034 AAA/AAA/NA $25,000
Class II-A-1 4.75% $124,930,000.00 Senior/Fixed Rate December 25, 2019 NA/AAA/Aaa $25,000
Class I-A-P 0.00% $ 4,367,860.36Senior/Principal Only December 25, 2034 AAA/AAA/NA $25,000
Class I-A-V Variable Rate $ 0.00 Senior/Interest December 25, 2034 AAA/AAA/NA $2,000,000
Only/Variable Rate
Class II-A-P 0.00% $ 228,090.4Senior/Principal Only December 25, 2019 NA/AAA/Aaa $25,000
Class II-A-V Variable Rate $ $0.00 Senior/Interest December 25, 2019 NA/AAA/Aaa $2,000,000
Only/Variable Rate
Class R-I 5.50% $ 100.0Senior/Residual/Fixed December 25, 2034 AAA/AAA/NA 20%
Rate
Class R-II 4.75% $ 100.0Senior/Residual/Fixed December 25, 2019 NA/AAA/Aaa 20%
Rate
Class R-III 5.50% $ 100.0Senior/Residual/Fixed December 25, 2034 AAA/AAA/NA 20%
Rate
Class R-IV 5.50% $ 100.0Senior/Residual/Fixed December 25, 2034 AAA/AAA/NA 20%
Rate
Class I-M-1 5.50% $ 6,226,400.00Mezzanine/Fixed Rate December 25, 2034 AA/NA/NA $25,000
Class I-M-2 5.50% $ 2,594,300.00Mezzanine/Fixed Rate December 25, 2034 A/NA/NA $250,000
Class I-M-3 5.50% $ 1,556,600.00Mezzanine/Fixed Rate December 25, 2034 BBB/NA/NA $250,000
Class II-M-1 4.75% $ 1,016,300.00Mezzanine/Fixed Rate December 25, 2019 NA/AA/NA $25,000
Class II-M-2 4.75% $ 254,000.00Mezzanine/Fixed Rate December 25, 2019 NA/A/NA $250,000
Class II-M-3 4.75% $ 190,500.00Mezzanine/Fixed Rate December 25, 2019 NA/BBB/NA $190,500
Class I-B-1 5.50% $ 1,037,700.00 Subordinate/Fixed December 25, 2034 BB/NA/NA $250,000
Rate
Class I-B-2 5.50% $ 1,037,700.00 Subordinate/Fixed December 25, 2034 B/NA/NA $250,000
Rate
Class I-B-3 5.50% $ 518,901.23 Subordinate/Fixed December 25, 2034 NA/NA/NA $250,000
Rate
Class II-B-1 4.75% $ 127,000.00 Subordinate/Fixed December 25, 2019 NA/BB/NA $127,000
Rate
Class II-B-2 4.75% $ 127,000.00 Subordinate/Fixed December 25, 2019 NA/B/NA $127,000
Rate
Class II-B-3 4.75% $ 127,079.08 Subordinate/Fixed December 25, 2019 NA/NA/NA $127,079
Rate
______________________
1 The Class I-A-1, Class I-A-2 , Class I-A-3, Class I-A-4, Class I-A-5, Class
I-A-6, Class I-A-7, Class I-A-8, Class I-A-9, Class I-A-10, Class I-A-11, Class
I-A-12, Class I-A-13, Class I-A-14, Class I-A-15, Class I-A-16, Class I-A-17,
Class I-A-18, Class I-A-19, Class I-A-20, Class I-A-21, Class I-A-22, Class
I-A-23, Class I-A-24, Class I-A-25, Class I-A-26, Class I-A-27, Class II-A-1,
Class I-A-P, Class I-A-V, Class II-A-P, Class II-A-V and Class M Certificates
shall be Book-Entry Certificates. The Class R and Class B Certificates shall be
delivered to the holders thereof in physical form.
2 The Certificates, other than the Class A-V and Class R Certificates, shall be
issuable in minimum dollar denominations as indicated above (by Certificate
Principal Balance or Notional Amount, as applicable) and integral multiples of
$1 (or $1,000 in the case of the Class I-A-8, Class I-A-9, Class I-A-10, Class
I-A-11, Class I-A-12, Class I-A-13, Class I-A-14, Class I-A-15, Class I-A-16,
Class I-A-17, Class I-A-18, Class I-A-19, Class I-A-20, Class I-A-21, Class
I-A-22, Class A-P, Class B-1, Class B-2 and Class B-3 Certificates) in excess
thereof, except that one Certificate of any of the Class A-P and Class I-B
Certificates that contains an uneven multiple of $1,000 shall be issued in a
denomination equal to the sum of the related minimum denomination set forth
above and such uneven multiple for such Class or the sum of such denomination
and an integral multiple of $1,000 and only one of each of the Class II-M-3
Certificates and Class II-B Certificates will be issued, in a denomination equal
to the entire Certificate Principal Balance of the related Class. The Class R
Certificates and Class A-V Certificates shall be issuable in minimum
denominations of not less than a 20% Percentage Interest; provided, however,
that one Class R-I, Class R-II, Class R-III and Class R-IV Certificate will be
issuable to Residential Funding as "tax matters person" pursuant to Section
10.01(c) and (e) in a minimum denomination representing a Percentage Interest of
not less than 0.01%.
6
3 The Class I-A-2 Certificates shall be issuable in a Notional Amount of
$2,000,000.
The Mortgage Loans have an aggregate principal balance as of the Cut-off
Date of $645,853,831.15.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
7
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accrued Certificate Interest: With respect to each Distribution Date, as
to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class or
Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on the Mortgage Loans in the
related Loan Group (to the extent not offset by the Master
Servicer with a payment of Compensating Interest as provided in
Section 4.01),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan)) of Realized Losses on the Mortgage Loans in the related
Loan Group (including Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses and Extraordinary Losses) not
allocated solely to one or more specific Classes of Certificates
pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on the Mortgage
Loans in the related Loan Group, which remained unreimbursed
following the Cash Liquidation or REO Disposition of such
Mortgage Loan or REO Property or (B) made with respect to
delinquencies that were ultimately determined to be Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or Extraordinary Losses, and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Relief Act,
with the related Senior Percentage of such reductions allocated among the
related Senior Certificates in proportion to the amounts of Accrued Certificate
Interest payable from the related Loan Group on such Distribution Date absent
such reductions, with the remainder of such reductions allocated among the
holders of the Class M Certificates and Class B Certificates in proportion to
their respective amounts of Accrued Certificate Interest payable on such
Distribution Date absent such reductions. In addition to that portion of the
reductions described in the preceding sentence that are allocated to any Class
8
of Class B Certificates or any Class of Class M Certificates, Accrued
Certificate Interest on such Class of Class B Certificates or such Class of
Class M Certificates will be reduced by the interest portion (adjusted to the
Net Mortgage Rate) of Realized Losses that are allocated solely to such Class of
Class B Certificates or such Class of Class M Certificates pursuant to Section
4.05.
Adjustable Rate Certificates: Any one of the Class I-A-2 Certificates
and Class I-A-3 Certificates.
Available Distribution Amount: As to any Distribution Date and each Loan
Group, an amount equal to (a) the sum of (i) the amount relating to the related
Mortgage Loans on deposit in the Custodial Account as of the close of business
on the immediately preceding Determination Date, including any Subsequent
Recoveries, and amounts deposited in the Custodial Account in connection with
the substitution of Qualified Substitute Mortgage Loans, (ii) the amount of any
Advance made on the immediately preceding Certificate Account Deposit Date,
(iii) any amount deposited in the Certificate Account on the related Certificate
Account Deposit Date pursuant to the second paragraph of Section 3.12(a), (iv)
any amount deposited in the Certificate Account pursuant to Section 4.07 and any
amount deposited in the Custodial Account pursuant to Section 9.01, (v) any
amount that the Master Servicer is not permitted to withdraw from the Custodial
Account or the Certificate Account pursuant to Section 3.16(e) and (vi) any
Diverted Amount allocated to such Loan Group from the non-related Loan Group
pursuant to Section 4.05, reduced by (b) the sum as of the close of business on
the immediately preceding Determination Date of (x) the Amount Held for Future
Distribution, and (y) amounts permitted to be withdrawn by the Master Servicer
from the Custodial Account in respect of the Mortgage Loans pursuant to clauses
(ii)-(x), inclusive, of Section 3.10(a) and (c) any Diverted Amount diverted to
the non-related Loan Group in accordance with Section 4.05. Such amount shall be
determined separately for each Loan Group. Additionally, if on any Distribution
Date Compensating Interest provided pursuant to Section 3.16(e) is less than
Prepayment Interest Shortfalls incurred on the related Mortgage Loans in
connection with Principal Prepayments in Full received during the related
Prepayment Period and Curtailments made in the prior calendar month, such
Compensating Interest shall be allocated on such Distribution Date to the
Available Distribution Amount for each Loan Group on a pro rata basis in
accordance with the respective amounts of such Prepayment Interest Shortfalls
incurred on the Mortgage Loans in such Loan Group in respect of such
Distribution Date.
Bankruptcy Amount: As to Loan Group I and as of any date of
determination prior to the first anniversary of the Cut-off Date, an amount
equal to the excess, if any, of (A) $111,441 over (B) the aggregate amount of
Bankruptcy Losses allocated solely to one or more specific Classes of related
Certificates in accordance with Section 4.05 of this Series Supplement plus any
Excess Bankruptcy Losses on the non-related Mortgage Loans allocated to the
related group as set forth in Section 4.05. As of any date of determination on
or after the first anniversary of the Cut-off Date, an amount equal to the
excess, if any, of
(1) the lesser of (a) the related Bankruptcy Amount calculated as of
the close of business on the Business Day immediately preceding
the most recent anniversary of the Cut-off Date coinciding with
or preceding such date of determination (or, if such date of
determination is an anniversary of the Cut-off Date, the Business
Day immediately preceding such date of determination) (for
purposes of this definition, the "Relevant Anniversary") and (b)
the greater of
9
(A) the greater of (i) 0.0006 times the aggregate principal balance of all
the Mortgage Loans in Loan Group I as of the Relevant Anniversary (other
than Additional Collateral Loans, if any) having a Loan-to-Value Ratio
at origination which exceeds 75% and (ii) $111,411; and
(B) the greater of (i) the product of (x) an amount equal to the largest
difference in the related Monthly Payment for any Non-Primary Residence
Loan remaining in Loan Group I (other than Additional Collateral Loans,
if any) which had an original Loan-to-Value Ratio of 80% or greater that
would result if the Net Mortgage Rate thereof was equal to the weighted
average (based on the principal balance of the Mortgage Loans in Loan
Group I as of the Relevant Anniversary) of the Net Mortgage Rates of all
Mortgage Loans in Loan Group I as of the Relevant Anniversary less 1.25%
per annum, (y) a number equal to the weighted average remaining term to
maturity, in months, of all Non-Primary Residence Loans remaining in
Loan Group I as of the Relevant Anniversary, and (z) one plus the
quotient of the number of all Non-Primary Residence Loans remaining in
Loan Group I divided by the total number of Outstanding Mortgage Loans
in Loan Group I as of the Relevant Anniversary, and (ii) $50,000, over
(2) the aggregate amount of Bankruptcy Losses allocated solely to one or
more specific Classes of related Certificates in accordance with Section
4.05 since the Relevant Anniversary plus any Excess Bankruptcy Losses on
the non-related Mortgage Loans allocated to the related group as set
forth in Section 4.05.
As to Loan Group II and as of any date of determination prior to the
first anniversary of the Cut-off Date, an amount equal to the excess, if any, of
(A) $100,000 over (B) the aggregate amount of Bankruptcy Losses allocated solely
to one or more specific Classes of related Certificates in accordance with
Section 4.05 of this Series Supplement plus any Excess Bankruptcy Losses on the
non-related Mortgage Loans allocated to the related group as set forth in
Section 4.05. As of any date of determination on or after the first anniversary
of the Cut-off Date, an amount equal to the excess, if any, of
(1) the lesser of (a) the related Bankruptcy Amount calculated as of
the close of business on the Business Day immediately preceding
the most recent anniversary of the Cut-off Date coinciding with
or preceding such date of determination (or, if such date of
determination is an anniversary of the Cut-off Date, the Business
Day immediately preceding such date of determination) (for
purposes of this definition, the "Relevant Anniversary") and (b)
the greater of
(A) the greater of (i) 0.0006 times the aggregate principal balance of all
the Mortgage Loans in Loan Group II as of the Relevant Anniversary
(other than Additional Collateral Loans, if any) having a Loan-to-Value
Ratio at origination which exceeds 75% and (ii) $100,000; and
(B) the greater of (i) the product of (x) an amount equal to the largest
difference in the related Monthly Payment for any Non-Primary Residence
Loan remaining in Loan Group II (other than Additional Collateral Loans,
if any) which had an original Loan-to-Value Ratio of 80% or greater that
would result if the Net Mortgage Rate thereof was equal to the weighted
average (based on the principal balance of the Mortgage Loans in Loan
Group II as of the Relevant Anniversary) of the Net Mortgage Rates of
all Mortgage Loans in Loan Group II as of the Relevant Anniversary less
10
1.25% per annum, (y) a number equal to the weighted average remaining
term to maturity, in months, of all Non-Primary Residence Loans
remaining in Loan Group II as of the Relevant Anniversary, and (z) one
plus the quotient of the number of all Non-Primary Residence Loans
remaining in Loan Group II divided by the total number of Outstanding
Mortgage Loans in the Loan Group II as of the Relevant Anniversary, and
(ii) $50,000, over (2) the aggregate amount of Bankruptcy Losses
allocated solely to one or more specific Classes of related Certificates
in accordance with Section 4.05 since the Relevant Anniversary plus any
Excess Bankruptcy Losses on the non-related Mortgage Loans allocated to
the related group as set forth in Section 4.05.
Each Bankruptcy Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Certificate: Any Class A, Class M, Class B or Class R Certificate.
Certificate Account: The separate account or accounts created and
maintained pursuant to Section 4.01 of the Standard Terms, which shall be
entitled "U.S. Bank National Association, as trustee, in trust for the
registered holders of Residential Funding Mortgage Securities I, Inc., Mortgage
Pass-Through Certificates, Series 2004-S9" and which must be an Eligible
Account.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02, minus
(iii) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(a) and (y) the aggregate
of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously
allocated to such Certificate (or any predecessor Certificate)
pursuant to Section 4.05;
provided, that the Certificate Principal Balance of the Class of related
Subordinate Certificates with the Lowest Priority at any given time shall be
further reduced by an amount equal to the Percentage Interest evidenced by such
Certificate multiplied by the excess, if any, of (A) the then aggregate
Certificate Principal Balance of all Classes of related Certificates then
11
outstanding over (B) the then aggregate Stated Principal Balance of the Mortgage
Loans in the related Loan Group; provided, however, the Certificate Principal
Balance of the Class of related Subordinate Certificates with the Lowest
Priority shall not be reduced to the extent of the amount of any Excess Special
Hazard Losses or Excess Fraud Losses to be covered by Diverted Amounts from the
non-related Loan Group pursuant to Section 4.05.
Class A Certificate: Any one of the Group I Senior Certificates or the
Group II Senior Certificates (other than the Class R Certificates), executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit A.
Class A-V Certificate: Any one of the Class I-A-V Certificates or Class
II-A-V Certificates.
Class A-P Certificate: Any one of the Class I-A-P Certificates or Class
II-A-P Certificates.
Class B Certificate: Any one of the Class I-B Certificates or Class II-B
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit C.
Class B-1 Certificate: Any one of the Class I-B-1 Certificates or Class
II-B-1 Certificates.
Class B-2 Certificate: Any one of the Class I-B-2 Certificates or Class
II-B-2 Certificates.
Class B-3 Certificate: Any one of the Class I-B-3 Certificates or Class
II-B-3 Certificates.
Class I-B Certificate: Any one of the Class I-B-1, Class I-B-2 or Class
I-B-3 Certificates.
Class I-M Certificate: Any one of the Class I-M-1, Class I-M-2 or Class
I-M-3 Certificates.
Class II-B Certificate: Any one of the Class II-B-1, Class II-B-2 or
Class II-B-3 Certificates.
Class II-M Certificate: Any one of the Class II-M-1, Class II-M-2 or
Class II-M-3 Certificates.
Class M Certificate: Any one of the Class I-M Certificates or Class II-M
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit B.
Class M-1 Certificate: Any one of the Class I-M-1 Certificates or Class
II-M-1 Certificates.
Class M-2 Certificate: Any one of the Class I-M-2 Certificates or Class
II-M-2 Certificates.
12
Class M-3 Certificate: Any one of the Class I-M-3 Certificates or Class
II-M-3 Certificates.
Class R Certificate: Any one of the Class R-I, Class R-II, Class R-III
and Class R-IV Certificates executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form annexed to the Standard Terms as
Exhibit D and evidencing an interest designated as a "residual interest" in each
REMIC for purposes of the REMIC Provisions.
Closing Date: December 30, 2004.
Corporate Trust Office: The principal office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at U.S. Bank National Association, 00 Xxxxxxxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000. Attention: Residential Funding Corporation Series
2004-S9.
Corresponding Certificated Interests: With respect to each REMIC III
Regular Interest, the Class with the same designation.
Credit Support Depletion Date: With respect to each Loan Group, the
first Distribution Date on which the Certificate Principal Balances of the
related Subordinate Certificates have been reduced to zero.
Cut-off Date: December 1, 2004.
Determination Date: With respect to any Distribution Date, the second
Business Day prior to such Distribution Date.
Discount Net Mortgage Rate: With respect to Loan Group I, 5.50% per
annum. With respect to Loan Group II, 4.75% per annum.
Diverted Amount: For either Loan Group, on any Distribution Date on
which Excess Special Hazard Losses or Excess Fraud Losses from the other Loan
Group are allocated to the Certificates of the related Loan Group pursuant to
Section 4.05, or on any subsequent Distribution Date occurring before such
losses are fully covered by a Diverted Amount, an amount equal to the lesser of
(a) the aggregate amount of all Excess Special Hazard Losses or Excess Fraud
Losses from the other Loan Group which occurred prior to the related
Distribution Date, minus the aggregate amount of Diverted Amounts previously
distributed to the Certificates related to the other Loan Group in respect of
such losses, and (b) the Principal Prepayments and the principal portion of the
Monthly Payments otherwise payable to the Class B Certificates of the related
Loan Group; provided, however, that the sum of the aggregate of the Diverted
Amounts on such Distribution Date and all prior Distribution Dates corresponding
to Excess Special Hazard Losses or Excess Fraud Losses, respectively, for the
other Loan Group and the aggregate Special Hazard Losses or Fraud Losses,
respectively, for the related Loan Group, may not exceed the Special Hazard
Amount or Fraud Loss Amount, respectively, for the related Loan Group.
13
Due Period: With respect to each Distribution Date and any Mortgage
Loan, 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 division of the Trustee, or (v) an
account or accounts of a depository institution acceptable to each Rating Agency
(as evidenced in writing by each Rating Agency that use of any such account as
the Custodial Account or the Certificate Account will not reduce the rating
assigned to any Class of Certificates by such Rating Agency below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency).
Eligible Funds: On any Distribution Date, the portion, if any, of the
related Available Distribution Amount remaining after reduction by the sum of
(i) the aggregate amount of Accrued Certificate Interest on the related Senior
Certificates, (ii) the related Senior Principal Distribution Amounts (determined
without regard to Section 4.02(a)(ii)(Y)(D) of this Series Supplement), (iii)
the related Class A-P Principal Distribution Amount (determined without regard
to Section 4.02(b)(i)(E) of this Series Supplement) and (iv) the aggregate
amount of Accrued Certificate Interest on the related Class M, Class B-1 and
Class B-2 Certificates to the extent such Accrued Certificate Interest is
derived from a Loan Group.
Excess Subordinate Principal Amount: With respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Class of
Subordinate Certificates related to a Loan Group then outstanding with the
Lowest Priority is to be reduced to zero and on which Realized Losses are to be
allocated to such class or classes, the excess, if any, of (i) the amount that
would otherwise be distributable in respect of principal on such class or
classes of Certificates on such Distribution Date over (ii) the excess, if any,
of the aggregate Certificate Principal Balance of such class or classes of
Certificates immediately prior to such Distribution Date over the aggregate
amount of Realized Losses to be allocated to such classes of Certificates on
such Distribution Date as reduced by any amount calculated pursuant to Section
4.02(b)(i)(E). The Excess Subordinate Principal Amount will be allocated between
the Group I Senior Certificates (other than the Class I-A-P Certificates), Class
I-M Certificates and Class I-B Certificates, and the Group II Senior
Certificates (other than the Class II-A-P Certificates), Class II-M Certificates
and Class II-B Certificates, in accordance with the amount of Realized Losses in
the related Loan Group and allocated to the related Certificates on such
Distribution Date.
Fraud Loss Amount: The Group I Fraud Loss Amount or Group II Fraud Loss
Amount.
14
Group I Fraud Loss Amount: As of any date of determination after the
Cut-off Date, an amount equal to: (X) prior to the third anniversary of the
Cut-off Date, an amount equal to 1.0% of the aggregate outstanding principal
balance of all of the Group I Loans as of the Cut-off Date minus the aggregate
amount of Fraud Losses allocated solely to one or more specific Classes of
related Certificates in accordance with Section 4.05 of this Series Supplement
since the Cut-off Date up to such date of determination plus any Excess Fraud
Losses on the non-related Mortgage Loans allocated to the related group as set
forth in Section 4.05 and (Y) from the third to the fifth anniversary of the
Cut-off Date, an amount equal to (1) the lesser of (a) the Group I Fraud Loss
Amount as of the most recent anniversary of the Cut-off Date and (b) 0.50% of
the aggregate outstanding principal balance of all of the Group I Loans as of
the most recent anniversary of the Cut-off Date minus (2) the aggregate amount
of Fraud Losses allocated solely to one or more specific Classes of related
Certificates in accordance with Section 4.05 of this Series Supplement since the
most recent anniversary of the Cut-off Date up to such date of determination
plus any Excess Fraud Losses on the non-related Mortgage Loans allocated to the
related group as set forth in Section 4.05. On and after the fifth anniversary
of the Cut-off Date, the Group I Fraud Loss Amount shall be zero.
The Group I Fraud Loss Amount may be further reduced by the Master
Servicer (including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Master Servicer shall (i) obtain
written confirmation from each Rating Agency that such reduction shall not
reduce the rating assigned to any Class of Certificates by such Rating Agency
(without giving effect to the Certificate Policy in the case of the Insured
Certificates) below the lower of the then-current rating or the rating assigned
to such Certificates as of the Closing Date by such Rating Agency and (ii)
provide a copy of such written confirmation to the Trustee.
Group I Loans: The Mortgage Loans designated in Exhibit One.
Group I Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date, 100%.
With respect to any Distribution Date thereafter and Loan Group I, as follows:
(i) for any Distribution Date after the 60th Distribution Date but on
or prior to the 72nd Distribution Date, the Group I Senior
Percentage for such Distribution Date plus 70% of the related
Subordinate Percentage for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but on
or prior to the 84th Distribution Date, the Group I Senior
Percentage for such Distribution Date plus 60% of the related
Subordinate Percentage for such Distribution Date;
(iii) for any Distribution Date after the 84th Distribution Date but on
or prior to the 96th Distribution Date, the Group I Senior
Percentage for such Distribution Date plus 40% of the related
Subordinate Percentage for such Distribution Date;
(iv) for any Distribution Date after the 96th Distribution Date but on
or prior to the 108th Distribution Date, the Group I Senior
Percentage for such Distribution Date plus 20% of the related
Subordinate Percentage for such Distribution Date; and
15
(v) for any Distribution Date thereafter, the Group I Senior
Percentage for such Distribution Date;
provided, however,
(i) that any scheduled reduction to the Group I Senior Accelerated
Distribution Percentage described above shall not occur as of any
Distribution Date unless either
(a)(1)(X) the outstanding principal balance of the Group I Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding Certificate Principal Balance of
the related Subordinate Certificates, is less than 50% or (Y) the
outstanding principal balance of Group I Loans delinquent 60 days or
more averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Group I Loans averaged over the
last six months, does not exceed 2% and (2) Realized Losses on the Group
I Loans to date for such Distribution Date if occurring during the
sixth, seventh, eighth, ninth or tenth year (or any year thereafter)
after the Closing Date are less than 30%, 35%, 40%, 45% or 50%,
respectively, of the sum of the Initial Certificate Principal Balances
of the related Subordinate Certificates or
(b)(1) the outstanding principal balance of Group I Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all Group I
Loans averaged over the last six months, does not exceed 4% and (2)
Realized Losses on the Group I Loans to date for such Distribution Date,
if occurring during the sixth, seventh, eighth, ninth or tenth year (or
any year thereafter) after the Closing Date are less than 10%, 15%, 20%,
25% or 30%, respectively, of the sum of the Initial Certificate
Principal Balances of the related Subordinate Certificates, and
(ii) that for any Distribution Date on which the Group I Senior
Percentage is greater than the Group I Senior Percentage as of
the Closing Date, the Group I Senior Accelerated Distribution
Percentage for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the Group I Senior Certificates (other than the Class I-A-P
Certificates, if any) to zero, the Group I Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Group I Senior Certificate: Any one of the Class I-A-1, Class I-A-2,
Class I-A-3, Class I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class I-A-8,
Class I-A-9, Class I-A-10, Class I-A-11, Class I-A-12, Class I-A-13, Class
I-A-14, Class I-A-15, Class I-A-16, Class I-A-17, Class I-A-18, Class I-A-19,
Class I-A-20, Class I-A-21, Class I-A-22, Class I-A-23, Class I-A-24, Class
I-A-25, Class I-A-26, Class I-A-27, Class I-A-P, Class I-A-V, Class R-I, Class
R-III and Class R-IV Certificates executed by the Trustee and authenticated by
the Certificate Registrar substantially in the form annexed to the Standard
Terms as Exhibit A (or Exhibit D in the case of the Class R-I, Class R-III and
16
Class R-IV Certificates), each such Certificate (other than the Class I-A-V,
Class R-I, Class R-III and Class R-IV Certificates) evidencing an interest
designated as a "regular interest" in REMIC IV for purposes of the REMIC
Provisions and representing an undivided interest in Loan Group I.
Group I Senior Percentage: As of any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Certificate Principal Balance of the Group I Senior Certificates
(other than the Class I-A-P Certificates) immediately prior to such Distribution
Date and the denominator of which is the aggregate Stated Principal Balance of
all of the Mortgage Loans (or related REO Properties) (other than the related
Discount Fraction of each related Discount Mortgage Loan) in Loan Group I
immediately prior to such Distribution Date.
Group I Senior Principal Distribution Amount: As to any Distribution
Date, the lesser of (a) the balance of the Available Distribution Amount related
to Loan Group I remaining after the distribution therefrom of all amounts
required to be distributed therefrom pursuant to Section 4.02(a)(i)(X) and
Section 4.02(a)(ii)(X) of this Series Supplement, and (b) the sum of the amounts
required to be distributed therefrom to the Group I Senior Certificateholders on
such Distribution Date pursuant to Section 4.02(a)(ii)(Y).
Group I Special Hazard Amount: As of any Distribution Date, an amount
equal to $5,188,538 minus the sum of (i) the aggregate amount of Special Hazard
Losses allocated solely to one or more specific Classes of related Certificates
in accordance with Section 4.05 of this Series Supplement plus any Excess
Special Hazard Losses on the non-related Mortgage Loans allocated to the related
group as set forth in Section 4.05 and (ii) the Adjustment Amount (as defined
below) as most recently calculated. For each anniversary of the Cut-off Date,
the Adjustment Amount shall be equal to the amount, if any, by which the amount
calculated in accordance with the preceding sentence (without giving effect to
the deduction of the Adjustment Amount for such anniversary) exceeds the greater
of (A) the greatest of (i) twice the outstanding principal balance of the
Mortgage Loan in Loan Group I which has the largest outstanding principal
balance on the Distribution Date immediately preceding such anniversary, (ii)
the product of 1.00% multiplied by the outstanding principal balance of all
Mortgage Loans in Loan Group I on the Distribution Date immediately preceding
such anniversary and (iii) the aggregate outstanding principal balance (as of
the immediately preceding Distribution Date) of the Group I Loans in any single
five-digit California zip code area with the largest amount of Group I Loans by
aggregate principal balance as of such anniversary and (B) the greater of (i)
the product of 0.50% multiplied by the outstanding principal balance of all
Mortgage Loans in Loan Group I on the Distribution Date immediately preceding
such anniversary multiplied by a fraction, the numerator of which is equal to
the aggregate outstanding principal balance (as of the immediately preceding
Distribution Date) of all of the Mortgage Loans in Loan Group I secured by
Mortgaged Properties located in the State of California divided by the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of all of the Mortgage Loans in Loan Group I, expressed as a percentage,
and the denominator of which is equal to 47.98% (which percentage is equal to
the percentage of Mortgage Loans in Loan Group I initially secured by Mortgaged
Properties located in the State of California) and (ii) the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of the largest Mortgage Loan in Loan Group I secured by a Mortgaged
Property located in the State of California.
17
The Group I Special Hazard Amount may be further reduced by the Master
Servicer (including accelerating the manner in which coverage is reduced)
provided that prior to any such reduction, the Master Servicer shall (i) obtain
written confirmation from each Rating Agency that such reduction shall not
reduce the rating assigned to any Class of Certificates by such Rating Agency
(without giving effect to the Certificate Policy in the case of the Insured
Certificates) below the lower of the then-current rating or the rating assigned
to such Certificates as of the Closing Date by such Rating Agency and (ii)
provide a copy of such written confirmation to the Trustee.
Group II Fraud Loss Amount: As of any date of determination after the
Cut-off Date, an amount equal to: (X) prior to the third anniversary of the
Cut-off Date, an amount equal to 1.0% of the aggregate outstanding principal
balance of all of the Group II Loans as of the Cut-off Date minus the aggregate
amount of Fraud Losses allocated solely to one or more specific Classes of
related Certificates in accordance with Section 4.05 of this Series Supplement
since the Cut-off Date up to such date of determination plus any Excess Fraud
Losses on the non-related Mortgage Loans allocated to the related group as set
forth in Section 4.05 and (Y) from the third to the fifth anniversary of the
Cut-off Date, an amount equal to (1) the lesser of (a) the Group II Fraud Loss
Amount as of the most recent anniversary of the Cut-off Date and (b) 0.5% of the
aggregate outstanding principal balance of all of the Group II Loans as of the
most recent anniversary of the Cut-off Date minus (2) the aggregate amount of
Fraud Losses allocated solely to one or more specific Classes of related
Certificates in accordance with Section 4.05 of this Series Supplement since the
most recent anniversary of the Cut-off Date up to such date of determination
plus any Excess Fraud Losses on the non-related Mortgage Loans allocated to the
related group as set forth in Section 4.05. On and after the fifth anniversary
of the Cut-off Date, the Group II Fraud Loss Amount shall be zero.
The Group II Fraud Loss Amount may be further reduced by the Master
Servicer (including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Master Servicer shall (i) obtain
written confirmation from each Rating Agency that such reduction shall not
reduce the rating assigned to any Class of Certificates by such Rating Agency
below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a
copy of such written confirmation to the Trustee.
Group II Loans: The Mortgage Loans designated in Exhibit Two.
Group II Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date, 100%.
With respect to any Distribution Date thereafter and Loan Group II, as follows:
(i) for any Distribution Date after the 60th Distribution Date but on
or prior to the 72nd Distribution Date, the Group II Senior
Percentage for such Distribution Date plus 70% of the related
Subordinate Percentage for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but on
or prior to the 84th Distribution Date, the Group II Senior
Percentage for such Distribution Date plus 60% of the related
Subordinate Percentage for such Distribution Date;
18
(iii) for any Distribution Date after the 84th Distribution Date but on
or prior to the 96th Distribution Date, the Group II Senior
Percentage for such Distribution Date plus 40% of the related
Subordinate Percentage for such Distribution Date;
(iv) for any Distribution Date after the 96th Distribution Date but on
or prior to the 108th Distribution Date, the Group II Senior
Percentage for such Distribution Date plus 20% of the related
Subordinate Percentage for such Distribution Date; and
(v) for any Distribution Date thereafter, the Group II Senior
Percentage for such Distribution Date;
provided, however,
(i) that any scheduled reduction to the Group II Senior Accelerated
Distribution Percentage described above shall not occur as of any
Distribution Date unless either
(a)(1)(X) the outstanding principal balance of the Group II Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding Certificate Principal Balance of
the related Subordinate Certificates, is less than 50% or (Y) the
outstanding principal balance of Group II Loans delinquent 60 days or
more averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Group II Loans averaged over the
last six months, does not exceed 2% and (2) Realized Losses on the Group
II Loans to date for such Distribution Date if occurring during the
sixth, seventh, eighth, ninth or tenth year (or any year thereafter)
after the Closing Date are less than 30%, 35%, 40%, 45% or 50%,
respectively, of the sum of the Initial Certificate Principal Balances
of the related Subordinate Certificates or
(b)(1) the outstanding principal balance of Group II Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all Group
II Loans averaged over the last six months, does not exceed 4% and (2)
Realized Losses on the Group II Loans to date for such Distribution
Date, if occurring during the sixth, seventh, eighth, ninth or tenth
year (or any year thereafter) after the Closing Date are less than 10%,
15%, 20%, 25% or 30%, respectively, of the sum of the Initial
Certificate Principal Balances of the related Subordinate Certificates,
and
(ii) that for any Distribution Date on which the Group II Senior
Percentage is greater than the Group II Senior Percentage as of
the Closing Date, the Group II Senior Accelerated Distribution
Percentage for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the Group II Senior Certificates (other than the Class II-A-P
Certificates, if any) to zero, the Group II Senior Accelerated Distribution
Percentage shall thereafter be 0%.
19
Group II Senior Certificate: Any one of the Class II-A-1, Class II-A-P,
Class II-A-V and Class R-II Certificates, executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed to
the Standard Terms as Exhibit A (or Exhibit D in the case of the Class R-II
Certificates), each such Certificate (other than the Class II-A-V Certificates
and Class R-II Certificates) representing an interest designated as a "regular
interest" in REMIC IV for purposes of the REMIC Provisions, and representing an
undivided interest in Loan Group II.
Group II Senior Percentage: As of any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Certificate Principal Balance of the Group II Senior Certificates
(other than the Class II-A-P Certificates) immediately prior to such
Distribution Date and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans (or related REO Properties) (other than the
related Discount Fraction of each related Discount Mortgage Loan) in Loan Group
II immediately prior to such Distribution Date.
Group II Senior Principal Distribution Amount: As to any Distribution
Date, the lesser of (a) the balance of the Available Distribution Amount related
to Loan Group II remaining after the distribution therefrom of all amounts
required to be distributed therefrom pursuant to Section 4.02(a)(i)(Y) and
Section 4.02(a)(ii)(X) of this Series Supplement, and (b) the sum of the amounts
required to be distributed therefrom to the Group II Senior Certificateholders
on such Distribution Date pursuant to Section 4.02(a)(ii)(Y) and Section
4.02(a)(xvii).
Group II Special Hazard Amount: As of any Distribution Date, an amount
equal to $1,651,001 minus the sum of (i) the aggregate amount of Special Hazard
Losses allocated solely to one or more specific Classes of related Certificates
in accordance with Section 4.05 of this Series Supplement plus any Excess
Special Hazard Losses on the non-related Mortgage Loans allocated to the related
group as set forth in Section 4.05 and (ii) the Adjustment Amount (as defined
below) as most recently calculated. For each anniversary of the Cut-off Date,
the Adjustment Amount shall be equal to the amount, if any, by which the amount
calculated in accordance with the preceding sentence (without giving effect to
the deduction of the Adjustment Amount for such anniversary) exceeds the greater
of (A) the greatest of (i) twice the outstanding principal balance of the
Mortgage Loan in Loan Group II which has the largest outstanding principal
balance on the Distribution Date immediately preceding such anniversary, (ii)
the product of 1.00% multiplied by the outstanding principal balance of all
Mortgage Loans in Loan Group II on the Distribution Date immediately preceding
such anniversary and (iii) the aggregate outstanding principal balance (as of
the immediately preceding Distribution Date) of the Group II Loans in any single
five-digit California zip code area with the largest amount of Group II Loans by
aggregate principal balance as of such anniversary and (B) the greater of (i)
the product of 0.50% multiplied by the outstanding principal balance of all
Mortgage Loans in Loan Group II on the Distribution Date immediately preceding
such anniversary multiplied by a fraction, the numerator of which is equal to
the aggregate outstanding principal balance (as of the immediately preceding
Distribution Date) of all of the Mortgage Loans in Loan Group II secured by
Mortgaged Properties located in the State of California divided by the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of all of the Mortgage Loans in Loan Group II, expressed as a percentage,
and the denominator of which is equal to 35.00% (which percentage is equal to
the percentage of Mortgage Loans in Loan Group II initially secured by Mortgaged
Properties located in the State of California) and (ii) the aggregate
20
outstanding principal balance (as of the immediately preceding Distribution
Date) of the largest Mortgage Loan in Loan Group II secured by a Mortgaged
Property (or, with respect to a Cooperative Loan, the related Cooperative
Apartment) located in the State of California.
The Group II Special Hazard Amount may be further reduced by the Master
Servicer (including accelerating the manner in which coverage is reduced)
provided that prior to any such reduction, the Master Servicer shall (i) obtain
written confirmation from each Rating Agency that such reduction shall not
reduce the rating assigned to any Class of Certificates by such Rating Agency
(without giving effect to the Certificate Policy in the case of the Insured
Certificates) below the lower of the then-current rating or the rating assigned
to such Certificates as of the Closing Date by such Rating Agency and (ii)
provide a copy of such written confirmation to the Trustee.
Highest Priority: As of any date of determination, the Class of related
Subordinate Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the earliest priority for payments pursuant to Section
4.02(a), in the following order: Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2 and Class B-3 Certificates.
Indirect Depository Participant: An institution that is not a Depository
Participant but clears through or maintains a custodial relationship with
Participants and has access to the Depository's clearing system.
Initial Monthly Payment Fund: $189,945 representing scheduled principal
amortization and interest at the Net Mortgage Rate during the month of December
2004, for those Mortgage Loans for which the Trustee will not be entitled to
receive such payment in accordance with the definition of "Trust Fund". The
Initial Monthly Payment Fund will not be part of any REMIC.
Initial Notional Amount: With respect to the Class I-A-2 Certificates,
$35,700,000. For federal income tax purposes, however, the Initial Notional
Amount of the I-A-2 Certificates is a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest I-A-3. With
respect to any Class A-V Certificates or Subclass thereof issued pursuant to
Section 5.01(c), the aggregate Cut-off Date Principal Balance of the Mortgage
Loans corresponding to the Uncertificated Class A-V REMIC Regular Interests
represented by such Class or Subclass on such date.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Certificate Principal Balance of such Class of Subordinate Certificates divided
by the aggregate Stated Principal Balance of all the Mortgage Loans in the
related Loan Group as of the Cut-off Date as follows:
Class I-M-1: 1.20% Class I-B-1: 0.20%
Class I-M-2: 0.50% Class I-B-2: 0.20%
Class I-M-3: 0.30% Class I-B-3: 0.10%
Class II-M-1: 0.80% Class II-B-1: 0.10%
Class II-M-2: 0.20% Class II-B-2: 0.10%
Class II-M-3: 0.15% Class II-B-3: 0.10%
21
Interest Only Certificates: Any one of the Class I-A-2 Certificates or
Class A-V Certificates. The Interest Only Certificates will have no Certificate
Principal Balance.
Interest Accrual Period: With respect to any Certificates (other than
the Adjustable Rate Certificates) and any Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs. With respect to the
Adjustable Rate Certificates, the one-month period commencing on the 25th day of
the month preceding the month in which the Distribution Date occurs and ending
on the 24th day of the month in which the Distribution Date occurs.
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 1.03.
LIBOR Business Day: Any day other than (i) a Saturday or Sunday or (ii)
a day on which banking institutions in London, England are required or
authorized by law to be closed.
LIBOR Rate Adjustment Date: With respect to each Distribution Date and
the Adjustable Rate Certificates, the second LIBOR Business Day immediately
preceding the commencement of the related Interest Accrual Period on which banks
are open for dealing in foreign currency and exchange in London, England.
Loan Group: Loan Group I or Loan Group II.
Loan Group I: The group of Mortgage Loans comprised of the Group I
Loans.
Loan Group II: The group of Mortgage Loans comprised of the Group II
Loans.
Lockout Certificates: The Class I-A-24, Class I-A-25 and Class I-A-26
Certificates.
Lockout Percentage: For any Distribution Date occurring prior to the
Distribution Date in January 2010, 0%. For any Distribution Date occurring after
the first five years following the Closing Date, a percentage determined as
follows: (i) for any Distribution Date during the sixth year after the Closing
Date, 30%; (ii) for any Distribution Date during the seventh year after the
Closing Date, 40%; (iii) for any Distribution Date during the eighth year after
the Closing Date, 60%; (iv) for any Distribution Date during the ninth year
after the Closing Date, 80%; and (v) for any Distribution Date thereafter, 100%.
Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of related Subordinate Certificates
then outstanding with a Certificate Principal Balance greater than zero, with
later priority for payments pursuant to Section 4.02(a).
Lowest Priority: As of any date of determination, the Class of related
Subordinate Certificates then outstanding with the latest priority for payments
pursuant to Section 4.02(a), in the following order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1 Certificates.
22
Maturity Date: With respect to each Class of Group I Senior
Certificates, Class I-M Certificates and Class I-B Certificates, December 25,
2034, the Distribution Date immediately following the latest scheduled maturity
date of any Group I Loan. With respect to each Class of Group II Senior
Certificates, Class II-M Certificates and Class II-B Certificates, December 25,
2019, the Distribution Date immediately following the latest scheduled maturity
date of any Group II Loan.
Mortgage Loan Schedule: The list or lists of the Mortgage Loans attached
hereto as Exhibit One (with respect to the Group I Loans) and Exhibit Two (with
respect to the Group II Loans) (as amended from time to time to reflect the
addition of Qualified Substitute Mortgage Loans), which list or lists shall set
forth the following information as to each Mortgage Loan in the related Loan
Group:
(a) the Mortgage Loan identifying number ("RFC LOAN #");
(b) the maturity of the Mortgage Note ("MATURITY DATE");
(c) the Mortgage Rate ("ORIG RATE");
(d) the Subservicer pass-through rate ("CURR NET");
(e) the Net Mortgage Rate ("NET MTG RT");
(f) the Pool Strip Rate ("STRIP");
(g) the initial scheduled monthly payment of principal, if any, and
interest ("ORIGINAL P & I");
(h) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(i) the Loan-to-Value Ratio at origination ("LTV");
(j) the rate at which the Subservicing Fee accrues ("SUBSERV FEE")
and at which the Servicing Fee accrues ("MSTR SERV FEE");
(k) a code "T," "BT" or "CT" under the column "LN FEATURE,"
indicating that the Mortgage Loan is secured by a second or
vacation residence;
(l) a code "N" under the column "OCCP CODE," indicating that the
Mortgage Loan is secured by a non-owner occupied residence; and
(m) whether such Mortgage Loan constitutes a Group I Loan or Group II
Loan.
Such schedule may consist of multiple reports that collectively set forth all of
the information required.
Notional Amount: As of any Distribution Date, with respect to the Class
I-A-2 Certificates, a notional amount equal to the Certificate Principal Balance
of the Class I-A-3 Certificates. For federal income tax purposes, however, as of
any Distribution Date, with respect to the Class I-A-2 Certificates, the
equivalent of the foregoing, expressed as a notional amount equal to the
Uncertificated Principal Balance of REMIC III Regular Interest I-A-3. As of any
Distribution Date, with respect to any Class A-V Certificates or Subclass
thereof issued pursuant to Section 5.01(c), the notional amount equal to the
aggregate Stated Principal Balance of the Mortgage Loans corresponding to the
Uncertificated Class A-V REMIC Regular Interests represented by such Class or
Subclass as of the day immediately preceding such Distribution Date (or, with
respect to the initial Distribution Date, at the close of business on the
23
Cut-off Date). For federal income tax purposes, however, the Class A-V
Certificates and any Subclass thereof will not accrue interest on a Notional
Amount, but will be entitled to 100% of the amounts distributed on the
Uncertificated Class A-V REMIC Regular Interests represented by such Class or
Subclass as of the day immediately preceding such Distribution Date (or, with
respect to the initial Distribution Date, at the close of business on the
Cut-off Date).
Pass-Through Rate: With respect to the Class A Certificates (other than
the Adjustable Rate Certificates, Class A-V Certificates and Principal Only
Certificates), Class M Certificates, Class B Certificates and Class R
Certificates and any Distribution Date, the per annum rates set forth in the
Preliminary Statement hereto. With respect to the Class I-A-2 Certificates and
the initial Interest Accrual Period, 4.80% per annum, and as to any Interest
Accrual Period thereafter, a per annum rate equal to 7.20% minus LIBOR, subject
to a maximum rate of 7.20% per annum and a minimum rate of 0.00% per annum. With
respect to the Class I-A-3 Certificates and the initial Interest Accrual Period,
2.70% per annum, and as to any Interest Accrual Period thereafter, a per annum
rate equal to LIBOR plus 0.30%, subject to a maximum rate of 7.50% per annum and
a minimum rate of 0.30% per annum. With respect to any Class A-V Certificates or
any Subclass thereof issued pursuant to Section 5.01(c) and any Distribution
Date, a rate equal to the weighted average, expressed as a percentage, of the
Pool Strip Rates of all Mortgage Loans corresponding to the Uncertificated Class
A-V REMIC Regular Interests represented by such Class or Subclass as of the Due
Date in the related Due Period, weighted on the basis of the respective Stated
Principal Balances of such Mortgage Loans as of the day immediately preceding
such Distribution Date (or with respect to the initial Distribution Date, at the
close of business on the Due Date in the month preceding the month of such
Distribution Date). With respect to the Class I-A-V Certificates and the initial
Distribution Date, the Pass-Through Rate is equal to 0.0685% per annum. With
respect to the Class II-A-V Certificates and the initial Distribution Date, the
Pass-Through Rate is equal to 0.2608% per annum. For federal income tax
purposes, however, the Class A-V Certificates will not have a pass-through rate,
but will be entitled to 100% of the amounts distributed on the Uncertificated
Class A-V REMIC Regular Interests represented by such Class or Subclass as of
the day immediately preceding such Distribution Date (or, with respect to the
initial Distribution Date, at the close of business on the Cut-off Date). The
Principal Only Certificates have no Pass-Through Rate and are not entitled to
Accrued Certificate Interest.
Pool Strip Rate: With respect to each Group I Loan, a per annum rate
equal to the Net Mortgage Rate of such Mortgage Loan minus 5.50%, but not less
than 0.00%, per annum. With respect to each Group II Loan, a per annum rate
equal to the Net Mortgage Rate of such Mortgage Loan minus 4.75%, but not less
than 0.00%, per annum.
Prepayment Assumption: A prepayment assumption of 300% of the prepayment
speed assumption, used for determining the accrual of original issue discount
and market discount and premium on the Certificates for federal income tax
purposes. The prepayment speed assumption assumes a constant rate of prepayment
of mortgage loans of 0.2% per annum of the then outstanding principal balance of
such mortgage loans in the first month of the life of the mortgage loans,
increasing by an additional 0.2% per annum in each succeeding month until the
thirtieth month, and a constant 6% per annum rate of prepayment thereafter for
the life of the mortgage loans.
Prepayment Distribution Percentage: With respect to any Distribution
Date and each Class of Subordinate Certificates for each Loan Group, under the
applicable circumstances set forth below, the respective percentages set forth
below:
24
(i) For any Distribution Date prior to the Distribution Date in
January 2010 (unless the Certificate Principal Balances of the related
Senior Certificates (other than the Class A-P Certificates) have been
reduced to zero), 0%.
(ii) For any Distribution Date for which clause (i) above does
not apply, and on which any Class of related Subordinate Certificates is
outstanding with a Certificate Principal Balance greater than zero:
(a) in the case of the Class of related Subordinate
Certificates then outstanding with the Highest Priority and each
other Class of Subordinate Certificates for which the related
Prepayment Distribution Trigger has been satisfied, a fraction,
expressed as a percentage, the numerator of which is the
Certificate Principal Balance of such Class immediately prior to
such date and the denominator of which is the sum of the
Certificate Principal Balances immediately prior to such date of
(1) the Class of related Subordinate Certificates then
outstanding with the Highest Priority and (2) all other Classes
of related Subordinate Certificates for which the respective
Prepayment Distribution Triggers have been satisfied; and
(b) in the case of each other Class of related Subordinate
Certificates for which the Prepayment Distribution Triggers have
not been satisfied, 0%.
Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in Section
4.02 of this Series Supplement (determined without regard to the proviso
to the definition of "Subordinate Principal Distribution Amount") would
result in a distribution in respect of principal of any Class or Classes
of Subordinate Certificates in an amount greater than the remaining
Certificate Principal Balance thereof (any such class, a "Maturing
Class"), then: (a) the Prepayment Distribution Percentage of each
Maturing Class shall be reduced to a level that, when applied as
described above, would exactly reduce the Certificate Principal Balance
of such Class to zero; (b) the Prepayment Distribution Percentage of
each other Class of related Subordinate Certificates (any such Class, a
"Non-Maturing Class") shall be recalculated in accordance with the
provisions in paragraph (ii) above, as if the Certificate Principal
Balance of each Maturing Class had been reduced to zero (such percentage
as recalculated, the "Recalculated Percentage"); (c) the total amount of
the reductions in the Prepayment Distribution Percentages of the related
Maturing Class or Classes pursuant to clause (a) of this sentence,
expressed as an aggregate percentage, shall be allocated among the
related Non-Maturing Classes in proportion to their respective
Recalculated Percentages (the portion of such aggregate reduction so
allocated to any related Non-Maturing Class, the "Adjustment
Percentage"); and (d) for purposes of such Distribution Date, the
Prepayment Distribution Percentage of each Non-Maturing Class shall be
equal to the sum of (1) the Prepayment Distribution Percentage thereof,
calculated in accordance with the provisions in paragraph (ii) above as
if the Certificate Principal Balance of each related Maturing Class had
not been reduced to zero, plus (2) the related Adjustment Percentage.
25
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such Class
and each Class of related Subordinate Certificates with a Lower Priority than
such Class immediately prior to such Distribution Date divided by the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) in the related Loan Group immediately prior to such Distribution
Date is greater than or equal to the sum of the related Initial Subordinate
Class Percentages of such Classes of related Subordinate Certificates.
Principal Only Certificates: Any one of the Class I-A-P Certificates or
Class II-A-P Certificates.
Record Date: With respect to each Distribution Date and each Class of
Certificates (other than the Adjustable Rate Certificates that are Book-Entry
Certificates), the close of business on the last business day of the month next
preceding the month in which the related Distribution Date occurs. With respect
to each Distribution Date and the Adjustable Rate Certificates (so long as they
are Book-Entry Certificates), the close of business on the Business Day prior to
such Distribution Date.
Relief Act: The Servicemembers Civil Relief Act or similar legislation
or regulations as in effect from time to time.
Relief Act Shortfalls: Shortfalls in interest payable by a Mortgagor
that is not collectable from the Mortgagor pursuant to the Relief Act.
REMIC I: The segregated pool of assets related to this Series, with
respect to which a REMIC election is to be made (except as provided below)
pursuant to this Agreement, consisting of:
(i) the Group I Loans and the related Mortgage Files and collateral
securing such Group I Loans,
(ii) all payments on and collections in respect of the Group I Loans
due after the Cut-off Date (other than Monthly Payments due in
the month of the Cut-off Date) as shall be on deposit in the
Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund, but not including amounts on deposit
in the Initial Monthly Payment Fund,
(iii) property that secured a Group I Loan and that has been acquired
for the benefit of the Certificateholders by foreclosure or deed
in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if
any, related to Group I Loans and
(v) all proceeds of clauses (i) through (iv) above.
Notwithstanding the foregoing, the REMIC election with respect to REMIC
I specifically excludes the Initial Monthly Payment Fund.
26
REMIC I Certificates: The Class R-I Certificates.
REMIC I Regular Interests: The uncertificated partial undivided
beneficial ownership interests in REMIC I, designated as REMIC I Regular
Interest A, REMIC I Regular Interest I-A-P and the REMIC I I-A-V Regular
Interests.
REMIC I I-A-V Regular Interests: The 596 uncertificated partial
undivided beneficial ownership interests in the Trust Fund, each relating to a
Group I Loan with a Net Mortgage Rate in excess of 5.50%, each having no
principal balance and each bearing interest at the respective Uncertificated
Pass-Through Rate on the respective Uncertificated Notional Amount.
REMIC II: The segregated pool of assets related to this Series, with
respect to which a REMIC election is to be made (except as provided below)
pursuant to this Agreement, consisting of:
(i) the Group II Loans and the related Mortgage Files and collateral
securing such Group II Loans,
(ii) all payments on and collections in respect of the Group II Loans
due after the Cut-off Date (other than Monthly Payments due in
the month of the Cut-off Date) as shall be on deposit in the
Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund, but not including amounts on deposit
in the Initial Monthly Payment Fund,
(iii) property that secured a Group II Loan and that has been acquired
for the benefit of the Certificateholders by foreclosure or deed
in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if
any, related to Group II Loans an
(v) all proceeds of clauses (i) through (iv) above.
Notwithstanding the foregoing, the REMIC election with respect to REMIC
II specifically excludes the Initial Monthly Payment Fund.
REMIC II Certificates: The Class R-II Certificates.
REMIC II II-A-V Regular Interests: The 254 uncertificated partial
undivided beneficial ownership interests in the Trust Fund, each relating to a
Group II Loan with a Net Mortgage Rate in excess of 4.75%, each having no
principal balance and each bearing interest at the respective Uncertificated
Pass-Through Rate on the respective Uncertificated Notional Amount.
REMIC II Regular Interests: The uncertificated partial undivided
beneficial ownership interests in REMIC II, designated as REMIC II Regular
Interest B, REMIC II Regular Interest II-A-P and the REMIC II II-A-V Regular
Interests.
REMIC III: The segregated pool of assets consisting of the REMIC I
Regular Interests and the REMIC II Regular Interests conveyed in trust to the
Trustee for the benefit of the holders of the REMIC III Regular Interests and
the Class R-III Certificates pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made. The REMIC election with respect to REMIC
III specifically excludes the Initial Monthly Payment Fund.
27
REMIC III Certificates: The Class R-III Certificates.
REMIC III I-A-V Regular Interests: The 596 uncertificated partial
undivided beneficial ownership interests in the Trust Fund, each relating to a
Group I Loan with a Net Mortgage Rate in excess of 5.50%, each having no
principal balance and each bearing interest at the respective Uncertificated
Pass-Through Rate on the respective Uncertificated Notional Amount.
REMIC III II-A-V Regular Interests: The 254 uncertificated partial
undivided beneficial ownership interests in the Trust Fund, each relating to a
Group II Loan with a Net Mortgage Rate in excess of 4.75%, each having no
principal balance and each bearing interest at the respective Uncertificated
Pass-Through Rate on the respective Uncertificated Notional Amount.
REMIC III Regular Interests: The uncertificated partial undivided
beneficial ownership interests in REMIC III, designated as REMIC III Regular
Interests I-A-1, I-A-3, I-A-4, I-A-5, I-A-6, I-A-7, I-A-8, I-A-9, I-A-10,
I-A-11, I-A-12, I-A-13, I-A-14, I-A-15, I-A-16, I-A-17, I-A-18, I-A-19, I-A-20,
I-A-21, I-A-22, I-A-23, I-A-24, I-A-25, I-A-26, I-A-27, I-A-P, II-A-1, II-A-P,
I-M-1, I-M-2, I-M-3, I-B-1, I-B-2, I-B-3, II-M-1, II-M-2, II-M-3, II-B-1, II-B-2
and II-B-3 and the REMIC III I-A-V Regular Interests and the REMIC III II-A-V
Regular Interests.
REMIC IV: The segregated pool of assets consisting of the REMIC III
Regular Interests conveyed in trust to the Trustee for the benefit of the
holders of the Class I-A-1, Class I-A-2, Class I-A-3, Class I-A-4, Class I-A-5,
Class I-A-6, Class I-A-7, Class I-A-8, Class I-A-9, Class I-A-10, Class I-A-11,
Class I-A-12, Class I-A-13, Class I-A-14, Class I-A-15 Class I-A-16, Class
I-A-17, Class I-A-18, Class I-A-19, Class I-A-20, Class I-A-21, Class I-A-22,
Class I-A-23, Class I-A-24, Class I-A-25, Class I-A-26, Class I-A-27, Class
II-A-1, Class I-A-P, Class II-A-P, Class I-A-V, Class II-A-V, Class I-M-1, Class
I-M-2, Class I-M-3, Class II-M-1, Class II-M-2, Class II-M-3, Class I-B-1, Class
I-B-2, Class I-B-3, Class II-B-1, Class II-B-2, Class II-B-3 and Class R-IV
Certificates pursuant to Section 2.06, with respect to which a separate REMIC
election is to be made. The REMIC election with respect to REMIC IV specifically
excludes the Initial Monthly Payment Fund.
REMIC IV Certificates: Any of the Class I-A-1, Class I-A-2, Class I-A-3,
Class I-A-4, Class I-A-5, Class I-A-6, Class I-A-7, Class I-A-8, Class I-A-9,
Class I-A-10, Class I-A-11, Class I-A-12, Class I-A-13, Class I-A-14, Class
I-A-15 Class I-A-16, Class I-A-17, Class I-A-18, Class I-A-19, Class I-A-20,
Class I-A-21, Class I-A-22, Class I-A-23, Class I-A-24, Class I-A-25, Class
I-A-26, Class I-A-27, Class II-A-1, Class I-A-P, Class II-A-P, Class I-A-V,
Class II-A-V, Class I-M-1, Class I-M-2, Class I-M-3, Class II-M-1, Class II-M-2,
Class II-M-3, Class I-B-1, Class I-B-2, Class I-B-3, Class II-B-1, Class II-B-2,
Class II-B-3 and Class R-IV Certificates.
Scheduled Final Distribution Date: With respect to the Class I-A, Class
R-I, Class R-III, Class R-IV and Class I-M Certificates, December 25, 2034. With
respect to the Class II-A, Class R-II and Class II-M Certificates, December 25,
2019.
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Senior Accelerated Distribution Percentage: The Group I Senior
Accelerated Distribution Percentage with respect to Loan Group I, or the Group
II Senior Accelerated Distribution Percentage with respect to Loan Group II.
Senior Certificate: Any one of the Class A Certificates or Class R
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit A
and Exhibit D, respectively.
Senior Percentage: The Group I Senior Percentage with respect to Loan
Group I, or the Group II Senior Percentage with respect to Loan Group II.
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount or Group II Senior Principal Distribution Amount.
Senior Support Certificates: Any of the Class I-A-26 Certificates.
Senior Underwriter: Citigroup Global Markets Inc.
Special Hazard Amount: The Group I Special Hazard Amount or Group II
Special Hazard Amount.
Subordinate Certificate: With respect to Loan Group I, any one of the
Class I-M Certificates or Class I-B Certificates, executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed
hereto as Exhibit B and Exhibit C, respectively. With respect to Loan Group II,
any one of the Class II-M Certificates or Class II-B Certificates, executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit B and Exhibit C, respectively.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, a fraction, expressed as a percentage,
the numerator of which is the aggregate Certificate Principal Balance of such
Class of Subordinate Certificates immediately prior to such date and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans (or related REO Properties) in the related Loan Group (other than
the related Discount Fraction of each related Discount Mortgage Loan)
immediately prior to such Distribution Date.
Subordinate Percentage: As of any Distribution Date and any Loan Group,
100% minus the related Senior Percentage as of such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group and each Class of related Subordinate
Certificates, (a) the sum of (i) the product of (x) the related Subordinate
Percentage for such Class, and (y) the aggregate of the amounts calculated for
such Distribution Date under clauses (1), (2) and (3) of Section
4.02(a)(ii)(Y)(A) of this Series Supplement (without giving effect to the
related Senior Percentage) to the extent not payable to the related Senior
Certificates; (ii) such Class's pro rata share, based on the Certificate
Principal Balance of each Class of related Subordinate Certificates then
outstanding, of the principal collections described in Section
4.02(a)(ii)(Y)(B)(b) of this Series Supplement (without giving effect to the
related Senior Accelerated Distribution Percentage) to the extent such
collections are not otherwise distributed to the related Senior Certificates;
(iii) the product of (x) the related Prepayment Distribution Percentage and (y)
the aggregate of all Principal Prepayments in Full on Mortgage Loans in the
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related Loan Group received in the related Prepayment Period and Curtailments on
Mortgage Loans in the related Loan Group received in the preceding calendar
month (other than the related Discount Fraction of such Principal Prepayments in
Full and Curtailments with respect to a related Discount Mortgage Loan) to the
extent not payable to the related Senior Certificates; (iv) if such Class is the
Class of related Subordinate Certificates with the Highest Priority, any related
Excess Subordinate Principal Amount for such Distribution Date; and (v) any
amounts described in clauses (i), (ii) and (iii) as determined for any previous
Distribution Date, that remain undistributed to the extent that such amounts are
not attributable to Realized Losses which have been allocated to a Class of
related Subordinate Certificates (other than any principal distributions
otherwise payable to such Certificates and applied as part of a Diverted Amount
on any Distribution Date); minus (b) the sum of (i) with respect to the Class of
related Subordinate Certificates with the Lowest Priority, any related Excess
Subordinate Principal Amount for such Distribution Date; and (ii) the related
Capitalization Reimbursement Amount for such Distribution Date, other than the
related Discount Fraction of any portion of that amount related to each related
Discount Mortgage Loan, multiplied by a fraction, the numerator of which is the
Subordinate Principal Distribution Amount for such Class of related Subordinate
Certificates, without giving effect to this clause (b)(ii), and the denominator
of which is the sum of the principal distribution amounts for all related
Classes of Class A Certificates (other than the related Class A-P Certificates),
without giving effect to any reductions for the related Capitalization
Reimbursement Amount.
Super Senior Certificates: Any of the Class I-A-25 Certificates.
Super Senior Optimal Percentage: As to any Distribution Date on or after
the Credit Support Depletion Date and with respect to the Super Senior
Certificates, a fraction, expressed as a percentage, the numerator of which is
the Certificate Principal Balance of such Super Senior Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Certificate Principal Balance of the related Senior Certificates (other than the
Class I-A-P Certificates) immediately prior to such Distribution Date.
Super Senior Optimal Principal Distribution Amount: As to any
Distribution Date on or after the related Credit Support Depletion Date and with
respect to the Super Senior Certificates, the product of (a) the then-applicable
Super Senior Optimal Percentage and (b) the Group I Senior Principal
Distribution Amount.
Trust Fund: REMIC I, REMIC II, REMIC III, REMIC IV and the Initial
Monthly Payment Fund.
Uncertificated Accrued Interest: With respect to each Uncertificated
Regular Interest for any Distribution Date, one month's interest at the related
Uncertificated Pass-Through Rate for such Distribution Date, accrued on the
related Uncertificated Principal Balance or Uncertificated Notional Amount, as
the case may be, immediately prior to such Distribution Date. Uncertificated
Accrued Interest for the REMIC I Regular Interests, REMIC II Regular Interests,
REMIC III Regular Interests and Uncertificated Class A-V REMIC Regular Interests
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shall accrue on the basis of a 360-day year consisting of twelve 30-day months.
Uncertificated Class A-V REMIC Regular Interests: The Uncertificated
Class I-A-V REMIC Regular Interests and the Uncertificated Class II-A-V REMIC
Regular Interests.
Uncertificated Class A-V REMIC Pass-Through Rate: Each Uncertificated
Class A-V REMIC Regular Interest will not have a Pass-Through Rate, but will be
entitled to 100% of the amounts distributed on the related REMIC III I-A-V
Regular Interest or REMIC III II-A-V Regular Interest, as the case may be.
Uncertificated Class A-V REMIC Regular Interest Distribution Amount:
With respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated Class A-V REMIC Regular Interests for such
Distribution Date pursuant to Section 10.05(a).
Uncertificated Class I-A-V REMIC Regular Interests: The 596
uncertificated partial undivided beneficial ownership interests in the Trust
Fund, each relating to a Group I Loan with a Net Mortgage Rate in excess of
5.50%, each having no principal balance and each bearing interest at the
respective Uncertificated Pass-Through Rate on the respective Uncertificated
Notional Amount.
Uncertificated Class II-A-V REMIC Regular Interests: The 254
uncertificated partial undivided beneficial ownership interests in the Trust
Fund, each relating to a Group II Loan with a Net Mortgage Rate in excess of
4.75%, each having no principal balance and each bearing interest at the
respective Uncertificated Pass-Through Rate on the respective Uncertificated
Notional Amount.
Uncertificated Notional Amount: With respect to each REMIC I I-A-V
Regular Interest and REMIC II II-A-V Regular Interest, a notional amount equal
to the Stated Principal Balance of the related Group I Loan or Group II Loan,
respectively, as of the day immediately preceding such Distribution Date (or,
with respect to the initial Distribution Date, at the close of business on the
Cut-off Date). Each REMIC III I-A-V Regular Interest and REMIC III II-A-V
Regular Interest will not have an Uncertificated Notional Amount, but will be
entitled to 100% of the amounts distributed on the related REMIC I I-A-V Regular
Interest or REMIC II II-A-V Regular Interest, respectively. Each Uncertificated
Class I-A-V REMIC Regular Interest and Uncertificated Class II-A-V REMIC Regular
Interest will not have an Uncertificated Notional Amount, but will be entitled
to 100% of the amounts distributed on the related REMIC III I-A-V Regular
Interest or REMIC III II-A-V Regular Interest, respectively.
Uncertificated Pass-Through Rate: The Uncertificated REMIC I
Pass-Through Rate, Uncertificated REMIC II Pass-Through Rate, Uncertificated
REMIC III Pass-Through Rate and the Uncertificated Class A-V REMIC Pass-Through
Rate.
Uncertificated Principal Balance: The principal amount of any REMIC I
Regular Interest (other than any REMIC I I-A-V Regular Interest), REMIC II
Regular Interest (other than any REMIC II II-A-V Regular Interest) or REMIC III
Regular Interest (other than any REMIC III I-A-V Regular Interest or REMIC III
II-A-V Regular Interest) outstanding as of any date of determination. The
Uncertificated Principal Balance of each such REMIC I Regular Interest, REMIC II
Regular Interest or REMIC III Regular Interest shall never be less than zero.
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Uncertificated Regular Interests: The REMIC I Regular Interests, REMIC
II Regular Interests, REMIC III Regular Interests and the Uncertificated Class
A-V REMIC Regular Interests.
Uncertificated REMIC I Pass-Through Rate: With respect to each of the
REMIC I Regular Interests A and I-A-P, 5.50% and 0.00% respectively. With
respect to each REMIC I I-A-V Regular Interest, a rate equal to the Pool Strip
Rate for the related Mortgage Loan.
Uncertificated REMIC II Pass-Through Rate: With respect to each of the
REMIC II Regular Interests B and II-A-P, 4.75% and 0.00% respectively. With
respect to each REMIC II II-A-V Regular Interest, a rate equal to the Pool Strip
Rate for the related Mortgage Loan.
Uncertificated REMIC III Pass-Through Rate: With respect to each of the
REMIC III Regular Interests I-A-6, I-A-7, I-A-8, I-A-9, I-A-10, I-A-11, I-A-12,
I-A-13, I-A-14, I-A-15, I-A-16, I-A-17, I-A-18, I-A-19, I-A-20, I-A-21, I-A-22,
I-A-23, I-A-24, I-A-25, I-A-26 and I-A-27, 5.50%. With respect to REMIC III
Regular Interest I-A-1, 5.00%. With respect to REMIC III Regular Interest I-A-3,
7.50%. With respect to REMIC III Regular Interest I-A-4, 5.25%. With respect to
REMIC III Regular Interest I-A-5, 5.75%. With respect to REMIC III Regular
Interest I-A-P, 0.00%. Each REMIC III I-A-V Regular Interest will not have an
Uncertificated REMIC III Pass-Through Rate, but will be entitled to 100% of the
amounts distributed on the related REMIC I I-A-V Regular Interest. With respect
to REMIC III Regular Interest II-A-1, 4.75%. With respect to REMIC III Regular
Interest II-A-P, 0.00%. Each REMIC III II-A-V Regular Interest will not have an
Uncertificated REMIC III Pass-Through Rate, but will be entitled to 100% of the
amounts distributed on the related REMIC II II-A-V Regular Interest. With
respect to each of the REMIC III Regular Interests I-M-1, I-M-2, I-M-3, I-B-1,
I-B-2 and I-B-3, 5.50%. With respect to each of the REMIC III Regular Interests
II-M-1, II-M-2, II-M-3, II-B-1, II-B-2 and II-B-3, 4.75%.
Underwriters: Each of Citigroup Global Markets Inc. and Residential
Funding Securities Corporation.
Section 1.02 Use of Words and Phrases.
"Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to the Pooling and Servicing Agreement as a
whole. All references herein to Articles, Sections or Subsections shall mean the
corresponding Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definitions set forth herein include both the singular and the
plural.
Section 1.03 Determination of LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rates on the
Adjustable Rate Certificates, if any, for any Interest Accrual Period (other
than the initial Interest Accrual Period) will be determined on each LIBOR Rate
Adjustment Date.
On each LIBOR Rate Adjustment Date (other than for the initial Interest
Accrual Period), LIBOR shall be established by the Trustee and, as to any
Interest Accrual Period, will equal the rate for one month United States dollar
deposits that appears on the Telerate Screen Page 3750 as of 11:00 a.m., London
time, on such LIBOR Rate Adjustment Date. "Telerate Screen Page 3750" means the
display designated as page 3750 on the Telerate Service (or such other page as
32
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 Adjustable Rate Certificates then outstanding. The Trustee will request the
principal London office of each of the reference banks to provide a quotation of
its rate. If at least two such quotations are provided, the rate will be the
arithmetic mean of the quotations rounded up to the next multiple of 1/16%. If
on such date fewer than two quotations are provided as requested, the rate will
be the arithmetic mean of the rates quoted by one or more major banks in New
York 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 Adjustable Rate
Certificates then outstanding. If no such quotations can be obtained, the rate
will be LIBOR for the prior Distribution Date, or in the case of the first LIBOR
Rate Adjustment Date, 2.40%; provided however, if, under the priorities listed
previously in this paragraph, LIBOR for a Distribution Date would be based on
LIBOR for the previous Distribution Date for the third consecutive Distribution
Date, the Trustee, after consultation with the Master Servicer, shall select an
alternative comparable index over which the Trustee has no control, used for
determining one-month Eurodollar lending rates that is calculated and published
or otherwise made available by an independent party.
The establishment of LIBOR by the Trustee on any LIBOR Rate Adjustment
Date and the Master Servicer's subsequent calculation of the Pass-Through Rates
applicable to each of the Adjustable Rate Certificates for the relevant Interest
Accrual Period, in the absence of manifest error, will be final and binding.
Promptly following each LIBOR Rate Adjustment Date the Trustee shall
supply the Master Servicer with the results of its determination of LIBOR on
such date. Furthermore, the Trustee will supply to any Certificateholder so
requesting by telephone the Pass-Through Rates on each of the Adjustable Rate
Certificates for the current and the immediately preceding Interest Accrual
Period.
33
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (See Section 2.01 of the Standard
Terms)
Section 2.02 Acceptance by Trustee. (See Section 2.02 of the Standard Terms)
Section 2.03 Representations, Warranties and Covenants of the Master Servicer
and the Company.
(a) For representations, warranties and covenants of the Master
Servicer, see Section 2.03(a) of the Standard Terms.
(b) The Company hereby represents and warrants to the Trustee for the
benefit of Certificateholders that as of the Closing Date (or, if
otherwise specified below, as of the date so specified):
(i) No Mortgage Loan is 30 or more days Delinquent in payment of
principal and interest as of the Cut-off Date and no Mortgage
Loan has been so Delinquent more than once in the 12-month period
prior to the Cut-off Date;
(ii) The information set forth in Exhibits One and Two hereto with
respect to each Mortgage Loan or the Mortgage Loans, as the case
may be, in Loan Group I and Loan Group II, respectively, is true
and correct in all material respects at the date or dates
respecting which such information is furnished;
(iii) The Mortgage Loans are fully-amortizing, fixed-rate mortgage
loans with level Monthly Payments due, with respect to a majority
of the Mortgage Loans, on the first day of each month and terms
to maturity at origination or modification of not more than 30
years, in the case of the Group I Loans, or 15 years, the case of
the Group II Loans;
(iv) To the best of the Company's knowledge, if a Mortgage Loan is
secured by a Mortgaged Property with a Loan-to-Value Ratio at
origination in excess of 80%, such Mortgage Loan is the subject
of a Primary Insurance Policy that insures that (I) in the case
of the Group I Loans (a) at least 30% of the Stated Principal
Balance of the Mortgage Loan at origination if the Loan-to-Value
Ratio is between 95.00% and 90.01%, (b) at least 25% of such
balance if the Loan-to-Value Ratio is between 90.00% and 85.01%,
and (c) at least 12% of such balance if the Loan-to-Value Ratio
is between 85.00% and 80.01% and (II) in the case of the Group
II Loans (a) at least 25% of the Stated Principal Balance of the
Mortgage Loan at origination if the Loan-to-Value Ratio is
between 95.00% and 90.01%, (b) at least 12% of such balance if
34
the Loan-to-Value Ratio is between 90.00% and 85.01%, and (c) at
least 6% of such balance if the Loan-to-Value Ratio is between
85.00% and 80.01%. To the best of the Company's knowledge, each
such Primary Insurance Policy is in full force and effect and
the Trustee is entitled to the benefits thereunder;
(v) The issuers of the Primary Insurance Policies are insurance
companies whose claims-paying abilities are currently acceptable
to each Rating Agency;
(vi) No more than 1.0% of the Group I Loans, by aggregate Stated
Principal Balance as of the Cut-off Date, are secured by
Mortgaged Properties located in any one zip code area in
Virginia and no more than 0.8% of the Group I Loans, by
aggregate Stated Principal Balance as of the Cut-off Date, are
secured by Mortgaged Properties located in any one zip code area
outside Virginia. No more than 1.2% of the Group II Loans, by
aggregate Stated Principal Balance as of the Cut-off Date, are
secured by Mortgaged Properties located in any one zip code area
in Texas and no more than 1.1% of the Group II Loans, by
aggregate Stated Principal Balance as of the Cut-off Date, are
secured by Mortgaged Properties located in any one zip code area
outside Texas;
(vii) The improvements upon the Mortgaged Properties are insured
against loss by fire and other hazards as required by the Program
Guide, including flood insurance if required under the National
Flood Insurance Act of 1968, as amended. The Mortgage requires
the Mortgagor to maintain such casualty insurance at the
Mortgagor's expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(viii) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company had good title to, and was the sole owner
of, each Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest (other than rights to servicing
and related compensation) and such assignment validly transfers
ownership of the Mortgage Loans to the Trustee free and clear of
any pledge, lien, encumbrance or security interest;
(ix) No more than 14.32% of the Group I Loans and no more than 19.05%
of the Group II Loans, by aggregate Stated Principal Balance as
of the Cut-off Date, were underwritten under a reduced loan
documentation program;
(x) Each Mortgagor represented in its loan application with respect
to the related Mortgage Loan that the Mortgaged Property would be
owner-occupied and therefore would not be an investor property as
of the date of origination of such Mortgage Loan. No Mortgagor is
a corporation or a partnership;
(xi) None of the Group I Loans or Group II Loans as of the Cut-off
Date are Buydown Mortgage Loans;
(xii) Each Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
35
(xiii) A policy of title insurance was effective as of the closing of
each Mortgage Loan and is valid and binding and remains in full
force and effect, unless the Mortgaged Properties are located in
the State of Iowa and an attorney's certificate has been provided
as described in the Program Guide;
(xiv) None of the Mortgage Loans are Cooperative Loans;
(xv) With respect to each Mortgage Loan originated under a
"streamlined" Mortgage Loan program (through which no new or
updated appraisals of Mortgaged Properties are obtained in
connection with the refinancing thereof), the related Seller has
represented that either (a) the value of the related Mortgaged
Property as of the date the Mortgage Loan was originated was not
less than the appraised value of such property at the time of
origination of the refinanced Mortgage Loan or (b) the
Loan-to-Value Ratio of the Mortgage Loan as of the date of
origination of the Mortgage Loan generally meets the Company's
underwriting guidelines;
(xvi) Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months;
(xvii) None of the Mortgage Loans contains in the related Mortgage File
a Destroyed Mortgage Note; and
(xviii) None of the Mortgage Loans are Pledged Asset Loans or Additional
Collateral Loans.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the Trustee or any Custodian.
Upon discovery by any of the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any of the representations and warranties set
forth in this Section 2.03(b) that materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); provided, however, that in the
event of a breach of the representation and warranty set forth in Section
2.03(b)(xii), the party discovering such breach shall give such notice within
five days of discovery. Within 90 days of its discovery or its receipt of notice
of breach, the Company shall either (i) cure such breach in all material
respects or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that the Company
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the omission or defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days
from the date such breach was discovered. Any such substitution shall be
effected by the Company under the same terms and conditions as provided in
36
Section 2.04 for substitutions by Residential Funding. It is understood and
agreed that the obligation of the Company to cure such breach or to so purchase
or substitute for any Mortgage Loan as to which such a breach has occurred and
is continuing shall constitute the sole remedy respecting such breach available
to the Certificateholders or the Trustee on behalf of the Certificateholders.
Notwithstanding the foregoing, the Company shall not be required to cure
breaches or purchase or substitute for Mortgage Loans as provided in this
Section 2.03(b) if the substance of the breach of a representation set forth
above also constitutes fraud in the origination of the Mortgage Loan.
Section 2.04 Representations and Warranties of Sellers.
The Company, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of Certificateholders
all of its right, title and interest in respect of the Assignment Agreement and
each Seller's Agreement (to the extent assigned to the Company pursuant to the
Assignment Agreement) applicable to a Mortgage Loan. Insofar as the Assignment
Agreement or the Company's rights under such Seller's Agreement relate to the
representations and warranties made by Residential Funding or the related Seller
in respect of such Mortgage Loan and any remedies provided thereunder for any
breach of such representations and warranties, such right, title and interest
may be enforced by the Master Servicer on behalf of the Trustee and the
Certificateholders.
Upon the discovery by the Company, the Master Servicer, the Trustee or
any Custodian of a breach of any of the representations and warranties made in a
Seller's Agreement that have been assigned to the Trustee pursuant to this
Section 2.04 or of a breach of any of the representations and warranties made in
the Assignment Agreement (which, for purposes hereof, will be deemed to include
any other cause giving rise to a repurchase obligation under the Assignment
Agreement) in respect of any Mortgage Loan which materially and adversely
affects the interests of the Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
(any Custodian being so obligated under a Custodial Agreement). The Master
Servicer shall promptly notify the related Seller or Residential Funding, as the
case may be, of such breach and request that such Seller or Residential Funding,
as the case may be, either (i) cure such breach in all material respects within
90 days from the date the Master Servicer was notified of such breach or (ii)
purchase such Mortgage Loan from the Trust Fund at the Purchase Price and in the
manner set forth in Section 2.02; provided that in the case of a breach under
the Assignment Agreement Residential Funding shall have the option to substitute
a Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan if such
substitution occurs within two years following the Closing Date; provided that
if the breach would cause the Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure,
repurchase or substitution must occur within 90 days from the date the breach
was discovered. If the breach of representation and warranty that gave rise to
the obligation to repurchase or substitute a Mortgage Loan pursuant to Section 4
of the Assignment Agreement was the representation and warranty set forth in
clause (xxxi) 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
37
Section 2.04, Residential Funding shall deliver to the Trustee for the benefit
of the Certificateholders with respect to such Qualified Substitute Mortgage
Loan or Loans, the original Mortgage Note, the Mortgage, an Assignment of the
Mortgage in recordable form if required pursuant to Section 2.01, and such other
documents and agreements as are required by Section 2.01, with the Mortgage Note
endorsed as required by Section 2.01. No substitution will be made in any
calendar month after the Determination Date for such month. Monthly Payments due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust Fund and will be retained by the Master Servicer
and remitted by the Master Servicer to Residential Funding on the next
succeeding Distribution Date. For the month of substitution, distributions to
the Certificateholders will include the Monthly Payment due on a Deleted
Mortgage Loan for such month and thereafter Residential Funding shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend or cause to be amended the Mortgage Loan
Schedule, and, if the Deleted Mortgage Loan was a Discount Mortgage Loan, the
Schedule of Discount Fractions, for the benefit of the Certificateholders to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Qualified Substitute Mortgage Loan or Loans and the Master Servicer shall
deliver the amended Mortgage Loan Schedule, and, if the Deleted Mortgage Loan
was a Discount Mortgage Loan, the amended Schedule of Discount Fractions, to the
Trustee. Upon such substitution, the Qualified Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement and the related Subservicing
Agreement in all respects, the related Seller shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the related Seller's Agreement as of the date of substitution,
insofar as Residential Funding's rights in respect of such representations and
warranties are assigned to the Company pursuant to the Assignment Agreement, and
the Company and the Master Servicer shall be deemed to have made with respect to
any Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the covenants, representations and warranties set forth in this Section 2.04, in
Section 2.03 hereof and in Section 4 of the Assignment Agreement, and the Master
Servicer shall be obligated to repurchase or substitute for any Qualified
Substitute Mortgage Loan as to which a Repurchase Event (as defined in the
Assignment Agreement) has occurred pursuant to Section 4 of the Assignment
Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to the
Certificateholders in the month of substitution). Residential Funding shall
deposit the amount of such shortfall into the Custodial Account on the day of
substitution, without any reimbursement therefor. Residential Funding shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall
and (subject to Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any portion of any
REMIC to fail to qualify as such at any time that any Certificate is
outstanding.
38
It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (or in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing and to make any additional
payments required under the Assignment Agreement in connection with a breach of
the representation and warranty in clause (xxxi) of Section 4 thereof shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of Certificateholders. If the Master
Servicer is Residential Funding, then the Trustee shall also have the right to
give the notification and require the purchase or substitution provided for in
the second preceding paragraph in the event of such a breach of a representation
or warranty made by Residential Funding in the Assignment Agreement. In
connection with the purchase of or substitution for any such Mortgage Loan by
Residential Funding, the Trustee shall assign to Residential Funding all of the
Trustee's right, title and interest in respect of the Seller's Agreement and the
Assignment Agreement applicable to such Mortgage Loan.
Section 2.05 Execution and Authentication of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans and
the delivery of the Mortgage Files to it, or any Custodian on its behalf,
subject to any exceptions noted, together with the assignment to it of all other
assets included in the Trust Fund, receipt of which is hereby acknowledged.
Concurrently with such delivery and in exchange therefor, the Trustee, pursuant
to the written request of the Company executed by an officer of the Company has
executed and caused to be authenticated and delivered to or upon the order of
the Company the Certificates in authorized denominations which evidence
ownership of the entire Trust Fund.
39
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
(SEE ARTICLE III OF THE STANDARD TERMS)
40
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Certificate Account. (See Section 4.01 of the Standard Terms)
Section 4.02 Distributions.
(a) On each Distribution Date the Paying Agent appointed by the
Trustee shall distribute to (i) the Master Servicer on behalf of
the Trustee or (ii) the Paying Agent appointed by the Trustee,
shall distribute, to the Master Servicer, in the case of a
distribution pursuant to Section 4.02(a)(iii) below, the amount
required to be distributed to the Master Servicer or a
Sub-Servicer pursuant to Section 4.02(a)(iii) below, and to each
Certificateholder of record on the next preceding Record Date
(other than as provided in Section 9.01 respecting the final
distribution), either (1) in immediately available funds (by wire
transfer or otherwise) to the account of such Certificateholder
at a bank or other entity having appropriate facilities therefor,
if such Certificateholder has so notified the Master Servicer or
the Paying Agent, as the case may be, or (2) if such
Certificateholder has not so notified the Master Servicer or the
Paying Agent by the Record Date, by check mailed to such
Certificateholder at the address of such Holder appearing in the
Certificate Register, such Certificateholder's share (which share
(A) with respect to each Class of Certificates (other than any
Subclass of the Class A-V Certificates), shall be based on the
aggregate of the Percentage Interests represented by Certificates
of the applicable Class held by such Holder or (B) with respect
to any Subclass of the Class A-V Certificates, shall be equal to
the amount (if any) distributed pursuant to Section 4.02(a)(i)
below to each Holder of a Subclass thereof) of the following
amounts, in the following order of priority (subject to the
provisions of Section 4.02(b) below and subject further to the
provisions of Section 4.05 in respect of any Diverted Amounts),
in each case to the extent of the related Available Distribution
Amount:
(i) (X) from the Available Distribution Amount related to the Group I
Loans, to the Group I Certificates (other than the Class I-A-P
Certificates), on a pro rata basis based on the Accrued
Certificate Interest payable on such Classes of Certificates (or
Subclasses, if any, with respect to the Class I-A-V Certificates)
for such Distribution Date, plus any Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date
except as provided in the last paragraph of this Section 4.02(a)
(the "Group I Senior Interest Distribution Amount"); and
(Y) from the Available Distribution Amount related
to the Group II Loans, to the Group II Certificates (other than
the Class II-A-P Certificates), on a pro rata basis based on
Accrued Certificate Interest payable on such Classes of
Certificates (or Subclasses, if any, with respect to the Class
II-A-V Certificates) for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date except as provided in the last paragraph of
this Section 4.02(a) (the "Group II Senior Interest Distribution
Amount"); and
41
(ii) (X) to the Class I-A-P Certificates, the Class I-A-P Principal
Distribution Amount (as defined in Section 4.02(b)(i) herein) and
to the Class II-A-P Certificates, the Class II-A-P Principal
Distribution Amount (as defined in Section 4.02(b)(i) herein);
and
(Y) to the related Senior Certificates (other than
the Class A-P Certificates), in the priorities and amounts set
forth in Section 4.02(b)(ii) through Section 4.02(f), the sum of
the following (applied to reduce the Certificate Principal
Balances of such Senior Certificates, as applicable):
(A) the related Senior Percentage for such Distribution Date times
the sum of the following:
(1) the principal portion of each Monthly Payment due during the
related Due Period on each Outstanding Mortgage Loan (other than
the related Discount Fraction of the principal portion of such
payment with respect to a Discount Mortgage Loan) in the related
Loan Group, whether or not received on or prior to the related
Determination Date, minus the principal portion of any related
Debt Service Reduction (other than the related Discount Fraction
of the principal portion of such Debt Service Reductions with
respect to each Discount Mortgage Loan in such Loan Group) which
together with other related Bankruptcy Losses exceeds the
related Bankruptcy Amount;
(2) the Stated Principal Balance of any Mortgage Loan in the related
Loan Group repurchased during the preceding calendar month (or
deemed to have been so repurchased in accordance with Section
3.07(b) of the Standard Terms) pursuant to Sections 2.02, 2.04
or 4.07 of the Standard Terms, Section 2.03 of the Standard
Terms and this Series Supplement, and the Stated Principal
Balance of the Mortgage Loans in the related Loan Group
purchased pursuant to Section 9.01 of the Standard Terms and
this Series Supplement in connection with such Distribution
Date, if applicable, and the amount of any shortfall deposited
in the Custodial Account in connection with the substitution of
a Deleted Mortgage Loan from the related Loan Group pursuant to
Section 2.04 of the Standard Terms or Section 2.03 of the
Standard Terms and this Series Supplement, during the preceding
calendar month (other than the related Discount Fraction of such
Stated Principal Balance or shortfall with respect to each
Discount Mortgage Loan in such Loan Group); and
(3) the principal portion of all other unscheduled collections with
respect to the related Loan Group (other than Principal
Prepayments in Full and Curtailments and amounts received in
connection with a Cash Liquidation or REO Disposition of a
Mortgage Loan in such Loan Group described in Section
4.02(a)(ii)(Y)(B) of this Series Supplement, including without
42
limitation any related Insurance Proceeds, Liquidation Proceeds
and REO Proceeds) including Subsequent Recoveries received
during the preceding calendar month (or deemed to have been so
received in accordance with Section 3.07(b) of the Standard
Terms) to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan pursuant to
Section 3.14 of the Standard Terms (other than the related
Discount Fraction of the principal portion of such unscheduled
collections, with respect to each Discount Mortgage Loan);
(B) with respect to each Mortgage Loan in the related Loan Group for
which a Cash Liquidation or a REO Disposition occurred during
the preceding calendar month (or was deemed to have occurred
during such period in accordance with Section 3.07(b) of the
Standard Terms) and did not result in any Excess Special Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses, an amount equal to the lesser of (a) the
related Senior Percentage for such Distribution Date times the
Stated Principal Balance of such Mortgage Loan (other than the
related Discount Fraction of such Stated Principal Balance, with
respect to each Discount Mortgage Loan) and (b) the related
Senior Accelerated Distribution Percentage for such Distribution
Date times the related unscheduled collections (including
without limitation Insurance Proceeds, Liquidation Proceeds and
REO Proceeds) to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan pursuant to
Section 3.14 of the Standard Terms (in each case other than the
portion of such unscheduled collections, with respect to a
Discount Mortgage Loan, included in Section 4.02(b)(i)(C) of
this Series Supplement);
(C) the related Senior Accelerated Distribution Percentage for such
Distribution Date times the aggregate of all Principal
Prepayments in Full received in the related Prepayment Period and
Curtailments with respect to the related Loan Group received in
the preceding calendar month (other than the related Discount
Fraction of such Principal Prepayments in Full and Curtailments,
with respect to each Discount Mortgage Loan);
(D) any related Excess Subordinate Principal Amount for such
Distribution Date;
(E) any amounts described in subsection (ii)(Y), clauses (A), (B) and
(C) of this Section 4.02(a), as determined for any previous
Distribution Date, which remain unpaid after application of
amounts previously distributed pursuant to this clause (E) to the
extent that such amounts are not attributable to Realized Losses
which have been allocated to the related Subordinate
Certificates; minus
43
(F) the related Capitalization Reimbursement Amount for such
Distribution Date, other than the related Discount Fraction of
any portion of that amount related to each Discount Mortgage
Loan in the related Loan Group, multiplied by a fraction, the
numerator of which is the related Senior Principal Distribution
Amount, without giving effect to this clause (G), and the
denominator of which is the sum of the principal distribution
amounts for all related Classes of Class A Certificates (other
than the related Class A-P Certificates) without giving effect
to any reductions for the related Capitalization Reimbursement
Amount;
(iii) if the Certificate Principal Balances of the Subordinate
Certificates relating to a Loan Group have not been reduced to
zero, to the Master Servicer or a Sub-Servicer, by remitting for
deposit to the Custodial Account, to the extent of and in
reimbursement for any Advances or Sub-Servicer Advances
previously made with respect to any related Mortgage Loan or REO
Property which remain unreimbursed in whole or in part following
the Cash Liquidation or REO Disposition of such Mortgage Loan or
REO Property, minus any such Advances that were made with
respect to delinquencies that ultimately constituted Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or Extraordinary Losses;
(iv) to the Holders of the related Class M-1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(v) to the Holders of the related Class M-1 Certificates, an amount
equal to (x) the related Subordinate Principal Distribution
Amount for such Class of Certificates for such Distribution Date,
minus (y) the amount of any related Class A-P Collection
Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates, to the extent the amounts available
pursuant to clause (x) of Sections 4.02(a)(vii), (ix), (xi),
(xiii), (xiv) and (xv) of this Series Supplement are insufficient
therefor, applied in reduction of the Certificate Principal
Balance of the related Class M-1 Certificates;
(vi) to the Holders of the related Class M-2 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(vii) to the Holders of the related Class M-2 Certificates, an amount
equal to (x) the related Subordinate Principal Distribution
Amount for such Class of Certificates for such Distribution Date,
minus (y) the amount of any related Class A-P Collection
Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates, to the extent the amounts available
pursuant to clause (x) of Sections 4.02(a)(ix), (xi), (xiii),
(xiv) and (xv) of this Series Supplement are insufficient
therefor, applied in reduction of the Certificate Principal
Balance of the related Class M-2 Certificates;
44
(viii) to the Holders of the related Class M-3 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(ix) to the Holders of the related Class M-3 Certificates, an amount
equal to (x) the related Subordinate Principal Distribution
Amount for such Class of Certificates for such Distribution Date
minus (y) the amount of any related Class A-P Collection
Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates, to the extent the amounts available
pursuant to clause (x) of Sections 4.02(a)(xi), (xiii), (xiv) and
(xv) of this Series Supplement are insufficient therefor, applied
in reduction of the Certificate Principal Balance of the related
Class M-3 Certificates;
(x) to the Holders of the related Class B-1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(xi) to the Holders of the related Class B-1 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for
such Class of Certificates for such Distribution Date minus (y)
the amount of any related Class A-P Collection Shortfalls for
such Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available pursuant
to clause (x) of Sections 4.02(a)(xiii), (xiv) and (xv) of this
Series Supplement are insufficient therefor, applied in reduction
of the Certificate Principal Balance of the related Class B-1
Certificates;
(xii) to the Holders of the related Class B-2 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below;
(xiii) to the Holders of the related Class B-2 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for
such Class of Certificates for such Distribution Date minus (y)
the amount of any related Class A-P Collection Shortfalls for
such Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent the amounts available pursuant
to clause (x) of Sections 4.02(a)(xiv) and (xv) of this Series
Supplement are insufficient therefor, applied in reduction of the
Certificate Principal Balance of the related Class B-2
Certificates;
45
(xiv) to the Holders of the related Class B-3 Certificates, an amount
equal to (x) the Accrued Certificate Interest thereon for such
Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date, except as
provided below, minus (y) the amount of any Class A-P Collection
Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates, to the extent the amounts available
pursuant to clause (x) of Section 4.02(a) (xv) of this Series
Supplement are insufficient therefor;
(xv) to the Holders of the related Class B-3 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for
such Class of Certificates for such Distribution Date minus (y)
the amount of any related Class A-P Collection Shortfalls for
such Distribution Date or remaining unpaid for all previous
Distribution Dates applied in reduction of the Certificate
Principal Balance of the related Class B-3 Certificates;
(xvi) to the Senior Certificates, in the priority set forth in Section
4.02(b) of this Series Supplement, the portion, if any, of the
Available Distribution Amount for the related Loan Group
remaining after the foregoing distributions, applied to reduce
the Certificate Principal Balances of such Senior Certificates,
but in no event more than the aggregate of the outstanding
Certificate Principal Balances of each such Class of Senior
Certificates, and thereafter, to each Class of related
Subordinate Certificates then outstanding beginning with such
Class with the Highest Priority, any portion of the related
Available Distribution Amount remaining after the related Senior
Certificates have been retired, applied to reduce the
Certificate Principal Balance of each such Class of Subordinate
Certificates, but in no event more than the outstanding
Certificate Principal Balance of each such Class of Subordinate
Certificates; and
(xvii) to the Class R-IV Certificates, the balance, if any, of the
Available Distribution Amount for both Loan Groups.
Notwithstanding the foregoing, on any Distribution Date, with respect to
the Class of related Subordinate Certificates outstanding on such Distribution
Date with the Lowest Priority, or in the event the related Subordinate
Certificates are no longer outstanding, the Senior Certificates, Accrued
Certificate Interest thereon remaining unpaid from any previous Distribution
Date will be distributable only to the extent that (1) a shortfall in the
amounts available to pay Accrued Certificate Interest on any Class of related
Certificates results from an interest rate reduction in connection with a
Servicing Modification, or (2) such unpaid Accrued Certificate Interest was
attributable to interest shortfalls relating to the failure of the Master
Servicer to make any required Advance, or the determination by the Master
Servicer that any proposed Advance would be a Nonrecoverable Advance with
respect to the related Mortgage Loan where such Mortgage Loan has not yet been
the subject of a Cash Liquidation or REO Disposition or the related Liquidation
Proceeds, Insurance Proceeds and REO Proceeds have not yet been distributed to
the Certificateholders.
(b) Distributions of principal on the Senior Certificates on
each Distribution Date occurring prior to the related
Credit Support Depletion Date will be made as follows:
46
(i) to the Class I-A-P Certificates and Class II-A-P
Certificates from the related Available Distribution
Amount, until the Certificate Principal Balance thereof is
reduced to zero, an amount (in the case of the Class I-A-P
Certificates, the "Class I-A-P Principal Distribution
Amount," and in the case of the Class II-A-P Certificates,
the "Class II-A-P Principal Distribution Amount," and
collectively, the "Class A-P Principal Distribution
Amount") equal to the aggregate of:
(A) the related Discount Fraction of the principal portion of
each Monthly Payment on each Discount Mortgage Loan in the
related Loan Group due during the related Due Period,
whether or not received on or prior to the related
Determination Date, minus the Discount Fraction of the
principal portion of any related Debt Service Reduction
which together with other related Bankruptcy Losses
exceeds the related Bankruptcy Amount;
(B) the related Discount Fraction of the principal portion of all
unscheduled collections on each Discount Mortgage Loan in the
related Loan Group received during the preceding calendar month
or, in the case of Principal Prepayments in Full, during the
related Prepayment Period (other than amounts received in
connection with a Cash Liquidation or REO Disposition of a
Discount Mortgage Loan described in clause (C) below), including
Principal Prepayments in Full, Curtailments, Subsequent
Recoveries and repurchases (including deemed repurchases under
Section 3.07(b) of the Standard Terms) of Discount Mortgage
Loans in the related Loan Group (or, in the case of a
substitution of a Deleted Mortgage Loan, the Discount Fraction
of the amount of any shortfall deposited in the Custodial
Account in connection with such substitution);
(C) in connection with the Cash Liquidation or REO Disposition
of a Discount Mortgage Loan in the related Loan Group that
did not result in any Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary
Losses, an amount equal to the lesser of (1) the
applicable Discount Fraction of the Stated Principal
Balance of such Discount Mortgage Loan immediately prior
to such Distribution Date and (2) the aggregate amount of
the collections on such Discount Mortgage Loan to the
extent applied as recoveries of principal;
(D) any amounts allocable to principal for the related Loan
Group for any previous Distribution Date (calculated
pursuant to clauses (A) through (C) above) that remain
undistributed; and
(E) the amount of any related Class A-P Collection Shortfalls
for such Distribution Date and the amount of any such
Class A-P Collection Shortfalls remaining unpaid for all
previous Distribution Dates, but only to the extent of the
Eligible Funds in the related Loan Group for such
Distribution Date; minus
47
(F) the related Discount Fraction of the portion of the
related Capitalization Reimbursement Amount for such
Distribution Date, if any, related to each related
Discount Mortgage Loan; and
(ii) the Group I Senior Principal Distribution Amount shall be
distributed to the Class R-I, Class R-III and Class R-IV
Certificates, concurrently on a pro rata basis, until the
Certificate Principal Balances thereof have been reduced
to zero;
(iii) the balance of the Group I Senior Principal Distribution
Amount remaining after the distributions, if any,
described in clause (ii) above shall be distributed
concurrently as follows:
(A) 3.9879245644 % to the Class I-A-27 Certificates, until the
Certificate Principal Balance thereof has been reduced to
zero; and
(B) 96.0120754356% in the following order of priority:
(1) first, the remaining Group I Senior
Principal Distribution Amount available under
clause (iii)(B) shall be distributed to the Lockout
Certificates, concurrently on a pro rata basis, in
reduction of the Certificate Principal Balances
thereof, in an amount equal to the Lockout
Percentage of the Class I-A-24, Class I-A-25 and
Class I-A-26 Certificates' pro rata share (based on
the Certificate Principal Balances thereof and the
aggregate Certificate Principal Balance of all of
the Group I Senior Certificates (other than the
Class I-A-27, Class I-A-P, Class R-I, Class R-III
and Class R-IV Certificates)) of the aggregate of
the collections described in Section
4.02(a)(ii)(Y)(A), (B), (C) and (E) with
application of the Group I Senior Percentage or the
Group I Senior Accelerated Distribution Percentage;
(2) second, concurrently on a pro rata
basis, to the Class I-A-1, Class I-A-3, Class
I-A-4, Class I-A-5 and Class I-A-6 Certificates,
until the Certificate Principal Balances thereof
have been reduced to zero;
(3) third, concurrently as follows:
(i) 48.8636363636% of the Group I
Senior Principal Distribution Amount
available under clause (iii)(B)(3) to the
Class I-A-7 Certificates, until the
Certificate Principal Balance thereof has
been reduced to zero; and
(ii) 51.1363636364% of the Group I
Senior Principal Distribution Amount
available under clause (iii)(B)(3)
sequentially, to the Class I-A-8, Class
I-A-9, Class I-A-10, Class I-A-11, Class
I-A-12, Class I-A-13, Class I-A-14, Class
I-A-15, Class I-A-16, Class I-A-17, Class
I-A-18, Class I-A-19, Class I-A-20, Class
I-A-21 and Class I-A-22 Certificates, in
that order, in each case until the
Certificate Principal Balance thereof has
been reduced to zero;
48
(4) fourth, to the Class I-A-23
Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; and
(5) fifth, to the Lockout Certificates,
concurrently on a pro rata basis, until the
Certificate Principal Balances thereof have been
reduced to zero;
(iv) the Group II Senior Principal Distribution Amount shall be
distributed to the Class R-II Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(v) the balance of the Group II Senior Principal Distribution Amount
remaining after the distribution, if any, described in clause
(iv) above shall be distributed to the Class II-A-1 Certificates,
until the Certificate Principal Balance thereof has been reduced
to zero.
(c) On or after the occurrence of the Credit Support Depletion Date
with respect to Loan Group I but prior to the reduction of the
Certificate Principal Balance of the Senior Support Certificates
to zero, all priorities relating to distributions as described in
Section 4.02(b) above in respect of principal among the various
classes of related Senior Certificates (other than the Class
I-A-P Certificates) will be disregarded, and (i) an amount equal
to the Discount Fraction of the principal portion of scheduled
payments and unscheduled collections received or advanced in
respect of the Discount Mortgage Loans in Loan Group I will be
distributed to the Class I-A-P Certificates, (ii) the Group I
Senior Principal Distribution Amount will be distributed to the
remaining Classes of related Senior Certificates (other than the
Class I-A-P Certificates) pro rata in accordance with their
respective outstanding Certificate Principal Balances, and (iii)
the amount set forth in Section 4.02(a)(i) will be distributed as
set forth therein; provided that the aggregate amount
distributable to the Super Senior Certificates and the Senior
Support Certificates will be distributed among such Certificates
in the following priority: first, to the Super Senior
Certificates, up to an amount equal to the Accrued Certificate
Interest thereon; second to the Super Senior Certificates, up to
an amount equal to the Super Senior Optimal Principal
Distribution Amount, in reduction of the Certificate Principal
Balance thereof, until such Certificate Principal Balance has
been reduced to zero; third, to the Senior Support Certificates,
up to an amount equal to the Accrued Certificate Interest
thereon; and fourth, to the Senior Support Certificates, the
remainder, until the Certificate Principal Balance thereof has
been reduced to zero.
(d) On or after the occurrence of the Credit Support Depletion Date
and, with respect to Loan Group I, after the reduction of the
Certificate Principal Balance of the Senior Support Certificates
to zero, all priorities relating to distributions as described in
clauses Section 4.02(b) and (c) above in respect of principal
among the various classes of Senior Certificates (other than the
Class A-P Certificates) will be disregarded, and (i) an amount
equal to the Discount Fraction of the principal portion of
scheduled payments and unscheduled collections received or
advanced in respect of the Discount Mortgage Loans will be
49
distributed to the related Class A-P Certificates, (ii) the
applicable Senior Principal Distribution Amount will be
distributed to the remaining Classes of related Senior
Certificates (other than the Class A-P Certificates) pro rata in
accordance with their respective outstanding Certificate
Principal Balances, and (iii) the amount set forth in Section
4.02(a)(i) will be distributed as set forth therein.
(e) After the reduction of the Certificate Principal Balances of the
Senior Certificates in a certificate group (other than the
related Class A-P Certificates) to zero but prior to the related
Credit Support Depletion Date, the related Senior Certificates
(other than the related Class A-P Certificates) will be entitled
to no further distributions of principal thereon and the related
Available Distribution Amount will be paid solely to the holders
of the related Class A-P Certificates, the related Variable Strip
Certificates and the related Subordinate Certificates, in each
case as described herein.
(f) In addition to the foregoing distributions, with respect to any
Subsequent Recoveries, the Master Servicer shall deposit such
funds into the Custodial Account pursuant to Section
3.07(b)(iii). If, after taking into account such Subsequent
Recoveries, the amount of a Realized Loss is reduced, the amount
of such Subsequent Recoveries will be applied to increase the
Certificate Principal Balance of the Class of related Subordinate
Certificates with the Highest Priority to which Realized Losses,
other than Excess Bankruptcy Losses, Excess Fraud Losses, Excess
Special Hazard Losses and Extraordinary Losses, have been
allocated, but not by more than the amount of Realized Losses
previously allocated to that Class of Certificates pursuant to
Section 4.05. The amount of any remaining Subsequent Recoveries
will be applied to increase the Certificate Principal Balance of
the Class of related Certificates with the next Lower Priority,
up to the amount of such Realized Losses previously allocated to
that Class of Certificates pursuant to Section 4.05. Any
remaining Subsequent Recoveries will in turn be applied to
increase the Certificate Principal Balance of the Class of
related Certificates with the next Lower Priority up to the
amount of such Realized Losses previously allocated to that Class
of Certificates pursuant to Section 4.05, and so on. Holders of
such Certificates will not be entitled to any payment in respect
of Accrued Certificate Interest on the amount of such increases
for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be
applied to the Certificate Principal Balance of each Certificate
of such Class in accordance with its respective Percentage
Interest.
(g) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository
shall be solely responsible for crediting the amount of such
distribution to the accounts of its Depository Participants in
accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution
to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm") for which it
acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents.
None of the Trustee, the Certificate Registrar, the Company or
the Master Servicer shall have any responsibility therefor.
50
(h) Except as otherwise provided in Section 9.01, if the Master
Servicer anticipates that a final distribution with respect to
any Class of Certificates will be made on a future Distribution
Date, the Master Servicer shall, no later than 60 days prior to
such final distribution, notify the Trustee and the Trustee
shall, not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of such final
distribution, mail to each Holder of such Class of Certificates a
notice to the effect that: (i) the Trustee anticipates that the
final distribution with respect to such Class of Certificates
will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trustee
or as otherwise specified therein, and (ii) no interest shall
accrue on such Certificates from and after the end of the related
Interest Accrual Period. In the event that Certificateholders
required to surrender their Certificates pursuant to Section
9.01(c) do not surrender their Certificates for final
cancellation, the Trustee shall cause funds distributable with
respect to such Certificates to be withdrawn from the Certificate
Account and credited to a separate escrow account for the benefit
of such Certificateholders as provided in Section 9.01(d).
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting. (See Section 4.03 of the
Standard Terms)
Section 4.04 Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer. (See Section 4.04 of the
Standard Terms)
Section 4.05 Allocation of Realized Losses.
(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 Modification, Debt Service Reduction, Deficient Valuation
or REO Disposition that occurred during the related Prepayment Period or, in the
case of a Servicing Modification that constitutes a reduction of the interest
rate on a Mortgage Loan, the amount of the reduction in the interest portion of
the Monthly Payment due during the related Due Period. The amount of each
Realized Loss shall be evidenced by an Officers' Certificate. All Realized
Losses, other than Excess Special Hazard Losses, Extraordinary Losses, Excess
Bankruptcy Losses or Excess Fraud Losses, shall be allocated as follows: first,
to the related Class B-3 Certificates until the Certificate Principal Balance
thereof has been reduced to zero; second, to the related Class B-2 Certificates
until the Certificate Principal Balance thereof has been reduced to zero; third,
to the related Class B-1 Certificates until the Certificate Principal Balance
thereof has been reduced to zero; fourth, to the related Class M-3 Certificates
until the Certificate Principal Balance thereof has been reduced to zero; fifth,
to the related Class M-2 Certificates until the Certificate Principal Balance
thereof has been reduced to zero; sixth, to the related Class M-1 Certificates
until the Certificate Principal Balance thereof has been reduced to zero; and,
thereafter, if any such Realized Losses are on a Discount Mortgage Loan, to the
related Class A-P Certificates in an amount equal to the related Discount
Fraction of the principal portion thereof, and the remainder of such Realized
Losses on the Discount Mortgage Loans and the entire amount of such Realized
Losses on Non-Discount Mortgage Loans shall be allocated (A) in the case of a
Group I Loan, among the Group I Senior Certificates (other than the Class I-A-V
Certificates and Class I-A-P Certificates) in the case of the principal portion
of such loss on a pro rata basis, and among the Group I Senior Certificates
51
(other than the Class I-A-P Certificates) in the case of the interest portion of
such loss on a pro rata basis and (B) in the case of a Group II Loan, among the
Group II Senior Certificates (other than the Class II-A-5 Certificates, Class
II-A-V Certificates and Class II-A-P Certificates) in the case of the principal
portion of such loss on a pro rata basis, and among the Group II Senior
Certificates (other than the Class II-A-P Certificates) in the case of the
interest portion of such loss on a pro rata basis (subject to Section 4.02(c)),
as described below.
(b) Any Extraordinary Losses and Excess Bankruptcy Losses (other than Debt
Service Reductions) with respect to the Group I Loans shall be allocated among
the Group I Senior Certificates, Class I-M Certificates and Class I-B
Certificates on a pro rata basis; provided that the related Discount Fraction of
the principal portion of an Extraordinary Loss or an Excess Bankruptcy Loss on a
related Discount Mortgage Loan shall be allocated to the Class I-A-P
Certificates. Any Extraordinary Losses and Excess Bankruptcy Losses (other than
Debt Service Reductions) with respect to the Group II Loans shall be allocated
among the Group II Senior Certificates, Class II-M Certificates and Class II-B
Certificates on a pro rata basis; provided that the related Discount Fraction of
the principal portion of an Extraordinary Loss or an Excess Bankruptcy Loss on a
related Discount Mortgage Loan shall be allocated to the Class II-A-P
Certificates.
(c) Any Excess Special Hazard Losses and Excess Fraud Losses shall be allocated
as follows: (a) in the case of a Group I Loan, first, to the Class II-B-3
Certificates, second, to the Class II-B-2 Certificates, and third, to the Class
II-B-1 Certificates, and (b) in the case of a Group II Loan, first, to the Class
I-B-3 Certificates, second, to the Class I-B-2 Certificates, and third, to the
Class I-B-1 Certificates, provided however that such losses will be so allocated
pursuant to this provision solely to the extent of the remaining Special Hazard
Amount or Fraud Loss Amount, as applicable, related to the certificate group to
which these losses are allocated and to the extent of the Certificate Principal
Balance of the Class B Certificates related to that Loan Group, and thereafter
shall be allocated pro rata among all the Certificates in the certificate group
in which these losses occurred, on a pro rata basis, in reduction of the
Certificate Principal Balance thereof; and provided further, that the related
Discount Fraction of the principal portion of any of these losses on a Discount
Mortgage Loan shall be allocated to the related Class A-P Certificates. To the
extent that amounts otherwise payable to a Class of Class B Certificates are
diverted to the Certificates related to the other Loan Group as part of a
Diverted Amount on any Distribution Date on which Excess Special Hazard Losses
and Excess Fraud Losses are allocated as set forth in the preceding sentence, or
on any subsequent Distribution Date until such losses are fully covered, such
amounts shall be diverted from such Class from first, Principal Prepayments, and
second, the principal portions of Monthly Payments, and shall be paid, as
principal, to the non-related Certificates as part of the related Available
Distribution Amount and shall be treated in the same manner as a Principal
Prepayment in Full.
(d) As used herein, an allocation of a Realized Loss on a "pro rata basis" among
two or more specified Classes of Certificates means an allocation on a pro rata
basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date in the case of the principal portion of a Realized Loss or based on the
Accrued Certificate Interest thereon payable on such Distribution Date (without
regard to any Compensating Interest for such Distribution Date) in the case of
an interest portion of a Realized Loss. Except as provided in the following two
sentences, any allocation of the principal portion of Realized Losses (other
than Debt Service Reductions) to a Class of Certificates shall be made by
reducing the Certificate Principal Balance thereof by the amount so allocated,
which allocation shall be deemed to have occurred on such Distribution Date;
provided that no such reduction shall reduce the aggregate Certificate Principal
Balance of a group of Certificates below the aggregate Stated Principal Balance
52
of the related Mortgage Loans. Any allocation of the principal portion of
Realized Losses (other than Debt Service Reductions) to the Subordinate
Certificates then outstanding with the Lowest Priority shall be made by
operation of the definition of "Certificate Principal Balance" and by operation
of the provisions of Section 4.02(a). Allocations of Excess Special Hazard
Losses and Excess Fraud Losses shall be made by operation of the provisions of
Section 4.05(c). Allocations of the interest portions of Realized Losses (other
than any interest rate reduction resulting from a Servicing Modification) shall
be made in proportion to the amount of Accrued Certificate Interest and by
operation of the definition of "Accrued Certificate Interest" and by operation
of the provisions of Section 4.02(a). Allocations of the interest portion of a
Realized Loss resulting from an interest rate reduction in connection with a
Servicing Modification shall be made by operation of the provisions of Section
4.02(a). Allocations of the principal portion of Debt Service Reductions shall
be made by operation of the provisions of Section 4.02(a). All Realized Losses
and all other losses allocated to a Class of Certificates hereunder will be
allocated among the Certificates of such Class in proportion to the Percentage
Interests evidenced thereby; provided that if any Subclasses of the Class A-V
Certificates have been issued pursuant to Section 5.01(c), such Realized Losses
and other losses allocated to the Class A-V Certificates shall be allocated
among such Subclasses in proportion to the respective amounts of Accrued
Certificate Interest payable on such Distribution Date that would have resulted
absent such reductions.
(e) All Realized Losses allocated to the Certificates on each Distribution Date
shall be allocated to the REMIC III Regular Interests on such Distribution Date
in the same order and priority as allocated to the Corresponding Certificated
Interests, until the Uncertificated Principal Balance of each REMIC III Regular
Interest has been reduced to zero.
(f) The interest portion of all Realized Losses on the Group I Loans shall be
allocated on each Distribution Date to REMIC I Regular Interest A and the REMIC
I I-A-V Regular Interests, pro rata with their entitlement to interest without
regard to this provision. All Realized Losses on Group I Loans allocated to
REMIC III Regular Interest I-A-P on each Distribution Date shall be allocated to
REMIC I Regular Interest I-A-P on such Distribution Date. The principal portion
of all remaining Realized Losses on Group I Mortgage Loans allocated to REMIC
III Regular Interests on each Distribution Date shall be allocated to REMIC I
Regular Interest A on such Distribution Date.
(g) The interest portion of all Realized Losses on the Group II Loans shall be
allocated on each Distribution Date to REMIC II Regular Interest B and the REMIC
II I-A-V Regular Interests, pro rata with their entitlement to interest without
regard to this provision. All Realized Losses on Group II Loans allocated to
REMIC III Regular Interest II-A-P on each Distribution Date shall be allocated
to REMIC II Regular Interest II-A-P on such Distribution Date. All remaining
Realized Losses on Group II Mortgage Loans allocated to REMIC III Regular
Interests on each Distribution Date shall be allocated to REMIC II Regular
Interest B on such Distribution Date.
53
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged
Property. (See Section 4.06 of the Standard Terms).
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See Section
4.07 of the Standard Terms).
ARTICLE V
THE CERTIFICATES
(SEE ARTICLE V OF THE STANDARD TERMS)
54
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
55
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
56
ARTICLE VIII
CONCERNING THE TRUSTEE
(SEE ARTICLE VIII OF THE STANDARD TERMS)
57
ARTICLE IX
TERMINATION
Section 9.01 Optional Purchase by the Master Servicer of All
Certificates; Termination Upon Purchase by the Master Servicer
or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Company, the Master Servicer and the
Trustee created hereby in respect of the Certificates (other than
the obligation of the Trustee to make certain payments after the
Final Distribution Date to Certificateholders and the obligation
of the Company to send certain notices as hereinafter set forth)
shall terminate upon the last action required to be taken by the
Trustee on the Final Distribution Date pursuant to this Article
IX following the earlier of:
(i) the later of the final payment or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining
in the Trust Fund or the disposition of all property acquired
upon foreclosure or deed in lieu of foreclosure of any Mortgage
Loan, or
(ii) the purchase by Residential Funding of all Mortgage Loans in a
Loan Group and all property acquired in respect of any Mortgage
Loan in that Loan Group remaining in the Trust Fund at a price
equal to 100% of the unpaid principal balance of each such
Mortgage Loan or, if less than such unpaid principal balance,
the fair market value of the related underlying property of such
Mortgage Loan with respect to Mortgage Loans as to which title
has been acquired if such fair market value is less than such
unpaid principal balance on the day of repurchase plus accrued
interest thereon at the Net Mortgage Rate (or Modified Mortgage
Rate in the case of any Modified Mortgage Loan) from the Due
Date to which interest was last paid by the Mortgagor to, but
not including, the first day of the month in which such
repurchase price is distributed, provided, however, that in no
event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date
hereof and provided further that the purchase price set forth
above shall be increased as is necessary, as determined by the
Master Servicer, to avoid disqualification of any portion of any
REMIC formed under the Series Supplement as a REMIC. The
purchase price paid by Residential Funding shall also include
(i) any amounts owed by Residential Funding pursuant to Section
4 of the Assignment Agreement in respect of any liability,
penalty or expense that resulted from a breach of the
representation and warranty set forth in clause (xxxi) of such
Section that remain unpaid on the date of such purchase and (ii)
any principal distributions used as part of any Diverted Amounts
which are reimbursable to the non-related Subordinate
Certificates that remain unpaid as of the date of such purchase.
58
The right of Residential Funding to purchase all the assets of a Loan
Group pursuant to clause (ii) above is conditioned upon the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group as of the Final
Distribution Date, prior to giving effect to distributions to be made on such
Distribution Date, being less than ten percent of the Cut-off Date Principal
Balance of the Mortgage Loans in such Loan Group. If such right is exercised by
Residential Funding, the Master Servicer shall be entitled to reimbursement for
the full amount of any unreimbursed Advances theretofore made by it with respect
to such Mortgage Loans pursuant to Section 3.10. In addition, the Master
Servicer shall provide to the Trustee the certification required by Section 3.15
and the Trustee and any Custodian shall, promptly following payment of the
purchase price, release to Residential Funding the Mortgage Files pertaining to
the Mortgage Loans being purchased.
In addition to the foregoing, on any Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans in a Loan Group, prior
to giving effect to distributions to be made on such Distribution Date, is less
than ten percent of the Cut-off Date Principal Balance of the Mortgage Loans in
such Loan Group, Residential Funding shall have the right, at its option, to
purchase the related Certificates in whole, but not in part, at a price equal to
the outstanding Certificate Principal Balance of such Certificates plus the sum
of Accrued Certificate Interest thereon for the related Interest Accrual Period
and any previously unpaid Accrued Certificate Interest.
(b) - (f) (See Section 9.01(b) - (f) of the Standard Terms)
Section 9.02 Additional Termination Requirements. (See Section 9.02 of
the Standard Terms).
Section 9.03 Termination of Multiple REMICs. (See Section 9.03 of the
Standard Terms).
59
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard Terms)
Section 10.02 Master Servicer; REMIC Administrator and Trustee
Indemnification. (See Section 10.02 of the Standard Terms)
Section 10.03 Designation of REMIC(s).
The REMIC Administrator will make an election to treat the segregated
pool of assets described in the definition of REMIC I (as defined herein), and
subject to this Agreement (including the Group I Loans but excluding the Initial
Monthly Payment Fund), as a REMIC for federal income tax purposes. The REMIC
Administrator will make an election to treat the segregated pool of assets
described in the definition of REMIC II (as defined herein), and subject to this
Agreement (including the Group II Loans but excluding the Initial Monthly
Payment Fund), as a REMIC for federal income tax purposes. The REMIC
Administrator will make an election to treat the segregated pool of assets
consisting of the REMIC I Regular Interests and the REMIC II Regular Interests,
and subject to this Agreement (excluding the Initial Monthly Payment Fund), as a
REMIC for federal income tax purposes. The REMIC Administrator will make an
election to treat the segregated pool of assets consisting of the REMIC III
Regular Interests, and subject to this Agreement (excluding the Initial Monthly
Payment Fund), as a REMIC for federal income tax purposes.
The REMIC I Regular Interests will be "regular interests" in REMIC I and
the Class R-I Certificates will be the sole class of "residual interests" in
REMIC I for purposes of the REMIC Provisions (as defined herein). The REMIC II
Regular Interests will be "regular interests" in REMIC II and the Class R-II
Certificates will be the sole class of "residual interests" in REMIC II for
purposes of the REMIC Provisions). The REMIC III Regular Interests will be
"regular interests" in REMIC III and the Class R-III Certificates will be the
sole class of "residual interests" in REMIC III for purposes of the REMIC
Provisions.
The Class I-A-1, Class I-A-2, Class I-A-3, Class I-A-4, Class I-A-5,
Class I-A-6, Class I-A-7, Class I-A-8, Class I-A-9, Class I-A-10, Class I-A-11,
Class I-A-12, Class I-A-13, Class I-A-14, Class I-A-15, Class I-A-16, Class
I-A-17, Class I-A-18, Class I-A-19, Class I-A-20, Class I-A-21, Class I-A-22,
Class I-A-23, Class I-A-24, Class I-A-25, Class I-A-26, Class I-A-27, Class
II-A-1, Class I-A-P, Class II-A-P, Class I-A-V, Class II-A-V, Class I-M-1, Class
I-M-2, Class I-M-3, Class II-M-1, Class II-M-2, Class II-M-3, Class I-B-1, Class
I-B-2, Class I-B-3, Class II-B-1, Class II-B-2 and Class II-B-3 Certificates and
the rights in and to which will be represented by the related Class A-V
Certificates, will be the "regular interests" in REMIC IV, and the Class R-IV
Certificates will be the sole class of "residual interests" therein for purposes
of the REMIC Provisions (as defined in the Standard Terms) under federal income
tax law. On and after the date of issuance of any Subclass of Class A-V
Certificates pursuant to Section 5.01(c), any such Subclass will represent the
related Uncertificated Class A-V REMIC Regular Interest or Interests specified
by the initial Holder of the related Class A-V Certificates pursuant to said
Section.
60
Section 10.04 Distributions on the Uncertificated Regular Interests.
(a) On each Distribution Date, the Trustee (or the Paying Agent on behalf of the
Trustee) shall allocate and distribute the Available Distribution Amount related
to the Group I Loans and Group II Loans to the extent on deposit in the
Certificate Account for such date to the interests issued in respect of REMIC I,
REMIC II, REMIC III and REMIC IV as specified in this Section.
(b) (1) On each Distribution Date, the following amounts, in the following order
of priority, to the extent of the Available Distribution Amount related to the
Group I Loans, reduced by distributions made to the Class R-I Certificates
pursuant to Section 4.02(b), shall be deemed distributed by REMIC I to REMIC III
on account of the REMIC I Regular Interests:
(i) Uncertificated Accrued Interest on REMIC I Regular Interest A
and the REMIC I I-A-V Regular Interests, pro rata, for such Distribution Date,
plus any Uncertificated Accrued Interest thereon remaining unpaid from any
previous Distribution Date; and
(ii) to the extent of amounts remaining after the distributions
made pursuant to clause (i) above, (x) to REMIC I Regular Interest I-A-P, in an
amount equal to the amount distributed on such Distribution Date in respect of
the Class I-A-P Certificates, and (y) the balance to REMIC I Regular Interest A
until the Uncertificated Principal Balance of such REMIC I Regular Interest is
reduced to zero.
(2) On each Distribution Date, the following amounts, in the following
order of priority, to the extent of the Available Distribution Amount related to
the Group II Loans, reduced by distributions made to the Class R-II Certificates
pursuant to Section 4.02(b), shall be deemed distributed by REMIC II to REMIC
III on account of the REMIC II Regular Interests:
(i) Uncertificated Accrued Interest on REMIC II Regular Interest
B and REMIC II Regular Interest II-A-V, pro rata, for such Distribution Date,
plus any Uncertificated Accrued Interest thereon remaining unpaid from any
previous Distribution Date; and
(ii) to the extent of amounts remaining after the distributions
made pursuant to clause (i) above, (x) to REMIC II Regular Interest II-A-P, in
an amount equal to the amount distributed on such Distribution Date in respect
of the Class II-A-P Certificates, and (y) the balance to REMIC II Regular
Interest B until the Uncertificated Principal Balance of such REMIC II Regular
Interest is reduced to zero.
(3) (A) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC III to REMIC IV on
account of the REMIC III Regular Interests related to the Group I Loans:
(i) to the extent of the Available Distribution Amount related to
the Group I Loans, reduced by distributions made to the Class R-I Certificates
and Class R-III Certificates pursuant to Section 4.02(b), to the Holders of the
related REMIC III Regular Interests, pro rata, in an amount equal to (A) the
related Uncertificated Accrued Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution Dates,
and
61
(ii) on each Distribution Date, to the Holders of the related
REMIC III Regular Interests in an amount equal to the remainder of the Available
Distribution Amount related to the Group I Loans, after the distributions made
pursuant to clause (i) above, allocated in the same proportion as principal
payments are allocated to the Corresponding Certificated Interests,
respectively, until the Uncertificated Principal Balance of each such REMIC III
Regular Interest is reduced to zero.
(B) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC III to REMIC IV on
account of the REMIC III Regular Interests related to the Group II Loans:
(i) to the extent of the Available Distribution Amount related to
the Group II Loans, reduced by distributions made to the Class R-II Certificates
pursuant to Section 4.02(b), to the Holders of the related REMIC III Regular
Interests, pro rata, in an amount equal to (A) the related Uncertificated
Accrued Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates.
(ii) on each Distribution Date, to the Holders of related REMIC
III Regular Interests in an amount equal to the remainder of the Available
Distribution Amount related to the Group II Loans, after the distributions made
pursuant to clause (i) above, allocated in the same proportion as principal
payments are allocated to the Corresponding Certificated Interests for each such
REMIC III Regular Interest, respectively, until the Uncertificated Principal
Balance of each such REMIC III Regular Interest is reduced to zero;
(c) Notwithstanding the deemed distributions on the Uncertificated Class A-V
REMIC Regular Interests described in this Section 10.04, distributions of funds
from the Certificate Account shall be made only in accordance with Section 4.02.
Section 10.05 Distributions on the Uncertificated Class A-V REMIC
Regular Interests.
(a) On each Distribution Date the Trustee shall be deemed to distribute to
itself, as the holder of the Uncertificated Class A-V REMIC Regular Interests,
Uncertificated Accrued Interest on the Uncertificated Class A-V REMIC Regular
Interests for such Distribution Date, plus any Uncertificated Accrued Interest
thereon remaining unpaid from any previous Distribution Date.
(b) In determining from time to time the Uncertificated Class A-V REMIC Regular
Interest Distribution Amounts, Realized Losses allocated to the Class A-V
Certificates under Section 4.05 shall be deemed allocated to Uncertificated
Class A-V REMIC Regular Interests on a pro rata basis based on the
Uncertificated Class A-V REMIC Accrued Interest for the related Distribution
Date.
(c) On each Distribution Date, the Trustee shall be deemed to distribute from
the Trust Fund, in the priority set forth in Section 4.02(a), to the Class A-V
Certificates, the amounts distributable thereon from the Uncertificated Class
A-V REMIC Regular Interest Distribution Amounts deemed to have been received by
the Trustee from the Trust Fund under this Section 10.05. The amount deemed
distributable hereunder with respect to the Class A-V Certificates shall equal
100% of the amounts distributable with respect to the related Uncertificated
Class A-V REMIC Regular Interests.
62
(d) Notwithstanding the deemed distributions on the Uncertificated Class A-V
REMIC Regular Interests described in this Section 10.05, distributions of funds
from the Certificate Account shall be made only in accordance with Section 4.02.
Section 10.06 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee or
any Paying Agent, as applicable, shall comply with all federal withholding
requirements respecting payments to Certificateholders, including interest or
original interest discount payments or advances thereof that the Trustee or any
Paying Agent, as applicable, reasonably believes are applicable under the Code.
The consent of Certificateholders shall not be required for such withholding. In
the event the Trustee or any Paying Agent, as applicable, does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Trustee
or any Paying Agent, as applicable, shall indicate the amount withheld to such
Certificateholder pursuant to the terms of such requirements.
63
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)
Section 11.02 Recordation of Agreement. Counterparts. (See Section 11.02
of the Standard Terms)
Section 11.03 Limitation on Rights of Certificateholders. (See Section
11.03 of the Standard Terms)
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms)
Section 11.05 Notices. All demands and notices hereunder shall be in
writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed
to have been duly given only when received), to the appropriate
address for each recipient listed in the table below or, in each
case, such other address as may hereafter be furnished in
writing to the Master Servicer, the Trustee and the Company, as
applicable:
Recipient Address
Company 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President
Master Servicer 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Managing Director/Master Servicing
Trustee The Corporate Trust Office, U.S. Bank National
Association
U.S. Bank Corporate Trust Services
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx 00000-2292
Attention: Residential Funding Corporation
Series 2004-S9
Standard & Poor's 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
64
Section 11.06 Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, shall
(i) notify each Rating Agency and the Subservicer at such time as it is
otherwise required pursuant to this Agreement to give notice of the occurrence
of any of the events described in clause (a), (b), (c), (d), (g), (h), (i) or
(j) below or (ii) provide a copy to each Rating Agency at such time as otherwise
required to be delivered pursuant to this Agreement of any of the statements
described in clauses (e) and (f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) the termination or appointment of a successor Master Servicer or Trustee or
a change in the majority ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket fidelity bond
and the errors and omissions insurance policy required by Section 3.12 or the
cancellation or modification of coverage under any such instrument,
(e) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18 and 3.19,
(g) a change in the location of the Custodial Account or the Certificate
Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of any
Class of Certificates resulting from the failure by the Master Servicer to make
an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer of any such
event known to the Master Servicer.
Section 11.07 Severability of Provisions. (See Section 11.07 of the Standard
Terms)
Section 11.08 Supplemental Provisions for Resecuritization. (See Section 11.08
of the Standard Terms)
Section 11.09 Allocation of Voting Rights.
65
96.0% of all Voting Rights shall be allocated among Holders of
Certificates, other than the Interest Only Certificates and Residual
Certificates, in proportion to the outstanding Certificate Principal Balances of
their respective Certificates, 1.0% of all Voting Rights shall be allocated
among the Holders of the Class I-A-2 Certificates in accordance with their
respective Percentage Interests; 1.0% of all Voting Rights shall be allocated
among the Holders of the Class I-A-V Certificates in accordance with their
respective Percentage Interests; 1.0% of all Voting Rights shall be allocated
among the Holders of the Class II-A-V Certificates; and 0.25%, 0.25%, 0.25% and
0.25% of all Voting Rights shall be allocated among the Holders of the Class
R-I, Class R-II, Class R-III and Class R-IV Certificates, respectively, in
accordance with their respective Percentage Interests.
66
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, duly attested, to be
hereunto affixed, all as of the day and year first above written.
[Seal] RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
Attest: By:
Name: Xxxxxx XxxXxx Name: Xxxx Xxxxxx
Title: Vice President Title: Vice President
[Seal] RESIDENTIAL FUNDING CORPORATION
Attest: By:
Name: Xxxx Xxxxxx Name: Xxxxxx XxxXxx
Title: Associate Title: Associate
[Seal] U.S. BANK NATIONAL ASSOCIATION
as Trustee
Attest: By:
Name: Name:
Title: Title:
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the 30th day of December, 2004 before me, a notary public in
and for said State, personally appeared Xxxx Xxxxxx, known to me to be a Vice
President of Residential Funding Mortgage Securities I, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
_________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the 30th day of December, 2004 before me, a notary public in
and for said State, personally appeared Xxxxxx XxxXxx, known to me to be an
Associate of Residential Funding Corporation, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
__________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF ___________ )
On the 30th day of December, 2004 before me, a notary public in
and for said State, personally appeared _____________, known to me to be an
Authorized Officer of U.S. Bank, National Association, the entity that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said banking entity and acknowledged to me that such banking entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
___________________
[Notarial Seal]
EXHIBIT ONE
MORTGAGE LOAN SCHEDULE FOR LOAN GROUP I
(Available Upon Request)
EXHIBIT TWO
MORTGAGE LOAN SCHEDULE FOR LOAN GROUP II
(Available Upon Request)
EXHIBIT THREE
SCHEDULE OF DISCOUNT FRACTIONS
(Available Upon Request)
EXHIBIT FOUR
INFORMATION TO BE INCLUDED IN
MONTHLY DISTRIBUTION DATE STATEMENT
(i) (a) the amount of such distribution to the Certificateholders of such
Class applied to reduce the Certificate Principal Balance thereof, and
(b) the aggregate amount included therein representing Principal
Prepayments;
(ii) the amount of such distribution to Holders of such Class of Certificates
allocable to interest;
(iii) if the distribution to the Holders of such Class of Certificates is less
than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the
shortfall;
(iv) the amount of any Advance by the Master Servicer pursuant to Section
4.04;
(v) the number and aggregate Stated Principal Balance of the Mortgage Loans
and of the Group I Loans and Group II Loans determined separately after
giving effect to the distribution of principal on such Distribution
Date;
(vi) the aggregate Certificate Principal Balance of each Class of
Certificates and the related Senior Percentage, after giving effect to
the amounts distributed on such Distribution Date, separately
identifying any reduction thereof due to Realized Losses other than
pursuant to an actual distribution of principal;
(vii) the related Subordinate Principal Distribution Amount and Prepayment
Distribution Percentage, if applicable;
(viii) on the basis of the most recent reports furnished to it by
Sub-Servicers, (a) the number and aggregate 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 aggregate principal balance of
Mortgage Loans that are in foreclosure, (b) the number and aggregate
principal balances of Reportable Modified Mortgage Loans that are
Delinquent (1) 30-59 days, (2) 60-89 days and (3) 90 or more days and
the number and aggregate principal balance of 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 aggregate Stated Principal Balance of Reportable Modified
Mortgage Loans that have been liquidated, the subject of pay-offs and
that have been repurchased by the Master Servicer or Seller;
(ix) the number, aggregate principal balance and book value of any REO
Properties;
(x) 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;
(xi) each Special Hazard Amount, Fraud Loss Amount and Bankruptcy Amount as
of the close of business on such Distribution Date and a description of
any change in the calculation of such amounts;
(xii) the weighted average Pool Strip Rate for such Distribution Date, the
Pass-Through Rates with respect to the Adjustable Rate Certificates and
Class A-V Certificates and each Subclass, if any, thereof;
(xiii) the Notional Amount with respect to each class of Interest Only
Certificates and each Subclass Notional Amount;
(xiv) the occurrence of either Credit Support Depletion Date;
(xv) the related Senior Accelerated Distribution Percentage applicable to
such distribution;
(xvi) the related Senior Percentage for such Distribution Date;
(xvii) the aggregate amount of Realized Losses for such Distribution Date;
(xviii) the aggregate amount of any recoveries on previously foreclosed loans
from Sellers due to a breach of representation or warranty assigned to
the Trustee pursuant to Section 2.04;
(xix) the weighted average remaining term to maturity of the Mortgage Loans
after giving effect to the amounts distributed on such Distribution
Date; and
(xx) the weighted average Mortgage Rates of the Mortgage Loans after giving
effect to the amounts distributed on such Distribution Date.
In the case of information furnished pursuant to clauses (i) and (ii) above, the
amounts shall be expressed as a dollar amount per Certificate with a $1,000
denomination.
The Trustee's internet website will initially be located at
xxxx://xxx.xxxxxx.xxx/xxx. To receive this statement via first class mail,
telephone the Trustee at (000) 000-0000.
1
EXHIBIT FIVE
STANDARD TERMS OF POOLING AND SERVICING
AGREEMENT DATED AS OF DECEMBER 1, 2004
EXECUTION COPY
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2004
Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.............................................................1
Section 1.02 Use of Words and Phrases...............................................33
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans...........................................33
Section 2.02 Acceptance by Trustee..................................................39
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the
Company. 41
Section 2.04 Representations and Warranties of Sellers..............................42
Section 2.05 Execution and Authentication of Certificates/Issuance of Certificates
Evidencing Interests in REMIC I..........................................................45
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II Regular Interests;
Acceptance by the Trustee................................................................45
Section 2.07 Issuance of Certificates Evidencing Interests in REMIC II..............45
Section 2.08 Purposes and Powers of the Trust.......................................45
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Servicer.....................................45
Section 3.02 Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations....................................47
Section 3.03 Successor Subservicers.................................................48
Section 3.04 Liability of the Master Servicer.......................................49
Section 3.05 No Contractual Relationship Between Subservicer and Trustee or
Certificateholders.......................................................................49
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee........49
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to Custodial
Account. 50
Section 3.08 Subservicing Accounts; Servicing Accounts..............................53
Section 3.09 Access to Certain Documentation and Information Regarding the Mortgage
Loans. 54
Section 3.10 Permitted Withdrawals from the Custodial Account.......................54
Section 3.11 Maintenance of the Primary Insurance Policies; Collections Thereunder..56
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity Coverage......57
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments..........................................................59
Section 3.14 Realization Upon Defaulted Mortgage Loans..............................61
Section 3.15 Trustee to Cooperate; Release of Mortgage Files........................64
Section 3.16 Servicing and Other Compensation; Compensating Interest................66
Section 3.17 Reports to the Trustee and the Company.................................67
Section 3.18 Annual Statement as to Compliance......................................67
Section 3.19 Annual Independent Public Accountants' Servicing Report................68
Section 3.20 Rights of the Company in Respect of the Master Servicer................68
Section 3.21 Administration of Buydown Funds........................................68
Section 3.22 Advance Facility.......................................................69
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Certificate Account....................................................73
Section 4.02 Distributions..........................................................74
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting...................................................................74
Section 4.04 Distribution of Reports to the Trustee and the Company; Advances by the
Master Servicer. 76
Section 4.05 Allocation of Realized Losses..........................................77
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property..........77
Section 4.07 Optional Purchase of Defaulted Mortgage Loans..........................78
Section 4.08 Surety Bond............................................................78
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.......................................................78
Section 5.02 Registration of Transfer and Exchange of Certificates..................81
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates......................87
Section 5.04 Persons Deemed Owners..................................................87
Section 5.05 Appointment of Paying Agent............................................88
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Company and the Master Servicer..........88
Section 6.02 Merger or Consolidation of the Company or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer.........................88
Section 6.03 Limitation on Liability of the Company, the Master Servicer and Others.89
Section 6.04 Company and Master Servicer Not to Resign..............................90
ARTICLE VII
DEFAULT
Section 7.01 Events of Default......................................................90
Section 7.02 Trustee or Company to Act; Appointment of Successor....................92
Section 7.03 Notification to Certificateholders.....................................94
Section 7.04 Waiver of Events of Default............................................94
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee......................................................94
Section 8.02 Certain Matters Affecting the Trustee..................................96
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans..................98
Section 8.04 Trustee May Own Certificates...........................................98
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses; Indemnification....98
Section 8.06 Eligibility Requirements for Trustee...................................99
Section 8.07 Resignation and Removal of the Trustee.................................99
Section 8.08 Successor Trustee.....................................................100
Section 8.09 Merger or Consolidation of Trustee....................................101
Section 8.10 Appointment of Co-Trustee or Separate Trustee.........................101
Section 8.11 Appointment of Custodians.............................................102
Section 8.12 Appointment of Office or Agency.......................................103
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
Section 9.01 Optional Purchase by the Master Servicer of All Certificates;
Termination Upon Purchase by the Master Servicer or Liquidation of All Mortgage Loans...103
Section 9.02 Additional Termination Requirements...................................107
Section 9.03 Termination of Multiple REMICs........................................107
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration..................................................108
Section 10.02 Master Servicer, REMIC Administrator and Trustee Indemnification......111
Section 10.03 Designation of REMIC(s)...............................................112
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.............................................................112
Section 11.02 Recordation of Agreement; Counterparts................................115
Section 11.03 Limitation on Rights of Certificateholders............................115
Section 11.04 Governing Law.........................................................116
Section 11.05 Notices...............................................................116
Section 11.06 Required Notices to Rating Agency and Subservicer.....................116
Section 11.07 Severability of Provisions............................................117
Section 11.08 Supplemental Provisions for Resecuritization..........................117
Section 11.09 Allocation of Voting Rights...........................................118
EXHIBITS
Exhibit A: Form of Class A Certificate
Exhibit B: Form of Class M Certificate
Exhibit C: Form of Class B Certificate
Exhibit D: Form of Class R Certificate
Exhibit E: Form of Seller/Servicer Contract
Exhibit F: Forms of Request for Release
Exhibit G-1: Form of Transfer Affidavit and Agreement
Exhibit G-2: Form of Transferor Certificate
Exhibit H: Form of Investor Representation Letter
Exhibit I: Form of Transferor Representation Letter
Exhibit J: Form of Rule 144A Investment Representation Letter
Exhibit K: Text of Amendment to Pooling and Servicing Agreement Pursuant to Section
11.01(e) for a Limited Guaranty
Exhibit L: Form of Limited Guaranty
Exhibit M: Form of Lender Certification for Assignment of Mortgage Loan
Exhibit N: Request for Exchange Form
Exhibit O: Form of Form 10-K Certification
Exhibit P: Form of Back-Up Certification to Form 10-K Certificate
Exhibit Q: Information to be Provided by the Master Servicer to the Rating Agencies
Relating to Reportable Modified Mortgage Loans
This is the Standard Terms of Pooling and Servicing Agreement, dated as
of December 1, 2004 (the "Standard Terms", and as incorporated by reference into
a Series Supplement dated as of the Cut-off Date, the "Pooling and Servicing
Agreement" or "Agreement"), among RESIDENTIAL FUNDING MORTGAGE SECURITIES I,
INC., as the company (together with its permitted successors and assigns, the
"Company"), RESIDENTIAL FUNDING CORPORATION, as master servicer (together with
its permitted successors and assigns, the "Master Servicer"), and the trustee
named in the applicable Series Supplement (together with its permitted
successors and assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell certain mortgage pass-through certificates
(collectively, the "Certificates"), to be issued under each Agreement in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accretion Termination Date: As defined in the Series Supplement.
--------------------------
Accrual Certificates: As defined in the Series Supplement.
--------------------
Accrued Certificate Interest: With respect to each Distribution Date, as
to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class or
Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (to the extent not
offset by the Master Servicer with a payment of Compensating
Interest as provided in Section 4.01),
1
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan)) of Realized Losses on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (including Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses and Extraordinary Losses) not allocated solely to one or
more specific Classes of Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on all Mortgage
Loans or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group, which
remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property or (B) made
with respect to delinquencies that were ultimately determined to
be Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Relief Act,
with all such reductions allocated (A) among all of the Certificates in
proportion to their respective amounts of Accrued Certificate Interest payable
on such Distribution Date absent such reductions or (B) if the Mortgage Pool is
comprised of two or more Loan Groups, the related Senior Percentage of such
reductions among the related Senior Certificates in proportion to the amounts of
Accrued Certificate Interest payable from the related Loan Group on such
Distribution Date absent such reductions, with the remainder of such reductions
allocated among the holders of the Class M Certificates and Class B Certificates
in proportion to their respective amounts of Accrued Certificate Interest
payable on such Distribution Date absent such reductions. In addition to that
portion of the reductions described in the preceding sentence that are allocated
to any Class of Class B Certificates or any Class of Class M Certificates,
Accrued Certificate Interest on such Class of Class B Certificates or such Class
of Class M Certificates will be reduced by the interest portion (adjusted to the
Net Mortgage Rate) of Realized Losses that are allocated solely to such Class of
Class B Certificates or such Class of Class M Certificates pursuant to Section
4.05.
Addendum and Assignment Agreement: The Addendum and Assignment
Agreement, dated as of January 31, 1995, between MLCC and the Master Servicer.
Additional Collateral: Any of the following held, in addition to the
related Mortgaged Property, as security for a Mortgage Loan: (i) all money,
securities, security entitlements, accounts, general intangibles, payment
rights, instruments, documents, deposit accounts, certificates of deposit,
commodities contracts and other investment property and other property of
whatever kind or description now existing or hereafter acquired which is pledged
as security for the repayment of such Mortgage Loan, (ii) third-party
guarantees, and (A) all money, securities, security entitlements, accounts,
2
general intangibles, payment rights, instruments, documents, deposit accounts,
certificates of deposit, commodities contracts and other investment property and
other property of whatever kind or description now existing or hereafter
acquired which is pledged as collateral for such guarantee or (B) any mortgaged
property securing the performance of such guarantee, or (iii) such other
collateral as may be set forth in the Series Supplement.
Additional Collateral Loan: Each Mortgage Loan that is supported by
Additional Collateral.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date
of determination, the Mortgage Rate borne by the related Mortgage Note, less the
rate at which the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master
Servicer, pursuant to Section 4.04.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Ambac: Ambac Assurance Corporation (formerly known as AMBAC Indemnity
Corporation).
Amount Held for Future Distribution: As to any Distribution Date and,
with respect to any Mortgage Pool that is comprised of two or more Loan Groups,
each Loan Group, the total of the amounts held in the Custodial Account at the
close of business on the preceding Determination Date on account of (i)
Liquidation Proceeds, Subsequent Recoveries, Insurance Proceeds, Curtailments,
Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04 or 4.07 and
Mortgage Loan substitutions made pursuant to Section 2.03 or 2.04 received or
made in the month of such Distribution Date (other than such Liquidation
Proceeds, Insurance Proceeds and purchases of Mortgage Loans that the Master
Servicer has deemed to have been received in the preceding month in accordance
with Section 3.07(b)), and Principal Prepayments in Full made after the related
Prepayment Period, and (ii) payments which represent early receipt of scheduled
payments of principal and interest due on a date or dates subsequent to the
related Due Date.
Appraised Value: As to any Mortgaged Property, the lesser of (i) the
appraised value of such Mortgaged Property based upon the appraisal made at the
time of the origination of the related Mortgage Loan, and (ii) the sales price
of the Mortgaged Property at such time of origination, except in the case of a
Mortgaged Property securing a refinanced or modified Mortgage Loan as to which
it is either the appraised value determined above or the appraised value
determined in an appraisal at the time of refinancing or modification, as the
case may be.
3
Assigned Contracts: With respect to any Pledged Asset Loan: the Credit
Support Pledge Agreement; the Funding and Pledge Agreement, among GMAC Mortgage
Corporation, National Financial Services Corporation and the Mortgagor or other
person pledging the related Pledged Assets; the Additional Collateral Agreement,
between GMAC Mortgage Corporation and the Mortgagor or other person pledging the
related Pledged Assets; or such other contracts as may be set forth in the
Series Supplement.
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the Trustee for the benefit of
Certificateholders, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law and accompanied by an Opinion of Counsel to that effect.
Assignment Agreement: The Assignment and Assumption Agreement, dated the
Closing Date, between Residential Funding and the Company relating to the
transfer and assignment of the Mortgage Loans.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, the
assignment of the related Cooperative Lease from the Mortgagor to the originator
of the Cooperative Loan.
Available Distribution Amount: As to any Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, an amount equal to (a) the sum of (i) the amount relating to the Mortgage
Loans on deposit in the Custodial Account as of the close of business on the
immediately preceding Determination Date, including any Subsequent Recoveries,
and amounts deposited in the Custodial Account in connection with the
substitution of Qualified Substitute Mortgage Loans, (ii) the amount of any
Advance made on the immediately preceding Certificate Account Deposit Date,
(iii) any amount deposited in the Certificate Account on the related Certificate
Account Deposit Date pursuant to the second paragraph of Section 3.12(a), (iv)
any amount deposited in the Certificate Account pursuant to Section 4.07 and any
amounts deposited in the Custodial Account pursuant to Section 9.01, (v) any
amount that the Master Servicer is not permitted to withdraw from the Custodial
Account or the Certificate Account pursuant to Section 3.16(e), (vi) any amount
received by the Trustee pursuant to the Surety Bond in respect of such
Distribution Date and (vii) the proceeds of any Pledged Assets received by the
Master Servicer, reduced by (b) the sum as of the close of business on the
immediately preceding Determination Date of (x) the Amount Held for Future
Distribution, and (y) amounts permitted to be withdrawn by the Master Servicer
from the Custodial Account in respect of the Mortgage Loans pursuant to clauses
(ii)-(x), inclusive, of Section 3.10(a). Such amount shall be determined
separately for each Loan Group. Additionally, with respect to any Mortgage Pool
that is comprised of two or more Loan Groups, if on any Distribution Date
Compensating Interest provided pursuant to Section 3.16(e) is less than
Prepayment Interest Shortfalls incurred on the Mortgage Loans in connection with
4
Principal Prepayments in Full received during the related Prepayment Period and
Curtailments made in the prior calendar month, such Compensating Interest shall
be allocated on such Distribution Date to the Available Distribution Amount for
each Loan Group on a pro rata basis in accordance with the respective amounts of
such Prepayment Interest Shortfalls incurred on the Mortgage Loans in such Loan
Group in respect of such Distribution Date.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
---------------
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that neither a Deficient
Valuation nor a Debt Service Reduction shall be deemed a Bankruptcy Loss
hereunder so long as the Master Servicer has notified the Trustee in writing
that the Master Servicer is diligently pursuing any remedies that may exist in
connection with the representations and warranties made regarding the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any premiums on any applicable
primary hazard insurance policy and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Master Servicer
or a Subservicer, in either case without giving effect to any Debt Service
Reduction.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, and designated as such in the Preliminary Statement
to the Series Supplement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York, the State of
Michigan, the State of California or the State of Illinois (and such other state
or states in which the Custodial Account or the Certificate Account are at the
time located) are required or authorized by law or executive order to be closed.
Buydown Funds: Any amount contributed by the seller of a Mortgaged
Property, the Company or other source in order to enable the Mortgagor to reduce
the payments required to be made from the Mortgagor's funds in the early years
of a Mortgage Loan. Buydown Funds are not part of the Trust Fund prior to
deposit into the Custodial or Certificate Account.
Buydown Mortgage Loan: Any Mortgage Loan as to which a specified amount
of interest is paid out of related Buydown Funds in accordance with a related
buydown agreement.
Capitalization Reimbursement Amount: As to any Distribution Date, the
amount of Advances or Servicing Advances that were added to the Stated Principal
Balance of the related Mortgage Loans during the prior calendar month and
reimbursed to the Master Servicer or Subservicer on or prior to such
Distribution Date pursuant to Section 3.10(a)(vii), plus the Capitalization
Reimbursement Shortfall Amount remaining unreimbursed from any prior
Distribution Date and reimbursed to the Master Servicer or Subservicer on or
prior to such Distribution Date.
Capitalization Reimbursement Shortfall Amount: As to any Distribution
Date, the amount, if any, by which the amount of Advances or Servicing Advances
that were added to the Stated Principal Balance of the Mortgage Loans during the
5
preceding calendar month exceeds the amount of principal payments on the
Mortgage Loans included in the Available Distribution Amount for that
Distribution Date.
Call Rights: As defined in Section 9.01(f).
Cash Liquidation: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with respect to
such Mortgage Loan.
Certificate Account Deposit Date: As to any Distribution Date, the
Business Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, and, in respect of any Insured
Certificates, the Certificate Insurer to the extent of Cumulative Insurance
Payments, except that neither a Disqualified Organization nor a Non-United
States Person shall be a holder of a Class R Certificate for purposes hereof
and, solely for the purpose of giving any consent or direction pursuant to this
Agreement, any Certificate, other than a Class R Certificate, registered in the
name of the Company, the Master Servicer or any Subservicer or any Affiliate
thereof shall be deemed not to be outstanding and the Percentage Interest or
Voting Rights evidenced thereby shall not be taken into account in determining
whether the requisite amount of Percentage Interests or Voting Rights necessary
to effect any such consent or direction has been obtained. All references herein
to "Holders" or "Certificateholders" shall reflect the rights of Certificate
Owners as they may indirectly exercise such rights through the Depository and
participating members thereof, except as otherwise specified herein; provided,
however, that the Trustee shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
Certificate Insurer: As defined in the Series Supplement.
-------------------
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent, if any, and otherwise on the books of a Depository Participant, if any,
and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02, plus
6
(iii) in the case of each Accrual Certificate, an amount equal to the
aggregate Accrued Certificate Interest added to the Certificate
Principal Balance thereof prior to such date of determination,
minus
(iv) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(a) and (y) the aggregate
of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously
allocated to such Certificate (or any predecessor Certificate)
pursuant to Section 4.05;
provided, that the Certificate Principal Balance of the Class of Subordinate
Certificates with the Lowest Priority at any given time shall be further reduced
by an amount equal to the Percentage Interest evidenced by such Certificate
multiplied by the excess, if any, of (A) the then aggregate Certificate
Principal Balance of all Classes of Certificates then outstanding over (B) the
then aggregate Stated Principal Balance of the Mortgage Loans.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates bearing the same
designation. The initial Class A-V Certificates and any Subclass thereof issued
pursuant to Section 5.01(c) shall be a single Class for purposes of this
Agreement.
Class A-P Certificate: Any one of the Certificates designated as a Class
A-P Certificate.
Class A-P Collection Shortfall: With respect to the Cash Liquidation or
REO Disposition of a Discount Mortgage Loan and any Distribution Date, the
excess of the amount described in Section 4.02(b)(i)(C)(1) over the amount
described in Section 4.02(b)(i)(C)(2).
Class A-P Principal Distribution Amount: As defined in Section 4.02.
---------------------------------------
Class A-V Certificate: Any one of the Certificates designated as a Class
A-V Certificate, including any Subclass thereof.
Class B Certificate: Any one of the Certificates designated as a Class
B-1 Certificate, Class B-2 Certificate or Class B-3 Certificate.
Class M Certificate: Any one of the Certificates designated as a Class
M-1 Certificate, Class M-2 Certificate or Class M-3 Certificate.
Closing Date: As defined in the Series Supplement.
------------
Code: The Internal Revenue Code of 1986.
7
Combined Collateral LLC: Combined Collateral LLC, a Delaware limited
liability company.
Commission: The Securities and Exchange Commission.
----------
Compensating Interest: With respect to any Distribution Date, an amount
equal to Prepayment Interest Shortfalls resulting from Principal Prepayments in
Full during the related Prepayment Period and Curtailments during the prior
calendar month and included in the Available Distribution Amount for such
Distribution Date, but not more than the lesser of (a) one-twelfth of 0.125% of
the Stated Principal Balance of the Mortgage Loans immediately preceding such
Distribution Date and (b) the sum of the Servicing Fee and all income and gain
on amounts held in the Custodial Account and the Certificate Account and payable
to the Certificateholders with respect to such Distribution Date; provided that
for purposes of this definition the amount of the Servicing Fee will not be
reduced pursuant to Section 7.02(a) except as may be required pursuant to the
last sentence of such paragraph.
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment of the Cooperative Lease, (iv) financing statements and (v) a stock
power (or other similar instrument), and ancillary thereto, a recognition
agreement between the Cooperative and the originator of the Cooperative Loan,
each of which was transferred and assigned to the Trustee pursuant to Section
2.01 and are from time to time held as part of the Trust Fund.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Credit Repository: Equifax, Transunion and Experian, or their successors
in interest.
8
Credit Support Depletion Date: The first Distribution Date on which the
Certificate Principal Balances of the Subordinate Certificates have been reduced
to zero.
Credit Support Pledge Agreement: The Credit Support Pledge Agreement,
dated as of November 24, 1998, among the Master Servicer, GMAC Mortgage
Corporation, Combined Collateral LLC and The First National Bank of Chicago (now
known as Bank One, National Association), as custodian.
Cumulative Insurance Payments: As defined in the Series Supplement.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.07 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
Custodial Agreement: An agreement that may be entered into among the
Company, the Master Servicer, the Trustee and a Custodian pursuant to which the
Custodian will hold certain documents relating to the Mortgage Loans on behalf
of the Trustee.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
---------
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof at the Cut-off Date after giving effect to all
installments of principal due on or prior thereto (or due during the month of
the Cut-Off Date), whether or not received.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificate: Any Certificate other than a Book-Entry
Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
9
Delinquent: As used herein, a Mortgage Loan is considered to be: "30 to
59 days" or "30 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the next following monthly scheduled due date; "60 to 89
days" or "60 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the second following monthly scheduled due date; and so on.
The determination as to whether a Mortgage Loan falls into these categories is
made as of the close of business on the last business day of each month. For
example, a Mortgage Loan with a payment due on July 1 that remained unpaid as of
the close of business on July 31 would then be considered to be 30 to 59 days
delinquent. Delinquency information as of the Cut-off Date is determined and
prepared as of the close of business on the last business day immediately prior
to the Cut-off Date.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: As defined in the Series Supplement.
------------------
Discount Fraction: With respect to each Discount Mortgage Loan, the
fraction expressed as a percentage, the numerator of which is the Discount Net
Mortgage Rate minus the Net Mortgage Rate (or the initial Net Mortgage Rate with
respect to any Discount Mortgage Loans as to which the Mortgage Rate is modified
pursuant to 3.07(a)) for such Mortgage Loan and the denominator of which is the
Discount Net Mortgage Rate. The Discount Fraction with respect to each Discount
Mortgage Loan is set forth as an exhibit attached to the Series Supplement.
Discount Mortgage Loan: Any Mortgage Loan having a Net Mortgage Rate (or
the initial Net Mortgage Rate) of less than the Discount Net Mortgage Rate per
annum and any Mortgage Loan deemed to be a Discount Mortgage Loan pursuant to
the definition of Qualified Substitute Mortgage Loan.
Discount Net Mortgage Rate: As defined in the Series Supplement.
Disqualified Organization: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, and if not otherwise
included, any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
10
a corporation if all of its activities are subject to tax and, except for
Freddie Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code, (v) any "electing large partnership," as defined in Section 775(a) of
the Code and (vi) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
Distribution Date: The 25th day of any month beginning in the month
immediately following the month of the initial issuance of the Certificates or,
if such 25th day is not a Business Day, the Business Day immediately following
such 25th day.
Due Date: With respect to any Distribution Date and any Mortgage Loan,
the day during the related Due Period on which the Monthly Payment is due.
Due Period: With respect to any Distribution Date, the one-month period
set forth in the Series Supplement.
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 JPMorgan Chase Bank, or
(iv) in the case of the Certificate Account, a trust account or accounts
maintained in the corporate trust division of the Trustee, or (v) an account or
11
accounts of a depository institution acceptable to each Rating Agency (as
evidenced in writing by each Rating Agency that use of any such account as the
Custodial Account or the Certificate Account will not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency).
Event of Default: As defined in Section 7.01.
----------------
Excess Bankruptcy Loss: Any Bankruptcy Loss, or portion thereof, which
exceeds the then applicable Bankruptcy Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, which exceeds the
then applicable Fraud Loss Amount.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion thereof,
that exceeds the then applicable Special Hazard Amount.
Excess Subordinate Principal Amount: With respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the Lowest Priority is to be
reduced to zero and on which Realized Losses are to be allocated to such class
or classes, the excess, if any, of (i) the amount that would otherwise be
distributable in respect of principal on such class or classes of Certificates
on such Distribution Date over (ii) the excess, if any, of the aggregate
Certificate Principal Balance of such class or classes of Certificates
immediately prior to such Distribution Date over the aggregate amount of
Realized Losses to be allocated to such classes of Certificates on such
Distribution Date as reduced by any amount calculated pursuant to Section
4.02(b)(i)(E). With respect to any Mortgage Pool that is comprised of two or
more Loan Groups, the Excess Subordinate Principal Amount will be allocated
between each Loan Group on a pro rata basis in accordance with the amount of
Realized Losses attributable to each Loan Group and allocated to the
Certificates on such Distribution Date.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Extraordinary Events: Any of the following conditions with respect to a
Mortgaged Property (or, with respect to a Cooperative Loan, the Cooperative
Apartment) or Mortgage Loan causing or resulting in a loss which causes the
liquidation of such Mortgage Loan:
(a) losses that are of the type that would be covered by the fidelity
bond and the errors and omissions insurance policy required to be maintained
pursuant to Section 3.12(b) but are in excess of the coverage maintained
thereunder;
(b) nuclear reaction or nuclear radiation or radioactive contamination,
all whether controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused by, contributed
to or aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(c) hostile or warlike action in time of peace or war, including action
in hindering, combating or defending against an actual, impending or expected
attack:
12
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval
or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(d) any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority; or
risks of contraband or illegal transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by or
resulting from an Extraordinary Event.
Xxxxxx Xxx: Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
FASIT: A "financial asset securitization investment trust" within the
meaning of Section 860L of the Code.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
----
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
9.01, which Final Distribution Date shall in no event be later than the end of
the 90-day liquidation period described in Section 9.02.
Fitch: Fitch, Inc. or its successor in interest.
-----
Form 10-K Certification: As defined in Section 4.03(e).
-----------------------
Foreclosure Profits: As to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition occurred in the
related Prepayment Period over the sum of the unpaid principal balance of such
Mortgage Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
13
Fraud Losses: Losses on Mortgage Loans as to which there was fraud in
the origination of such Mortgage Loan.
Freddie Mac: Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Highest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the earliest priority for payments pursuant to Section
4.02(a), in the following order: Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2 and Class B-3 Certificates.
Independent: When used with respect to any specified Person, means such
a Person who (i) is in fact independent of the Company, the Master Servicer and
the Trustee, or any Affiliate thereof, (ii) does not have any direct financial
interest or any material indirect financial interest in the Company, the Master
Servicer or the Trustee or in an Affiliate thereof, and (iii) is not connected
with the Company, the Master Servicer or the Trustee as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
Initial Certificate Principal Balance: With respect to each Class of
Certificates, the Certificate Principal Balance of such Class of Certificates as
of the Cut-off Date, as set forth in the Series Supplement.
Initial Monthly Payment Fund: An amount representing scheduled principal
amortization and interest at the Net Mortgage Rate for the Due Date in the first
Due Period commencing subsequent to the Cut-off Date for those Mortgage Loans
for which the Trustee will not be entitled to receive such payment, and as more
specifically defined in the Series Supplement.
Initial Notional Amount: With respect to any Class or Subclass of
Interest Only Certificates, the amount initially used as the principal basis for
the calculation of any interest payment amount, as more specifically defined in
the Series Supplement.
Initial Subordinate Class Percentage: As defined in the Series
Supplement.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan (excluding any Certificate Policy (as defined in the
Series Supplement)), to the extent such proceeds are payable to the mortgagee
under the Mortgage, any Subservicer, the Master Servicer or the Trustee and are
not applied to the restoration of the related Mortgaged Property (or, with
respect to a Cooperative Loan, the related Cooperative Apartment) or released to
the Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing mortgage loans held for its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any
successor thereto or the named insurer in any replacement policy.
14
Interest Accrual Period: As defined in the Series Supplement.
Interest Only Certificates: A Class or Subclass of Certificates not
entitled to ---------------------------- payments of principal, and designated
as such in the Series Supplement. The Interest Only Certificates will have no
Certificate Principal Balance.
Interim Certification: As defined in Section 2.02.
---------------------
Junior Certificateholder: The Holder of not less than 95% of the
Percentage Interests of the Junior Class of Certificates.
Junior Class of Certificates: The Class of Subordinate Certificates
outstanding as of the date of the repurchase of a Mortgage Loan pursuant to
Section 4.07 herein that has the Lowest Priority.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received
by the Master Servicer in connection with the taking of an entire Mortgaged
Property by exercise of the power of eminent domain or condemnation or in
connection with the liquidation of a defaulted Mortgage Loan through trustee's
sale, foreclosure sale or otherwise, other than REO Proceeds.
Loan Group: Any group of Mortgage Loans designated as a separate loan
group in the Series Supplement. The Certificates relating to each Loan Group
will be designated in the Series Supplement.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of which
is the Appraised Value of the related Mortgaged Property.
Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of Subordinate Certificates then
outstanding with a Certificate Principal Balance greater than zero, with later
priority for payments pursuant to Section 4.02(a).
Lowest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the latest priority for payments
pursuant to Section 4.02(a), in the following order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1 Certificates.
Maturity Date: The latest possible maturity date, solely for purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates which have no Certificate Principal Balance) and each
Uncertificated REMIC Regular Interest would be reduced to zero, as designated in
the Series Supplement.
15
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
MLCC: Xxxxxxx Xxxxx Credit Corporation, or its successor in interest.
----
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a
Servicing Modification.
Modified Mortgage Rate: As to any Mortgage Loan that is the subject of a
Servicing Modification, the Mortgage Rate minus the rate per annum by which the
Mortgage Rate on such Mortgage Loan was reduced.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the subject
of a Servicing Modification, the Net Mortgage Rate minus the rate per annum by
which the Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment, if any, for Curtailments and for Deficient Valuations occurring
prior to such Due Date but before any adjustment to such amortization schedule
by reason of any bankruptcy, other than a Deficient Valuation, or similar
proceeding or any moratorium or similar waiver or grace period and before any
Servicing Modification that constitutes a reduction of the interest rate on such
Mortgage Loan).
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note related to a Mortgage Loan
which is not a Cooperative Loan, the mortgage, deed of trust or other comparable
instrument creating a first lien on an estate in fee simple or leasehold
interest in real property securing a Mortgage Note.
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.
16
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as from time to time are held or deemed to
be held as a part of the Trust Fund, the Mortgage Loans originally so held being
identified in the initial Mortgage Loan Schedule, and Qualified Substitute
Mortgage Loans held or deemed held as part of the Trust Fund including, without
limitation, (i) with respect to each Cooperative Loan, the related Mortgage
Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock
Certificate, Cooperative Lease and Mortgage File and all rights appertaining
thereto, and (ii) with respect to each Mortgage Loan other than a Cooperative
Loan, each related Mortgage Note, Mortgage and Mortgage File and all rights
appertaining thereto.
Mortgage Loan Schedule: As defined in the Series Supplement.
----------------------
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with any modification thereto.
Mortgage Pool: The pool of mortgage loans, including all Loan Groups, if
any, consisting of the Mortgage Loans.
Mortgage Rate: As to any Mortgage Loan, the interest rate borne by the
related Mortgage Note, or any modification thereto other than a Servicing
Modification.
Mortgaged Property: The underlying real property securing a Mortgage
Loan or, with respect to a Cooperative Loan, the related Cooperative Lease and
Cooperative Stock.
Mortgagor: The obligor on a Mortgage Note.
---------
Net Mortgage Rate: As to each Mortgage Loan, a per annum rate of
interest equal to the Adjusted Mortgage Rate less the per annum rate at which
the Servicing Fee is calculated.
Non-Discount Mortgage Loan: A Mortgage Loan that is not a Discount
Mortgage Loan.
Non-Primary Residence Loans: The Mortgage Loans designated as secured by
second or vacation residences, or by non-owner occupied residences, on the
Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be
made by the Master Servicer or Subservicer in respect of a Mortgage Loan (other
than a Deleted Mortgage Loan) which, in the good faith judgment of the Master
Servicer, will not, or, in the case of a proposed Advance, would not, be
ultimately recoverable by the Master Servicer from related Late Collections,
Insurance Proceeds, Liquidation Proceeds, REO Proceeds or amounts reimbursable
to the Master Servicer pursuant to Section 4.02(a) hereof. To the extent that
any Mortgagor is not obligated under the related Mortgage documents to pay or
reimburse any portion of any Servicing Advances that are outstanding with
respect to the related Mortgage Loan as a result of a modification of such
Mortgage Loan by the Master Servicer, which forgives amounts which the Master
Servicer or Subservicer had previously advanced, and the Master Servicer
17
determines that no other source of payment or reimbursement for such advances is
available to it, such Servicing Advances shall be deemed to be Nonrecoverable
Advances. The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate delivered
to the Company, the Trustee and any Certificate Insurer.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Notional Amount: With respect to any Class or Subclass of Interest Only
Certificates, an amount used as the principal basis for the calculation of any
interest payment amount, as more specifically defined in the Series Supplement.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the President or a Vice President or Assistant Vice President, or a
Director or Managing Director, and by the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Company or the Master
Servicer, as the case may be, and delivered to the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Master Servicer, who may be counsel for the Company or the
Master Servicer, provided that any opinion of counsel (i) referred to in the
definition of "Disqualified Organization" or (ii) relating to the qualification
of any REMIC formed under the Series Supplement or compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in Full, Cash Liquidation or REO Disposition and which was not purchased,
deleted or substituted for prior to such Due Date pursuant to Section 2.02,
2.03, 2.04 or 4.07.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As defined in the Series Supplement.
-----------------
Paying Agent: The Trustee or any successor Paying Agent appointed by the
Trustee.
Percentage Interest: With respect to any Certificate (other than a Class
R Certificate), the undivided percentage ownership interest in the related Class
evidenced by such Certificate, which percentage ownership interest shall be
equal to the Initial Certificate Principal Balance thereof or Initial Notional
Amount (in the case of any Interest Only Certificate) thereof divided by the
aggregate Initial Certificate Principal Balance or the aggregate of the Initial
Notional Amounts, as applicable, of all the Certificates of the same Class. With
respect to a Class R Certificate, the interest in distributions to be made with
respect to such Class evidenced thereby, expressed as a percentage, as stated on
the face of each such Certificate.
18
Permitted Investments: One or more of the following:
---------------------
(i) obligations of or guaranteed as to principal and interest by the
United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition
thereof, provided that the unsecured obligations of the party
agreeing to repurchase such obligations are at the time rated by
each Rating Agency in its highest short-term rating available;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity
of more than 365 days or a remaining maturity of more than 30
days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a
foreign depository institution or trust company; provided that
the debt obligations of such depository institution or trust
company (or, if the only Rating Agency is Standard & Poor's, in
the case of the principal depository institution in a depository
institution holding company, debt obligations of the depository
institution holding company) at the date of acquisition thereof
have been rated by each Rating Agency in its highest short-term
rating available; and provided further that, if the only Rating
Agency is Standard & Poor's and if the depository or trust
company is a principal subsidiary of a bank holding company and
the debt obligations of such subsidiary are not separately rated,
the applicable rating shall be that of the bank holding company;
and, provided further that, if the original maturity of such
short-term obligations of a domestic branch of a foreign
depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be A-1+ in the case
of Standard & Poor's if Standard & Poor's is the Rating Agency;
(iv) commercial paper and demand notes (having original maturities of
not more than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof which on the date
of acquisition has been rated by each Rating Agency in its
highest short-term rating available; provided that such
commercial paper shall have a remaining maturity of not more than
30 days;
(v) a money market fund or a qualified investment fund rated by each
Rating Agency in its highest long-term rating available; and
19
(vi) other obligations or securities that are acceptable to each
Rating Agency as a Permitted Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by such
Rating Agency below the lower of the then-current rating or the
rating assigned to such Certificates as of the Closing Date by
such Rating Agency, as evidenced in writing;
provided, however, no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's and Fitch and Aaa
in the case of Moody's, and references herein to the highest rating available on
unsecured commercial paper and short-term debt obligations shall mean A-1 in the
case of Standard & Poor's, P-1 in the case of Moody's and either A-1 by Standard
& Poor's, P-1 by Moody's or F-1 by Fitch in the case of Fitch; provided,
however, that any Permitted Investment that is a short-term debt obligation
rated A-1 by Standard & Poor's must satisfy the following additional conditions:
(i) the total amount of debt from A-1 issuers must be limited to the investment
of monthly principal and interest payments (assuming fully amortizing
collateral); (ii) the total amount of A-1 investments must not represent more
than 20% of the aggregate outstanding Certificate Principal Balance of the
Certificates and each investment must not mature beyond 30 days; (iii)
investments in A-1 rated securities are not eligible for the Reserve Fund; (iv)
the terms of the debt must have a predetermined fixed dollar amount of principal
due at maturity that cannot vary; and (v) if the investments may be liquidated
prior to their maturity or are being relied on to meet a certain yield, interest
must be tied to a single interest rate index plus a single fixed spread (if any)
and must move proportionately with that index.
Permitted Transferee: Any Transferee of a Class R Certificate, other
than a Disqualified Organization or Non-United States Person.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pledged Amount: With respect to any Pledged Asset Loan, the amount of
money remitted to Combined Collateral LLC, at the direction of or for the
benefit of the related Mortgagor.
Pledged Asset Loan: Any Mortgage Loan supported by Pledged Assets or
such other collateral, other than the related Mortgaged Property, set forth in
the Series Supplement.
Pledged Assets: With respect to any Mortgage Loan, all money,
securities, security entitlements, accounts, general intangibles, instruments,
documents, certificates of deposit, commodities contracts and other investment
property and other property of whatever kind or description pledged by Combined
Collateral LLC as security in respect of any Realized Losses in connection with
such Mortgage Loan up to the Pledged Amount for such Mortgage Loan, and any
related collateral, or such other collateral as may be set forth in the Series
Supplement.
20
Pledged Asset Mortgage Servicing Agreement: The Pledged Asset Mortgage
Servicing Agreement, dated as of February 28, 1996 between MLCC and the Master
Servicer.
Pooling and Servicing Agreement or Agreement: With respect to any
Series, this Standard Terms together with the related Series Supplement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of each Mortgage Loan.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b)
the Discount Net Mortgage Rate (but not less than 0.00%) per annum.
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such Class
and each Class of Subordinate Certificates with a Lower Priority than such Class
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date is greater than or equal to the sum
of the related Initial Subordinate Class Percentages of such Classes of
Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the portion of the
related Prepayment Period that falls during the prior calendar month, an amount
equal to the excess of one month's interest at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
Stated Principal Balance of such Mortgage Loan over the amount of interest
(adjusted to the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of
a Modified Mortgage Loan)) paid by the Mortgagor for such month to the date of
such Principal Prepayment in Full or (b) a Curtailment during the prior calendar
month, an amount equal to one month's interest at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
amount of such Curtailment.
Prepayment Period: As to any Distribution Date and Principal Prepayment
in Full, the period commencing on the 16th day of the month prior to the month
prior to the month in which that Distribution Date occurs and ending on the 15th
day of the month in which such Distribution Date occurs.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or any replacement policy therefor referred to in Section 2.03(b)(iv)
and (v).
21
Principal Only Certificates: A Class of Certificates not entitled to
payments of interest, and more specifically designated as such in the Series
Supplement.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is received in advance of its scheduled Due Date
and is not accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan that is made by the Mortgagor.
Program Guide: Collectively, the Client Guide and the Servicer Guide for
Residential Funding's mortgage loan purchase and conduit servicing program and
all supplements and amendments thereto published by Residential Funding from
time to time.
Purchase Price: With respect to any Mortgage Loan (or REO Property)
required to be or otherwise purchased on any date pursuant to Section 2.02,
2.03, 2.04 or 4.07, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof plus the principal portion of any related unreimbursed
Advances and (ii) unpaid accrued interest at the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate plus the rate per annum at which the Servicing Fee is
calculated in the case of a Modified Mortgage Loan) (or at the Net Mortgage Rate
(or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) in the
case of a purchase made by the Master Servicer) on the Stated Principal Balance
thereof to the Due Date in the Due Period related to the Distribution Date
occurring in the month following the month of purchase from the Due Date to
which interest was last paid by the Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
Residential Funding or the Company for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee, with a copy to the Custodian,
(i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall to be deposited by Residential
Funding in the Custodial Account in the month of substitution);
(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;
22
(iii) have a Loan-to-Value Ratio at the time of substitution no higher
than that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a remaining term to stated maturity not greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan;
(v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment
Agreement; and
(vi) have a Pool Strip Rate equal to or greater than that of the
Deleted Mortgage Loan.
Notwithstanding any other provisions herein, (x) with respect to any Qualified
Substitute Mortgage Loan substituted for a Deleted Mortgage Loan which was a
Discount Mortgage Loan, such Qualified Substitute Mortgage Loan shall be deemed
to be a Discount Mortgage Loan and to have a Discount Fraction equal to the
Discount Fraction of the Deleted Mortgage Loan and (y) in the event that the
"Pool Strip Rate" of any Qualified Substitute Mortgage Loan as calculated
pursuant to the definition of "Pool Strip Rate" is greater than the Pool Strip
Rate of the related Deleted Mortgage Loan
(i) the Pool Strip Rate of such Qualified Substitute Mortgage Loan
shall be equal to the Pool Strip Rate of the related Deleted
Mortgage Loan for purposes of calculating the Pass-Through Rate
on the Class A-V Certificates and
(ii) the excess of the Pool Strip Rate on such Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of "Pool
Strip Rate" over the Pool Strip Rate on the related Deleted
Mortgage Loan shall be payable to the Class R Certificates
pursuant to Section 4.02 hereof.
Rating Agency: Each of the statistical credit rating agencies specified
in the Preliminary Statement of the Series Supplement. If any agency or a
successor is no longer in existence, "Rating Agency" shall be such statistical
credit rating agency, or other comparable Person, designated by the Company,
notice of which designation shall be given to the Trustee and the Master
Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property):
-------------
(a) as to which a Cash Liquidation or REO Disposition has occurred, an
amount (not less than zero) equal to (i) the Stated Principal Balance of the
Mortgage Loan (or REO Property) as of the date of Cash Liquidation or REO
Disposition, plus (ii) interest (and REO Imputed Interest, if any) at the Net
Mortgage Rate from the Due Date as to which interest was last paid or advanced
to Certificateholders up to the Due Date in the Due Period related to the
Distribution Date on which such Realized Loss will be allocated pursuant to
Section 4.05 on the Stated Principal Balance of such Mortgage Loan (or REO
Property) outstanding during each Due Period that such interest was not paid or
advanced, minus (iii) the proceeds, if any, received 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,
23
(b) which is the subject of a Servicing Modification, (i) (1) the amount
by which the interest portion of a Monthly Payment or the principal balance of
such Mortgage Loan was reduced or (2) the sum of any other amounts owing under
the Mortgage Loan that were forgiven and that constitute Servicing Advances that
are reimbursable to the Master Servicer or a Subservicer, and (ii) any such
amount with respect to a Monthly Payment that was or would have been due in the
month immediately following the month in which a Principal Prepayment or the
Purchase Price of such Mortgage Loan is received or is deemed to have been
received,
(c) which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation, or
(d) which has become the object of a Debt Service Reduction, the amount
of such Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a Debt Service
Reduction shall be deemed a Realized Loss hereunder so long as the Master
Servicer has notified the Trustee in writing that the Master Servicer is
diligently pursuing any remedies that may exist in connection with the
representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by the Master Servicer or a
Subservicer, in either case without giving effect to any Debt Service Reduction.
To the extent the Master Servicer receives Subsequent Recoveries with respect to
any Mortgage Loan, the amount of the Realized Loss with respect to that Mortgage
Loan will be reduced to the extent such recoveries are applied to reduce the
Certificate Principal Balance of any Class of Certificates on any Distribution
Date.
Record Date: With respect to each Distribution Date, the close of
business on the last Business Day of the month next preceding the month in which
the related Distribution Date occurs.
Regular Certificate: Any of the Certificates other than a Class R
Certificate.
Relief Act: The Servicemembers Civil Relief Act or similar legislation
24
or regulations as in effect from time to time.
Relief Act Shortfalls: Shortfalls in interest payable by a Mortgagor
that are not collectible from the Mortgagor pursuant to the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Administrator: Residential Funding Corporation. If Residential
Funding Corporation is found by a court of competent jurisdiction to no longer
be able to fulfill its obligations as REMIC Administrator under this Agreement
the Master Servicer or Trustee acting as Master Servicer shall appoint a
successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Acquisition: The acquisition by the Master Servicer on behalf of the
Trustee for the benefit of the Certificateholders of any REO Property pursuant
to Section 3.14.
REO Disposition: As to any REO Property, a determination by the Master
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds, REO
Proceeds and other payments and recoveries (including proceeds of a final sale)
which the Master Servicer expects to be finally recoverable from the sale or
other disposition of the REO Property.
REO Imputed Interest: As to any REO Property, for any period, an amount
equivalent to interest (at the Net Mortgage Rate that would have been applicable
to the related Mortgage Loan had it been outstanding) on the unpaid principal
balance of the Mortgage Loan as of the date of acquisition thereof for such
period.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO
Property (including, without limitation, proceeds from the rental of the related
Mortgaged Property or, with respect to a Cooperative Loan, the related
Cooperative Apartment) which proceeds are required to be deposited into the
Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed in lieu of foreclosure in connection with a
defaulted Mortgage Loan.
25
Reportable Modified Mortgage Loan: Any Mortgage Loan that (i) has been
subject to an interest rate reduction, (ii) has been subject to a term extension
or (iii) has had amounts owing on such Mortgage Loan capitalized by adding such
amount to the Stated Principal Balance of such Mortgage Loan; provided, however,
that a Mortgage Loan modified in accordance with clause (i) above for a
temporary period shall not be a Reportable Modified Mortgage Loan if such
Mortgage Loan has not been delinquent in payments of principal and interest for
six months since the date of such modification if that interest rate reduction
is not made permanent thereafter.
Request for Release: A request for release, the forms of which are
attached as Exhibit F hereto, or an electronic request in a form acceptable to
the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement, the Program Guide or the related Subservicing Agreement in respect of
such Mortgage Loan.
Required Surety Payment: With respect to any Additional Collateral Loan
that becomes a Liquidated Mortgage Loan, the lesser of (i) the principal portion
of the Realized Loss with respect to such Mortgage Loan and (ii) the excess, if
any, of (a) the amount of Additional Collateral required at origination with
respect to such Mortgage Loan over (b) the net proceeds realized by the
Subservicer from the related Additional Collateral.
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Company and
not in its capacity as Master Servicer, and any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Department of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer with particular
responsibility for this transaction, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers to whom, with respect to a particular matter, such matter is
referred.
Retail Certificates: A Senior Certificate, if any, offered in smaller
minimum denominations than other Senior Certificates, and designated as such in
the Series Supplement.
Schedule of Discount Fractions: The schedule setting forth the Discount
Fractions with respect to the Discount Mortgage Loans, attached as an exhibit to
the Series Supplement.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Seller: As to any Mortgage Loan, a Person, including any Subservicer,
that executed a Seller's Agreement applicable to such Mortgage Loan.
Seller's Agreement: An agreement for the origination and sale of
Mortgage Loans generally in the form of the Seller Contract referred to or
contained in the Program Guide, or in such other form as has been approved by
the Master Servicer and the Company, each containing representations and
warranties in respect of one or more Mortgage Loans consistent in all material
respects with those set forth in the Program Guide.
26
Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, any Loan
Group, 100%. With respect to any Distribution Date thereafter and any such Loan
Group, if applicable, as follows:
(i) for any Distribution Date after the 60th Distribution Date but on
or prior to the 72nd Distribution Date, the related Senior
Percentage for such Distribution Date plus 70% of the related
Subordinate Percentage for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but on
or prior to the 84th Distribution Date, the related Senior
Percentage for such Distribution Date plus 60% of the related
Subordinate Percentage for such Distribution Date;
(iii) for any Distribution Date after the 84th Distribution Date but on
or prior to the 96th Distribution Date, the related Senior
Percentage for such Distribution Date plus 40% of the related
Subordinate Percentage for such Distribution Date;
(iv) for any Distribution Date after the 96th Distribution Date but on
or prior to the 108th Distribution Date, the related Senior
Percentage for such Distribution Date plus 20% of the related
Subordinate Percentage for such Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for
such Distribution Date;
provided, however,
-------- -------
(i) that any scheduled reduction to the Senior Accelerated
Distribution Percentage described above shall not occur as of any
Distribution Date unless either
(a)(1)(X) the outstanding principal balance of the Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding Certificate Principal Balance of
the Subordinate Certificates, is less than 50% or (Y) the outstanding
principal balance of Mortgage Loans delinquent 60 days or more averaged
over the last six months, as a percentage of the aggregate outstanding
principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 2% and (2) Realized Losses on the Mortgage Loans
to date for such Distribution Date if occurring during the sixth,
seventh, eighth, ninth or tenth year (or any year thereafter) after the
Closing Date are less than 30%, 35%, 40%, 45% or 50%, respectively, of
the sum of the Initial Certificate Principal Balances of the Subordinate
Certificates or
(b)(1) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all
Mortgage Loans averaged over the last six months, does not exceed 4% and
(2) Realized Losses on the Mortgage Loans to date for such Distribution
Date, if occurring during the sixth, seventh, eighth, ninth or tenth
year (or any year thereafter) after the Closing Date are less than 10%,
15%, 20%, 25% or 30%, respectively, of the sum of the Initial
Certificate Principal Balances of the Subordinate Certificates, and
27
(ii) that for any Distribution Date on which the Senior Percentage is greater
than the Percentage as of the Closing Date, the Senior Accelerated
Distribution Percentage for such Distribution Date shall be 100%, or, if
the Mortgage Pool is comprised of two or more Loan Groups, for any
Distribution Date on which the weighted average of the Senior
Percentages for each Loan Group, weighted on the basis of the Stated
Principal Balances of the Mortgage Loans in the related Loan Group,
exceeds the weighted average of the initial Senior Percentages
(calculated on such basis) for each Loan Group, each of the Senior
Accelerated Distribution Percentages for such Distribution Date will
equal 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the Class A-P
Certificates, if any) to zero, the related Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificate: As defined in the Series Supplement.
------------------
Senior Percentage: As defined in the Series Supplement.
-----------------
Senior Support Certificate: A Senior Certificate that provides
additional credit enhancement to certain other classes of Senior Certificates
and designated as such in the Preliminary Statement of the Series Supplement.
Series: All of the Certificates issued pursuant to a Pooling and
Servicing Agreement and bearing the same series designation.
Series Supplement: The agreement into which this Standard Terms is
incorporated and pursuant to which, together with this Standard Terms, a Series
of Certificates is issued.
Servicing Accounts: The account or accounts created and maintained
pursuant to Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency or
other unanticipated event by the Master Servicer or a Subservicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged Property
or, with respect to a Cooperative Loan, the related Cooperative Apartment, (ii)
any enforcement or judicial proceedings, including foreclosures, including any
expenses incurred in relation to any such proceedings that result from the
Mortgage Loan being registered on the MERS System, (iii) the management and
liquidation of any REO Property, (iv) any mitigation procedures implemented in
accordance with Section 3.07, and (v) compliance with the obligations under
Sections 3.01, 3.08, 3.12(a) and 3.14, including, if the Master Servicer or any
Affiliate of the Master Servicer provides services such as appraisals and
brokerage services that are customarily provided by Persons other than servicers
of mortgage loans, reasonable compensation for such services.
28
Servicing Fee: With respect to any Mortgage Loan and Distribution Date,
the fee payable monthly to the Master Servicer in respect of master servicing
compensation that accrues at an annual rate designated on the Mortgage Loan
Schedule as the "MSTR SERV FEE" for such Mortgage Loan, as may be adjusted with
respect to successor Master Servicers as provided in Section 7.02.
Servicing Modification: Any reduction of the interest rate on or the
outstanding principal balance of a Mortgage Loan, any extension of the final
maturity date of a Mortgage Loan, and any increase to the outstanding principal
balance of a Mortgage Loan by adding to the Stated Principal Balance unpaid
principal and interest and other amounts owing under the Mortgage Loan, in each
case pursuant to a modification of a Mortgage Loan that is in default, or for
which, in the judgment of the Master Servicer, default is reasonably
foreseeable, in accordance with Section 3.07(a).
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may from time to time be
amended.
Special Hazard Loss: Any Realized Loss not in excess of the cost of the
lesser of repair or replacement of a Mortgaged Property (or, with respect to a
Cooperative Loan, the related Cooperative Apartment) suffered by such Mortgaged
Property (or Cooperative Apartment) on account of direct physical loss,
exclusive of (i) any loss of a type covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged Property
pursuant to Section 3.12(a), except to the extent of the portion of such loss
not covered as a result of any coinsurance provision and (ii) any Extraordinary
Loss.
Standard & Poor's: Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, at any given time, (i) the sum of (a) the Cut-off Date Principal
Balance of the Mortgage Loan plus (b) any amount by which the Stated Principal
Balance of the Mortgage Loan is increased pursuant to a Servicing Modification,
minus (ii) the sum of (a) the principal portion of the Monthly Payments due with
respect to such Mortgage Loan or REO Property during each Due Period ending
prior to the most recent Distribution Date which were received or with respect
to which an Advance was made, and (b) all Principal Prepayments with respect to
such Mortgage Loan or REO Property, and all Insurance Proceeds, Liquidation
Proceeds and REO Proceeds, to the extent applied by the Master Servicer as
recoveries of principal in accordance with Section 3.14 with respect to such
Mortgage Loan or REO Property, in each case which were distributed pursuant to
Section 4.02 on any previous Distribution Date, and (c) any Realized Loss
allocated to Certificateholders with respect thereto for any previous
Distribution Date.
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Subclass: With respect to the Class A-V Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent the
Uncertificated Class A-V REMIC Regular Interest or Interests specified by the
initial Holder of the Class A-V Certificates pursuant to Section 5.01(c).
Subordinate Certificate: Any one of the Class M Certificates or Class B
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed hereto as Exhibit B and Exhibit C,
respectively.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, a fraction, expressed as a percentage,
the numerator of which is the aggregate Certificate Principal Balance of such
Class of Subordinate Certificates immediately prior to such date and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of each Discount Mortgage Loan) immediately prior to such Distribution
Date.
Subordinate Percentage: As of any Distribution Date and, with respect to
any Mortgage Pool comprised of two or more Loan Groups, any Loan Group, 100%
minus the related Senior Percentage as of such Distribution Date.
Subsequent Recoveries: As of any Distribution Date, amounts received by
the Master Servicer (net of any related expenses permitted to be reimbursed
pursuant to Section 3.10) or surplus amounts held by the Master Servicer to
cover estimated expenses (including, but not limited to, recoveries in respect
of the representations and warranties made by the related Seller pursuant to the
applicable Seller's Agreement and assigned to the Trustee pursuant to Section
2.04) specifically related to a Mortgage Loan that was the subject of a Cash
Liquidation or an REO Disposition prior to the related Prepayment Period that
resulted in a Realized Loss.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is subject to a Subservicing Agreement.
Subservicer: Any Person with whom the Master Servicer has entered into a
Subservicing Agreement and who generally satisfied the requirements set forth in
the Program Guide in respect of the qualification of a Subservicer as of the
date of its approval as a Subservicer by the Master Servicer.
Subservicer Advance: Any delinquent installment of principal and
interest on a Mortgage Loan which is advanced by the related Subservicer (net of
its Subservicing Fee) pursuant to the Subservicing Agreement.
Subservicing Account: An account established by a Subservicer in
accordance with Section 3.08.
Subservicing Agreement: The written contract between the Master Servicer
and any Subservicer relating to servicing and administration of certain Mortgage
Loans as provided in Section 3.02, generally in the form of the servicer
contract referred to or contained in the Program Guide or in such other form as
has been approved by the Master Servicer and the Company. With respect to
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Additional Collateral Loans subserviced by MLCC, the Subservicing Agreement
shall also include the Addendum and Assignment Agreement and the Pledged Asset
Mortgage Servicing Agreement. With respect to any Pledged Asset Loan subserviced
by GMAC Mortgage Corporation, the Addendum and Assignment Agreement, dated as of
November 24, 1998, between the Master Servicer and GMAC Mortgage Corporation, as
such agreement may be amended from time to time.
Subservicing Fee: As to any Mortgage Loan, the fee payable monthly to
the related Subservicer (or, in the case of a Nonsubserviced Mortgage Loan, to
the Master Servicer) in respect of subservicing and other compensation that
accrues at an annual rate equal to the excess of the Mortgage Rate borne by the
related Mortgage Note over the rate per annum designated on the Mortgage Loan
Schedule as the "CURR NET" for such Mortgage Loan.
Surety: Ambac, or its successors in interest, or such other surety as
may be identified in the Series Supplement.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996 in respect to Mortgage Loans originated by MLCC, or the
Surety Bond (Policy No. AB0240BE), dated March 17, 1999 in respect to Mortgage
Loans originated by Novus Financial Corporation, in each case issued by Ambac
for the benefit of certain beneficiaries, including the Trustee for the benefit
of the Holders of the Certificates, but only to the extent that such Surety Bond
covers any Additional Collateral Loans, or such other Surety Bond as may be
identified in the Series Supplement.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of any REMIC formed under the Series Supplement and under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
Trust Fund: The segregated pool of assets consisting of:
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(i) the Mortgage Loans and the related Mortgage Files and collateral
securing such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans
due after the Cut-off Date (other than Monthly Payments due in
the month of the Cut-Off Date) as shall be on deposit in the
Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund, including the proceeds from the
liquidation of Additional Collateral for any Additional
Collateral Loan or Pledged Assets for any Pledged Asset Loan, but
not including amounts on deposit in the Initial Monthly Payment
Fund,
(iii) property that secured a Mortgage Loan and that has been acquired
for the benefit of the Certificateholders by foreclosure or deed
in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if
any, the Pledged Assets with respect to each Pledged Asset Loan,
and the interest in the Surety Bond transferred to the Trustee
pursuant to Section 2.01,
(v) the Initial Monthly Payment Fund, and
(vi) all proceeds of clauses (i) through (v) above.
Underwriter: As defined in the Series Supplement.
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Uniform Single Attestation Program for Mortgage Bankers: The Uniform
Single Attestation Program for Mortgage Bankers, as published by the Mortgage
Bankers Association of America and effective with respect to fiscal periods
ending on or after December 15, 1995.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, provided that, for purposes solely of the
restrictions on the transfer of residual interests, no partnership or other
entity treated as a partnership for United States federal income tax purposes
shall be treated as a United States Person unless all persons that own an
interest in such partnership either directly or through any entity that is not a
corporation for United States federal income tax purposes are required by the
applicable operating agreement to be United States Persons, any state thereof,
or the District of Columbia (except in the case of a partnership, to the extent
provided in Treasury regulations) or any political subdivision thereof, or an
estate that is described in Section 7701(a)(30)(D) of the Code, or a trust that
is described in Section 7701(a)(30)(E) of the Code.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate, and more specifically
designated in Article XI of the Series Supplement.
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Section 1.02 Use of Words and Phrases.
"Herein," "hereby," "hereunder," 'hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to the Pooling and Servicing Agreement as a
whole. All references herein to Articles, Sections or Subsections shall mean the
corresponding Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definition set forth herein include both the singular and the
plural.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee without recourse all the right, title and
interest of the Company in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans
after the Cut-off Date (other than payments of principal and interest
due on the Mortgage Loans in the month of the Cut-off Date). In
connection with such transfer and assignment, the Company does hereby
deliver to the Trustee the Certificate Policy (as defined in the Series
Supplement), if any. The Company, the Master Servicer and the Trustee
agree that it is not intended that any mortgage loan be included in the
Trust that is (i) a "High-Cost Home Loan" as defined in the New Jersey
Home Ownership Act effective November 27, 2003, (ii) a "High-Cost Home
Loan" as defined in the New Mexico Home Loan Protection Act effective
January 1, 2004 or (iii) a "High Cost Home Mortgage Loan" as defined in
the Massachusetts Predatory Home Practices Act effective November 7,
2004.
(b) In connection with such assignment, except as set forth in Section
2.01(c) and subject to Section 2.01(d) below, the Company does hereby
deliver to, and deposit with, the Trustee, or to and with one or more
Custodians, as the duly appointed agent or agents of the Trustee for
such purpose, the following documents or instruments (or copies thereof
as permitted by this Section) (I) with respect to each Mortgage Loan so
assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of
the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to the Trustee, or with
respect to any Destroyed Mortgage Note, an original lost note affidavit
from the related Seller or Residential Funding stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of
the related Mortgage Note;
(ii) The original Mortgage, noting the presence of the MIN of the Mortgage
Loan and language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan, with evidence of recording indicated
thereon or a copy of the Mortgage with evidence of recording indicated
thereon;
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(iii) Unless the Mortgage Loan is registered on the MERS(R) System, an
original Assignment of the Mortgage to the Trustee with evidence of
recording indicated thereon or a copy of such assignment with evidence
of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing
an unbroken chain of title from the originator thereof to the Person
assigning it to the Trustee (or to MERS, if the Mortgage Loan is
registered on the MERS(R) System and noting the presence of a MIN) with
evidence of recordation noted thereon or attached thereto, or a copy of
such assignment or assignments of the Mortgage with evidence of
recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Mortgage Loan or a copy of each
modification, assumption agreement or preferred loan agreement.
and (II) with respect to each Cooperative Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to the
order of the Trustee and showing an unbroken chain of endorsements from
the originator thereof to the Person endorsing it to the Trustee, or
with respect to any Destroyed Mortgage Note, an original lost note
affidavit from the related Seller or Residential Funding stating that
the original Mortgage Note was lost, misplaced or destroyed, together
with a copy of the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan with
intervening assignments showing an unbroken chain of title from such
originator to the Trustee;
(iii) The related Cooperative Stock Certificate, representing the
related Cooperative Stock pledged with respect to such Cooperative Loan,
together with an undated stock power (or other similar instrument)
executed in blank;
(iv) The original recognition agreement by the Cooperative of the
interests of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any
continuation statements, filed by the originator of such Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement
and the Assignment of Proprietary Lease;
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(vii) Copies of the filed UCC-3 assignments of the security
interest referenced in clause (vi) above showing an unbroken chain of
title from the originator to the Trustee, each with evidence of
recording thereof, evidencing the interest of the originator under the
Security Agreement and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the originator
in the Security Agreement, Assignment of Proprietary Lease and the
recognition agreement referenced in clause (iv) above, showing an
unbroken chain of title from the originator to the Trustee;
(ix) The original of each modification, assumption agreement or
preferred loan agreement, if any, relating to such Cooperative Loan; and
(x) A duly completed UCC-1 financing statement showing the Master
Servicer as debtor, the Company as secured party and the Trustee as
assignee and a duly completed UCC-1 financing statement showing the
Company as debtor and the Trustee as secured party, each in a form
sufficient for filing, evidencing the interest of such debtors in the
Cooperative Loans.
(c) The Company may, in lieu of delivering the original of the documents set
forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section (b)(II)(ii),
(iv), (vii), (ix) and (x) (or copies thereof as permitted by Section 2.01(b)) to
the Trustee or the Custodian or Custodians, deliver such documents to the Master
Servicer, and the Master Servicer shall hold such documents in trust for the use
and benefit of all present and future Certificateholders until such time as is
set forth in the next sentence. Within thirty Business Days following the
earlier of (i) the receipt of the original of all of the documents or
instruments set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section
(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by such
Section) for any Mortgage Loan and (ii) a written request by the Trustee to
deliver those documents with respect to any or all of the Mortgage Loans then
being held by the Master Servicer, the Master Servicer shall deliver a complete
set of such documents to the Trustee or the Custodian or Custodians that are the
duly appointed agent or agents of the Trustee.
(d) Notwithstanding the provisions of Section 2.01(c), in connection with any
Mortgage Loan, if the Company cannot deliver the original of the Mortgage, any
assignment, modification, assumption agreement or preferred loan agreement (or
copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon
concurrently with the execution and delivery of this Agreement because of (i) a
delay caused by the public recording office where such Mortgage, assignment,
modification, assumption agreement or preferred loan agreement as the case may
be, has been delivered for recordation, or (ii) a delay in the receipt of
certain information necessary to prepare the related assignments, the Company
shall deliver or cause to be delivered to the Trustee or the respective
Custodian a copy of such Mortgage, assignment, modification, assumption
agreement or preferred loan agreement.
The Company shall promptly cause to be recorded in the appropriate
public office for real property records the Assignment referred to in clause
(I)(iii) of Section 2.01(b), except (a) in states where, in the opinion of
counsel acceptable to the Master Servicer, such recording is not required to
35
protect the Trustee's interests in the Mortgage Loan against the claim of any
subsequent transferee or any successor to or creditor of the Company or the
originator of such Mortgage Loan or (b) if MERS is identified on the Mortgage or
on a properly recorded assignment of the Mortgage as the mortgagee of record
solely as nominee for the Seller and its successors and assigns, and shall
promptly cause to be filed the Form UCC-3 assignment and UCC-1 financing
statement referred to in clause (II)(vii) and (x), respectively, of Section
2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or
returned unrecorded to the Company because of any defect therein, the Company
shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable,
or cure such defect, as the case may be, and cause such Assignment to be
recorded in accordance with this paragraph. The Company shall promptly deliver
or cause to be delivered to the Trustee or the respective Custodian such
Mortgage or Assignment or Form UCC-3 or Form UCC-1, as applicable, (or copy
thereof as permitted by Section 2.01(b)) with evidence of recording indicated
thereon at the time specified in Section 2.01(c). In connection with its
servicing of Cooperative Loans, the Master Servicer will use its best efforts to
file timely continuation statements with regard to each financing statement and
assignment relating to Cooperative Loans as to which the related Cooperative
Apartment is located outside of the State of New York.
If the Company delivers to the Trustee or Custodian any Mortgage Note or
Assignment of Mortgage in blank, the Company shall, or shall cause the Custodian
to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage
in the name of the Trustee in conjunction with the Interim Certification issued
by the Custodian, as contemplated by Section 2.02.
Any of the items set forth in Sections 2.01(b)(I)(ii), (iii), (iv) and
(v) and (II)(vi) and (vii) and that may be delivered as a copy rather than the
original may be delivered to the Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, the Company further agrees that it will cause, at the Company's
own expense, within 30 Business Days after the Closing Date, the MERS(R) System
to indicate that such Mortgage Loans have been assigned by the Company to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the code
in the field "Pool Field" which identifies the series of the Certificates issued
in connection with such Mortgage Loans. The Company further agrees that it will
not, and will not permit the Master Servicer to, and the Master Xxxxxxxx agrees
that it will not, alter the codes referenced in this paragraph with respect to
any Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) Residential Funding hereby assigns to the Trustee its security interest in
and to any Additional Collateral or Pledged Assets, its right to receive amounts
due or to become due in respect of any Additional Collateral or Pledged Assets
pursuant to the related Subservicing Agreement and its rights as beneficiary
under the Surety Bond in respect of any Additional Collateral Loans. With
36
respect to any Additional Collateral Loan or Pledged Asset Loan, Residential
Funding shall cause to be filed in the appropriate recording office a UCC-3
statement giving notice of the assignment of the related security interest to
the Trust Fund and shall thereafter cause the timely filing of all necessary
continuation statements with regard to such financing statements.
(f) It is intended that the conveyance by the Company to the Trustee of the
Mortgage Loans as provided for in this Section 2.01 be and the Uncertificated
REMIC Regular Interests, if any (as provided for in Section 2.06), be construed
as a sale by the Company to the Trustee of the Mortgage Loans and any
Uncertificated REMIC Regular Interests for the benefit of the
Certificateholders. Further, it is not intended that such conveyance be deemed
to be a pledge of the Mortgage Loans and any Uncertificated REMIC Regular
Interests by the Company to the Trustee to secure a debt or other obligation of
the Company. However, if the Mortgage Loans and any Uncertificated REMIC Regular
Interests are held to be property of the Company or of Residential Funding, or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans and any Uncertificated REMIC Regular Interests, then it is
intended that (a) this Agreement shall be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance
provided for in Section 2.01 shall be deemed to be, and hereby is, (1) a grant
by the Company to the Trustee of a security interest in all of the Company's
right (including the power to convey title thereto), title and interest, whether
now owned or hereafter acquired, in and to any and all general intangibles,
payment intangibles, accounts, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property and other property of whatever kind or
description now existing or hereafter acquired consisting of, arising from or
relating to any of the following: (A) the Mortgage Loans, including (i) with
respect to each Cooperative Loan, the related Mortgage Note, Security Agreement,
Assignment of Proprietary Lease, Cooperative Stock Certificate and Cooperative
Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan,
the related Mortgage Note and Mortgage, and (iii) any insurance policies and all
other documents in the related Mortgage File, (B) all amounts payable pursuant
to the Mortgage Loans in accordance with the terms thereof, (C) any
Uncertificated REMIC Regular Interests and (D) all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts from time to time held
or invested in the Certificate Account or the Custodial Account, whether in the
form of cash, instruments, securities or other property and (2) an assignment by
the Company to the Trustee of any security interest in any and all of
Residential Funding's right (including the power to convey title thereto), title
and interest, whether now owned or hereafter acquired, in and to the property
described in the foregoing clauses (1)(A), (B), (C) and (D) granted by
Residential Funding to the Company pursuant to the Assignment Agreement; (c) the
possession by the Trustee, the Custodian or any other agent of the Trustee of
Mortgage Notes or such other items of property as constitute instruments, money,
payment intangibles, negotiable documents, goods, deposit accounts, letters of
credit, advices of credit, investment property, certificated securities or
chattel paper shall be deemed to be "possession by the secured party," or
37
possession by a purchaser or a person designated by such secured party, for
purposes of perfecting the security interest pursuant to the Minnesota Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313
and 9-106 thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, securities intermediaries, bailees or agents of, or persons holding for
(as applicable) the Trustee for the purpose of perfecting such security interest
under applicable law.
The Company and, at the Company's direction, Residential Funding and the
Trustee shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
determined to create a security interest in the Mortgage Loans, any
Uncertificated REMIC Regular Interests and the other property described above,
such security interest would be determined to be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of this Agreement. Without limiting the generality of the foregoing,
the Company shall prepare and deliver to the Trustee not less than 15 days prior
to any filing date and, the Trustee shall forward for filing, or shall cause to
be forwarded for filing, at the expense of the Company, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Mortgage Loans and any Uncertificated REMIC
Regular Interests, as evidenced by an Officers' Certificate of the Company,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of Residential
Funding, the Company or the Trustee (such preparation and filing shall be at the
expense of the Trustee, if occasioned by a change in the Trustee's name), (2)
any change of location of the place of business or the chief executive office of
Residential Funding or the Company, (3) any transfer of any interest of
Residential Funding or the Company in any Mortgage Loan or (4) any transfer of
any interest of Residential Funding or the Company in any Uncertificated REMIC
Regular Interest.
(g) The Master Servicer hereby acknowledges the receipt by it of the Initial
Monthly Payment Fund. The Master Servicer shall hold such Initial Monthly
Payment Fund in the Custodial Account and shall include such Initial Monthly
Payment Fund in the Available Distribution Amount for the initial Distribution
Date. Notwithstanding anything herein to the contrary, the Initial Monthly
Payment Fund shall not be an asset of any REMIC. To the extent that the Initial
Monthly Payment Fund constitutes a reserve fund for federal income tax purposes,
(1) it shall be an outside reserve fund and not an asset of any REMIC, (2) it
shall be owned by the Seller and (3) amounts transferred by any REMIC to the
Initial Monthly Payment Fund shall be treated as transferred to the Seller or
any successor, all within the meaning of Section 1.860G-2(h) of the Treasury
Regulations.
(h) The Company agrees that the sale of each Pledged Asset Loan pursuant to this
Agreement will also constitute the assignment, sale, setting-over, transfer and
conveyance to the Trustee, without recourse (but subject to the Company's
covenants, representations and warranties specifically provided herein), of all
of the Company's obligations and all of the Company's right, title and interest
in, to and under, whether now existing or hereafter acquired as owner of the
Mortgage Loan with respect to all money, securities, security entitlements,
accounts, general intangibles, instruments, documents, certificates of deposit,
commodities contracts, and other investment property and other property of
whatever kind or description consisting of, arising from or related to (i) the
38
Assigned Contracts, (ii) all rights, powers and remedies of the Company as owner
of such Mortgage Loan under or in connection with the Assigned Contracts,
whether arising under the terms of such Assigned Contracts, by statute, at law
or in equity, or otherwise arising out of any default by the Mortgagor under or
in connection with the Assigned Contracts, including all rights to exercise any
election or option or to make any decision or determination or to give or
receive any notice, consent, approval or waiver thereunder, (iii) all security
interests in and lien of the Company as owner of such Mortgage Loan in the
Pledged Amounts and all money, securities, security entitlements, accounts,
general intangibles, instruments, documents, certificates of deposit,
commodities contracts, and other investment property and other property of
whatever kind or description and all cash and non-cash proceeds of the sale,
exchange, or redemption of, and all stock or conversion rights, rights to
subscribe, liquidation dividends or preferences, stock dividends, rights to
interest, dividends, earnings, income, rents, issues, profits, interest payments
or other distributions of cash or other property that is credited to the
Custodial Account, (iv) all documents, books and records concerning the
foregoing (including all computer programs, tapes, disks and related items
containing any such information) and (v) all insurance proceeds (including
proceeds from the Federal Deposit Insurance Corporation or the Securities
Investor Protection Corporation or any other insurance company) of any of the
foregoing or replacements thereof or substitutions therefor, proceeds of
proceeds and the conversion, voluntary or involuntary, of any thereof. The
foregoing transfer, sale, assignment and conveyance does not constitute and is
not intended to result in the creation, or an assumption by the Trustee, of any
obligation of the Company, or any other person in connection with the Pledged
Assets or under any agreement or instrument relating thereto, including any
obligation to the Mortgagor, other than as owner of the Mortgage Loan.
Section 2.02 Acceptance by Trustee.
The Trustee acknowledges receipt (or, with respect to Mortgage Loans
subject to a Custodial Agreement, and based solely upon a receipt or
certification executed by the Custodian, receipt by the respective Custodian as
the duly appointed agent of the Trustee) of the documents referred to in Section
2.01(b)(I)(i) and Section 2.01(b)(II)(i), (iii), (v), (vi) and (viii) above
(except that for purposes of such acknowledgment only, a Mortgage Note may be
endorsed in blank) and declares that it, or a Custodian as its agent, holds and
will hold such documents and the other documents constituting a part of the
Mortgage Files delivered to it, or a Custodian as its agent, and the rights of
Residential Funding with respect to any Pledged Assets, Additional Collateral
and the Surety Bond assigned to the Trustee pursuant to Section 2.01, in trust
for the use and benefit of all present and future Certificateholders. The
Trustee or Custodian (such Custodian being so obligated under a Custodial
Agreement) agrees, for the benefit of Certificateholders, to review each
Mortgage File delivered to it pursuant to Section 2.01(b) within 45 days after
the Closing Date to ascertain that all required documents (specifically as set
forth in Section 2.01(b)), have been executed and received, and that such
documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule,
as supplemented, that have been conveyed to it, and to deliver to the Trustee a
certificate (the "Interim Certification") to the effect that all documents
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required to be delivered pursuant to Section 2.01(b) above have been executed
and received and that such documents relate to the Mortgage Loans identified on
the Mortgage Loan Schedule, except for any exceptions listed on Schedule A
attached to such Interim Certification. Upon delivery of the Mortgage Files by
the Company or the Master Servicer, the Trustee shall acknowledge receipt (or,
with respect to Mortgage Loans subject to a Custodial Agreement, and based
solely upon a receipt or certification executed by the Custodian, receipt by the
respective Custodian as the duly appointed agent of the Trustee) of the
documents referred to in Section 2.01(c) above.
If the Custodian, as the Trustee's agent, finds any document or
documents constituting a part of a Mortgage File to be missing or defective, the
Trustee shall promptly so notify the Master Servicer and the Company. Pursuant
to Section 2.3 of the Custodial Agreement, the Custodian will notify the Master
Servicer, the Company and the Trustee of any such omission or defect found by it
in respect of any Mortgage File held by it in respect of the items reviewed by
it pursuant to the Custodial Agreement. If such omission or defect materially
and adversely affects the interests of the Certificateholders, the Master
Servicer shall promptly notify the related Subservicer or Seller of such
omission or defect and request that such Subservicer or Seller correct or cure
such omission or defect within 60 days from the date the Master Servicer was
notified of such omission or defect and, if such Subservicer or Seller does not
correct or cure such omission or defect within such period, that such
Subservicer or Seller purchase such Mortgage Loan from the Trust Fund at its
Purchase Price, in either case within 90 days from the date the Master Servicer
was notified of such omission or defect; provided that if the omission or defect
would cause the Mortgage Loan to be other than a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code, any such cure or repurchase must occur within
90 days from the date such breach was discovered. The Purchase Price for any
such Mortgage Loan, whether purchased by the Seller or the Subservicer, shall be
deposited or caused to be deposited by the Master Servicer in the Custodial
Account maintained by it pursuant to Section 3.07 and, upon receipt by the
Trustee of written notification of such deposit signed by a Servicing Officer,
the Trustee or any Custodian, as the case may be, shall release to the Master
Servicer the related Mortgage File and the Trustee shall execute and deliver
such instruments of transfer or assignment prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Seller or its
designee or the Subservicer or its designee, as the case may be, any Mortgage
Loan released pursuant hereto and thereafter such Mortgage Loan shall not be
part of the Trust Fund. In furtherance of the foregoing, if the Subservicer or
Seller that repurchases the Mortgage Loan is not a member of MERS and the
Mortgage is registered on the MERS(R) System, the Master Servicer, at its own
expense and without any right of reimbursement, shall cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to such Subservicer or Seller and shall cause such Mortgage
to be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations. It is understood and agreed that the obligation of the
Seller or the Subservicer, as the case may be, to so cure or purchase any
Mortgage Loan as to which a material and adverse defect in or omission of a
constituent document exists shall constitute the sole remedy respecting such
defect or omission available to Certificateholders or the Trustee on behalf of
the Certificateholders.
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Section 2.03 Representations, Warranties and Covenants of the Master Servicer
and the Company.
(a) The Master Servicer hereby represents and warrants to the Trustee for
the benefit of the Certificateholders that:
(i) The Master Servicer is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and is or will be in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan in accordance with the terms of
this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer and
its performance and compliance with the terms of this Agreement will not
violate the Master Servicer's Certificate of Incorporation or Bylaws or
constitute a material default (or an event which, with notice or lapse
of time, or both, would constitute a material default) under, or result
in the material breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or which may be
applicable to the Master Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and delivery by
the Trustee and the Company, constitutes a valid, legal and binding
obligation of the Master Servicer, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(iv) The Master Servicer is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its
properties or might have consequences that would materially adversely
affect its performance hereunder;
(v) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit
its entering into this Agreement or performing its obligations under
this Agreement;
(vi) The Master Servicer will comply in all material respects in the
performance of this Agreement with all reasonable rules and requirements
of each insurer under each Required Insurance Policy;
(vii) No information, certificate of an officer, statement furnished in
writing or report delivered to the Company, any Affiliate of the Company
or the Trustee by the Master Servicer will, to the knowledge of the
Master Servicer, contain any untrue statement of a material fact or omit
a material fact necessary to make the information, certificate,
statement or report not misleading;
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(viii) The Master Servicer has examined each existing, and will examine each
new, Subservicing Agreement and is or will be familiar with the terms
thereof. The terms of each existing Subservicing Agreement and each
designated Subservicer are acceptable to the Master Servicer and any new
Subservicing Agreements will comply with the provisions of Section 3.02;
and
(ix) The Master Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered
with MERS.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(a) shall survive delivery of the respective
Mortgage Files to the Trustee or any Custodian.
Upon discovery by either the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any representation or warranty set forth in this
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties (any Custodian being so
obligated under a Custodial Agreement). Within 90 days of its discovery or its
receipt of notice of such breach, the Master Servicer shall either (i) cure such
breach in all material respects or (ii) to the extent that such breach is with
respect to a Mortgage Loan or a related document, purchase such Mortgage Loan
from the Trust Fund at the Purchase Price and in the manner set forth in Section
2.02; provided that if the omission or defect would cause the Mortgage Loan to
be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or repurchase must occur within 90 days from the date such
breach was discovered. The obligation of the Master Servicer to cure such breach
or to so purchase such Mortgage Loan shall constitute the sole remedy in respect
of a breach of a representation and warranty set forth in this Section 2.03(a)
available to the Certificateholders or the Trustee on behalf of the
Certificateholders.
(b) Representations and warranties relating to the Mortgage Loans are set forth
in Section 2.03(b) of the Series Supplement.
Section 2.04 Representations and Warranties of Sellers.
The Company, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of Certificateholders
all of its right, title and interest in respect of the Assignment Agreement and
each Seller's Agreement (to the extent assigned to the Company pursuant to the
Assignment Agreement) applicable to a Mortgage Loan. Insofar as the Assignment
Agreement or the Company's rights under such Seller's Agreement relate to the
representations and warranties made by Residential Funding or the related Seller
in respect of such Mortgage Loan and any remedies provided thereunder for any
breach of such representations and warranties, such right, title and interest
may be enforced by the Master Servicer on behalf of the Trustee and the
Certificateholders. Upon the discovery by the Company, the Master Servicer, the
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Trustee or any Custodian of a breach of any of the representations and
warranties made in a Seller's Agreement that have been assigned to the Trustee
pursuant to this Section 2.04 or of a breach of any of the representations and
warranties made in the Assignment Agreement (which, for purposes hereof, will be
deemed to include any other cause giving rise to a repurchase obligation under
the Assignment Agreement) in respect of any Mortgage Loan which materially and
adversely affects the interests of the Certificateholders in such Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties (any Custodian being so obligated under a Custodial Agreement). The
Master Servicer shall promptly notify the related Seller or Residential Funding,
as the case may be, of such breach and request that such Seller or Residential
Funding, as the case may be, either (i) cure such breach in all material
respects within 90 days from the date the Master Servicer was notified of such
breach or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that in the case of
a breach under the Assignment Agreement Residential Funding shall have the
option to substitute a Qualified Substitute Mortgage Loan or Loans for such
Mortgage Loan if such substitution occurs within two years following the Closing
Date; provided that if the breach would cause the Mortgage Loan to be other than
a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
cure, repurchase or substitution must occur within 90 days from the date the
breach was discovered. If the breach of representation and warranty that gave
rise to the obligation to repurchase or substitute a Mortgage Loan pursuant to
Section 4 of the Assignment Agreement was the representation and warranty set
forth in clause (xxxi) of Section 4 thereof, then the Master Servicer shall
request that Residential Funding pay to the Trust Fund, concurrently with and in
addition to the remedies provided in the preceding sentence, an amount equal to
any liability, penalty or expense that was actually incurred and paid out of or
on behalf of the Trust Fund, and that directly resulted from such breach, or if
incurred and paid by the Trust Fund thereafter, concurrently with such payment.
In the event that Residential Funding elects to substitute a Qualified
Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant to this
Section 2.04, Residential Funding shall deliver to the Trustee for the benefit
of the Certificateholders with respect to such Qualified Substitute Mortgage
Loan or Loans, the original Mortgage Note, the Mortgage, an Assignment of the
Mortgage in recordable form if required pursuant to Section 2.01, and such other
documents and agreements as are required by Section 2.01, with the Mortgage Note
endorsed as required by Section 2.01. No substitution will be made in any
calendar month after the Determination Date for such month. Monthly Payments due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust Fund and will be retained by the Master Servicer
and remitted by the Master Servicer to Residential Funding on the next
succeeding Distribution Date. For the month of substitution, distributions to
the Certificateholders will include the Monthly Payment due on a Deleted
Mortgage Loan for such month and thereafter Residential Funding shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend or cause to be amended the Mortgage Loan
Schedule, and, if the Deleted Mortgage Loan was a Discount Mortgage Loan, the
Schedule of Discount Fractions, for the benefit of the Certificateholders to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Qualified Substitute Mortgage Loan or Loans and the Master Servicer shall
deliver the amended Mortgage Loan Schedule, and, if the Deleted Mortgage Loan
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was a Discount Mortgage Loan, the amended Schedule of Discount Fractions, to the
Trustee. Upon such substitution, the Qualified Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement and the related Subservicing
Agreement in all respects, the related Seller shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the related Seller's Agreement as of the date of substitution,
insofar as Residential Funding's rights in respect of such representations and
warranties are assigned to the Company pursuant to the Assignment Agreement, and
the Company and the Master Servicer shall be deemed to have made with respect to
any Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the covenants, representations and warranties set forth in this Section 2.04, in
Section 2.03 hereof and in Section 4 of the Assignment Agreement, and the Master
Servicer shall be obligated to repurchase or substitute for any Qualified
Substitute Mortgage Loan as to which a Repurchase Event (as defined in the
Assignment Agreement) has occurred pursuant to Section 4 of the Assignment
Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to the
Certificateholders in the month of substitution). Residential Funding shall
deposit the amount of such shortfall into the Custodial Account on the day of
substitution, without any reimbursement therefor. Residential Funding shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall
and (subject to Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any portion of any
REMIC to fail to qualify as such at any time that any Certificate is
outstanding.
It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (or in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing and to make any additional
payments required under the Assignment Agreement in connection with a breach of
the representation and warranty in clause (xxxi) of Section 4 thereof shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of Certificateholders. If the Master
Servicer is Residential Funding, then the Trustee shall also have the right to
give the notification and require the purchase or substitution provided for in
the second preceding paragraph in the event of such a breach of a representation
or warranty made by Residential Funding in the Assignment Agreement. In
connection with the purchase of or substitution for any such Mortgage Loan by
Residential Funding, the Trustee shall assign to Residential Funding all of the
Trustee's right, title and interest in respect of the Seller's Agreement and the
Assignment Agreement applicable to such Mortgage Loan.
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Section 2.05 Execution and Authentication of Certificates/Issuance
of Certificates Evidencing Interests in REMIC I.
As provided in Section 2.05 of the Series Supplement.
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II
Regular Interests; Acceptance by the Trustee.
As provided in Section 2.06 of the Series Supplement.
Section 2.07 Issuance of Certificates Evidencing Interests in REMIC II.
As provided in Section 2.07 of the Series Supplement.
Section 2.08 Purposes and Powers of the Trust.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Certificates to the Company in exchange for the Mortgage Loans;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Notwithstanding the provisions of Section 11.01, the trust shall not engage in
any activity other than in connection with the foregoing or other than as
required or authorized by the terms of this Agreement while any Certificate is
outstanding, and this Section 2.08 may not be amended, without the consent of
the Certificateholders evidencing a majority of the aggregate Voting Rights of
the Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans in
accordance with the terms of this Agreement and the respective Mortgage Loans
and shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do any and all things which it may deem necessary
or desirable in connection with such servicing and administration. Without
limiting the generality of the foregoing, the Master Servicer in its own name or
in the name of a Subservicer is hereby authorized and empowered by the Trustee
when the Master Servicer or the Subservicer, as the case may be, believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
45
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(R) System, or cause the
removal from the registration of any Mortgage Loan on the MERS(R) System, to
execute and deliver, on behalf of the Trustee and the Certificateholders or any
of them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Trustee and its successors and assigns. Any
expenses incurred in connection with the actions described in the preceding
sentence shall be borne by the Master Servicer in accordance with Section
3.16(c), with no right of reimbursement; provided, that if, as a result of MERS
discontinuing or becoming unable to continue operations in connection with the
MERS System, it becomes necessary to remove any Mortgage Loan from registration
on the MERS System and to arrange for the assignment of the related Mortgages to
the Trustee, then any related expenses shall be reimbursable to the Master
Servicer. Notwithstanding the foregoing, subject to Section 3.07(a), the Master
Servicer shall not permit any modification with respect to any Mortgage Loan
that would both constitute a sale or exchange of such Mortgage Loan within the
meaning of Section 1001 of the Code and any proposed, temporary or final
regulations promulgated thereunder (other than in connection with a proposed
conveyance or assumption of such Mortgage Loan that is treated as a Principal
Prepayment in Full pursuant to Section 3.13(d) hereof) and cause any REMIC
formed under the Series Supplement to fail to qualify as a REMIC under the Code.
The Trustee shall furnish the Master Servicer with any powers of attorney and
other documents necessary or appropriate to enable the Master Servicer to
service and administer the Mortgage Loans. The Trustee shall not be liable for
any action taken by the Master Servicer or any Subservicer pursuant to such
powers of attorney. In servicing and administering any Nonsubserviced Mortgage
Loan, the Master Servicer shall, to the extent not inconsistent with this
Agreement, comply with the Program Guide as if it were the originator of such
Mortgage Loan and had retained the servicing rights and obligations in respect
46
thereof. In connection with servicing and administering the Mortgage Loans, the
Master Servicer and any Affiliate of the Master Servicer (i) may perform
services such as appraisals and brokerage services that are not customarily
provided by servicers of mortgage loans, and shall be entitled to reasonable
compensation therefor in accordance with Section 3.10 and (ii) may, at its own
discretion and on behalf of the Trustee, obtain credit information in the form
of a "credit score" from a credit repository.
(b) All costs incurred by the Master Servicer or by Subservicers in effecting
the timely payment of taxes and assessments on the properties subject to the
Mortgage Loans shall not, for the purpose of calculating monthly distributions
to the Certificateholders, be added to the amount owing under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loan so permit,
and such costs shall be recoverable to the extent permitted by Section
3.10(a)(ii).
(c) The Master Servicer may enter into one or more agreements in connection with
the offering of pass-through certificates evidencing interests in one or more of
the Certificates providing for the payment by the Master Servicer of amounts
received by the Master Servicer as servicing compensation hereunder and required
to cover certain Prepayment Interest Shortfalls on the Mortgage Loans, which
payment obligation will thereafter be an obligation of the Master Servicer
hereunder.
Section 3.02 Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements entered
into by Residential Funding and Subservicers prior to the execution and delivery
of this Agreement, and may enter into new Subservicing Agreements with
Subservicers, for the servicing and administration of all or some of the
Mortgage Loans. Each Subservicer of a Mortgage Loan shall be entitled to receive
and retain, as provided in the related Subservicing Agreement and in Section
3.07, the related Subservicing Fee from payments of interest received on such
Mortgage Loan after payment of all amounts required to be remitted to the Master
Servicer in respect of such Mortgage Loan. For any Mortgage Loan that is a
Nonsubserviced Mortgage Loan, the Master Servicer shall be entitled to receive
and retain an amount equal to the Subservicing Fee from payments of interest.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Each Subservicing Agreement will be upon such terms and conditions as
are generally required or permitted by the Program Guide and are not
inconsistent with this Agreement and as the Master Servicer and the Subservicer
have agreed. A representative form of Subservicing Agreement is attached to this
Agreement as Exhibit E. With the approval of the Master Servicer, a Subservicer
may delegate its servicing obligations to third-party servicers, but such
Subservicer will remain obligated under the related Subservicing Agreement. The
Master Servicer and a Subservicer may enter into amendments thereto or a
different form of Subservicing Agreement, and the form referred to or included
in the Program Guide is merely provided for information and shall not be deemed
to limit in any respect the discretion of the Master Servicer to modify or enter
into different Subservicing Agreements; provided, however, that any such
47
amendments or different forms shall be consistent with and not violate the
provisions of either this Agreement or the Program Guide in a manner which would
materially and adversely affect the interests of the Certificateholders. The
Program Guide and any other Subservicing Agreement entered into between the
Master Servicer and any Subservicer shall require the Subservicer to accurately
and fully report its borrower credit files to each of the Credit Repositories in
a timely manner.
(b) As part of its servicing activities hereunder, the Master Servicer, for the
benefit of the Trustee and the Certificateholders, shall use its best reasonable
efforts to enforce the obligations of each Subservicer under the related
Subservicing Agreement and of each Seller under the related Seller's Agreement
insofar as the Company's rights with respect to such obligation has been
assigned to the Trustee hereunder, to the extent that the non-performance of any
such Seller's obligation would have a material and adverse effect on a Mortgage
Loan, including, without limitation, the obligation to purchase a Mortgage Loan
on account of defective documentation, as described in Section 2.02, or on
account of a breach of a representation or warranty, as described in Section
2.04. Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Subservicing Agreements or Seller's Agreements, as
appropriate, and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master Servicer
would employ in its good faith business judgment and which are normal and usual
in its general mortgage servicing activities. The Master Servicer shall pay the
costs of such enforcement at its own expense, and shall be reimbursed therefor
only (i) from a general recovery resulting from such enforcement to the extent,
if any, that such recovery exceeds all amounts due in respect of the related
Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys
fees against the party against whom such enforcement is directed. For purposes
of clarification only, the parties agree that the foregoing is not intended to,
and does not, limit the ability of the Master Servicer to be reimbursed for
expenses that are incurred in connection with the enforcement of a Seller's
obligations (insofar as the Company's rights with respect to such Seller's
obligations have been assigned to the Trustee hereunder) and are reimbursable
pursuant to Section 3.10(a)(viii).
Section 3.03 Successor Subservicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Servicer or any Affiliate of
Residential Funding acts as servicer, it will not assume liability for the
representations and warranties of the Subservicer which it replaces. If the
Master Servicer enters into a Subservicing Agreement with a successor
Subservicer, the Master Servicer shall use reasonable efforts to have the
successor Subservicer assume liability for the representations and warranties
made by the terminated Subservicer in respect of the related Mortgage Loans and,
in the event of any such assumption by the successor Subservicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Subservicer from liability for such representations and warranties.
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Section 3.04 Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or reference to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to the Trustee
and the Certificateholders for the servicing and administering of the Mortgage
Loans in accordance with the provisions of Section 3.01 without diminution of
such obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer or the Company
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. The Master
Servicer shall be entitled to enter into any agreement with a Subservicer or
Seller for indemnification of the Master Servicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship Between Subservicer and Trustee or
Certificateholders.
Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Master Servicer alone and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer in
its capacity as such except as set forth in Section 3.06. The foregoing
provision shall not in any way limit a Subservicer's obligation to cure an
omission or defect or to repurchase a Mortgage Loan as referred to in Section
2.02 hereof.
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee.
(a) If the Master Servicer shall for any reason no longer be the master servicer
(including by reason of an Event of Default), the Trustee, its designee or its
successor shall thereupon assume all of the rights and obligations of the Master
Servicer under each Subservicing Agreement that may have been entered into. The
Trustee, its designee or the successor servicer for the Trustee shall be deemed
to have assumed all of the Master Servicer's interest therein and to have
replaced the Master Servicer as a party to the Subservicing Agreement to the
same extent as if the Subservicing Agreement had been assigned to the assuming
party except that the Master Servicer shall not thereby be relieved of any
liability or obligations under the Subservicing Agreement.
(b) The Master Servicer shall, upon request of the Trustee but at the expense of
the Master Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of each
Subservicing Agreement to the assuming party.
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Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to Custodial
Account.
(a) The Master Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage
Loans, and shall, to the extent such procedures shall be consistent with
this Agreement and the terms and provisions of any related Primary
Insurance Policy, follow such collection procedures as it would employ
in its good faith business judgment and which are normal and usual in
its general mortgage servicing activities. Consistent with the
foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the
Due Date for payments due on a Mortgage Loan in accordance with the
Program Guide; provided, however, that the Master Servicer shall first
determine that any such waiver or extension will not impair the coverage
of any related Primary Insurance Policy or materially adversely affect
the lien of the related Mortgage. Notwithstanding anything in this
Section to the contrary, the Master Servicer or any Subservicer shall
not enforce any prepayment charge to the extent that such enforcement
would violate any applicable law. In the event of any such arrangement,
the Master Servicer shall make timely advances on the related Mortgage
Loan during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of
such arrangements unless otherwise agreed to by the Holders of the
Classes of Certificates affected thereby; provided, however, that no
such extension shall be made if any such advance would be a
Nonrecoverable Advance. Consistent with the terms of this Agreement, the
Master Servicer may also waive, modify or vary any term of any Mortgage
Loan or consent to the postponement of strict compliance with any such
term or in any manner grant indulgence to any Mortgagor if in the Master
Servicer's determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the
Certificateholders (taking into account any estimated Realized Loss that
might result absent such action); provided, however, that the Master
Servicer may not modify materially or permit any Subservicer to modify
any Mortgage Loan, including without limitation any modification that
would change the Mortgage Rate, forgive the payment of any principal or
interest (unless in connection with the liquidation of the related
Mortgage Loan or except in connection with prepayments to the extent
that such reamortization is not inconsistent with the terms of the
Mortgage Loan), capitalize any amounts owing on the Mortgage Loan by
adding such amount to the outstanding principal balance of the Mortgage
Loan, or extend the final maturity date of such Mortgage Loan, unless
such Mortgage Loan is in default or, in the judgment of the Master
Servicer, such default is reasonably foreseeable; provided, further,
that (1) no such modification shall reduce the interest rate on a
Mortgage Loan below one-half of the Mortgage Rate as in effect on the
Cut-Off Date, but not less than the sum of the rates at which the
Servicing Fee and the Subservicing Fee with respect to such Mortgage
Loan accrues plus the rate at which the premium paid to the Certificate
Insurer, if any, accrues, (2) the final maturity date for any Mortgage
Loan shall not be extended beyond the Maturity Date, (3) the Stated
Principal Balance of all Reportable Modified Mortgage Loans subject to
Servicing Modifications (measured at the time of the Servicing
Modification and after giving effect to any Servicing Modification) can
be no more than five percent of the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date, unless such limit is increased
from time to time with the consent of the Rating Agencies and the
Certificate Insurer, if any. In addition, any amounts owing on a
Mortgage Loan added to the outstanding principal balance of such
Mortgage Loan must be fully amortized over the remaining term of such
Mortgage Loan, and such amounts may be added to the outstanding
principal balance of a Mortgage Loan only once during the life of such
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Mortgage Loan. Also, the addition of such amounts described in the
preceding sentence shall be implemented in accordance with the Program
Guide and may be implemented only by Subservicers that have been
approved by the Master Servicer for such purpose. In connection with any
Curtailment of a Mortgage Loan, the Master Servicer, to the extent not
inconsistent with the terms of the Mortgage Note and local law and
practice, may permit the Mortgage Loan to be reamortized such that the
Monthly Payment is recalculated as an amount that will fully amortize
the remaining Stated Principal Balance thereof by the original Maturity
Date based on the original Mortgage Rate; provided, that such
re-amortization shall not be permitted if it would constitute a
reissuance of the Mortgage Loan for federal income tax purposes, except
if such reissuance is described in Treasury Regulation Section
1.860G-2(b)(3).
(b) The Master Servicer shall establish and maintain a Custodial Account in
which the Master Servicer shall deposit or cause to be deposited on a
daily basis, except as otherwise specifically provided herein, the
following payments and collections remitted by Subservicers or received
by it in respect of the Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date):
(i) All payments on account of principal, including Principal Prepayments
made by Mortgagors on the Mortgage Loans and the principal component of
any Subservicer Advance or of any REO Proceeds received in connection
with an REO Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate on the
Mortgage Loans, including Buydown Funds, if any, and the interest
component of any Subservicer Advance or of any REO Proceeds received in
connection with an REO Property for which an REO Disposition has
occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds (net
of any related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section 2.02,
2.03, 2.04, 4.07 or 9.01 and all amounts required to be deposited in
connection with the substitution of a Qualified Substitute Mortgage Loan
pursuant to Section 2.03 or 2.04;
(v) Any amounts required to be deposited pursuant to Section 3.07(c) or
3.21;
(vi) All amounts transferred from the Certificate Account to the Custodial
Account in accordance with Section 4.02(a);
(vii) Any amounts realized by the Subservicer and received by the Master
Servicer in respect of any Additional Collateral; and
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(viii) Any amounts received by the Master Servicer in respect of Pledged
Assets.
The foregoing requirements for deposit in the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments on the Mortgage Loans which are not part of the Trust
Fund (consisting of payments in respect of principal and interest on the
Mortgage Loans due on or before the Cut-off Date) and payments or collections in
the nature of prepayment charges or late payment charges or assumption fees may
but need not be deposited by the Master Servicer in the Custodial Account. In
the event any amount not required to be deposited in the Custodial Account is so
deposited, the Master Servicer may at any time withdraw such amount from the
Custodial Account, any provision herein to the contrary notwithstanding. The
Custodial Account may contain funds that belong to one or more trust funds
created for mortgage pass-through certificates of other series and may contain
other funds respecting payments on mortgage loans belonging to the Master
Servicer or serviced or master serviced by it on behalf of others.
Notwithstanding such commingling of funds, the Master Servicer shall keep
records that accurately reflect the funds on deposit in the Custodial Account
that have been identified by it as being attributable to the Mortgage Loans.
With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds
and the proceeds of the purchase of any Mortgage Loan pursuant to Sections 2.02,
2.03, 2.04 and 4.07 received in any calendar month, the Master Servicer may
elect to treat such amounts as included in the Available Distribution Amount for
the Distribution Date in the month of receipt, but is not obligated to do so. If
the Master Servicer so elects, such amounts will be deemed to have been received
(and any related Realized Loss shall be deemed to have occurred) on the last day
of the month prior to the receipt thereof.
(c) The Master Servicer shall use its best efforts to cause the institution
maintaining the Custodial Account to invest the funds in the Custodial Account
attributable to the Mortgage Loans in Permitted Investments which shall mature
not later than the Certificate Account Deposit Date next following the date of
such investment (with the exception of the Amount Held for Future Distribution)
and which shall not be sold or disposed of prior to their maturities. All income
and gain realized from any such investment shall be for the benefit of the
Master Servicer as additional servicing compensation and shall be subject to its
withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments attributable to the investment of amounts in
respect of the Mortgage Loans shall be deposited in the Custodial Account by the
Master Servicer out of its own funds immediately as realized without any right
of reimbursement.
(d) The Master Servicer shall give notice to the Trustee and the Company of any
change in the location of the Custodial Account and the location of the
Certificate Account prior to the use thereof.
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Section 3.08 Subservicing Accounts; Servicing Accounts.
(a) In those cases where a Subservicer is servicing a Mortgage Loan pursuant to
a Subservicing Agreement, the Master Servicer shall cause the Subservicer,
pursuant to the Subservicing Agreement, to establish and maintain one or more
Subservicing Accounts which shall be an Eligible Account or, if such account is
not an Eligible Account, shall generally satisfy the requirements of the Program
Guide and be otherwise acceptable to the Master Servicer and each Rating Agency.
The Subservicer will be required thereby to deposit into the Subservicing
Account on a daily basis all proceeds of Mortgage Loans received by the
Subservicer, less its Subservicing Fees and unreimbursed advances and expenses,
to the extent permitted by the Subservicing Agreement. If the Subservicing
Account is not an Eligible Account, the Master Servicer shall be deemed to have
received such monies upon receipt thereof by the Subservicer. The Subservicer
shall not be required to deposit in the Subservicing Account payments or
collections in the nature of prepayment charges or late charges or assumption
fees. On or before the date specified in the Program Guide, but in no event
later than the Determination Date, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to remit to the Master
Servicer for deposit in the Custodial Account all funds held in the Subservicing
Account with respect to each Mortgage Loan serviced by such Subservicer that are
required to be remitted to the Master Servicer. The Subservicer will also be
required, pursuant to the Subservicing Agreement, to advance on such scheduled
date of remittance amounts equal to any scheduled monthly installments of
principal and interest less its Subservicing Fees on any Mortgage Loans for
which payment was not received by the Subservicer. This obligation to advance
with respect to each Mortgage Loan will continue up to and including the first
of the month following the date on which the related Mortgaged Property is sold
at a foreclosure sale or is acquired by the Trust Fund by deed in lieu of
foreclosure or otherwise. All such advances received by the Master Servicer
shall be deposited promptly by it in the Custodial Account.
(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
53
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.
If compliance with this Section 3.09 shall make any Class of
Certificates legal for investment by federally insured savings and loan
associations, the Master Servicer shall provide, or cause the Subservicers to
provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices designated by the Master
Servicer. The Master Servicer shall permit such representatives to photocopy any
such documentation and shall provide equipment for that purpose at a charge
reasonably approximating the cost of such photocopying to the Master Servicer.
Section 3.10 Permitted Withdrawals from the Custodial Account.
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein
pursuant to Section 3.07 that are attributable to the Mortgage Loans for
the following purposes:
(i) to make deposits into the Certificate Account in the amounts and in the
manner provided for in Section 4.01;
54
(ii) to reimburse itself or the related Subservicer for previously
unreimbursed Advances, Servicing Advances or other expenses made
pursuant to Sections 3.01, 3.07(a), 3.08, 3.11, 3.12(a), 3.14 and 4.04
or otherwise reimbursable pursuant to the terms of this Agreement, such
withdrawal right being limited to amounts received on the related
Mortgage Loans (including, for this purpose, REO Proceeds, Insurance
Proceeds, Liquidation Proceeds and proceeds from the purchase of a
Mortgage Loan pursuant to Section 2.02, 2.03, 2.04, 4.07 or 9.01) which
represent (A) Late Collections of Monthly Payments for which any such
advance was made in the case of Subservicer Advances or Advances
pursuant to Section 4.04 and (B) recoveries of amounts in respect of
which such advances were made in the case of Servicing Advances;
(iii) to pay to itself or the related Subservicer (if not previously retained
by such Subservicer) out of each payment received by the Master Servicer
on account of interest on a Mortgage Loan as contemplated by Sections
3.14 and 3.16, an amount equal to that remaining portion of any such
payment as to interest (but not in excess of the Servicing Fee and the
Subservicing Fee, if not previously retained) which, when deducted, will
result in the remaining amount of such interest being interest at the
Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a
Modified Mortgage Loan) on the amount specified in the amortization
schedule of the related Mortgage Loan as the principal balance thereof
at the beginning of the period respecting which such interest was paid
after giving effect to any previous Curtailments;
(iv) to pay to itself as additional servicing compensation any interest or
investment income earned on funds and other property deposited in or
credited to the Custodial Account that it is entitled to withdraw
pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any Foreclosure
Profits, any amounts remitted by Subservicers as interest in respect of
Curtailments pursuant to Section 3.08(b), and any amounts paid by a
Mortgagor in connection with a Principal Prepayment in Full in respect
of interest for any period during the calendar month in which such
Principal Prepayment in Full is to be distributed to the
Certificateholders;
(vi) to pay to itself, a Subservicer, a Seller, Residential Funding, the
Company or any other appropriate Person, as the case may be, with
respect to each Mortgage Loan or property acquired in respect thereof
that has been purchased or otherwise transferred pursuant to Section
2.02, 2.03, 2.04, 4.07 or 9.01, all amounts received thereon and not
required to be distributed to the Certificateholders as of the date on
which the related Stated Principal Balance or Purchase Price is
determined;
(vii) to reimburse itself or the related Subservicer for any Nonrecoverable
Advance or Advances in the manner and to the extent provided in
subsection (c) below, and any Advance or Servicing Advance made in
connection with a modified Mortgage Loan that is in default or, in the
judgment of the Master Servicer, default is reasonably foreseeable
pursuant to Section 3.07(a), to the extent the amount of the Advance or
Servicing Advance was added to the Stated Principal Balance of the
Mortgage Loan in a prior calendar month, or any Advance reimbursable to
the Master Servicer pursuant to Section 4.02(a);
55
(viii) to reimburse itself or the Company for expenses incurred by and
reimbursable to it or the Company pursuant to Sections 3.01(a), 3.11,
3.13, 3.14(c), 6.03, 10.01 or otherwise, or in connection with
enforcing, in accordance with this Agreement, any repurchase,
substitution or indemnification obligation of any Seller (other than an
Affiliate of the Company) pursuant to the related Seller's Agreement;
(ix) to reimburse itself for Servicing Advances expended by it (a) pursuant
to Section 3.14 in good faith in connection with the restoration of
property damaged by an Uninsured Cause, and (b) in connection with the
liquidation of a Mortgage Loan or disposition of an REO Property to the
extent not otherwise reimbursed pursuant to clause (ii) or (viii) above;
and
(x) to withdraw any amount deposited in the Custodial Account that was not
required to be deposited therein pursuant to Section 3.07.
(b) Since, in connection with withdrawals pursuant to clauses (ii), (iii),
(v) and (vi), the Master Servicer's entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, the Master
Servicer shall keep and maintain separate accounting, on a Mortgage Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal
from the Custodial Account pursuant to such clauses.
(c) The Master Servicer shall be entitled to reimburse itself or the related
Subservicer for any advance made in respect of a Mortgage Loan that the
Master Servicer determines to be a Nonrecoverable Advance by withdrawal
from the Custodial Account of amounts on deposit therein attributable to
the Mortgage Loans on any Certificate Account Deposit Date succeeding
the date of such determination. Such right of reimbursement in respect
of a Nonrecoverable Advance relating to an Advance pursuant to Section
4.04 on any such Certificate Account Deposit Date shall be limited to an
amount not exceeding the portion of such advance previously paid to
Certificateholders (and not theretofore reimbursed to the Master
Servicer or the related Subservicer).
Section 3.11 Maintenance of the Primary Insurance Policies; Collections
Thereunder.
(a) The Master Servicer shall not take, or permit any Subservicer to take, any
action which would result in non-coverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of the Master Servicer or
Subservicer, would have been covered thereunder. To the extent coverage is
available, the Master Servicer shall keep or cause to be kept in full force and
effect each such Primary Insurance Policy until the principal balance of the
related Mortgage Loan secured by a Mortgaged Property is reduced to 80% or less
of the Appraised Value in the case of such a Mortgage Loan having a
Loan-to-Value Ratio at origination in excess of 80%, provided that such Primary
Insurance Policy was in place as of the Cut-off Date and the Company had
knowledge of such Primary Insurance Policy. The Master Servicer shall be
entitled to cancel or permit the discontinuation of any Primary Insurance Policy
as to any Mortgage Loan, if the Stated Principal Balance of the Mortgage Loan is
reduced below an amount equal to 80% of the appraised value of the related
Mortgaged Property as determined in any appraisal thereof after the Closing
56
Date, or if the Loan-to-Value Ratio is reduced below 80% as a result of
principal payments on the Mortgage Loan after the Closing Date. In the event
that the Company gains knowledge that as of the Closing Date, a Mortgage Loan
had a Loan-to-Value Ratio at origination in excess of 80% and is not the subject
of a Primary Insurance Policy (and was not included in any exception to the
representation in Section 2.03(b)(iv)) and that such Mortgage Loan has a current
Loan-to-Value Ratio in excess of 80% then the Master Servicer shall use its
reasonable efforts to obtain and maintain a Primary Insurance Policy to the
extent that such a policy is obtainable at a reasonable price. The Master
Servicer shall not cancel or refuse to renew any such Primary Insurance Policy
applicable to a Nonsubserviced Mortgage Loan, or consent to any Subservicer
canceling or refusing to renew any such Primary Insurance Policy applicable to a
Mortgage Loan subserviced by it, that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
unless the replacement Primary Insurance Policy for such canceled or non-renewed
policy is maintained with an insurer whose claims-paying ability is acceptable
to each Rating Agency for mortgage pass-through certificates having a rating
equal to or better than the lower of the then-current rating or the rating
assigned to the Certificates as of the Closing Date by such Rating Agency.
(b) In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present or to cause the related
Subservicer to present, on behalf of the Master Servicer, the Subservicer, if
any, the Trustee and Certificateholders, claims to the related Insurer under any
Primary Insurance Policies, in a timely manner in accordance with such policies,
and, in this regard, to take or cause to be taken such reasonable action as
shall be necessary to permit recovery under any Primary Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Section 3.07, any Insurance
Proceeds collected by or remitted to the Master Servicer under any Primary
Insurance Policies shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.10.
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each Mortgage Loan
(other than a Cooperative Loan) fire insurance with extended coverage in an
amount which is equal to the lesser of the principal balance owing on such
Mortgage Loan or 100 percent of the insurable value of the improvements;
provided, however, that such coverage may not be less than the minimum amount
required to fully compensate for any loss or damage on a replacement cost basis.
To the extent it may do so without breaching the related Subservicing Agreement,
the Master Servicer shall replace any Subservicer that does not cause such
insurance, to the extent it is available, to be maintained. The Master Servicer
shall also cause to be maintained on property acquired upon foreclosure, or deed
in lieu of foreclosure, of any Mortgage Loan (other than a Cooperative Loan),
fire insurance with extended coverage in an amount which is at least equal to
the amount necessary to avoid the application of any co-insurance clause
contained in the related hazard insurance policy. Pursuant to Section 3.07, any
amounts collected by the Master Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or property thus acquired or amounts released to the Mortgagor in
57
accordance with the Master Servicer's normal servicing procedures) shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
3.10. Any cost incurred by the Master Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the amount owing under the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs shall
be recoverable by the Master Servicer out of related late payments by the
Mortgagor or out of Insurance Proceeds and Liquidation Proceeds to the extent
permitted by Section 3.10. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage Loan other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. Whenever the improvements securing a Mortgage
Loan (other than a Cooperative Loan) are located at the time of origination of
such Mortgage Loan in a federally designated special flood hazard area, the
Master Servicer shall cause flood insurance (to the extent available) to be
maintained in respect thereof. Such flood insurance shall be in an amount equal
to the lesser of (i) the amount required to compensate for any loss or damage to
the Mortgaged Property on a replacement cost basis and (ii) the maximum amount
of such insurance available for the related Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
If the Master Servicer shall obtain and maintain a blanket fire
insurance policy with extended coverage insuring against hazard losses on all of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.12(a), it being
understood and agreed that such policy may contain a deductible clause, in which
case the Master Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with the first
sentence of this Section 3.12(a) and there shall have been a loss which would
have been covered by such policy, deposit in the Certificate Account the amount
not otherwise payable under the blanket policy because of such deductible
clause. Any such deposit by the Master Servicer shall be made on the Certificate
Account Deposit Date next preceding the Distribution Date which occurs in the
month following the month in which payments under any such policy would have
been deposited in the Custodial Account. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
present, on behalf of itself, the Trustee and the Certificateholders, claims
under any such blanket policy.
(b) The Master Servicer shall obtain and maintain at its own expense and keep in
full force and effect throughout the term of this Agreement a blanket fidelity
bond and an errors and omissions insurance policy covering the Master Servicer's
officers and employees and other persons acting on behalf of the Master Servicer
in connection with its activities under this Agreement. The amount of coverage
shall be at least equal to the coverage that would be required by Xxxxxx Xxx or
Freddie Mac, whichever is greater, with respect to the Master Servicer if the
Master Servicer were servicing and administering the Mortgage Loans for Xxxxxx
Xxx or Freddie Mac. In the event that any such bond or policy ceases to be in
58
effect, the Master Servicer shall obtain a comparable replacement bond or policy
from an issuer or insurer, as the case may be, meeting the requirements, if any,
of the Program Guide and acceptable to the Company. Coverage of the Master
Servicer under a policy or bond obtained by an Affiliate of the Master Servicer
and providing the coverage required by this Section 3.12(b) shall satisfy the
requirements of this Section 3.12(b).
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Master
Servicer or Subservicer, to the extent it has knowledge of such
conveyance, shall enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law
and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any
Required Insurance Policy. Notwithstanding the foregoing:
(i) the Master Servicer shall not be deemed to be in default under this
Section 3.13(a) by reason of any transfer or assumption which the Master
Servicer is restricted by law from preventing; and
(ii) if the Master Servicer determines that it is reasonably likely that any
Mortgagor will bring, or if any Mortgagor does bring, legal action to
declare invalid or otherwise avoid enforcement of a due-on-sale clause
contained in any Mortgage Note or Mortgage, the Master Servicer shall
not be required to enforce the due-on-sale clause or to contest such
action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a
Mortgaged Property is to be conveyed to a Person by a Mortgagor, and
such Person is to enter into an assumption or modification agreement or
supplement to the Mortgage Note or Mortgage which requires the signature
of the Trustee, or if an instrument of release signed by the Trustee is
required releasing the Mortgagor from liability on the Mortgage Loan,
the Master Servicer is authorized, subject to the requirements of the
sentence next following, to execute and deliver, on behalf of the
Trustee, the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed and such modification agreement or supplement
to the Mortgage Note or Mortgage or other instruments as are reasonable
or necessary to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply with any applicable laws regarding assumptions or
the transfer of the Mortgaged Property to such Person; provided,
however, none of such terms and requirements shall either (i) both (A)
constitute a "significant modification" effecting an exchange or
reissuance of such Mortgage Loan under the REMIC Provisions and (B)
cause any portion of any REMIC formed under the Series Supplement to
fail to qualify as a REMIC under the Code or (subject to Section
10.01(f)), result in the imposition of any tax on "prohibited
transactions" or (ii) constitute "contributions" after the start-up date
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under the REMIC Provisions. The Master Servicer shall execute and
deliver such documents only if it reasonably determines that (i) its
execution and delivery thereof will not conflict with or violate any
terms of this Agreement or cause the unpaid balance and interest on the
Mortgage Loan to be uncollectible in whole or in part, (ii) any required
consents of insurers under any Required Insurance Policies have been
obtained and (iii) subsequent to the closing of the transaction
involving the assumption or transfer (A) the Mortgage Loan will continue
to be secured by a first mortgage lien pursuant to the terms of the
Mortgage, (B) such transaction will not adversely affect the coverage
under any Required Insurance Policies, (C) the Mortgage Loan will fully
amortize over the remaining term thereof, (D) no material term of the
Mortgage Loan (including the interest rate on the Mortgage Loan) will be
altered nor will the term of the Mortgage Loan be changed and (E) if the
seller/transferor of the Mortgaged Property is to be released from
liability on the Mortgage Loan, such release will not (based on the
Master Servicer's or Subservicer's good faith determination) adversely
affect the collectability of the Mortgage Loan. Upon receipt of
appropriate instructions from the Master Servicer in accordance with the
foregoing, the Trustee shall execute any necessary instruments for such
assumption or substitution of liability as directed in writing by the
Master Servicer. Upon the closing of the transactions contemplated by
such documents, the Master Servicer shall cause the originals or true
and correct copies of the assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Note or Mortgage to be
delivered to the Trustee or the Custodian and deposited with the
Mortgage File for such Mortgage Loan. Any fee collected by the Master
Servicer or such related Subservicer for entering into an assumption or
substitution of liability agreement will be retained by the Master
Servicer or such Subservicer as additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for a partial
release of the related Mortgaged Property, the granting of an easement
thereon in favor of another Person, any alteration or demolition of the
related Mortgaged Property (or, with respect to a Cooperative Loan, the
related Cooperative Apartment) without any right of reimbursement or
other similar matters if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of
the related Mortgage Loan, that the security for, and the timely and
full collectability of, such Mortgage Loan would not be adversely
affected thereby and that any portion of any REMIC formed under the
Series Supplement would not fail to continue to qualify as a REMIC under
the Code as a result thereof and (subject to Section 10.01(f)) that no
tax on "prohibited transactions" or "contributions" after the startup
day would be imposed on any such REMIC as a result thereof. Any fee
collected by the Master Servicer or the related Subservicer for
processing such a request will be retained by the Master Servicer or
such Subservicer as additional servicing compensation.
(d) Subject to any other applicable terms and conditions of this Agreement,
the Trustee and Master Servicer shall be entitled to approve an
assignment in lieu of satisfaction with respect to any Mortgage Loan,
provided the obligee with respect to such Mortgage Loan following such
proposed assignment provides the Trustee and Master Servicer with a
"Lender Certification for Assignment of Mortgage Loan" in the form
attached hereto as Exhibit M, in form and substance satisfactory to the
Trustee and Master Servicer, providing the following: (i) that the
substance of the assignment is, and is intended to be, a refinancing of
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such Mortgage; (ii) that the Mortgage Loan following the proposed
assignment will have a rate of interest at least 0.25 percent below or
above the rate of interest on such Mortgage Loan prior to such proposed
assignment; and (iii) that such assignment is at the request of the
borrower under the related Mortgage Loan. Upon approval of an assignment
in lieu of satisfaction with respect to any Mortgage Loan, the Master
Servicer shall receive cash in an amount equal to the unpaid principal
balance of and accrued interest on such Mortgage Loan and the Master
Servicer shall treat such amount as a Principal Prepayment in Full with
respect to such Mortgage Loan for all purposes hereof.
Section 3.14 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall foreclose upon or otherwise comparably convert
(which may include an REO Acquisition) the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07. Alternatively, the Master Servicer may take other
actions in respect of a defaulted Mortgage Loan, which may include (i) accepting
a short sale (a payoff of the Mortgage Loan for an amount less than the total
amount contractually owed in order to facilitate a sale of the Mortgaged
Property by the Mortgagor) or permitting a short refinancing (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed in
order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (ii) arranging for a repayment plan or (iii)
agreeing to a modification in accordance with Section 3.07. In connection with
such foreclosure or other conversion, the Master Servicer shall, consistent with
Section 3.11, follow such practices and procedures as it shall deem necessary or
advisable, as shall be normal and usual in its general mortgage servicing
activities and as shall be required or permitted by the Program Guide; provided
that the Master Servicer shall not be liable in any respect hereunder if the
Master Servicer is acting in connection with any such foreclosure or other
conversion in a manner that is consistent with the provisions of this Agreement.
The Master Servicer, however, shall not be required to expend its own funds or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to Holders of
Certificates of one or more Classes after reimbursement to itself for such
expenses or charges and (ii) that such expenses or charges will be recoverable
to it through Liquidation Proceeds, Insurance Proceeds, or REO Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 3.10, whether or not such expenses and
charges are actually recoverable from related Liquidation Proceeds, Insurance
Proceeds or REO Proceeds). In the event of such a determination by the Master
Servicer pursuant to this Section 3.14(a), the Master Servicer shall be entitled
to reimbursement of such amounts pursuant to Section 3.10.
In addition to the foregoing, the Master Servicer shall use its best
reasonable efforts to realize upon any Additional Collateral for such of the
Additional Collateral Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07; provided that the Master Servicer shall not, on behalf
of the Trustee, obtain title to any such Additional Collateral as a result of or
in lieu of the disposition thereof or otherwise; and provided further that (i)
the Master Servicer shall not proceed with respect to such Additional Collateral
in any manner that would impair the ability to recover against the related
Mortgaged Property, and (ii) the Master Servicer shall proceed with any REO
Acquisition in a manner that preserves the ability to apply the proceeds of such
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Additional Collateral against amounts owed under the defaulted Mortgage Loan.
Any proceeds realized from such Additional Collateral (other than amounts to be
released to the Mortgagor or the related guarantor in accordance with procedures
that the Master Servicer would follow in servicing loans held for its own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note and to the terms and conditions of any security agreement,
guarantee agreement, mortgage or other agreement governing the disposition of
the proceeds of such Additional Collateral) shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.10. Any other payment
received by the Master Servicer in respect of such Additional Collateral shall
be deposited in the Custodial Account subject to withdrawal pursuant to Section
3.10.
For so long as the Master Servicer is the Master Servicer under the
Credit Support Pledge Agreement, the Master Servicer shall perform its
obligations under the Credit Support Pledge Agreement in accordance with such
Agreement and in a manner that is in the best interests of the
Certificateholders. Further, the Master Servicer shall use its best reasonable
efforts to realize upon any Pledged Assets for such of the Pledged Asset Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07; provided that the Master Servicer shall not, on behalf of the
Trustee, obtain title to any such Pledged Assets as a result of or in lieu of
the disposition thereof or otherwise; and provided further that (i) the Master
Servicer shall not proceed with respect to such Pledged Assets in any manner
that would impair the ability to recover against the related Mortgaged Property,
and (ii) the Master Servicer shall proceed with any REO Acquisition in a manner
that preserves the ability to apply the proceeds of such Pledged Assets against
amounts owed under the defaulted Mortgage Loan. Any proceeds realized from such
Pledged Assets (other than amounts to be released to the Mortgagor or the
related guarantor in accordance with procedures that the Master Servicer would
follow in servicing loans held for its own account, subject to the terms and
conditions of the related Mortgage and Mortgage Note and to the terms and
conditions of any security agreement, guarantee agreement, mortgage or other
agreement governing the disposition of the proceeds of such Pledged Assets)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 3.10. Any other payment received by the Master Servicer in respect of
such Pledged Assets shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 3.10.
Concurrently with the foregoing, the Master Servicer may pursue any
remedies that may be available in connection with a breach of a representation
and warranty with respect to any such Mortgage Loan in accordance with Sections
2.03 and 2.04. However, the Master Servicer is not required to continue to
pursue both foreclosure (or similar remedies) with respect to the Mortgage Loans
and remedies in connection with a breach of a representation and warranty if the
Master Servicer determines in its reasonable discretion that one such remedy is
more likely to result in a greater recovery as to the Mortgage Loan. Upon the
occurrence of a Cash Liquidation or REO Disposition, following the deposit in
the Custodial Account of all Insurance Proceeds, Liquidation Proceeds and other
payments and recoveries referred to in the definition of "Cash Liquidation" or
"REO Disposition," as applicable, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, the Trustee or any
Custodian, as the case may be, shall release to the Master Servicer the related
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Mortgage File and the Trustee shall execute and deliver such instruments of
transfer or assignment prepared by the Master Servicer, in each case without
recourse, as shall be necessary to vest in the Master Servicer or its designee,
as the case may be, the related Mortgage Loan, and thereafter such Mortgage Loan
shall not be part of the Trust Fund. Notwithstanding the foregoing or any other
provision of this Agreement, in the Master Servicer's sole discretion with
respect to any defaulted Mortgage Loan or REO Property as to either of the
following provisions, (i) a Cash Liquidation or REO Disposition may be deemed to
have occurred if substantially all amounts expected by the Master Servicer to be
received in connection with the related defaulted Mortgage Loan or REO Property
have been received, and (ii) for purposes of determining the amount of any
Liquidation Proceeds, Insurance Proceeds, REO Proceeds or any other unscheduled
collections or the amount of any Realized Loss, the Master Servicer may take
into account minimal amounts of additional receipts expected to be received or
any estimated additional liquidation expenses expected to be incurred in
connection with the related defaulted Mortgage Loan or REO Property.
(b) If title to any Mortgaged Property is acquired by the Trust Fund as an REO
Property by foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee or to its nominee on behalf
of Certificateholders. Notwithstanding any such acquisition of title and
cancellation of the related Mortgage Loan, such REO Property shall (except as
otherwise expressly provided herein) be considered to be an Outstanding Mortgage
Loan held in the Trust Fund until such time as the REO Property shall be sold.
Consistent with the foregoing for purposes of all calculations hereunder so long
as such REO Property shall be considered to be an Outstanding Mortgage Loan it
shall be assumed that, notwithstanding that the indebtedness evidenced by the
related Mortgage Note shall have been discharged, such Mortgage Note and the
related amortization schedule in effect at the time of any such acquisition of
title (after giving effect to any previous Curtailments and before any
adjustment thereto by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period) remain in effect.
(c) If the Trust Fund acquires any REO Property as aforesaid or otherwise in
connection with a default or imminent default on a Mortgage Loan, the Master
Servicer on behalf of the Trust Fund shall dispose of such REO Property as soon
as practicable, giving due consideration to the interests of the
Certificateholders, but in all cases within three full years after the taxable
year of its acquisition by the Trust Fund for purposes of Section 860G(a)(8) of
the Code (or such shorter period as may be necessary under applicable state
(including any state in which such property is located) law to maintain the
status of any portion of any REMIC formed under the Series Supplement as a REMIC
under applicable state law and avoid taxes resulting from such property failing
to be foreclosure property under applicable state law) or, at the expense of the
Trust Fund, request, more than 60 days before the day on which such grace period
would otherwise expire, an extension of such grace period unless the Master
Servicer (subject to Section 10.01(f)) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee and the Master Servicer, to the effect that
the holding by the Trust Fund of such REO Property subsequent to such period
will not result in the imposition of taxes on "prohibited transactions" as
defined in Section 860F of the Code or cause any REMIC formed under the Series
Supplement to fail to qualify as a REMIC (for federal (or any applicable State
or local) income tax purposes) at any time that any Certificates are
outstanding, in which case the Trust Fund may continue to hold such REO Property
63
(subject to any conditions contained in such Opinion of Counsel). The Master
Servicer shall be entitled to be reimbursed from the Custodial Account for any
costs incurred in obtaining such Opinion of Counsel, as provided in Section
3.10. Notwithstanding any other provision of this Agreement, no REO Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used by or on behalf of the Trust Fund in such a manner or pursuant
to any terms that would (i) cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
(ii) subject the Trust Fund to the imposition of any federal income taxes on the
income earned from such REO Property, including any taxes imposed by reason of
Section 860G(c) of the Code, unless the Master Servicer has agreed to indemnify
and hold harmless the Trust Fund with respect to the imposition of any such
taxes.
(d) The proceeds of any Cash Liquidation, REO Disposition or purchase or
repurchase of any Mortgage Loan pursuant to the terms of this Agreement, as well
as any recovery resulting from a collection of Liquidation Proceeds, Insurance
Proceeds or REO Proceeds, will be applied in the following order of priority:
first, to reimburse the Master Servicer or the related Subservicer in accordance
with Section 3.10(a)(ii); second, to the Certificateholders to the extent of
accrued and unpaid interest on the Mortgage Loan, and any related REO Imputed
Interest, at the Net Mortgage Rate (or the Modified Net Mortgage Rate in the
case of a Modified Mortgage Loan) to the Due Date prior to the Distribution Date
on which such amounts are to be distributed; third, to the Certificateholders as
a recovery of principal on the Mortgage Loan (or REO Property); fourth, to all
Servicing Fees and Subservicing Fees payable therefrom (and the Master Servicer
and the Subservicer shall have no claims for any deficiencies with respect to
such fees which result from the foregoing allocation); and fifth, to Foreclosure
Profits.
(e) In the event of a default on a Mortgage Loan one or more of whose obligors
is not a United States Person, in connection with any foreclosure or acquisition
of a deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer will cause compliance with the provisions of
Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary
to assure that no withholding tax obligation arises with respect to the proceeds
of such foreclosure except to the extent, if any, that proceeds of such
foreclosure are required to be remitted to the obligors on such Mortgage Loan.
Section 3.15 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or upon the
receipt by the Master Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer will
immediately notify the Trustee (if it holds the related Mortgage File) or the
Custodian by a certification of a Servicing Officer (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the Custodial
Account pursuant to Section 3.07 have been or will be so deposited),
substantially in one of the forms attached hereto as Exhibit F, or, in the case
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of the Custodian, an electronic request in a form acceptable to the Custodian,
requesting delivery to it of the Mortgage File. Within two Business Days of
receipt of such certification and request, the Trustee shall release, or cause
the Custodian to release, the related Mortgage File to the Master Servicer. The
Master Servicer is authorized to execute and deliver to the Mortgagor the
request for reconveyance, deed of reconveyance or release or satisfaction of
mortgage or such instrument releasing the lien of the Mortgage, together with
the Mortgage Note with, as appropriate, written evidence of cancellation thereon
and to cause the removal from the registration on the MERS(R) System of such
Mortgage and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation or of partial or full release. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Custodial Account or the Certificate Account.
(b) From time to time as is appropriate for the servicing or foreclosure of any
Mortgage Loan, the Master Servicer shall deliver to the Custodian, with a copy
to the Trustee, a certificate of a Servicing Officer substantially in one of the
forms attached as Exhibit F hereto, or, in the case of the Custodian, an
electronic request in a form acceptable to the Custodian, requesting that
possession of all, or any document constituting part of, the Mortgage File be
released to the Master Servicer and certifying as to the reason for such release
and that such release will not invalidate any insurance coverage provided in
respect of the Mortgage Loan under any Required Insurance Policy. Upon receipt
of the foregoing, the Trustee shall deliver, or cause the Custodian to deliver,
the Mortgage File or any document therein to the Master Servicer. The Master
Servicer shall cause each Mortgage File or any document therein so released to
be returned to the Trustee, or the Custodian as agent for the Trustee when the
need therefor by the Master Servicer no longer exists, unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Custodial Account or (ii) the Mortgage File or
such document has been delivered directly or through a Subservicer to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
the Master Servicer has delivered directly or through a Subservicer to the
Trustee a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. In the event of the liquidation of
a Mortgage Loan, the Trustee shall deliver the Request for Release with respect
thereto to the Master Servicer upon deposit of the related Liquidation Proceeds
in the Custodial Account.
(c) The Trustee or the Master Servicer on the Trustee's behalf shall execute and
deliver to the Master Servicer, if necessary, any court pleadings, requests for
trustee's sale or other documents necessary to the foreclosure or trustee's sale
in respect of a Mortgaged Property or to any 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
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shall deliver to the Trustee a certificate of a Servicing Officer requesting
that such pleadings or documents be executed by the Trustee and certifying as to
the reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate any insurance coverage under
any Required Insurance Policy or invalidate or otherwise affect the lien of the
Mortgage, except for the termination of such a lien upon completion of the
foreclosure or trustee's sale.
Section 3.16 Servicing and Other Compensation; Compensating Interest.
(a) The Master Servicer, as compensation for its activities hereunder, shall be
entitled to receive on each Distribution Date the amounts provided for by
clauses (iii), (iv), (v) and (vi) of Section 3.10(a), subject to clause (e)
below. The amount of servicing compensation provided for in such clauses shall
be accounted for on a Mortgage Loan-by-Mortgage Loan basis. In the event that
Liquidation Proceeds, Insurance Proceeds and REO Proceeds (net of amounts
reimbursable therefrom pursuant to Section 3.10(a)(ii)) in respect of a Cash
Liquidation or REO Disposition exceed the unpaid principal balance of such
Mortgage Loan plus unpaid interest accrued thereon (including REO Imputed
Interest) at a per annum rate equal to the related Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), the Master
Servicer shall be entitled to retain therefrom and to pay to itself and/or the
related Subservicer, any Foreclosure Profits and any Servicing Fee or
Subservicing Fee considered to be accrued but unpaid.
(b) Additional servicing compensation in the form of prepayment charges,
assumption fees, late payment charges, investment income on amounts in the
Custodial Account or the Certificate Account or otherwise shall be retained by
the Master Servicer or the Subservicer to the extent provided herein, subject to
clause (e) below.
(c) The Master Servicer shall be required to pay, or cause to be paid, all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of premiums for the Primary Insurance Policies, if any, to
the extent such premiums are not required to be paid by the related Mortgagors,
and the fees and expenses of the Trustee and any Custodian) and shall not be
entitled to reimbursement therefor except as specifically provided in Sections
3.10 and 3.14.
(d) The Master Servicer's right to receive servicing compensation may not be
transferred in whole or in part except in connection with the transfer of all of
its responsibilities and obligations of the Master Servicer under this
Agreement.
(e) Notwithstanding any other provision herein, the amount of servicing
compensation that the Master Servicer shall be entitled to receive for its
activities hereunder for the period ending on each Distribution Date shall be
reduced (but not below zero) by an amount equal to Compensating Interest (if
any) for such Distribution Date. Such reduction shall be applied during such
period as follows: first, to any Servicing Fee or Subservicing Fee to which the
Master Servicer is entitled pursuant to Section 3.10(a)(iii) and second, to any
income or gain realized from any investment of funds held in the Custodial
Account or the Certificate Account to which the Master Servicer is entitled
66
pursuant to Sections 3.07(c) or 4.01(b), respectively. In making such reduction,
the Master Servicer (i) will not withdraw from the Custodial Account any such
amount representing all or a portion of the Servicing Fee to which it is
entitled pursuant to Section 3.10(a)(iii) and (ii) will not withdraw from the
Custodial Account or Certificate Account any such amount to which it is entitled
pursuant to Section 3.07(c) or 4.01(b).
Section 3.17 Reports to the Trustee and the Company.
Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee and the Company a statement, certified by
a Servicing Officer, setting forth the status of the Custodial Account as of the
close of business on such Distribution Date as it relates to the Mortgage Loans
and showing, for the period covered by such statement, the aggregate of deposits
in or withdrawals from the Custodial Account in respect of the Mortgage Loans
for each category of deposit specified in Section 3.07 and each category of
withdrawal specified in Section 3.10.
Section 3.18 Annual Statement as to Compliance.
The Master Servicer will deliver to the Company, the Trustee and any
Certificate Insurer on or before the earlier of (a) March 31 of each year,
beginning with the first March 31 that occurs at least six months after the
Cut-off Date or (b) with respect to any calendar year during which the Company's
annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, the date on which
the annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, an Officers'
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year related to
its servicing of mortgage loans and its performance under pooling and servicing
agreements, including this Agreement, has been made under such officers'
supervision, (ii) to the best of such officers' knowledge, based on such review,
the Master Servicer has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers and has fulfilled all of its material obligations relating to
this Agreement in all material respects throughout such year, or, if there has
been material noncompliance with such servicing standards or a default in the
fulfillment in all material respects of any such obligation relating to this
Agreement, such statement shall include a description of such noncompliance or
specify each such default, as the case may be, known to such officer and the
nature and status thereof and (iii) to the best of such officers' knowledge,
each Subservicer has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers and has fulfilled all of its material obligations under its
Subservicing Agreement in all material respects throughout such year, or, if
there has been material noncompliance with such servicing standards or a
material default in the fulfillment of such obligations relating to this
Agreement, such statement shall include a description of such noncompliance or
specify each such default, as the case may be, known to such officer and the
nature and status thereof.
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Section 3.19 Annual Independent Public Accountants' Servicing Report.
On or before the earlier of (a) March 31 of each year, beginning with
the first March 31 that occurs at least six months after the Cut-off Date or (b)
with respect to any calendar year during which the Company's annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, the date on which the annual report on
Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, the Master Servicer at its expense
shall cause a firm of independent public accountants, which shall be members of
the American Institute of Certified Public Accountants, to furnish a report to
the Company and the Trustee stating its opinion that, on the basis of an
examination conducted by such firm substantially in accordance with standards
established by the American Institute of Certified Public Accountants, the
assertions made pursuant to Section 3.18 regarding compliance with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers during the preceding calendar year are fairly stated in all
material respects, subject to such exceptions and other qualifications that, in
the opinion of such firm, such accounting standards require it to report. In
rendering such statement, such firm may rely, as to matters relating to the
direct servicing of mortgage loans by Subservicers, upon comparable statements
for examinations conducted by independent public accountants substantially in
accordance with standards established by the American Institute of Certified
Public Accountants (rendered within one year of such statement) with respect to
such Subservicers.
Section 3.20 Rights of the Company in Respect of the Master Servicer.
The Master Servicer shall afford the Company, upon reasonable notice,
during normal business hours access to all records maintained by the Master
Servicer in respect of its rights and obligations hereunder and access to
officers of the Master Servicer responsible for such obligations. Upon request,
the Master Servicer shall furnish the Company with its most recent financial
statements and such other information as the Master Servicer possesses regarding
its business, affairs, property and condition, financial or otherwise. The
Master Servicer shall also cooperate with all reasonable requests for
information including, but not limited to, notices, tapes and copies of files,
regarding itself, the Mortgage Loans or the Certificates from any Person or
Persons identified by the Company or Residential Funding. The Company may, but
is not obligated to, enforce the obligations of the Master Servicer hereunder
and may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer hereunder or exercise the rights of
the Master Servicer hereunder; provided that the Master Servicer shall not be
relieved of any of its obligations hereunder by virtue of such performance by
the Company or its designee. The Company shall not have any responsibility or
liability for any action or failure to act by the Master Servicer and is not
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
Section 3.21 Administration of Buydown Funds.
(a) With respect to any Buydown Mortgage Loan, the Subservicer has deposited
Buydown Funds in an account that satisfies the requirements for a Subservicing
Account (the "Buydown Account"). The Master Servicer shall cause the
Subservicing Agreement to require that upon receipt from the Mortgagor of the
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amount due on a Due Date for each Buydown Mortgage Loan, the Subservicer will
withdraw from the Buydown Account the predetermined amount that, when added to
the amount due on such date from the Mortgagor, equals the full Monthly Payment
and transmit that amount in accordance with the terms of the Subservicing
Agreement to the Master Servicer together with the related payment made by the
Mortgagor or advanced by the Subservicer.
(b) If the Mortgagor on a Buydown Mortgage Loan prepays such loan in its
entirety during the period (the "Buydown Period") when Buydown Funds are
required to be applied to such Buydown Mortgage Loan, the Subservicer shall be
required to withdraw from the Buydown Account and remit any Buydown Funds
remaining in the Buydown Account in accordance with the related buydown
agreement. The amount of Buydown Funds which may be remitted in accordance with
the related buydown agreement may reduce the amount required to be paid by the
Mortgagor to fully prepay the related Mortgage Loan. If the Mortgagor on a
Buydown Mortgage Loan defaults on such Mortgage Loan during the Buydown Period
and the property securing such Buydown Mortgage Loan is sold in the liquidation
thereof (either by the Master Servicer or the insurer under any related Primary
Insurance Policy), the Subservicer shall be required to withdraw from the
Buydown Account the Buydown Funds for such Buydown Mortgage Loan still held in
the Buydown Account and remit the same to the Master Servicer in accordance with
the terms of the Subservicing Agreement for deposit in the Custodial Account or,
if instructed by the Master Servicer, pay to the insurer under any related
Primary Insurance Policy if the Mortgaged Property is transferred to such
insurer and such insurer pays all of the loss incurred in respect of such
default. Any amount so remitted pursuant to the preceding sentence will be
deemed to reduce the amount owed on the Mortgage Loan.
Section 3.22 Advance Facility.
(a) The Master Servicer is hereby authorized to enter into a financing or
other facility (any such arrangement, an "Advance Facility") under which
(1) the Master Servicer sells, assigns or pledges to another Person (an
"Advancing Person") the Master Servicer's rights under this Agreement to
be reimbursed for any Advances or Servicing Advances and/or (2) an
Advancing Person agrees to fund some or all Advances and/or Servicing
Advances required to be made by the Master Servicer pursuant to this
Agreement. No consent of the 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).
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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.
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(d) Upon the direction of and at the expense of the Master Servicer, the
Trustee agrees to execute such acknowledgments, certificates, and other
documents provided by the Master Servicer and reasonably satisfactory to
the Trustee recognizing the interests of any Advancing Person or Advance
Facility Trustee in such Reimbursement Amounts as the Master Servicer
may cause to be made subject to Advance Facilities pursuant to this
Section 3.22, and such other documents in connection with such Advance
Facility as may be reasonably requested from time to time by any
Advancing Person or Advance Facility Trustee and reasonably satisfactory
to the Trustee.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan shall
be allocated to outstanding unreimbursed Advances or Servicing Advances
(as the case may be) made with respect to that Mortgage Loan on a
"first-in, first out" ("FIFO") basis, subject to the qualifications set
forth below:
(i) Any successor Master Servicer to Residential Funding (a
"Successor Master Servicer") and the Advancing Person or Advance
Facility Trustee shall be required to apply all amounts
available in accordance with this Section 3.22(e) to the
reimbursement of Advances and Servicing Advances in the manner
provided for herein; provided, however, that after the
succession of a Successor Master Servicer, (A) to the extent
that any Advances or Servicing Advances with respect to any
particular Mortgage Loan are reimbursed from payments or
recoveries, if any, from the related Mortgagor, and Liquidation
Proceeds or Insurance Proceeds, if any, with respect to that
Mortgage Loan, reimbursement shall be made, first, to the
Advancing Person or Advance Facility Trustee in respect of
Advances and/or Servicing Advances related to that Mortgage Loan
to the extent of the interest of the Advancing Person or Advance
Facility Trustee in such Advances and/or Servicing Advances,
second to the Master Servicer in respect of Advances and/or
Servicing Advances related to that Mortgage Loan in excess of
those in which the Advancing Person or Advance Facility Trustee
Person has an interest, and third, to the Successor Master
Servicer in respect of any other Advances and/or Servicing
Advances related to that Mortgage Loan, from such sources as and
when collected, and (B) reimbursements of Advances and Servicing
Advances that are Nonrecoverable Advances shall be made pro rata
to the Advancing Person or Advance Facility Trustee, on the one
hand, and any such Successor Master Servicer, on the other hand,
on the basis of the respective aggregate outstanding
unreimbursed Advances and Servicing Advances that are
Nonrecoverable Advances owed to the Advancing Person, Advance
Facility Trustee or Master Servicer pursuant to this Agreement,
on the one hand, and any such Successor Master Servicer, on the
other hand, and without regard to the date on which any such
Advances or Servicing Advances shall have been made. In the
event that, as a result of the FIFO allocation made pursuant to
this Section 3.22(e), some or all of a Reimbursement Amount paid
to the Advancing Person or Advance Facility Trustee relates to
Advances or Servicing Advances that were made by a Person other
than Residential Funding or the Advancing Person or Advance
Facility Trustee, then the Advancing Person or Advance Facility
Trustee shall be required to remit any portion of such
Reimbursement Amount to the Person entitled to such portion of
such Reimbursement Amount. Without limiting the generality of
the foregoing, Residential Funding shall remain entitled to be
reimbursed by the Advancing Person or Advance Facility Trustee
for all Advances and Servicing Advances funded by Residential
Funding to the extent the related Reimbursement Amount(s) have
not been assigned or pledged to an Advancing Person or Advance
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Facility Trustee. The documentation establishing any Advance
Facility shall require Residential Funding to provide to the
related Advancing Person or Advance Facility Trustee loan by
loan information with respect to each Reimbursement Amount
distributed to such Advancing Person or Advance Facility Trustee
on each date of remittance thereof to such Advancing Person or
Advance Facility Trustee, to enable the Advancing Person or
Advance Facility Trustee to make the FIFO allocation of each
Reimbursement Amount with respect to each Mortgage Loan.
(ii) By way of illustration, and not by way of limiting the
generality of the foregoing, if the Master Servicer resigns or
is terminated at a time when the Master Servicer is a party to
an Advance Facility, and is replaced by a Successor Master
Servicer, and the Successor Master Servicer directly funds
Advances or Servicing Advances with respect to a Mortgage Loan
and does not assign or pledge the related Reimbursement Amounts
to the related Advancing Person or Advance Facility Trustee,
then all payments and recoveries received from the related
Mortgagor or received in the form of Liquidation Proceeds with
respect to such Mortgage Loan (including Insurance Proceeds
collected in connection with a liquidation of such Mortgage
Loan) will be allocated first to the Advancing Person or Advance
Facility Trustee until the related Reimbursement Amounts
attributable to such Mortgage Loan that are owed to the Master
Servicer and the Advancing Person, which were made prior to any
Advances or Servicing Advances made by the Successor Master
Servicer, have been reimbursed in full, at which point the
Successor Master Servicer shall be entitled to retain all
related Reimbursement Amounts subsequently collected with
respect to that Mortgage Loan pursuant to Section 3.10 of this
Agreement. To the extent that the Advances or Servicing Advances
are Nonrecoverable Advances to be reimbursed on an aggregate
basis pursuant to Section 3.10 of this Agreement, the
reimbursement paid in this manner will be made pro rata to the
Advancing Person or Advance Facility Trustee, on the one hand,
and the Successor Master Servicer, on the other hand, as
described in clause (i)(B) above.
(f) The Master Servicer shall remain entitled to be reimbursed for all
Advances and Xxxxxxxxx Advances funded by the Master Servicer to the
extent the related rights to be reimbursed therefor have not been sold,
assigned or pledged to an Advancing Person.
(g) Any amendment to this Section 3.22 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 3.22, including
amendments to add provisions relating to a successor master servicer,
may be entered into by the Trustee, the 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 an opinion of counsel as required by Section 11.01(c)
notwithstanding anything to the contrary in Section 11.01 of or
elsewhere in this Agreement.
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(h) Any rights of set-off that the Trust Fund, the Trustee, the 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 on behalf of the Trustee shall establish and maintain a
Certificate Account in which the Master Servicer shall cause to be deposited on
behalf of the Trustee on or before 2:00 P.M. New York time on each Certificate
Account Deposit Date by wire transfer of immediately available funds an amount
equal to the sum of (i) any Advance for the immediately succeeding Distribution
Date, (ii) any amount required to be deposited in the Certificate Account
pursuant to Section 3.12(a), (iii) any amount required to be deposited in the
Certificate Account pursuant to Section 3.16(e) or Section 4.07 and (iv) all
other amounts constituting the Available Distribution Amount for the immediately
succeeding Distribution Date.
(b) The Trustee shall, upon written request from the Master Servicer, invest or
cause the institution maintaining the Certificate Account to invest the funds in
the Certificate Account in Permitted Investments designated in the name of the
Trustee for the benefit of the Certificateholders, which shall mature or be
payable on demand not later than the Business Day next preceding the
Distribution Date next following the date of such investment (except that (i)
any investment in the institution with which the Certificate Account is
maintained may mature or be payable on demand on such Distribution Date and (ii)
any other investment may mature or be payable on demand on such Distribution
Date if the Trustee shall advance funds on such Distribution Date to the
Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
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distributions on the Certificates) and shall not be sold or disposed of prior to
maturity. Subject to Section 3.16(e), all income and gain realized from any such
investment shall be for the benefit of the Master Servicer and shall be subject
to its withdrawal or order from time to time. The amount of any losses incurred
in respect of any such investments shall be deposited in the Certificate Account
by the Master Servicer out of its own funds immediately as realized without any
right of reimbursement.
Section 4.02 Distributions.
As provided in Section 4.02 of the Series Supplement.
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting.
(a) Concurrently with each distribution charged to the Certificate Account and
with respect to each Distribution Date the Master Servicer shall forward to the
Trustee and the Trustee shall either forward by mail or make available to each
Holder and the Company, via the Trustee's internet website, a statement (and at
its option, any additional files containing the same information in an
alternative format) setting forth information as to each Class of Certificates,
the Mortgage Pool and, if the Mortgage Pool is comprised of two or more Loan
Groups, each Loan Group, to the extent applicable. This statement will include
the information set forth in an exhibit to the Series Supplement. Such exhibit
shall set forth the Trustee's internet website address together with a phone
number. The Trustee shall mail to each Holder that requests a paper copy by
telephone a paper copy via first class mail. The Trustee may modify the
distribution procedures set forth in this Section provided that such procedures
are no less convenient for the Certificateholders. The Trustee shall provide
prior notification to the Company, the Master Servicer and the
Certificateholders regarding any such modification. In addition, the Master
Servicer shall provide to any manager of a trust fund consisting of some or all
of the Certificates, upon reasonable request, such additional information as is
reasonably obtainable by the Master Servicer at no additional expense to the
Master Servicer. Also, at the request of a Rating Agency, the Master Servicer
shall provide the information relating to the Reportable Modified Mortgage Loans
substantially in the form attached hereto as Exhibit Q to such Rating Agency
within a reasonable period of time; provided, however, that the Master Servicer
shall not be required to provide such information more than four times in a
calendar year to any Rating Agency.
(b) Within a reasonable period of time after the end of each calendar year, the
Master Servicer shall prepare, or cause to be prepared, and shall forward, or
cause to be forwarded, to each Person who at any time during the calendar year
was the Holder of a Certificate, other than a Class R Certificate, a statement
containing the information set forth in clauses (i) and (ii) of the exhibit to
the Series Supplement referred to in subsection (a) above aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Master Servicer shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Master Servicer pursuant to any requirements of the
Code.
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(c) Within a reasonable period of time after the end of each calendar year, the
Master Servicer shall prepare, or cause to be prepared, and shall forward, or
cause to be forwarded, to each Person who at any time during the calendar year
was the Holder of a Class R Certificate, a statement containing the applicable
distribution information provided pursuant to this Section 4.03 aggregated for
such calendar year or applicable portion thereof during which such Person was
the Holder of a Class R Certificate. Such obligation of the Master Servicer
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Master Servicer pursuant to any
requirements of the Code.
(d) Upon the written request of any Certificateholder, the Master Servicer, as
soon as reasonably practicable, shall provide the requesting Certificateholder
with such information as is necessary and appropriate, in the Master Servicer's
sole discretion, for purposes of satisfying applicable reporting requirements
under Rule 144A.
(e) The Trustee will make the reports referred to in Section 4.03(a) (and, at
its option, any additional files containing the same information in an
alternative format) available each month to Certificateholders, any Certificate
Insurer and other parties to the Agreement via the Trustee's website, which can
be obtained by calling (000) 000-0000. Persons that are unable to use the above
website are entitled to have a paper copy mailed to them via first class mail by
calling the Trustee at (000) 000-0000. The Trustee shall have the right to
change the way the reports referred to in Section 4.03(a) are distributed in
order to make such distribution more convenient and/or more accessible to the
above parties, to the Certificateholders and to any Certificate Insurer. The
Trustee shall provide timely and adequate notification to all the parties
mentioned above and to the Certificateholders regarding any such change.
(f) The Master Servicer shall, on behalf of the Company and in respect of the
Trust Fund, sign and cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Exchange Act, and the rules and
regulations of the Commission thereunder. In connection with the preparation and
filing of such periodic reports, the Trustee shall timely provide to the Master
Servicer (I) a list of Certificateholders as shown on the Certificate Register
as of the end of each calendar year, (II) copies of all pleadings, other legal
process and any other documents relating to any claims, charges or complaints
involving the Trustee, as trustee hereunder, or the Trust Fund that are received
by the Trustee, (III) notice of all matters that, to the actual knowledge of a
Responsible Officer of the Trustee, have been submitted to a vote of the
Certificateholders, other than those matters that have been submitted to a vote
of the Certificateholders at the request of the Company or the Master Servicer,
and (IV) notice of any failure of the Trustee to make any distribution to the
Certificateholders as required pursuant to this Agreement. Neither the Master
Servicer nor the Trustee shall have any liability with respect to the Master
Servicer's failure to properly prepare or file such periodic reports resulting
from or relating to the Master Servicer's inability or failure to obtain any
information not resulting from the Master Servicer's own negligence or willful
misconduct. Any Form 10-K filed with the Commission in connection with this
clause (f) shall include a certification, signed by the senior officer in charge
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of the servicing functions of the Master Servicer, in the form attached as
Exhibit O hereto or such other form as may be required or permitted by the
Commission (the "Form 10-K Certification"), in compliance with Rule 13a-14 and
15d-14 under the Exchange Act and any additional directives of the Commission.
In connection with the Form 10-K Certification, the Trustee shall provide the
Master Servicer with a back-up certification substantially in the form attached
hereto as Exhibit P.
Section 4.04 Distribution of Reports to the Trustee and the
Company; Advances by the Master Servicer.
(a) Prior to the close of business on the Determination Date, the Master
Servicer shall furnish a written statement to the Trustee, any Certificate
Insurer, any Paying Agent and the Company (the information in such statement to
be made available to Certificateholders by the Master Servicer on request)
setting forth (i) the Available Distribution Amount and (ii) the amounts
required to be withdrawn from the Custodial Account and deposited into the
Certificate Account on the immediately succeeding Certificate Account Deposit
Date pursuant to clause (iii) of Section 4.01(a). The determination by the
Master Servicer of such amounts shall, in the absence of obvious error, be
presumptively deemed to be correct for all purposes hereunder and the Trustee
shall be protected in relying upon the same without any independent check or
verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account Deposit
Date, the Master Servicer shall either (i) deposit in the Certificate Account
from its own funds, or funds received therefor from the Subservicers, an amount
equal to the Advances to be made by the Master Servicer in respect of the
related Distribution Date, which shall be in an aggregate amount equal to the
aggregate amount of Monthly Payments (with each interest portion thereof
adjusted to the Net Mortgage Rate), less the amount of any related Servicing
Modifications, Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Relief Act, on the Outstanding
Mortgage Loans as of the related Due Date, which Monthly Payments were not
received as of the close of business as of the related Determination Date;
provided that no Advance shall be made if it would be a Nonrecoverable Advance,
(ii) withdraw from amounts on deposit in the Custodial Account and deposit in
the Certificate Account all or a portion of the Amount Held for Future
Distribution in discharge of any such Advance, or (iii) make advances in the
form of any combination of (i) and (ii) aggregating the amount of such Advance.
Any portion of the Amount Held for Future Distribution so used shall be replaced
by the Master Servicer by deposit in the Certificate Account on or before 11:00
A.M. New York time on any future Certificate Account Deposit Date to the extent
that funds attributable to the Mortgage Loans that are available in the
Custodial Account for deposit in the Certificate Account on such Certificate
Account Deposit Date shall be less than payments to Certificateholders required
to be made on the following Distribution Date. The Master Servicer shall be
entitled to use any Advance made by a Subservicer as described in Section
3.07(b) that has been deposited in the Custodial Account on or before such
Distribution Date as part of the Advance made by the Master Servicer pursuant to
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this Section 4.04. The amount of any reimbursement pursuant to Section 4.02(a)
in respect of outstanding Advances on any Distribution Date shall be allocated
to specific Monthly Payments due but delinquent for previous Due Periods, which
allocation shall be made, to the extent practicable, to Monthly Payments which
have been delinquent for the longest period of time. Such allocations shall be
conclusive for purposes of reimbursement to the Master Servicer from recoveries
on related Mortgage Loans pursuant to Section 3.10.
The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate of the
Master Servicer delivered to the Company and the Trustee.
If the Master Servicer determines as of the Business Day preceding any
Certificate Account Deposit Date that it will be unable to deposit in the
Certificate Account an amount equal to the Advance required to be made for the
immediately succeeding Distribution Date, it shall give notice to the Trustee of
its inability to advance (such notice may be given by telecopy), not later than
3:00 P.M., New York time, on such Business Day, specifying the portion of such
amount that it will be unable to deposit. Not later than 3:00 P.M., New York
time, on the Certificate Account Deposit Date the Trustee shall, unless by 12:00
Noon, New York time, on such day the Trustee shall have been notified in writing
(by telecopy) that the Master Servicer shall have directly or indirectly
deposited in the Certificate Account such portion of the amount of the Advance
as to which the Master Servicer shall have given notice pursuant to the
preceding sentence, pursuant to Section 7.01, (a) terminate all of the rights
and obligations of the Master Servicer under this Agreement in accordance with
Section 7.01 and (b) assume the rights and obligations of the Master Servicer
hereunder, including the obligation to deposit in the Certificate Account an
amount equal to the Advance for the immediately succeeding Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this Section
4.04 into the Certificate Account.
Section 4.05 Allocation of Realized Losses.
As provided in Section 4.05 of the Series Supplement.
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property.
--------------------------------------------------------------
The Master Servicer or the Subservicers shall file information returns
with respect to the receipt of mortgage interests received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P,
respectively, of the Code, and deliver to the Trustee an Officers' Certificate
on or before March 31 of each year stating that such reports have been filed.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
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Section 4.07 Optional Purchase of Defaulted Mortgage Loans.
As to any Mortgage Loan which is delinquent in payment by 90 days or
more, the Master Servicer may, at its option, purchase such Mortgage Loan from
the Trustee at the Purchase Price therefor. If at any time the Master Servicer
makes a payment to the Certificate Account covering the amount of the Purchase
Price for such a Mortgage Loan, and the Master Servicer provides to the Trustee
a certification signed by a Servicing Officer stating that the amount of such
payment has been deposited in the Certificate Account, then the Trustee shall
execute the assignment of such Mortgage Loan at the request of the Master
Servicer without recourse to the Master Servicer, which shall succeed to all the
Trustee's right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an assignment
outright and not for security. The Master Servicer will thereupon own such
Mortgage, and all such security and documents, free of any further obligation to
the Trustee or the Certificateholders with respect thereto.
If, however the Master Servicer shall have exercised its right to
repurchase a Mortgage Loan pursuant to this Section 4.07 upon the written
request of and with funds provided by the Junior Certificateholder and thereupon
transferred such Mortgage Loan to the Junior Certificateholder, the Master
Servicer shall so notify the Trustee in writing.
Section 4.08 Surety Bond.
(a) If a Required Surety Payment is payable pursuant to the Surety Bond with
respect to any Additional Collateral Loan, the Master Servicer shall so notify
the Trustee as soon as reasonably practicable and the Trustee shall promptly
complete the notice in the form of Attachment 1 to the Surety Bond and shall
promptly submit such notice to the Surety as a claim for a Required Surety. The
Master Servicer shall upon request assist the Trustee in completing such notice
and shall provide any information requested by the Trustee in connection
therewith.
(b) Upon receipt of a Required Surety Payment from the Surety on behalf of the
Holders of Certificates, the Trustee shall deposit such Required Surety Payment
in the Certificate Account and shall distribute such Required Surety Payment, or
the proceeds thereof, in accordance with the provisions of Section 4.02.
(c) The Trustee shall (i) receive as attorney-in-fact of each Holder of a
Certificate any Required Surety Payment from the Surety and (ii) disburse the
same to the Holders of such Certificates as set forth in Section 4.02.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Senior, Class M, Class B and Class R Certificates shall be substantially
in the forms set forth in Exhibits A, B, C and D, respectively, and shall, on
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original issue, be executed and delivered by the Trustee to the Certificate
Registrar for authentication and delivery to or upon the order of the Company
upon receipt by the Trustee or one or more Custodians of the documents specified
in Section 2.01. The Certificates shall be issuable in the minimum denominations
designated in the Preliminary Statement to the Series Supplement.
The Certificates shall be executed by manual or facsimile signature on
behalf of an authorized officer of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Trustee shall bind the Trustee, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Certificate Registrar by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) Except as provided below, registration of Book-Entry Certificates may not be
transferred by the Trustee except to another Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. The Holders of the Book-Entry Certificates shall hold their respective
Ownership Interests in and to each of such Certificates through the book-entry
facilities of the Depository and, except as provided below, shall not be
entitled to Definitive Certificates in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall transfer the Ownership
Interests only in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
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If (i)(A) the Company advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository and (B) the Company is unable to locate a qualified successor or (ii)
the Company, with the consent of a majority of the Certificateholders, advises
the Trustee in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Definitive Certificates.
In addition, if an Event of Default has occurred and is continuing, each
Certificate Owner materially adversely affected thereby may at its option
request a Definitive Certificate evidencing such Certificate Owner's Percentage
Interest in the related Class of Certificates. In order to make such request,
such Certificate Owner shall, subject to the rules and procedures of the
Depository, provide the Depository or the related Depository Participant with
directions for the Trustee to exchange or cause the exchange of the Certificate
Owner's interest in such Class of Certificates for an equivalent Percentage
Interest in fully registered definitive form. Upon receipt by the Trustee of
instruction from the Depository directing the Trustee to effect such exchange
(such instructions to contain information regarding the Class of Certificates
and the Certificate Balance being exchanged, the Depository Participant account
to be debited with the decrease, the registered holder of and delivery
instructions for the Definitive Certificates and any other information
reasonably required by the Trustee), (i) the Trustee shall instruct the
Depository to reduce the related Depository Participant's account by the
aggregate Certificate Principal Balance of the Definitive Certificates, (ii) the
Trustee shall execute, authenticate and deliver, in accordance with the
registration and delivery instructions provided by the Depository, a Definitive
Certificate evidencing such Certificate Owner's Percentage Interest in such
Class of Certificates and (iii) the Trustee shall execute and authenticate a new
Book-Entry Certificate reflecting the reduction in the aggregate Certificate
Principal Balance of such Class of Certificates by the amount of the Definitive
Certificates.
None of the Company, the Master Servicer or the Trustee shall be liable
for any actions taken by the Depository or its nominee, including, without
limitation, any delay in delivery of any instruction required under this section
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository in connection
with the issuance of the Definitive Certificates pursuant to this Section 5.01
shall be deemed to be imposed upon and performed by the Trustee, and the Trustee
and the Master Servicer shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(c) From time to time Residential Funding, as the initial Holder of the Class
A-V Certificates, may exchange such Holder's Class A-V Certificates for
Subclasses of Class A-V Certificates to be issued under this Agreement by
delivering a "Request for Exchange" substantially in the form attached hereto as
Exhibit N executed by an authorized officer, which Subclasses, in the aggregate,
will represent the Uncertificated Class A-V REMIC Regular Interests
corresponding to the Class A-V Certificates so surrendered for exchange. Any
Subclass so issued shall bear a numerical designation commencing with Class
A-V-1 and continuing sequentially thereafter, and will evidence ownership of the
Uncertificated Class A-V REMIC Regular Interest or Interests specified in
writing by such initial Holder to the Trustee. The Trustee may conclusively,
without any independent verification, rely on, and shall be protected in relying
on, Residential Funding's determinations of the Uncertificated Class A-V REMIC
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Regular Interests corresponding to any Subclass, the Initial Notional Amount and
the initial Pass-Through Rate on a Subclass as set forth in such Request for
Exchange and the Trustee shall have no duty to determine if any Uncertificated
Class A-V REMIC Regular Interest designated on a Request for Exchange
corresponds to a Subclass which has previously been issued. Each Subclass so
issued shall be substantially in the form set forth in Exhibit A and shall, on
original issue, be executed and delivered by the Trustee to the Certificate
Registrar for authentication and delivery in accordance with Section 5.01(a).
Every Certificate presented or surrendered for exchange by the initial Holder
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer attached to
such Certificate and shall be completed to the satisfaction of the Trustee and
the Certificate Registrar duly executed by, the initial Holder thereof or his
attorney duly authorized in writing. The Certificates of any Subclass of Class
A-V Certificates may be transferred in whole, but not in part, in accordance
with the provisions of Section 5.02.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or agencies to
be appointed by the Trustee in accordance with the provisions of Section
8.12 a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee is initially appointed
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The
Certificate Registrar, or the Trustee, shall provide the Master Servicer
with a certified list of Certificateholders as of each Record Date prior
to the related Determination Date.
(b) Upon surrender for registration of transfer of any Certificate at any
office or agency of the Trustee maintained for such purpose pursuant to
Section 8.12 and, in the case of any Class M, Class B or Class R
Certificate, upon satisfaction of the conditions set forth below, the
Trustee shall execute and the Certificate Registrar shall authenticate
and deliver, in the name of the designated transferee or transferees,
one or more new Certificates of a like Class (or Subclass) and aggregate
Percentage Interest.
(c) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class (or
Subclass) and aggregate Percentage Interest, upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange the Trustee shall execute
and the Certificate Registrar shall authenticate and deliver the
Certificates of such Class which the Certificateholder making the
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exchange is entitled to receive. Every Certificate presented or
surrendered for transfer or exchange shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing.
(d) No transfer, sale, pledge or other disposition of a Class B Certificate
shall be made unless such transfer, sale, pledge or other disposition is
exempt from the registration requirements of the Securities Act of 1933,
as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that a transfer of a
Class B Certificate is to be made either (i)(A) the Trustee shall
require a written Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee and the Company that such transfer
may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being
made pursuant to said Act and laws, which Opinion of Counsel shall not
be an expense of the Trustee, the Company or the Master Servicer (except
that, if such transfer is made by the Company or the Master Servicer or
any Affiliate thereof, the Company or the Master Servicer shall provide
such Opinion of Counsel at their own expense); provided that such
Opinion of Counsel will not be required in connection with the initial
transfer of any such Certificate by the Company or any Affiliate thereof
to the Company or an Affiliate of the Company and (B) the Trustee shall
require the transferee to execute a representation letter, substantially
in the form of Exhibit H hereto, and the Trustee shall require the
transferor to execute a representation letter, substantially in the form
of Exhibit I hereto, each acceptable to and in form and substance
satisfactory to the Company and the Trustee certifying to the Company
and the Trustee the facts surrounding such transfer, which
representation letters shall not be an expense of the Trustee, the
Company or the Master Servicer; provided, however, that such
representation letters will not be required in connection with any
transfer of any such Certificate by the Company or any Affiliate thereof
to the Company or an Affiliate of the Company, and the Trustee shall be
entitled to conclusively rely upon a representation (which, upon the
request of the Trustee, shall be a written representation) from the
Company, of the status of such transferee as an Affiliate of the Company
or (ii) the prospective transferee of such a Certificate shall be
required to provide the Trustee, the Company and the Master Servicer
with an investment letter substantially in the form of Exhibit J
attached hereto (or such other form as the Company in its sole
discretion deems acceptable), which investment letter shall not be an
expense of the Trustee, the Company or the Master Servicer, and which
investment letter states that, among other things, such transferee (A)
is a "qualified institutional buyer" as defined under Rule 144A, acting
for its own account or the accounts of other "qualified institutional
buyers" as defined under Rule 144A, and (B) is aware that the proposed
transferor intends to rely on the exemption from registration
requirements under the Securities Act provided by Rule 144A. The Holder
of any such Certificate desiring to effect any such transfer, sale,
pledge or other disposition shall, and does hereby agree to, indemnify
the Trustee, the Company, the Master Servicer and the Certificate
Registrar against any liability that may result if the transfer, sale,
pledge or other disposition is not so exempt or is not made in
accordance with such federal and state laws.
(e) (i) In the case of any Class B or Class R Certificate presented for
registration in the name of any Person, either (A) the Trustee shall
require an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee, the Company and the Master Servicer to the
effect that the purchase or holding of such Class B or Class R
Certificate is permissible under applicable law, will not constitute or
result in any non-exempt prohibited transaction under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
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or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), and will not subject the Trustee, the Company or the Master
Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to
those undertaken in this Agreement, which Opinion of Counsel shall not
be an expense of the Trustee, the Company or the Master Servicer or (B)
the prospective Transferee shall be required to provide the Trustee, the
Company and the Master Servicer with a certification to the effect set
forth in paragraph six of Exhibit H (with respect to any Class B
Certificate) or paragraph fifteen of Exhibit G-1 (with respect to any
Class R Certificate), which the Trustee may rely upon without further
inquiry or investigation, or such other certifications as the Trustee
may deem desirable or necessary in order to establish that such
Transferee or the Person in whose name such registration is requested
either (a) is not an employee benefit plan or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code,
or any Person (including an investment manager, a named fiduciary or a
trustee of any such plan) who is using "plan assets" of any such plan to
effect such acquisition (each, a "Plan Investor") or (b) in the case of
any Class B Certificate, the following conditions are satisfied: (i)
such Transferee is an insurance company, (ii) the source of funds used
to purchase or hold such Certificate (or interest therein) is an
"insurance company general account" (as defined in U.S. Department of
Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and (iii)
the conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied (each entity that satisfies this clause (b), a "Complying
Insurance Company").
(ii) Any Transferee of a Class M Certificate will be deemed to have
represented by virtue of its purchase or holding of such
Certificate (or interest therein) that either (a) such
Transferee is not a Plan Investor, (b) it has acquired and is
holding such Certificate in reliance on Prohibited Transaction
Exemption ("PTE") 94-29, 59 Fed. Reg. 14674 (March 29, 1994), as
amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE
2000-58, 65 Fed. Reg. 67765 (November 13, 2000), and PTE
2002-41, 67 Fed. Reg. 54487 (August 22, 2002) (the "RFC
Exemption"), and that it understands that there are certain
conditions to the availability of the RFC Exemption including
that such Certificate must be rated, at the time of purchase,
not lower than "BBB-" (or its equivalent) by Standard & Poor's,
Fitch or Xxxxx'x or (c) such Transferee is a Complying Insurance
Company.
(iii) (A) If any Class M Certificate (or any interest therein) is
acquired or held by any Person that does not satisfy the
conditions described in paragraph (ii) above, then the last
preceding Transferee that either (i) is not a Plan Investor,
(ii) acquired such Certificate in compliance with the RFC
Exemption, or (iii) is a Complying Insurance Company shall be
restored, to the extent permitted by law, to all rights and
obligations as Certificate Owner thereof retroactive to the date
of such Transfer of such Class M Certificate. The Trustee shall
be under no liability to any Person for making any payments due
on such Certificate to such preceding Transferee.
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(B) Any purported Certificate Owner whose acquisition or
holding of any Class M Certificate (or interest therein) was
effected in violation of the restrictions in this Section 5.02(e)
shall indemnify and hold harmless the Company, the Trustee, the
Master Servicer, any Subservicer, each Underwriter and the Trust
Fund from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition
or holding.
(f) (i) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee or its designee under clause (iii)(A) below
to deliver payments to a Person other than such Person and to negotiate the
terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall be a Permitted Transferee
and shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Class R Certificate, the Trustee shall
require delivery to it, and shall not register the Transfer of
any Class R Certificate until its receipt of, (I) an affidavit
and agreement (a "Transfer Affidavit and Agreement," in the form
attached hereto as Exhibit G-1) from the proposed Transferee, in
form and substance satisfactory to the Master Servicer,
representing and warranting, among other things, that it is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person
who is not a Permitted Transferee, that for so long as it retains
its Ownership Interest in a Class R Certificate, it will endeavor
to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(f) and agrees to be bound by
them, and (II) a certificate, in the form attached hereto as
Exhibit G-2, from the Holder wishing to transfer the Class R
Certificate, in form and substance satisfactory to the Master
Servicer, representing and warranting, among other things, that
no purpose of the proposed Transfer is to impede the assessment
or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) above, if
a Responsible Officer of the Trustee who is assigned to this
Agreement has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership Interest
in a Class R Certificate to such proposed Transferee shall be
effected.
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(D) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (x) to require a
Transfer Affidavit and Agreement from any other Person to whom
such Person attempts to transfer its Ownership Interest in a
Class R Certificate and (y) not to transfer its Ownership
Interest unless it provides a certificate to the Trustee in the
form attached hereto as Exhibit G-2.
(E) Each Person holding or acquiring an Ownership Interest
in a Class R Certificate, by purchasing an Ownership Interest in
such Certificate, agrees to give the Trustee written notice that
it is a "pass-through interest holder" within the meaning of
Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Class R
Certificate, if it is, or is holding an Ownership Interest in a
Class R Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only
if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Holder requesting such transfer in the form attached
hereto as Exhibit G-2 and all of such other documents as shall have been
reasonably required by the Trustee as a condition to such registration.
Transfers of the Class R Certificates to Non-United States Persons and
Disqualified Organizations (as defined in Section 860E(e)(5) of the
Code) are prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a Class R
Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of such
Transfer of such Class R Certificate. If a Non-United States Person
shall become a holder of a Class R Certificate, then the last preceding
United States Person shall be restored, to the extent permitted by law,
to all rights and obligations as Holder thereof retroactive to the date
of registration of such Transfer of such Class R Certificate. If a
transfer of a Class R Certificate is disregarded pursuant to the
provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Permitted Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Class R Certificate that is in fact
not permitted by this Section 5.02(f) or for making any payments due on
such Certificate to the holder thereof or for taking any other action
with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the restrictions in this
Section 5.02(f) and to the extent that the retroactive
restoration of the rights of the Holder of such Class R
Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Master Servicer shall
have the right, without notice to the holder or any prior holder
of such Class R Certificate, to sell such Class R Certificate to
a purchaser selected by the Master Servicer on such terms as the
Master Servicer may choose. Such purported Transferee shall
promptly endorse and deliver each Class R Certificate in
accordance with the instructions of the Master Servicer. Such
purchaser may be the Master Servicer itself or any Affiliate of
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the Master Servicer. The proceeds of such sale, net of the
commissions (which may include commissions payable to the Master
Servicer or its Affiliates), expenses and taxes due, if any, will
be remitted by the Master Servicer to such purported Transferee.
The terms and conditions of any sale under this clause (iii)(B)
shall be determined in the sole discretion of the Master
Servicer, and the Master Servicer shall not be liable to any
Person having an Ownership Interest in a Class R Certificate as a
result of its exercise of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make available,
upon written request from the Trustee, all information necessary to
compute any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Class R Certificate to any Person who is a Disqualified
Organization, including the information regarding "excess inclusions" of
such Class R Certificates required to be provided to the Internal
Revenue Service and certain Persons as described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any
regulated investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organization described in Section
1381 of the Code that holds an Ownership Interest in a Class R
Certificate having as among its record holders at any time any Person
who is a Disqualified Organization. Reasonable compensation for
providing such information may be required by the Master Servicer from
such Person.
(v) The provisions of this Section 5.02(f) set forth prior to this clause
(v) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee the following:
(A) written notification from each Rating Agency to the
effect that the modification, addition to or elimination of such
provisions will not cause such Rating Agency to downgrade its
then-current ratings, if any, of any Class of the Senior, Class M
or Class B Certificates below the lower of the then-current
rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency; and
(B) subject to Section 10.01(f), an Officers' Certificate
of the Master Servicer stating that the Master Servicer has
received an Opinion of Counsel, in form and substance
satisfactory to the Master Servicer, to the effect that such
modification, addition to or absence of such provisions will not
cause any portion of any REMIC formed under the Series Supplement
to cease to qualify as a REMIC and will not cause (x) any portion
of any REMIC formed under the Series Supplement to be subject to
an entity-level tax caused by the Transfer of any Class R
Certificate to a Person that is a Disqualified Organization or
(y) a Certificateholder or another Person to be subject to a
REMIC-related tax caused by the Transfer of a Class R Certificate
to a Person that is not a Permitted Transferee.
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(g) No service charge shall be made for any transfer or exchange of Certificates
of any Class, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be destroyed by
the Certificate Registrar.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Company, the Master Servicer, the Trustee, any Certificate Insurer, the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee, any Certificate Insurer or the Certificate Registrar may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.02
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder," and neither the Company, the Master
Servicer, the Trustee, any Certificate Insurer, the Certificate Registrar nor
any agent of the Company, the Master Servicer, the Trustee, any Certificate
Insurer or the Certificate Registrar shall be affected by notice to the contrary
except as provided in Section 5.02(f).
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Section 5.05 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to the Certificateholders pursuant to Section 4.02. In the event
of any such appointment, on or prior to each Distribution Date the Master
Servicer on behalf of the Trustee shall deposit or cause to be deposited with
the Paying Agent a sum sufficient to make the payments to the Certificateholders
in the amounts and in the manner provided for in Section 4.02, such sum to be
held in trust for the benefit of the Certificateholders.
The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Any sums so
held by such Paying Agent shall be held only in Eligible Accounts to the extent
such sums are not distributed to the Certificateholders on the date of receipt
by such Paying Agent.
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Company and the Master Servicer.
--------------------------------------------------------------
The Company and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Company and the Master Servicer herein. By
way of illustration and not limitation, the Company is not liable for the
servicing and administration of the Mortgage Loans, nor is it obligated by
Section 7.01 or Section 10.01 to assume any obligations of the Master Servicer
or to appoint a designee to assume such obligations, nor is it liable for any
other obligation hereunder that it may, but is not obligated to, assume unless
it elects to assume such obligation in accordance herewith.
Section 6.02 Merger or Consolidation of the Company or the Master
Servicer; Assignment of Rights and Delegation of Duties by
Master Servicer.
(a) The Company and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Any Person into which the Company or the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Company or the Master Servicer shall be a party, or any Person
succeeding to the business of the Company or the Master Servicer, shall be the
successor of the Company or the Master Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Master Servicer
88
shall be qualified to service mortgage loans on behalf of Xxxxxx Xxx or Freddie
Mac; and provided further that each Rating Agency's ratings, if any, of the
Senior, Class M or Class B Certificates in effect immediately prior to such
merger or consolidation will not be qualified, reduced or withdrawn as a result
thereof (as evidenced by a letter to such effect from each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04 to the
contrary, the Master Servicer may assign its rights and delegate its duties and
obligations under this Agreement; provided that the Person accepting such
assignment or delegation shall be a Person which is qualified to service
mortgage loans on behalf of Xxxxxx Xxx or Freddie Mac, is reasonably
satisfactory to the Trustee and the Company, is willing to service the Mortgage
Loans and executes and delivers to the Company and the Trustee an agreement, in
form and substance reasonably satisfactory to the Company and the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Master Servicer under this Agreement; provided further that each Rating Agency's
rating of the Classes of Certificates that have been rated in effect immediately
prior to such assignment and delegation will not be qualified, reduced or
withdrawn as a result of such assignment and delegation (as evidenced by a
letter to such effect from each Rating Agency). In the case of any such
assignment and delegation, the Master Servicer shall be released from its
obligations under this Agreement, except that the Master Servicer shall remain
liable for all liabilities and obligations incurred by it as Master Servicer
hereunder prior to the satisfaction of the conditions to such assignment and
delegation set forth in the next preceding sentence. This Section 6.02 shall not
apply to any sale, transfer, pledge or assignment by Residential Funding of the
Call Rights.
Section 6.03 Limitation on Liability of the Company, the Master Servicer and
Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Company, the Master Servicer or any such Person
against any breach of warranties or representations or covenants made herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The Company, the Master
Servicer and any director, officer, employee or agent of the Company or the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Company, the Master Servicer and any director, officer, employee
or agent of the Company or the Master Servicer shall be indemnified by the Trust
Fund and held harmless against any loss, liability or expense incurred in
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connection with any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense related to any specific Mortgage Loan
or Mortgage Loans (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder.
Neither the Company nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Company or the Master Servicer
may in its discretion undertake any such action, proceeding, hearing or
examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Company and the Master Servicer shall be entitled to be reimbursed therefor out
of amounts attributable to the Mortgage Loans on deposit in the Custodial
Account as provided by Section 3.10 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated
in reduction of the Accrued Certificate Interest on each Class entitled thereto
in the same manner as if such expenses and costs constituted a Prepayment
Interest Shortfall.
Section 6.04 Company and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Company nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities and
obligations in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be distributed
to the Holders of Certificates of any Class any distribution required to
be made under the terms of the Certificates of such Class and this
Agreement and, in either case, such failure shall continue unremedied
for a period of 5 days after the date upon which written notice of such
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failure, requiring such failure to be remedied, shall have been given to
the Master Servicer by the Trustee or the Company or to the Master
Servicer, the Company and the Trustee by the Holders of Certificates of
such Class evidencing Percentage Interests aggregating not less than
25%; or
(ii) the Master Servicer shall fail to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Master Servicer contained in the Certificates of any Class or in this
Agreement and such failure shall continue unremedied for a period of 30
days (except that such number of days shall be 15 in the case of a
failure to pay the premium for any Required Insurance Policy) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee or
the Company, or to the Master Servicer, the Company and the Trustee by
the Holders of Certificates of any Class evidencing, in the case of any
such Class, Percentage Interests aggregating not less than 25%; or
(iii) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or
appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
days; or
(iv) the Master Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of, or
relating to, the Master Servicer or of, or relating to, all or
substantially all of the property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) the Master Servicer shall notify the Trustee pursuant to Section 4.04(b)
that it is unable to deposit in the Certificate Account an amount equal
to the Advance.
If an Event of Default described in clauses (i)-(v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, either the Company or the Trustee may, and
at the direction of Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, by notice in writing to the Master Servicer
(and to the Company if given by the Trustee or to the Trustee if given by the
Company), terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder. If an Event of Default
described in clause (vi) hereof shall occur, the Trustee shall, by notice to the
Master Servicer and the Company, immediately terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder as provided in Section 4.04(b). On or after the
receipt by the Master Servicer of such written notice, all authority and power
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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 Company shall deliver to the Trustee a copy of the Program Guide.
Section 7.02 Trustee or Company to Act; Appointment of Successor.
(a) On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.01 or resigns in accordance with Section 6.04, the Trustee
or, upon notice to the Company and with the Company's consent (which shall not
be unreasonably withheld) a designee (which meets the standards set forth below)
of the Trustee, shall be the successor in all respects to the Master Servicer in
its capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer (except for the
responsibilities, duties and liabilities contained in Sections 2.02 and 2.03(a),
excluding the duty to notify related Subservicers or Sellers as set forth in
such Sections, and its obligations to deposit amounts in respect of losses
incurred prior to such notice or termination on the investment of funds in the
Custodial Account or the Certificate Account pursuant to Sections 3.07(c) and
4.01(b) by the terms and provisions hereof); provided, however, that any failure
to perform such duties or responsibilities caused by the preceding Master
Servicer's failure to provide information required by Section 4.04 shall not be
considered a default by the Trustee hereunder. As compensation therefor, the
Trustee shall be entitled to all funds relating to the Mortgage Loans which the
Master Servicer would have been entitled to charge to the Custodial Account or
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the Certificate Account if the Master Servicer had continued to act hereunder
and, in addition, shall be entitled to the income from any Permitted Investments
made with amounts attributable to the Mortgage Loans held in the Custodial
Account or the Certificate Account. If the Trustee has become the successor to
the Master Servicer in accordance with Section 6.04 or Section 7.01, then
notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution,
which is also a Xxxxxx Xxx- or Freddie Mac-approved mortgage servicing
institution, having a net worth of not less than $10,000,000 as the successor to
the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall become successor to the Master Servicer and shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
initial Master Servicer hereunder. The Company, the Trustee, the Custodian and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. The Servicing Fee for any
successor Master Servicer appointed pursuant to this Section 7.02 will be
lowered with respect to those Mortgage Loans, if any, where the Subservicing Fee
accrues at a rate of less than 0.20% per annum in the event that the successor
Master Servicer is not servicing such Mortgage Loans directly and it is
necessary to raise the related Subservicing Fee to a rate of 0.20% per annum in
order to hire a Subservicer with respect to such Mortgage Loans. The Master
Servicer shall pay the reasonable expenses of the Trustee in connection with any
servicing transition hereunder.
(b) In connection with the termination or resignation of the Master Servicer
hereunder, either (i) the successor Master Servicer, including the Trustee if
the Trustee is acting as successor Master Servicer, shall represent and warrant
that it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, in which case the
predecessor Master Servicer shall cooperate with the successor Master Servicer
in causing MERS to revise its records to reflect the transfer of servicing to
the successor Master Servicer as necessary under MERS' rules and regulations, or
(ii) the predecessor Master Servicer shall cooperate with the successor Master
Servicer in causing MERS to execute and deliver an assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Trustee and to execute
and deliver such other notices, documents and other instruments as may be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS(R) System to the successor Master Servicer.
The predecessor Master Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The predecessor Master Servicer
shall bear any and all fees of MERS, costs of preparing any assignments of
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Mortgage, and fees and costs of filing any assignments of Mortgage that may be
required under this subsection (b). The successor Master Servicer shall cause
such assignment to be delivered to the Trustee or the Custodian promptly upon
receipt of the original with evidence of recording thereon or a copy certified
by the public recording office in which such assignment was recorded.
Section 7.03 Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Within 60 days after the occurrence of any Event of Default, the Trustee
shall transmit by mail to all Holders of Certificates notice of each such Event
of Default hereunder known to the Trustee, unless such Event of Default shall
have been cured or waived.
Section 7.04 Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights affected by a
default or Event of Default hereunder may waive such default or Event of
Default; provided, however, that (a) a default or Event of Default under clause
(i) of Section 7.01 may be waived only by all of the Holders of Certificates
affected by such default or Event of Default and (b) no waiver pursuant to this
Section 7.04 shall affect the Holders of Certificates in the manner set forth in
Section 11.01(b)(i) or (ii). Upon any such waiver of a default or Event of
Default by the Holders representing the requisite percentage of Voting Rights
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiver of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
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The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 4.03, 4.06, 7.03 and 10.01. The Trustee shall furnish in a
timely fashion to the Master Servicer such information as the Master Servicer
may reasonably request from time to time for the Master Servicer to fulfill its
duties as set forth in this Agreement. The Trustee covenants and agrees that it
shall perform its obligations hereunder in a manner so as to maintain the status
of any portion of any REMIC formed under the Series Supplement as a REMIC under
the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition
of any federal, state or local income, prohibited transaction, contribution or
other tax on the Trust Fund to the extent that maintaining such status and
avoiding such taxes are reasonably within the control of the Trustee and are
reasonably within the scope of its duties under this Agreement.
(b) No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or
waiver of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee by the Company or the Master Servicer and which on their face,
do not contradict the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement;
(iv) The Trustee shall not be charged with knowledge of any default (other
than a default in payment to the Trustee) specified in clauses (i) and
(ii) of Section 7.01 or an Event of Default under clauses (iii), (iv)
and (v) of Section 7.01 unless a Responsible Officer of the Trustee
assigned to and working in the Corporate Trust Office obtains actual
knowledge of such failure or event or the Trustee receives written
notice of such failure or event at its Corporate Trust Office from the
Master Servicer, the Company or any Certificateholder; and
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(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.
(c) 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
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the obligation, upon the occurrence of an Event of Default (which has
not been cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent investor would exercise or use
under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by Holders
of Certificates of any Class evidencing, as to such Class, Percentage
Interests, aggregating not less than 50%; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Master Servicer,
if an Event of Default shall have occurred and is continuing, and
otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or
attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated
thereunder, each Holder of a Class R Certificate hereby irrevocably
appoints and authorizes the Trustee to be its attorney-in-fact for
purposes of signing any Tax Returns required to be filed on behalf of
the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and
deliver to the Master Servicer in a timely manner any Tax Returns
prepared by or on behalf of the Master Servicer that the Trustee is
required to sign as determined by the Master Servicer pursuant to
applicable federal, state or local tax laws, provided that the Master
Servicer shall indemnify the Trustee for signing any such Tax Returns
that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not accept
any contribution of assets to the Trust Fund unless (subject to Section
10.01(f)) it shall have obtained or been furnished with an Opinion of
Counsel to the effect that such contribution will not (i) cause any
portion of any REMIC formed under the Series Supplement to fail to
qualify as a REMIC at any time that any Certificates are outstanding or
(ii) cause the Trust Fund to be subject to any federal tax as a result
of such contribution (including the imposition of any federal tax on
"prohibited transactions" imposed under Section 860F(a) of the Code).
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Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Mortgage Loans) shall be taken as the statements of the Company or the Master
Servicer as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (except that the
Certificates shall be duly and validly executed and authenticated by it as
Certificate Registrar) or of any Mortgage Loan or related document, or of MERS
or the MERS(R) System. Except as otherwise provided herein, the Trustee shall
not be accountable for the use or application by the Company or the Master
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Company or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account or the Certificate Account by the Company or the Master
Servicer.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights it would have if it were not
Trustee.
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.
(a) The Master Servicer covenants and agrees to pay to the Trustee and any
co-trustee from time to time, and the Trustee and any co-trustee shall
be entitled to, reasonable compensation (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by each of them in the
execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee and
any co-trustee, and the Master Servicer will pay or reimburse the
Trustee and any co-trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee or any
co-trustee in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its
employ, and the expenses incurred by the Trustee or any co-trustee in
connection with the appointment of an office or agency pursuant to
Section 8.12) except any such expense, disbursement or advance as may
arise from its negligence or bad faith.
(b) The Master Servicer agrees to indemnify the Trustee for, and to hold the
Trustee harmless against, any loss, liability or expense incurred
without negligence or willful misconduct on its part, arising out of, or
in connection with, the acceptance and administration of the Trust Fund,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against any claim in connection with the
exercise or performance of any of its powers or duties under this
Agreement, and the Custodial Agreement and the Master Servicer further
agrees to indemnify the Trustee for, and to hold the Trustee harmless
against, any loss, liability or expense arising out of, or in connection
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with, the provisions set forth in Section 2.01(a) hereof, including,
without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending
itself against any claim, action or proceeding, pending or threatened,
relating to the provisions of such paragraph, provided that:
(i) with respect to any such claim, the Trustee shall have given the Master
Servicer written notice thereof promptly after the Trustee shall have
actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Master Servicer in preparing such
defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for settlement of any claim by the Trustee
entered into without the prior consent of the Master Servicer which
consent shall not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created by
this Section 8.05(b) of the Master Servicer to indemnify the Trustee under the
conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 8.05(b) shall not pertain to any loss, liability
or expense of the Trustee, including the costs and expenses of defending itself
against any claim, incurred in connection with any actions taken by the Trustee
at the direction of the Certificateholders pursuant to the terms of this
Agreement.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a national
banking association having its principal office in a state and city acceptable
to the Company and organized and doing business under the laws of such state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
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(b) If at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 and shall fail to resign after written request
therefor by the Company, or if at any time the Trustee shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Company may remove the
Trustee and appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee. In addition, in the event that the Company
determines that the Trustee has failed (i) to distribute or cause to be
distributed to the Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee or its Paying Agent (other than
the Master Servicer or the Company) for distribution or (ii) to otherwise
observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period
of 5 days (in respect of clause (i) above) or 30 days (in respect of clause (ii)
above) after the date on which written notice of such failure, requiring that
the same be remedied, shall have been given to the Trustee by the Company, then
the Company may remove the Trustee and appoint a successor trustee by written
instrument delivered as provided in the preceding sentence. In connection with
the appointment of a successor trustee pursuant to the preceding sentence, the
Company shall, on or before the date on which any such appointment becomes
effective, obtain from each Rating Agency written confirmation that the
appointment of any such successor trustee will not result in the reduction of
the ratings on any class of the Certificates below the lesser of the then
current or original ratings on such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Company, one complete set to the Trustee so removed and one
complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
8.08.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The predecessor trustee shall deliver to the
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successor trustee all Mortgage Files and related documents and statements held
by it hereunder (other than any Mortgage Files at the time held by a Custodian,
which shall become the agent of any successor trustee hereunder), and the
Company, the Master Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in this
Section, the Company shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Company fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
Section 8.09 Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall mail notice of any such merger or
consolidation to the Certificateholders at their address as shown in the
Certificate Register.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing 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
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continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee, and such separate trustee or co-trustee jointly,
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Master Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the Trustee,
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer and the
Company, or shall, at the direction of the Company and the Master Servicer,
appoint one or more Custodians who are not Affiliates of the Company, the Master
Servicer or any Seller to hold all or a portion of the Mortgage Files as agent
for the Trustee, by entering into a Custodial Agreement. Subject to Article
VIII, the Trustee agrees to comply with the terms of each Custodial Agreement
and to enforce the terms and provisions thereof against the Custodian for the
benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $15,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File. Each
Custodial Agreement may be amended only as provided in Section 11.01. The
Trustee shall notify the Certificateholders of the appointment of any Custodian
(other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11.
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Section 8.12 Appointment of Office or Agency.
The Trustee will maintain an office or agency at the address designated
in Section 11.05 of the Series Supplement where Certificates may be surrendered
for registration of transfer or exchange. The Trustee will maintain an office at
the address stated in Section 11.05 of the Series Supplement where notices and
demands to or upon the Trustee in respect of this Agreement may be served.
ARTICLE IX
TERMINATION OR OPTIONAL
PURCHASE OF ALL CERTIFICATES
Section 9.01 Optional Purchase by the Master Servicer of All
Certificates; Termination Upon Purchase by the Master
Servicer or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and responsibilities
of the Company, the Master Servicer and the Trustee created hereby in
respect of the Certificates (other than the obligation of the Trustee to
make certain payments after the Final Distribution Date to
Certificateholders and the obligation of the Company to send certain
notices as hereinafter set forth) shall terminate upon the last action
required to be taken by the Trustee on the Final Distribution Date
pursuant to this Article IX following the earlier of:
(i) the later of the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund
or the disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan, or
(ii) the purchase by Residential Funding of all Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust
Fund at a price equal to 100% of the unpaid principal balance of each
Mortgage Loan or, if less than such unpaid principal balance, the fair
market value of the related underlying property of such Mortgage Loan
with respect to Mortgage Loans as to which title has been acquired if
such fair market value is less than such unpaid principal balance on the
day of repurchase plus unpaid accrued interest thereon at the Mortgage
Rate (or Modified Mortgage Rate in the case of any Modified Mortgage
Loan) from the Due Date to which interest was last paid by the Mortgagor
to, but not including, the first day of the month in which such
repurchase price is distributed, provided, however, that in no event
shall the trust created hereby continue beyond 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
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by the Master Servicer, to avoid disqualification of any portion of any
REMIC formed under the Series Supplement as a REMIC. The purchase price
paid by Residential Funding shall also include any amounts owed by
Residential Funding pursuant to Section 4 of the Assignment Agreement in
respect of any liability, penalty or expense that resulted from a breach
of the representation and warranty set forth in clause (xxxi) of such
Section that remain unpaid on the date of such purchase.
The right of Residential Funding to purchase all the assets of the Trust
Fund pursuant to clause (ii) above is conditioned upon the Pool Stated Principal
Balance as of the Final Distribution Date, prior to giving effect to
distributions to be made on such Distribution Date, being less than ten percent
of the Cut-off Date Principal Balance of the Mortgage Loans. If such right is
exercised by Residential Funding, the Master Servicer shall be entitled to
reimbursement for the full amount of any unreimbursed Advances theretofore made
by it with respect to the Mortgage Loans pursuant to Section 3.10. In addition,
the Master Servicer shall provide to the Trustee the certification required by
Section 3.15 and the Trustee and any Custodian shall, promptly following payment
of the purchase price, release to Residential Funding the Mortgage Files
pertaining to the Mortgage Loans being purchased.
In addition to the foregoing, on any Distribution Date on which the Pool
Stated Principal Balance, prior to giving effect to distributions to be made on
such Distribution Date, is less than ten percent of the Cut-off Date Principal
Balance of the Mortgage Loans, Residential Funding shall have the right, at its
option, to purchase the Certificates in whole, but not in part, at a price equal
to the outstanding Certificate Principal Balance of such Certificates plus the
sum of Accrued Certificate Interest thereon for the related Interest Accrual
Period and any previously unpaid Accrued Certificate Interest.
(b) The Master Servicer shall give the Trustee not less than 60 days' prior
notice of the Distribution Date on which the Master Servicer anticipates
that the final distribution will be made to Certificateholders (whether
as a result of the exercise by Residential Funding of its right to
purchase the assets of the Trust Fund or otherwise) or on which the
Master Servicer anticipates that the Certificates will be purchased (as
a result of the exercise by Residential Funding of its right to purchase
the outstanding Certificates). Notice of any termination, specifying the
anticipated Final Distribution Date (which shall be a date that would
otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee (if so required by the terms
hereof) for payment of the final distribution and cancellation or notice
of any purchase of the outstanding Certificates shall be given promptly
by the Master Servicer (if Residential Funding is exercising its right
to purchase the assets of the Trust Fund or to purchase the outstanding
Certificates), or by the Trustee (in any other case) by letter. Such
notice shall be prepared by the Master Servicer (in the case of
Residential Funding exercising its right to purchase the assets of the
Trust Fund or to purchase the outstanding Certificates) or the Trustee
(in any other case) and mailed by the Trustee to the Certificateholders
not earlier than the 15th day and not later than the 25th day of the
month next preceding the month of such final distribution specifying:
(i) the anticipated Final Distribution Date upon which final payment of the
Certificates is anticipated to be made upon presentation and surrender
of Certificates at the office or agency of the Trustee therein
designated where required pursuant to this Agreement or, in the case of
the purchase by the Master Servicer of the outstanding Certificates, the
Distribution Date on which such purchase is to be made,
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(ii) the amount of any such final payment, or in the case of the purchase of
the outstanding Certificates, the purchase price, in either case, if
known, and
(iii) that the Record Date otherwise applicable to such Distribution Date is
not applicable and that payment will be made only upon presentation and
surrender of the Certificates at the office or agency of the Trustee
therein specified.
If the Master Servicer is obligated to give notice to Certificateholders
as aforesaid, it shall give such notice to the Certificate Registrar at the time
such notice is given to Certificateholders and, if Residential Funding is
exercising its rights to purchase the outstanding Certificates, Residential
Funding shall give such notice to each Rating Agency at the time such notice is
given to Certificateholders. As a result of the exercise by Residential Funding
of its right to purchase the assets of the Trust Fund or the outstanding
Certificates, Residential Funding shall deposit in the Custodial Account before
the Final Distribution Date in immediately available funds an amount equal to
the purchase price for the assets of the Trust Fund, computed as provided above.
(c) Upon presentation and surrender of the Certificates by the
Certificateholders thereof in connection with the exercise by Residential
Funding of its right to purchase the Certificates, the Trustee shall distribute
to the Certificateholders on the Final Distribution Date the respective amounts
determined in accordance with Section 4.02. Nothwithstanding the reduction of
the Certificate Principal Balance of any Class of Subordinate Certificates to
zero, such Class will be outstanding hereunder until the termination of the
respective obligations and responsibilities of the Company, the Master Servicer
and the Trustee hereunder in accordance with Article IX.
(d) If any Certificateholders shall not surrender their Certificates for final
payment and cancellation on or before the Final Distribution Date (if so
required by the terms hereof), the Trustee shall on such date cause all funds in
the Certificate Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for the
benefit of such Certificateholders, and the Master Servicer (if Residential
Funding exercised its right to purchase the assets of the Trust Fund), or the
Trustee (in any other case) shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice any Certificate shall not have been surrendered for cancellation,
the Trustee shall take appropriate steps as directed by the Master Servicer to
contact the remaining Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the escrow account and of
contacting Certificateholders shall be paid out of the assets which remain in
the escrow account. If within nine months after the second notice any
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Certificates shall not have been surrendered for cancellation, the Trustee shall
pay to the Master Servicer all amounts distributable to the holders thereof and
the Master Servicer shall thereafter hold such amounts until distributed to such
Holders. No interest shall accrue or be payable to any Certificateholder on any
amount held in the escrow account or by the Master Servicer as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
(e) If any Certificateholders do not surrender their Certificates on or before
the Distribution Date on which a purchase of the outstanding Certificates is to
be made, the Trustee shall on such date cause all funds in the Custodial Account
deposited therein by Residential Funding pursuant to Section 9.01(b) to be
withdrawn therefrom and deposited in a separate escrow account for the benefit
of such Certificateholders, and the Master Servicer shall give a second written
notice to such Certificateholders to surrender their Certificates for payment of
the purchase price therefor. If within six months after the second notice any
Certificate shall not have been surrendered for cancellation, the Trustee shall
take appropriate steps as directed by the Master Servicer to contact the Holders
of such Certificates concerning surrender of their Certificates. The costs and
expenses of maintaining the escrow account and of contacting Certificateholders
shall be paid out of the assets which remain in the escrow account. If within
nine months after the second notice any Certificates shall not have been
surrendered for cancellation in accordance with this Section 9.01, the Trustee
shall pay to the Master Servicer all amounts distributable to the Holders
thereof and the Master Servicer shall thereafter hold such amounts until
distributed to such Holders. No interest shall accrue or be payable to any
Certificateholder on any amount held in the escrow account or by the Master
Servicer as a result of such Certificateholder's failure to surrender its
Certificate(s) for payment in accordance with this Section 9.01. Any Certificate
that is not surrendered on the Distribution Date on which a purchase pursuant to
this Section 9.01 occurs as provided above will be deemed to have been purchased
and the Holder as of such date will have no rights with respect thereto except
to receive the purchase price therefor minus any costs and expenses associated
with such escrow account and notices allocated thereto.
(f) All rights of Residential Funding to purchase the assets of the Trust Fund,
or to purchase specified classes of Certificates, as set forth in Section
9.01(a) are referred to in this Agreement as the "Call Rights". Notwithstanding
any other provision of this Agreement, Residential Funding shall have the right
to sell, transfer, pledge or otherwise assign the Call Rights at any time to any
Person. Upon written notice by Residential Funding to the Trustee and the Master
Servicer of any such assignment of the Call Rights to any assignee, the Trustee
and the Master Servicer shall be obligated to recognize such assignee as the
holder of the Call Rights. Such entity, if not Residential Funding or an
affiliate, shall be deemed to represent, at the time of such sale, transfer,
pledge or other assignment, that one of the following will be, and at the time
the Call Right is exercised is, true and correct: (i) the exercise of such Call
Right shall not result in a non-exempt prohibited transaction under section 406
of ERISA or section 4975 of the Code (including by reason of U.S. Department of
Labor ("DOL") Prohibited Transaction Class Exemption ("PTCE") 75-1 (Part I),
84-14, 90-1, 91-38, 95-60 or 96-23 or other applicable exemption) or (ii) such
entity is (A) not a party in interest under section 3(14) of ERISA or a
disqualified person under section 4975(e)(2) of the Code with respect to any
employee benefit plan subject to section 3(3) of ERISA or any plan subject to
section 4975 of the Code (other than an employee benefit plan or plan sponsored
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or maintained by the entity, provided that no assets of such employee benefit
plan or plan are invested or deemed to be invested in the Certificates) and (B)
not a "benefit plan investor" as described in DOL regulation section
2510.3-101(f)(2). If any such assignee of the Call Right is unable to exercise
such Call Right by reason of the preceding sentence, then the Call Right shall
revert to the immediately preceding assignor of such Call Right subject to the
rights of any secured party therein.
Section 9.02 Additional Termination Requirements.
(a) Each REMIC that comprises the Trust Fund shall be terminated in
accordance with the following additional requirements, unless (subject
to Section 10.01(f)) the Trustee and the Master Servicer have received
an Opinion of Counsel (which Opinion of Counsel shall not be an expense
of the Trustee) to the effect that the failure of each such REMIC to
comply with the requirements of this Section 9.02 will not (i) result in
the imposition on the Trust of taxes on "prohibited transactions," as
described in Section 860F of the Code, or (ii) cause any such REMIC to
fail to qualify as a REMIC at any time that any Certificate is
outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period for each
such REMIC and specify the first day of such period in a statement
attached to the Trust Fund's final Tax Return pursuant to Treasury
regulations Section 1.860F-1. The Master Servicer also shall satisfy all
of the requirements of a qualified liquidation for a REMIC under Section
860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the commencement of such
90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell or otherwise
dispose of all of the remaining assets of the Trust Fund in accordance
with the terms hereof; and
(iii) If Residential Funding or the Company is exercising its right to
purchase the assets of the Trust Fund, Residential Funding shall, during
the 90-day liquidation period and at or prior to the Final Distribution
Date, purchase all of the assets of the Trust Fund for cash.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably approves
and appoints the Master Servicer as its attorney-in-fact to adopt a plan
of complete liquidation for each REMIC at the expense of the Trust Fund
in accordance with the terms and conditions of this Agreement.
Section 9.03 Termination of Multiple REMICs.
If the REMIC Administrator makes two or more separate REMIC elections,
the applicable REMIC shall be terminated on the earlier of the Final
Distribution Date and the date on which it is deemed to receive the last deemed
distributions on the related Uncertificated REMIC Regular Interests and the last
distribution due on the Certificates is made.
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ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The REMIC Administrator shall make an election to treat the Trust Fund as
one or more REMICs under the Code and, if necessary, under applicable state law.
The assets of each such REMIC will be set forth in the Series Supplement. Such
election will be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of each REMIC election in respect of
the Trust Fund, Certificates and interests to be designated as the "regular
interests" and the sole class of "residual interests" in the REMIC will be set
forth in Section 10.03 of the Series Supplement. The REMIC Administrator and the
Trustee shall not permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in any REMIC elected in respect of the Trust Fund
other than the "regular interests" and "residual interests" so designated.
(b) The Closing Date is hereby designated as the "startup day" of the Trust Fund
within the meaning of Section 860G(a)(9) of the Code.
(c) The REMIC Administrator shall hold a Class R Certificate representing a
0.01% Percentage Interest each Class of the Class R Certificates and shall be
designated as "the tax matters person" with respect to each REMIC in the manner
provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)-1. The REMIC Administrator, as tax matters person, shall
(i) act on behalf of each REMIC in relation to any tax matter or controversy
involving the Trust Fund and (ii) represent the Trust Fund in any administrative
or judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The legal expenses, including without
limitation attorneys' or accountants' fees, and costs of any such proceeding and
any liability resulting therefrom shall be expenses of the Trust Fund and the
REMIC Administrator shall be entitled to reimbursement therefor out of amounts
attributable to the Mortgage Loans on deposit in the Custodial Account as
provided by Section 3.10 unless such legal expenses and costs are incurred by
reason of the REMIC Administrator's willful misfeasance, bad faith or gross
negligence. If the REMIC Administrator is no longer the Master Servicer
hereunder, at its option the REMIC Administrator may continue its duties as
REMIC Administrator and shall be paid reasonable compensation not to exceed
$3,000 per year by any successor Master Servicer hereunder for so acting as the
REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all of the Tax
Returns that it determines are required with respect to each REMIC created
hereunder and deliver such Tax Returns in a timely manner to the Trustee and the
Trustee shall sign and file such Tax Returns in a timely manner. The expenses of
preparing such returns shall be borne by the REMIC Administrator without any
right of reimbursement therefor. The REMIC Administrator agrees to indemnify and
hold harmless the Trustee with respect to any tax or liability arising from the
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Xxxxxxx's signing of Tax Returns that contain errors or omissions. The Trustee
and Master Servicer shall promptly provide the REMIC Administrator with such
information as the REMIC Administrator may from time to time request for the
purpose of enabling the REMIC Administrator to prepare Tax Returns.
(e) The REMIC Administrator shall provide (i) to any Transferor of a Class R
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee, and the Trustee shall forward to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each REMIC.
(f) The Master Servicer and the REMIC Administrator shall take such actions and
shall cause each REMIC created hereunder to take such actions as are reasonably
within the Master Servicer's or the REMIC Administrator's control and the scope
of its duties more specifically set forth herein as shall be necessary or
desirable to maintain the status of each REMIC as a REMIC under the REMIC
Provisions (and the Trustee shall assist the Master Servicer and the REMIC
Administrator, to the extent reasonably requested by the Master Servicer and the
REMIC Administrator to do so). The Master Servicer and the REMIC Administrator
shall not knowingly or intentionally take any action, cause the Trust Fund to
take any action or fail to take (or fail to cause to be taken) any action
reasonably within their respective control that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
portion of any REMIC formed under the Series Supplement as a REMIC or (ii)
result in the imposition of a tax upon any such REMIC (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless
the Master Servicer or the REMIC Administrator, as applicable, has received an
Opinion of Counsel (at the expense of the party seeking to take such action or,
if such party fails to pay such expense, and the Master Servicer or the REMIC
Administrator, as applicable, determines that taking such action is in the best
interest of the Trust Fund and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Master Servicer, the REMIC
Administrator or the Trustee) to the effect that the contemplated action will
not, with respect to each REMIC created hereunder, endanger such status or,
unless the Master Servicer, the REMIC Administrator or both, as applicable,
determine in its or their sole discretion to indemnify the Trust Fund against
the imposition of such a tax, result in the imposition of such a tax. Wherever
in this Agreement a contemplated action may not be taken because the timing of
such action might result in the imposition of a tax on the Trust Fund, or may
only be taken pursuant to an Opinion of Counsel that such action would not
impose a tax on the Trust Fund, such action may nonetheless be taken provided
that the indemnity given in the preceding sentence with respect to any taxes
that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to any REMIC created hereunder
or any related assets thereof, or causing any such REMIC to take any action,
which is not expressly permitted under the terms of this Agreement, the Trustee
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will consult with the Master Servicer or the REMIC Administrator, as applicable,
or its designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any such REMIC, and the Trustee
shall not take any such action or cause any such REMIC to take any such action
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that an Adverse REMIC Event could occur. The Master
Servicer or the REMIC Administrator, as applicable, may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the expense of the Master Servicer or the REMIC Administrator. At all
times as may be required by the Code, the Master Servicer will to the extent
within its control and the scope of its duties more specifically set forth
herein, maintain substantially all of the assets of each REMIC created hereunder
as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of any
REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on "net
income from foreclosure property" of any such REMIC as defined in Section
860G(c) of the Code, on any contributions to any such REMIC after the Startup
Day therefor pursuant to Section 860G(d) of the Code, or any other tax is
imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Master Servicer, if such tax arises out of
or results from a breach by the Master Servicer of any of its obligations under
this Agreement or the Master Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax, (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article X, or (iii) otherwise against amounts on deposit in the
Custodial Account as provided by Section 3.10 and on the Distribution Date(s)
following such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Accrued Certificate Interest on each Class entitled thereto in
the same manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Master Servicer shall, for federal income tax purposes,
maintain books and records with respect to each REMIC created hereunder on a
calendar year and on an accrual basis or as otherwise may be required by the
REMIC Provisions.
(i) Following the Startup Day, neither the Master Servicer nor the Trustee shall
accept any contributions of assets to any REMIC created hereunder unless
(subject to Section 10.01(f)) the Master Servicer and the Trustee shall have
received an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in such REMIC will
not cause the REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
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(j) Neither the Master Servicer nor the Trustee shall (subject to Section
10.01(f)) enter into any arrangement by which any REMIC created hereunder will
receive a fee or other compensation for services nor permit any such REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Principal Balance of each Class of Certificates (other than the Interest Only
Certificates) representing a regular interest in the applicable REMIC and the
Uncertificated Principal Balance of each Uncertificated REMIC Regular Interest
(other than each Uncertificated REMIC Regular Interest represented by a Class
A-V Certificate, if any) and the rights to the Interest Only Certificates and
Uncertificated REMIC Regular Interest represented by any Class A-V Certificate
would be reduced to zero is the Maturity Date for each such Certificate and
Interest.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for each REMIC created hereunder.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of any REMIC created hereunder, (iii)
the termination of any such REMIC pursuant to Article IX of this Agreement or
(iv) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) nor acquire any assets for any such REMIC, nor sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain nor
accept any contributions to any such REMIC after the Closing Date unless it has
received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not (a) affect adversely the status of such REMIC as a REMIC or
(b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause such REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02 Master Servicer, REMIC Administrator and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company, the REMIC
Administrator and the Master Servicer for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Company or the Master Servicer, as a result of a breach of the
Trustee's covenants set forth in Article VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the Company, the
Master Servicer and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by the Trust
Fund, the Company, the Master Servicer or the Trustee, as a result of a breach
of the REMIC Administrator's covenants set forth in this Article X with respect
to compliance with the REMIC Provisions, including without limitation, any
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penalties arising from the Trustee's execution of Tax Returns prepared by the
REMIC Administrator that contain errors or omissions; provided, however, that
such liability will not be imposed to the extent such breach is a result of an
error or omission in information provided to the REMIC Administrator by the
Master Servicer in which case Section 10.02(c) will apply.
(c) The Master Servicer agrees to indemnify the Trust Fund, the Company, the
REMIC Administrator and the Trustee for any taxes and costs (including, without
limitation, any reasonable attorneys' fees) imposed on or incurred by the Trust
Fund, the Company, the REMIC Administrator or the Trustee, as a result of a
breach of the Master Servicer's covenants set forth in this Article X or in
Article III with respect to compliance with the REMIC Provisions, including
without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the Master Servicer that contain errors or omissions.
Section 10.03 Designation of REMIC(s).
As provided in Section 10.03 of the Series Supplement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to
time by the Company, the Master Servicer and the Trustee, without the
consent of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be
inconsistent with any other provisions herein or therein or to correct
any error,
(iii) to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or desirable to maintain the qualification of the
Trust Fund as a REMIC at all times that any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim against the Trust
Fund, provided that the Trustee has received an Opinion of Counsel to
the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of
any such tax and (B) such action will not adversely affect in any
material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Custodial
Account or the Certificate Account or to change the name in which the
Custodial Account is maintained, provided that (A) the Certificate
Account Deposit Date shall in no event be later than the related
Distribution Date, (B) such change shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of
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any Certificateholder and (C) such change shall not result in a
reduction of the rating assigned to any Class of Certificates below the
lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date, as evidenced by a letter from each
Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(f) or any
other provision hereof restricting transfer of the Class R Certificates,
by virtue of their being the "residual interests" in a REMIC, provided
that (A) such change shall not result in reduction of the rating
assigned to any such Class of Certificates below the lower of the
then-current rating or the rating assigned to such Certificates as of
the Closing Date, as evidenced by a letter from each Rating Agency to
such effect, and (B) such change shall not (subject to Section
10.01(f)), as evidenced by an Opinion of Counsel (at the expense of the
party seeking so to modify, eliminate or add such provisions), cause any
REMIC created hereunder or any of the Certificateholders (other than the
transferor) to be subject to a federal tax caused by a transfer to a
Person that is not a Permitted Transferee,
(vi) to make any other provisions with respect to matters or questions
arising under this Agreement or such Custodial Agreement which shall not
be materially inconsistent with the provisions of this Agreement,
provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, or
(vii) to amend any provision herein or therein that is not material to any of
the Certificateholders.
(b) This Agreement or any Custodial Agreement may also be amended from time
to time by the Company, the Master Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not
less than 66% of the Percentage Interests of each Class of Certificates
with a Certificate Principal Balance greater than zero affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or such Custodial
Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment
shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate,
(ii) reduce the aforesaid percentage of Certificates of any Class the Holders
of which are required to consent to any such amendment, in any such case
without the consent of the Holders of all Certificates of such Class
then outstanding.
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(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel (subject to Section 10.01(f)
and at the expense of the party seeking such amendment) to the effect
that such amendment or the exercise of any power granted to the Master
Servicer, the Company or the Trustee in accordance with such amendment
is permitted hereunder and will not result in the imposition of a
federal tax on the Trust Fund or cause any REMIC created under the
Series Supplement to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(d) Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to the
Custodian and each Certificateholder. It shall not be necessary for the
consent of Certificateholders under this Section 11.01 to approve the
particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable regulations as the Trustee may prescribe.
(e) The Company shall have the option, in its sole discretion, to obtain and
deliver to the Trustee any corporate guaranty, payment obligation,
irrevocable letter of credit, surety bond, insurance policy or similar
instrument or a reserve fund, or any combination of the foregoing, for
the purpose of protecting the Holders of the Class B Certificates
against any or all Realized Losses or other shortfalls. Any such
instrument or fund shall be held by the Trustee for the benefit of the
Class B Certificateholders, but shall not be and shall not be deemed to
be under any circumstances included in the Trust Fund. To the extent
that any such instrument or fund constitutes a reserve fund for federal
income tax purposes, (i) any reserve fund so established shall be an
outside reserve fund and not an asset of the Trust Fund, (ii) any such
reserve fund shall be owned by the Company, and (iii) amounts
transferred by the Trust Fund to any such reserve fund shall be treated
as amounts distributed by the Trust Fund to the Company or any
successor, all within the meaning of Treasury Regulations Section
1.860G-2(h) as it reads as of the Cut-off Date. In connection with the
provision of any such instrument or fund, this Agreement and any
provision hereof may be modified, added to, deleted or otherwise amended
in any manner that is related or incidental to such instrument or fund
or the establishment or administration thereof, such amendment to be
made by written instrument executed or consented to by the Company but
without the consent of any Certificateholder and without the consent of
the Master Servicer or the Trustee being required unless any such
amendment would impose any additional obligation on, or otherwise
adversely affect the interests of the Senior Certificateholders, the
Class M Certificateholders, the Master Servicer or the Trustee, as
applicable; provided that the Company obtains (subject to Section
10.01(f)) an Opinion of Counsel (which need not be an opinion of
Independent counsel) to the effect that any such amendment will not
cause (a) any federal tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions"
under Section 860F(a)(1) of the Code or on "contributions after the
startup date" under Section 860G(d)(1) of the Code and (b) any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificate is outstanding. In the event that the Company elects to
provide such coverage in the form of a limited guaranty provided by
General Motors Acceptance Corporation, the Company may elect that the
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text of such amendment to this Agreement shall be substantially in the
form attached hereto as Exhibit K (in which case Residential Funding's
Subordinate Certificate Loss Obligation as described in such exhibit
shall be established by Residential Funding's consent to such amendment)
and that the limited guaranty shall be executed in the form attached
hereto as Exhibit K, with such changes as the Company shall deem to be
appropriate; it being understood that the Trustee has reviewed and
approved the content of such forms and that the Trustee's consent or
approval to the use thereof is not required.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer and at its expense on direction by the Trustee (pursuant to the
request of Holders of Certificates entitled to at least 25% of the Voting
Rights), but only upon direction accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
(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
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or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
of any Class shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates of such Class or any other Class, or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the common benefit of Certificateholders of such Class
or all Classes, as the case may be. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law.
This agreement and the Certificates shall be governed by and construed
in accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 11.05 Notices.
As provided in Section 11.05 of the Series Supplement.
Section 11.06 Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, (i)
shall notify each Rating Agency at such time as it is otherwise required
pursuant to this Agreement to give notice of the occurrence of, any of the
events described in clause (a), (b), (c), (d), (g), (h), (i) or (j) below, (ii)
shall notify the Subservicer at such time as it is otherwise required pursuant
to this Agreement to give notice of the occurrence of, any of the events
described in clause (a), (b), (c)(1), (g)(1), or (i) below, or (iii) provide a
copy to each Rating Agency at such time as otherwise required to be delivered
pursuant to this Agreement of any of the statements described in clauses (e) and
(f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) (1) the termination or appointment of a successor Master Servicer or (2) the
termination or appointment of a successor Trustee or a change in the majority
ownership of the Trustee,
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(d) the filing of any claim under the Master Servicer's blanket fidelity bond
and the errors and omissions insurance policy required by Section 3.12 or the
cancellation or modification of coverage under any such instrument,
(e) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18 and 3.19,
(g) (1) a change in the location of the Custodial Account or (2) a change in the
location of the Certificate Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of any
Class of Certificates resulting from the failure by the Master Servicer to make
an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer, if applicable,
of any such event known to the Master Servicer.
Section 11.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.08 Supplemental Provisions for Resecuritization.
This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Certificates issued hereunder, under the following
circumstances. With respect to any Class or Classes of Certificates issued
hereunder, or any portion of any such Class, as to which the Company or any of
its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Company may deposit such Resecuritized
Certificates into a new REMIC, grantor trust, FASIT or custodial arrangement (a
"Restructuring Vehicle") to be held by the Trustee pursuant to a Supplemental
Article. The instrument adopting such Supplemental Article shall be executed by
the Company, the Master Servicer and the Trustee; provided, that neither the
Master Servicer nor the Trustee shall withhold their consent thereto if their
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respective interests would not be materially adversely affected thereby. To the
extent that the terms of the Supplemental Article do not in any way affect any
provisions of this Agreement as to any of the Certificates initially issued
hereunder, the adoption of the Supplemental Article shall not constitute an
"amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions
relating to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions to be made
thereon, and any other provisions necessary for the purposes thereof. In
connection with each Supplemental Article, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that (i) the Restructuring Vehicle
will qualify as a REMIC, grantor trust, FASIT or other entity not subject to
taxation for federal income tax purposes and (ii) the adoption of the
Supplemental Article will not endanger the status of the Trust Fund as a REMIC
or (subject to Section 10.01(f)) result in the imposition of a tax upon the
Trust Fund (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC as set forth in Section 860G(d) of the Code).
Section 11.09 Allocation of Voting Rights.
As provided in Section 11.09 of the Series Supplement.
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