RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.,
Company,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 1997
Mortgage Pass-Through Certificates
Series 1997-S1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................... 3
-----------
Accrued Certificate Interest.......................... 3
Adjusted Mortgage Rate................................ 4
Advance............................................... 4
Affiliate............................................. 4
Agreement............................................. 4
Amount Held for Future Distribution................... 4
Appraised Value....................................... 4
Assignment............................................ 4
Assignment Agreement.................................. 4
Assignment of Proprietary Lease....................... 5
Available Distribution Amount......................... 5
Bankruptcy Amount..................................... 5
Bankruptcy Code....................................... 5
Bankruptcy Loss....................................... 5
Book-Entry Certificate................................ 5
Business Day.......................................... 6
Buydown Funds......................................... 6
Buydown Mortgage Loan................................. 6
Cash Liquidation...................................... 6
Certificate........................................... 6
Certificate Account................................... 6
Certificate Account Deposit Date...................... 6
Certificateholder or Holder........................... 6
Certificate Owner..................................... 7
Certificate Principal Balance......................... 7
Certificate Register and Certificate Registrar........ 7
Class................................................. 7
Class A Certificate................................... 8
Class A-4 Collection Shortfall........................ 8
Class A-4 Principal Distribution Amount............... 8
Class B Certificate................................... 8
Class B Percentage.................................... 8
Class B-1 Percentage.................................. 8
Class B-1 Prepayment Distribution Trigger............. 8
Class B-2 Percentage.................................. 8
1
Page
Class B-2 Prepayment Distribution Trigger............. 9
Class B-3 Percentage.................................. 9
Class B-3 Prepayment Distribution Trigger............. 9
Class M Certificate................................... 9
Class M Percentage.................................... 9
Class M-1 Percentage.................................. 9
Class M-2 Percentage.................................. 9
Class M-2 Prepayment Distribution Trigger............. 9
Class M-3 Percentage.................................. 10
Class M-3 Prepayment Distribution Trigger............. 10
Class R Certificate................................... 10
Closing Date.......................................... 10
Code ................................................. 10
Compensating Interest................................. 10
Cooperative........................................... 10
Cooperative Apartment................................. 11
Cooperative Lease..................................... 11
Cooperative Loans..................................... 11
Cooperative Stock..................................... 11
Cooperative Stock Certificate......................... 11
Corporate Trust Office................................ 11
Credit Support Depletion Date......................... 11
Curtailment........................................... 11
Custodial Account..................................... 11
Custodial Agreement................................... 11
Custodian............................................. 11
Cut-off Date.......................................... 11
Cut-off Date Principal Balance........................ 12
Debt Service Reduction................................ 12
Defaulted Mortgage Loss............................... 12
Deficient Valuation................................... 12
Definitive Certificate................................ 12
Deleted Mortgage Loan................................. 12
Depository............................................ 12
Depository Participant................................ 12
Destroyed Mortgage Note............................... 12
Determination Date.................................... 12
Discount Fraction..................................... 12
Discount Mortgage Loan................................ 13
Disqualified Organization............................. 13
Distribution Date..................................... 13
2
Page
Due Date.............................................. 13
Due Period............................................ 13
Eligible Account...................................... 13
Eligible Funds........................................ 14
Event of Default...................................... 14
Excess Bankruptcy Loss................................ 14
Excess Fraud Loss..................................... 14
Excess Special Hazard Loss............................ 14
Excess Subordinate Principal Amount................... 14
Extraordinary Events.................................. 15
Extraordinary Losses.................................. 15
FDIC ................................................. 15
FHLMC................................................. 15
Final Distribution Date............................... 15
Fitch................................................. 15
FNMA ................................................. 16
Foreclosure Profits................................... 16
Fraud Loss Amount..................................... 16
Fraud Losses.......................................... 16
Independent........................................... 16
Initial Certificate Principal Balance................. 17
Initial Notional Amount............................... 17
Initial Monthly Payment Fund.......................... 17
Insurance Proceeds.................................... 17
Insurer............................................... 17
Interest Accrual Period............................... 17
Late Collections...................................... 17
Liquidation Proceeds.................................. 17
Loan-to-Value Ratio................................... 17
Lockout Prepayment Percentage......................... 17
Maturity Date......................................... 18
Monthly Payment....................................... 18
Xxxxx'x............................................... 18
Mortgage.............................................. 18
Mortgage File......................................... 18
Mortgage Loan Schedule................................ 18
Mortgage Loans........................................ 19
Mortgage Note......................................... 19
Mortgage Rate......................................... 19
Mortgaged Property.................................... 19
Mortgagor............................................. 19
3
Page
Net Mortgage Rate..................................... 19
Non-Discount Mortgage Loan............................ 00
Xxx-Xxxxxxx Xxxxxxxxx Xxxxx........................... 00
Xxx-Xxxxxx Xxxxxx Person.............................. 20
Nonrecoverable Advance................................ 20
Nonsubserviced Mortgage Loan.......................... 20
Notional Amount....................................... 20
Opinion of Counsel.................................... 20
Original Senior Percentage............................ 20
Outstanding Mortgage Loan............................. 20
Ownership Interest.................................... 21
Pass-Through Rate..................................... 21
Paying Agent.......................................... 21
Percentage Interest................................... 21
Permitted Investments................................. 21
Permitted Transferee.................................. 23
Person................................................ 23
Pool Stated Principal Balance......................... 23
Pool Strip Rate....................................... 23
Prepayment Assumption................................. 23
Prepayment Distribution Percentage.................... 23
Prepayment Distribution Trigger....................... 24
Prepayment Interest Shortfall......................... 25
Prepayment Period..................................... 25
Primary Insurance Policy.............................. 25
Principal Prepayment.................................. 25
Principal Prepayment in Full.......................... 25
Program Guide......................................... 25
Purchase Price........................................ 25
Qualified Substitute Mortgage Loan.................... 25
Rating Agency......................................... 26
Realized Loss......................................... 26
Record Date........................................... 27
Regular Certificate................................... 27
REMIC................................................. 27
REMIC Administrator................................... 27
REMIC Provisions...................................... 27
REO Acquisition....................................... 27
REO Disposition....................................... 27
REO Imputed Interest.................................. 27
REO Proceeds.......................................... 27
4
Page
REO Property...................................................... 27
Request for Release............................................... 27
Required Insurance Policy......................................... 28
Residential Funding............................................... 28
Responsible Officer............................................... 28
Schedule of Discount Fractions.................................... 28
Security Agreement................................................ 28
Seller............................................................ 28
Seller's Agreement................................................ 28
Senior Accelerated Distribution Percentage........................ 28
Senior Certificates............................................... 29
Senior Percentage................................................. 29
Senior Principal Distribution Amount.............................. 29
Servicing Accounts................................................ 30
Servicing Advances................................................ 30
Servicing Fee..................................................... 30
Servicing Officer................................................. 30
Special Hazard Amount............................................. 30
Special Hazard Loss............................................... 31
Standard & Poor's................................................. 31
Stated Principal Balance.......................................... 31
Subclass Notional Amount.......................................... 31
Subclass.......................................................... 31
Subordinate Percentage............................................ 32
Subordinate Principal Distribution Amount......................... 32
Subserviced Mortgage Loan......................................... 32
Subservicer....................................................... 32
Subservicer Advance............................................... 32
Subservicing Account.............................................. 32
Subservicing Agreement............................................ 32
Subservicing Fee.................................................. 33
Tax Returns....................................................... 33
Transfer.......................................................... 33
Transferee........................................................ 33
Transferor........................................................ 33
Uncertificated Accrued Interest................................... 33
Uncertificated Notional Amount.................................... 34
Uncertificated Pass-Through Rate.................................. 34
Uncertificated REMIC Regular Interest Pool Strip Rate............. 34
Uncertificated REMIC Regular Interests............................ 34
Uncertificated REMIC Regular Interests Distribution Amounts....... 34
5
Page
Uniform Single Attestation Program for Mortgage Bankers... 34
Uninsured Xxxxx........................................... 00
Xxxxxx Xxxxxx Person...................................... 34
Voting Rights............................................. 34
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.............................. 36
----------------------------
Section 2.02. Acceptance by Trustee..................................... 40
---------------------
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Company...................................42
-----------
Section 2.04. Representations and Warranties of Sellers................. 46
-----------------------------------------
Section 2.05. Execution and Authentication of Certificates.............. 48
--------------------------------------------
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer.......................... 49
----------------------------------
Section 3.02. Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations 50
Section 3.03. Successor Subservicers...................................... 51
- ----------------------
Section 3.04. Liability of the Master Servicer............................ 51
--------------------------------
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders. ........................................ 52
---------------------------------------------------------------
Section 3.06. Assumption or Termination of Subservicing Agreements by
Trustee......................................................52
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account............................................52
Section 3.08. Subservicing Accounts; Servicing Accounts....................55
-----------------------------------------
Section 3.09. Access to Certain Documentation and Information Regarding
the Mortgage Loans...........................................56
Section 3.10. Permitted Withdrawals from the Custodial Account.............56
------------------------------------------------
Section 3.11. Maintenance of the Primary Insurance Policies;
Collections Thereunder.......................................58
6
Page
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity
Coverage. ...................................................59
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments..................61
Section 3.14. Realization Upon Defaulted Mortgage Loans.....................63
-----------------------------------------
Section 3.15. Trustee to Cooperate; Release of Mortgage Files...............65
-----------------------------------------------
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...............................69
-------------------------------
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account...........................................70
-------------------
Section 4.02. Distributions.................................................70
-------------
Section 4.03. Statements to Certificateholders..............................79
--------------------------------
Section 4.04. Distribution of Reports to the Trustee and the Company; Advances
by the Master Servicer.
............................................................81
Section 4.05. Allocation of Realized Losses.................................82
-----------------------------
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged
Property......................................................84
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.................84
---------------------------------------------
Section 4.08. Distributions on the Uncertificated REMIC Regular Interests...85
-----------------------------------------------------------
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates........................................... 85
----------------
Section 5.02. Registration of Transfer and Exchange of Certificates...... 87
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.......... 92
-------------------------------------------------
Section 5.04. Persons Deemed Owners...................................... 93
---------------------
Section 5.05. Appointment of Paying Agent................................ 93
---------------------------
Section 5.06. Optional Purchase of Certificates.......................... 93
---------------------------------
ARTICLE VI
7
Page
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Company and the Master Servicer.96
-------------------------------------------------------------
Section 6.02. Merger or Consolidation of the Company or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master
Servicer. ...............................................96
---------------
Section 6.03. Limitation on Liability of the Company, the Master Servicer and
---------------------------------------------------------------
Others. ......................................................97
------
Section 6.04. Company and Master Servicer Not to Resign.....................98
-----------------------------------------
ARTICLE VII
DEFAULT
Section 7.01. Events of Default............................................ 99
-----------------
Section 7.02. Trustee or Company to Act; Appointment of Successor..........101
---------------------------------------------------
Section 7.03. Notification to Certificateholders...........................101
----------------------------------
Section 7.04. Waiver of Events of Default..................................102
---------------------------
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee............................................103
-----------------
Section 8.02. Certain Matters Affecting the Trustee........................104
-------------------------------------
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans........106
-----------------------------------------------------
Section 8.04. Trustee May Own Certificates.................................106
----------------------------
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification..............................................106
Section 8.06. Eligibility Requirements for Trustee.........................107
------------------------------------
Section 8.07. Resignation and Removal of the Trustee.......................108
--------------------------------------
Section 8.08. Successor Trustee............................................109
-----------------
Section 8.09. Merger or Consolidation of Trustee...........................109
----------------------------------
Section 8.10. Appointment of Co-Trustee or Separate Trustee................109
---------------------------------------------
Section 8.11. Appointment of Custodians....................................110
-------------------------
Section 8.12. Appointment of Office or Agency..............................111
-------------------------------
ARTICLE IX
TERMINATION
8
Page
Section 9.01. Termination Upon Purchase by the Master Servicer or the
Company or Liquidation of All Mortgage Loans...............112
Section 9.02. Additional Termination Requirements........................114
-----------------------------------
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.......................................116
--------------------
Section 10.02. Master Servicer, REMIC Administrator and Trustee
Indemnification............................................119
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Amendment..................................................122
---------
Section 12.02. Recordation of Agreement; Counterparts.....................124
--------------------------------------
Section 12.03. Limitation on Rights of Certificateholders.................125
------------------------------------------
Section 12.04. Governing Law..............................................125
-------------
Section 12.05. Notices....................................................126
-------
Section 12.06. Notices to Rating Agency...................................126
------------------------
Section 12.07. Severability of Provisions.................................127
--------------------------
Section 12.08. Supplemental Provisions for Resecuritization...............127
--------------------------------------------
9
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 Custodial Agreement
Exhibit F: Mortgage Loan Schedule
Exhibit G: Form of Seller/Servicer Contract
Exhibit H: Forms of Request for Release
Exhibit I-1: Form of Transfer Affidavit and Agreement
Exhibit I-2: Form of Transferor Certificate
Exhibit J-1: Form of Investor Representation Letter
Exhibit J-2: Form of ERISA Representation Letter
Exhibit K: Form of Transferor Representation Letter
Exhibit L: Form of Rule 144A Investment Representation Letter
Exhibit M: Text of Amendment to Pooling and Servicing Agreement Pursuant
to Section 12.01(e) for a Limited Guaranty
Exhibit N: Form of Limited Guaranty
Exhibit O: Form of Lender Certification for Assignment of Mortgage Loan
Exhibit P: Schedule of Discount Fractions
Exhibit Q: Form of Request for Exchange
10
This is a Pooling and Servicing Agreement, dated as of January 1, 1997,
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 FIRST NATIONAL BANK OF CHICAGO, 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 Mortgage Loans (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 Trust Fund (as defined herein), and
subject to this Agreement (including the Mortgage 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 the "REMIC." The Class A-1, Class A-2, Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates
and the Uncertificated REMIC Regular Interests will be "regular interests" in
the Trust Fund, and the Class R Certificates will be the sole class of "residual
interests" in the Trust Fund in each case for purposes of the REMIC Provisions
(as defined herein) under federal income tax law. The Class A-5 Certificates
will represent the entire beneficial ownership interest in the Uncertificated
REMIC Regular Interests.
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 issued on the
Closing Date comprising the interests in the Trust Fund created hereunder.
Aggregate
Initial
Certificate
Pass-Through Principal
Designation Rate Balance Features
Class A-1 7.00% $ 96,648,000.00 Senior
Class A-2 7.00% $ 15,536,000.00 Senior
Class A-3 7.00% $ 13,007,000.00 Prepayment Lockout/Senior
Class A-4 0.00% $ 163,098.92 Principal Only/Senior
Class A-5 Variable $ 0.00 Variable Strip/Interest
Only/Senior
Class R 7.00% $ 100.00 Residual/Senior
Class M-1 7.00% $ 2,280,000.00 Mezzanine
Class M-2 7.00% $ 1,107,000.00 Mezzanine
Class M-3 7.00% $ 521,000.00 Mezzanine
Class B-1 7.00% $ 325,500.00 Subordinate
Class B-2 7.00% $ 260,400.00 Subordinate
Class B-3 7.00% $ 390,721.16 Subordinate
Maturity
Designation Date S&P Fitch
Class A-1 January 25, 2012 AAA AAA
Class A-2 January 25, 2012 AAA AAA
Class A-3 January 25, 2012 AAA AAA
Class X-0 Xxxxxxx 00, 0000 XXXx AAA
Class X-0 Xxxxxxx 00, 0000 XXXx AAA
Class R January 25, 2012 AAA AAA
Class X-0 Xxxxxxx 00, 0000 X/X XX
Class M-2 January 25, 2012 N/A A
Class M-3 January 25, 2012 N/A BBB
Class X-0 Xxxxxxx 00, 0000 X/X XX
Class X-0 Xxxxxxx 00, 0000 X/X X
Class B-3 January 25, 2012 N/A N/A
The Mortgage Loans have an aggregate Cut-off Date Principal Balance
equal to $130,238,820.08. The Mortgage Loans are fixed rate mortgage loans
having terms to maturity at origination or modification of not more than 15
years.
In consideration of the mutual agreements herein contained, the
Company, the Master Servicer and the Trustee agree as follows:
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2
ARTICLE
DEFINITIONS
Section 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 A Certificate (other than the Class A-4 and Class A-5
Certificates), any Class M Certificate, any Class B Certificate or any Class R
Certificate, interest accrued during the related Interest Accrual Period at the
related Pass-Through Rate on the Certificate Principal Balance thereof
immediately prior to such Distribution Date. With respect to each Distribution
Date, as to Class A-5 Certificates (other than any Subclass of the Class A-5
Certificates), interest during the related Interest Accrual Period at the
related Pass-Through Rate on the related Notional Amount thereof. With respect
to each Distribution Date, as to any Subclass of the Class A-5 Certificates
issued pursuant to Section 5.01(c), interest accrued during the related Interest
Accrual Period at the related Pass-through Rate on the Subclass Notional Amount.
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 of Certificates will be reduced by the amount of (i) Prepayment
Interest Shortfalls (to the extent not offset by the Master Servicer with a
payment of Compensating Interest as provided in Section 4.01), (ii) the interest
portion (adjusted to the Net Mortgage Rate) of Realized Losses (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
previously made with respect to a Mortgage Loan or REO Property which remained
unreimbursed following the Cash Liquidation or REO Disposition of such Mortgage
Loan or REO Property that were made with respect to delinquencies that were
ultimately determined to be Excess Special Hazard Losses, Excess Fraud Losses,
Excess Bankruptcy Losses or Extraordinary Losses and (iv) any other interest
shortfalls not covered by the subordination provided by the Class M Certificates
and Class B Certificates, including interest that is not collectible from the
Mortgagor pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended, or similar legislation or regulations as in effect from time to time,
with all such reductions allocated among all of the Certificates in proportion
to their respective amounts of Accrued Certificate Interest payable on such
Distribution Date which would have resulted absent such reductions. Any portion
of the reductions described in the immediately preceding sentence that are
allocated to the Class A-5 Certificates shall be allocated among the Subclasses
thereof, if any, in proportion to their respective amounts of Accrued
Certificates Interest payable on such Distribution Date which would have
resulted 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.
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
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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.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Amount Held for Future Distribution: As to any Distribution Date, the
total of the amounts held in the Custodial Account at the close of business on
the preceding Determination Date on account of (i) Liquidation Proceeds,
Insurance Proceeds, Principal Prepayments, Mortgage Loan purchases made pursuant
to Section 2.02, 2.03 or 2.04 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 (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.
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.
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
4
Assignment Agreement: The Assignment and Assumption Agreement, dated
January 30, 1997, 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, 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 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 Custodial Account pursuant to
Section 3.12(a) and (iv) any amount deposited in the Certificate Account
pursuant to Section 4.07, reduced by (b) the sum as of the close of business on
the immediately preceding Determination Date of (w) aggregate Foreclosure
Profits, (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).
Bankruptcy Amount: As of any date of determination prior to the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (A)
$100,000 over (B) the aggregate amount of Bankruptcy Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section 4.05.
The Bankruptcy Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
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.
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
5
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of 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.
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: Any Class A Certificate, Class M Certificate, Class B
Certificate or Class R Certificate.
Certificate Account: The separate account or accounts created and
maintained pursuant to Section 4.01, which shall be entitled "The First National
Bank of Chicago, as trustee, in trust for the registered holders of Residential
Funding Mortgage Securities I, Inc., Mortgage Pass-Through Certificates, Series
1997-S1" and which must be an Eligible Account.
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, 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,
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however, that the Trustee shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent, if any, and otherwise on the books of a Depository Participant, if any,
and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Class A Certificate
(other than the Class A-5 Certificates) and Class R Certificate, on any date of
determination, an amount equal to (i) the Initial Certificate Principal Balance
of such Certificate as specified on the face thereof, minus (ii) the sum of (x)
the aggregate of all amounts previously distributed with respect to such
Certificate (or any predecessor Certificate) and applied to reduce the
Certificate Principal Balance or amount 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.
With respect to each Class M Certificate, on any date of determination, an
amount equal to (i) the Initial Certificate Principal Balance of such Class M
Certificate as specified on the face thereof, minus (ii) the sum of (x) the
aggregate of all amounts previously distributed with respect to such Certificate
(or any predecessor Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(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 if the Certificate Principal Balances of the Class B Certificates have been
reduced to zero, the Certificate Principal Balance of each Class M Certificate
of those Class M Certificates outstanding with the highest numerical designation
at any given time shall thereafter be calculated to equal the Percentage
Interest evidenced by such Certificate times the excess, if any, of (A) the then
aggregate Stated Principal Balance of the Mortgage Loans over (B) the then
aggregate Certificate Principal Balance of all other Classes of Certificates
then outstanding. With respect to each Class B Certificate, on any date of
determination, an amount equal to (i) the Initial Certificate Principal Balance
of such Class B Certificate as specified on the face thereof, minus (ii) the sum
of (x) the aggregate of all amounts previously distributed with respect to such
Certificate (or any predecessor Certificate) and applied to reduce the
Certificate Principal Balance thereof pursuant to Section 4.02(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 each Class B Certificate of
those Class B Certificates outstanding with the highest numerical designation at
any given time shall be calculated to equal the Percentage Interest evidenced by
such Certificate times the excess, if any, of (A) the then aggregate Stated
Principal Balance of the Mortgage Loans over (B) the then aggregate Certificate
Principal Balance of all other Classes of Certificates then outstanding. The
Class A-5 Certificates will have no Certificate Principal Balance.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 5.02.
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Class: Collectively, all of the Certificates bearing the same
designation. The initial Class A-5 Certificates and any Subclass thereof issued
pursuant to Section 5.01(c) shall be a single Class for purposes of this
Agreement.
Class A Certificate: Any one of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4 or Class A-5 Certificates, each such Certificate (other than the Class
A-5 Certificates) evidencing an interest designated as a "regular interest" in
the Trust Fund for purposes of the REMIC Provisions and, in each case executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit A. The Class A-5 Certificates will represent
the entire beneficial ownership interest in the Uncertificated REMIC Regular
Interests. On and after the date of issuance of any Subclass of Class A-5
Certificates pursuant to Section 5.01(c), any such Subclass will represent the
Uncertificated REMIC Regular Interest or Interests specified by the Initial
Holder of the Class A-5 Certificates.
Class A-4 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-4 Principal Distribution Amount: As defined in Section 4.02(b)(i).
Class B Certificate: Any one of the Class B-1 Certificates, Class B-2
Certificates or Class B-3 Certificates executed by the Trustee and authenticated
by the Certificate Registrar substantially in the form annexed hereto as Exhibit
C and evidencing an interest designated as a "regular interest" in the Trust
Fund for purposes of the REMIC Provisions.
Class B Percentage: The Class B-1 Percentage, Class B-2 Percentage and
Class B-3 Percentage.
Class B-1 Percentage: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class B-1 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.
Class B-1 Prepayment Distribution Trigger: With respect to any
Distribution Date, a test that shall be satisfied if the fraction (expressed as
a percentage) equal to the sum of the Certificate Principal Balances of the
Class B-1 Certificates, Class B-2 Certificates and Class B-3 Certificates
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 0.75%.
Class B-2 Percentage: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class B-2 Certificates immediately prior to
such date and the denominator of which is the aggregate Stated
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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.
Class B-2 Prepayment Distribution Trigger: With respect to any
Distribution Date, a test that shall be satisfied if the fraction (expressed as
a percentage) equal to the sum of the Certificate Principal Balances of the
Class B-2 Certificates and Class B-3 Certificates 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 0.50%.
Class B-3 Percentage: With respect to any Distribution Date, a fraction
expressed as a percentage, the numerator of which is the aggregate Certificate
Principal Balance of the Class B-3 Certificates immediately prior to such date
and the denominator of which is the aggregate Stated Principal Balance of all
the Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of each Discount Mortgage Loan) immediately prior to such Distribution
Date.
Class B-3 Prepayment Distribution Trigger: With respect to any
Distribution Date, a test that shall be satisfied if the fraction (expressed as
a percentage) equal to the sum of the Certificate Principal Balances of the
Class B-3 Certificates 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 0.30%.
Class M Certificate: Any one of the Class M-1 Certificates, Class M-2
Certificates or Class M-3 Certificates executed by the Trustee and authenticated
by the Certificate Registrar substantially in the form annexed hereto as Exhibit
B and evidencing an interest designated as a "regular interest" in the Trust
Fund for purposes of the REMIC Provisions.
Class M Percentage: The Class M-1 Percentage, Class M-2 Percentage and
Class M-3 Percentage.
Class M-1 Percentage: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class M-1 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.
Class M-2 Percentage: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class M-2 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.
Class M-2 Prepayment Distribution Trigger: With respect to any
Distribution Date, a test that shall be satisfied if the fraction (expressed as
a percentage) equal to the sum of the Certificate Principal Balances of the
Class M-2 Certificates, Class M-3 Certificates, Class B-1 Certificates,
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9
Class B-2 Certificates and Class B-3 Certificates 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 2.00%.
Class M-3 Percentage: With respect to any Distribution Date, a
fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class M-3 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.
Class M-3 Prepayment Distribution Trigger: With respect to any
Distribution Date, a test that shall be satisfied if the fraction (expressed as
a percentage) equal to the sum of the Certificate Principal Balances of the
Class M-3 Certificates, Class B-1 Certificates, Class B-2 Certificates and Class
B-3 Certificates 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 1.15%.
Class R Certificate: Any one of the Class R Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed hereto as Exhibit D and evidencing an interest designated as a
"residual interest" in the Trust Fund for purposes of the REMIC Provisions.
Closing Date: January 30, 1997.
Code: The Internal Revenue Code of 1986.
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, 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, 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 and servicing compensation to which the Master Servicer may be
entitled pursuant to Section 3.10(a)(v) and (vi); provided that for purposes of
this definition the amount of the Servicing Fee will not be reduced pursuant to
Section 7.02 except as may be required pursuant to the last sentence of such
Section.
Cooperative: A private, cooperative housing corporation organized under
the laws of, and headquartered in, the State of New York which owns or leases
land and all or part of a building or buildings located in the State of New
York, 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.
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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.
Corporate Trust Office: The principal office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Residential Funding Corporation Series 1997-S1.
Credit Support Depletion Date: The first Distribution Date on which
the Senior Percentage equals 100%.
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 in substantially the
form of Exhibit E hereto.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
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Cut-off Date: January 1, 1997.
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, 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.
Defaulted Mortgage Loss: With respect to any Mortgage Loan, any loss
that is attributable to the Mortgagor's failure to make any payment of principal
or interest as required under the Mortgage Note, except that such loss shall not
include any Special Hazard Loss, Fraud Loss, Bankruptcy Loss, Extraordinary Loss
or other loss resulting from damage to the related Mortgaged Property.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificate: Any definitive, fully registered Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with
a Qualified Substitute Mortgage Loan.
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(3) 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: With respect to any Distribution Date, the 20th day
(or if such 20th day is not a Business Day, the Business Day immediately
following such 20th day) of the month of the related Distribution Date.
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Discount Fraction: With respect to each Discount Mortgage Loan, the
fraction expressed as a percentage, the numerator of which is 7.000% 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 7.000%. The Discount
Fraction with respect to each Discount Mortgage Loan is set forth on Exhibit P
attached hereto.
Discount Mortgage Loan: Any Mortgage Loan having a Net Mortgage Rate
(or the initial Net Mortgage Rate) of less than 7.000% per annum and any
Mortgage Loan deemed to be a Discount Mortgage Loan pursuant to the definition
of Qualified Substitute Mortgage Loan.
Disqualified Organization: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, which includes any of the
following: (i) the United States, any State or political subdivision thereof,
any possession of the United States, or any agency or instrumentality of any of
the foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except for the FHLMC, 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 and (v)
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, the first day of the
month in which such Distribution Date occurs.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month of such
Distribution Date and ending on the related Due 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
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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, either (A) a trust
account or accounts maintained in the corporate trust department of The First
National Bank of Chicago or (B) an account or accounts maintained in the
corporate asset services department of The First National Bank of Chicago, as
long as its short term debt obligations are rated P-1 (or the equivalent) or
better by each Rating Agency and its long term debt obligations are rated A2 (or
the equivalent) or better, by each Rating Agency, or (iv) in the case of the
Certificate Account, a trust account or accounts maintained in the corporate
trust division of The First National Bank of Chicago, 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
Available Distribution Amount remaining after reduction by the sum of (i) the
aggregate amount of Accrued Certificate Interest on the Class A and Class R
Certificates, (ii) the Senior Principal Distribution Amount (determined without
regard to Section 4.02(a)(ii)(Y)(D) hereof), (iii) the Class A-4 Principal
Distribution Amount (determined without regard to Section 4.02(b)(i)(E) hereof)
and (iv) the aggregate amount of Accrued Certificate Interest on the Class M,
Class B-1 and Class B-2 Certificates.
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 Certificate Principal Balance of the most subordinate class or
classes of Certificates (as established in Section 4.05 hereof) then outstanding
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
Certificate Principal Balance of such class or classes of Certificates
immediately prior to such Distribution Date over the aggregate
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amount of Realized Losses to be allocated to such classes of Certificates on
such Distribution Date, as reduced by any such amount that is included in
Section 4.02(b)(i)(E) hereof.
Extraordinary Events: Any of the following conditions with respect to a
Mortgaged Property 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, combatting or defending against an
actual, impending or expected attack:
1. by any government or sovereign power, de jure or de facto, or by any
authority maintaining or using military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or forces;
(d) any weapon of war employing atomic fission or radioactive
force whether in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering,
combatting 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.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: 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.
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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 9.03.
Fitch: Fitch Investors Service, L.P. or its successor in interest.
FNMA: 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.
Foreclosure Profits: As to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition occurred in the
related Prepayment Period over the sum of the unpaid principal balance of such
Mortgage Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
Fraud Loss Amount: As of any date of determination after the Cut-off
Date, an amount equal to: (Y) prior to the third anniversary of the Cut-off Date
an amount equal to 1.00% of the aggregate outstanding principal balance of all
of the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of Certificates in
accordance with Section 4.05 since the Cut-off Date up to such date of
determination and (Z) from the third to the fifth anniversary of the Cut-off
Date, an amount equal to (1) the lesser of (a) the Fraud Loss Amount as of the
most recent anniversary of the Cut-off Date and (b) 0.50% of the aggregate
outstanding principal balance of all of the Mortgage Loans as of the most recent
anniversary of the Cut-off Date minus (2) the Fraud Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section 4.05
since the most recent anniversary of the Cut-off Date up to such date of
determination. On and after the fifth anniversary of the Cut-off Date the Fraud
Loss Amount shall be zero.
The Fraud Loss Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such 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.
Fraud Losses: Losses on Mortgage Loans as to which there was fraud in
the origination of such Mortgage Loan.
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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 Preliminary Statement hereto.
Initial Notional Amount: With respect to any Class A-5 Certificates,
the Cut-off Date Principal Balance of the Mortgage Loans corresponding to the
Uncertificated REMIC Regular Interests represented by such Class A-5
Certificates.
Initial Monthly Payment Fund: As defined in Section 2.01(f).
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan, to the extent such proceeds are payable to the
mortgagee under the Mortgage, any Subservicer, the Master Servicer or the
Trustee and are not applied to the restoration of the related Mortgaged Property
or released to the Mortgagor in accordance with the procedures that the Master
Servicer would follow in servicing mortgage loans held for its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any
successor thereto or the named insurer in any replacement policy.
Interest Accrual Period: With respect to any Certificate, and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs. Notwithstanding the foregoing, the distributions of
interest on any Distribution Date and the calculation of Accrued Certificate
Interest for all Classes of Certificates will reflect interest accrued, and
receipts with respect thereto, on the Mortgage Loans for the preceding calendar
month, as may be reduced in accordance with the definition of Accrued
Certificate Interest.
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.
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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.
Lockout Prepayment Percentage: The Lockout Prepayment Percentage for
any Distribution Date occurring prior to the Distribution Date in February 2002
will be 0%. The Lockout Prepayment Percentage for any Distribution Date
occurring after the first five years following the Delivery Date will be as
follows: for any Distribution Date during the sixth year after the Delivery
Date, 30%; for any Distribution Date during the seventh year after the Delivery
Date, 40%; for any Distribution Date during the eighth year after the Delivery
Date, 60%; for any Distribution Date during the ninth year after the Delivery
Date, 80%; and for any Distribution Date thereafter, 100%.
Maturity Date: The latest possible maturity date, solely for purposes
of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which (i) the
Certificate Principal Balance of each Class of Certificates (other than the
Class A-5 Certificates which have no Certificate Principal Balance) or (ii) an
Uncertificated REMIC Regular Interest, representing a regular interest in the
Trust Fund would be reduced to zero, which is January 25, 2012, the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan.
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).
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.
Mortgage Loan Schedule: The list of the Mortgage Loans attached hereto
as Exhibit F (as amended from time to time to reflect the addition of Qualified
Substitute Mortgage Loans), which list shall set forth at a minimum the
following information as to each Mortgage Loan:
(i) the Mortgage Loan identifying number ("RFC LOAN #");
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(ii) the street address of the Mortgaged Property including state and zip code
("ADDRESS");
(iii) the maturity of the Mortgage Note ("MATURITY DATE");
(iv) the Mortgage Rate ("ORIG RATE");
(v) the Subservicer pass-through rate ("CURR NET");
(vi) the Net Mortgage Rate ("NET MTG RT");
(vii) the Pool Strip Rate ("STRIP");
(viii) the initial scheduled monthly payment of principal, if any, and interest
("ORIGINAL P & I");
(ix) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(x) the Loan-to-Value Ratio at origination ("LTV");
(xi) the rate at which the Subservicing Fee accrues ("SUBSERV FEE") and
at which the Servicing Fee accrues ("MSTR SERV FEE");
(xii) a code "T," "BT" or "CT" under the column "LN
FEATURE," indicating that the Mortgage Loan is
secured by a second or vacation residence; and
(xiii) a code "N" under the column "OCCP CODE," indicating
that the Mortgage Loan is secured by a non-owner
occupied residence.
Such schedule may consist of multiple reports that collectively set forth all of
the information required.
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 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.
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Mortgage Rate: As to any Mortgage Loan, the interest rate borne by the
related Mortgage Note, or any modification thereto.
Mortgaged Property: The underlying real property securing a Mortgage Loan.
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 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. 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 and the Trustee.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Notional Amount: As of any Distribution Date, with respect to the Class
A-5 Certificates, the aggregate Stated Principal Balance of the Mortgage Loans
corresponding to the Uncertificated REMIC Regular Interests Pool Strip Rates
represented by such Class A-5 Certificate immediately prior to such date.
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 "Permitted Transferee" or (ii) relating to the
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qualification of the Trust Fund as a REMIC or compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Original Senior Percentage: The fraction, expressed as a percentage,
the numerator of which is the aggregate Initial Certificate Principal Balance of
the Senior Certificates (other than the Class A-4 Certificates) and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans (other than the Discount Fraction of the Discount Mortgage Loans), which
is approximately 96.24% as of the Closing Date.
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
or 2.04.
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: With respect to the Class A Certificates (other than
the Class A-4 Certificates and Class A-5 Certificates), Class M Certificates,
Class B Certificates and Class R Certificates and any Distribution Date, the per
annum rate set forth in the Preliminary Statement hereto. With respect to the
Class A-5 Certificates (other than any Subclass thereof) and any Distribution
Date, a rate equal to the weighted average, expressed as a percentage, of the
Pool Strip Rates of all Mortgage Loans as of the Due Date in the month next
preceding the month in which such Distribution Date occurs, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans, which
Stated Principal Balances shall be the Stated Principal Balances of such
Mortgage Loans at the close of business on the immediately preceding
Distribution Date after giving effect to distributions thereon allocable to
principal to the Holders of the Certificates. With respect to the Class A-5
Certificates and the initial Distribution Date, the Pass-Through Rate is equal
to 0.5969% per annum. With respect to any Subclass of the Class A-5 Certificate
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 REMIC Regular Interests represented by such Subclass as of the
Due Date in the month next preceding the month in which such Distribution Date
occurs, weighted on the basis of the respective Stated Principal Balances of
such Mortgage Loans, which Stated Principal Balances shall be the Stated
Principal Balances of such Mortgage Loans at the close of business on the
immediately preceding Distribution Date after giving effect to distributions
thereon allocable to principal to the Holders of such Certificate (or with
respect to the initial Distribution Date, at the close of business on the
Cut-off Date). The Class A-4 Certificates have no Pass-Through Rate and are not
entitled to Accrued Certificate Interest.
Paying Agent: The First National Bank of Chicago or any successor
Paying Agent appointed by the Trustee.
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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 thereof (in the case of any Class A-5 Certificates) divided by
the aggregate Initial Certificate Principal Balance or Initial Notional Amounts,
as applicable, of all of the Certificates of the same Class. With respect to the
Class R Certificate, the interest in distributions to be made with respect to
the Class evidenced thereby, expressed as a percentage, as stated on the face of
each such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and
interest by the United States or any agency or instrumentality thereof
when such obligations are backed by the full faith and credit of the
United States;
(ii) repurchase agreements on obligations specified in
clause (i) maturing not more than one month from the date of
acquisition thereof, provided that the unsecured obligations of the
party agreeing to repurchase such obligations are at the time rated by
each Rating Agency in its highest short-term rating available;
(iii) federal funds, certificates of deposit, demand
deposits, time deposits and bankers' acceptances (which shall each have
an original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity of
more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution
or trust company incorporated under the laws of the United States or
any state thereof or of any domestic branch of a foreign depository
institution or trust company; provided that the debt obligations of
such depository institution or trust company (or, if the only Rating
Agency is Standard & Poor's, in the case of the principal depository
institution in a depository institution holding company, debt
obligations of the depository institution holding company) at the date
of acquisition thereof have been rated by each Rating Agency in its
highest short-term rating available; and provided further that, if the
only Rating Agency is Standard & Poor's and if the depository or trust
company is a principal subsidiary of a bank holding company and the
debt obligations of such subsidiary are not separately rated, the
applicable rating shall be that of the bank holding company; and,
provided further that, if the original maturity of such short-term
obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the short-term rating of such
institution shall be A-1+ in the case of Standard & Poor's if Standard
& Poor's is the Rating Agency;
(iv) commercial paper (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;
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(v) a money market fund or a qualified investment
fund rated by each Rating Agency in its highest long-term rating
available; and
(vi) other obligations or securities that are acceptable to
each Rating Agency as a Permitted Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by such Rating
Agency below the lower of the then-current rating or the rating
assigned to such Certificates as of the Closing Date by such Rating
Agency, as evidenced in writing;
provided, however, no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's and Fitch and Aaa
in the case of Moody's, and references herein to the highest rating available on
unsecured commercial paper and short-term debt obligations shall mean A-1 in the
case of Standard & Poor's, P-1 in the case of Moody's and either A-1 by Standard
& Poor's, P-1 by Moody's or F-1 by Fitch in the case of Fitch.
Permitted Transferee: Any Transferee of a Class R Certificate, other
than a Disqualified Organization or Non-United States Person.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pool Stated Principal Balance: As to any date of determination, the
aggregate of the Stated Principal Balances of each Mortgage Loan that was an
Outstanding Mortgage Loan on the Due Date in the month preceding the month of
such date of determination.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess, if any, of (a) the Net Mortgage Rate of such Mortgage Loan
over (b) 7.000% per annum (but not less than 0.00% per annum).
Prepayment Assumption: A prepayment assumption of 275% of the standard
prepayment assumption, used for determining the accrual of original issue
discount and market discount and premium on the Certificates for federal income
tax purposes. The standard prepayment assumption assumes a constant rate of
prepayment of mortgage loans of 0.20 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 0.20 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.
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Prepayment Distribution Percentage: With respect to any Distribution
Date and each Class of Class M Certificates and Class B Certificates, under the
applicable circumstances set forth below, the respective percentages set forth
below:
(i) For any Distribution Date prior to the Distribution Date in
February, 2002 (unless the Certificate Principal Balances of
the Class A Certificates, other than the Class A-4
Certificates, have been reduced to zero), 0%.
(ii) For any Distribution Date on which any Class of Class M or
Class B Certificates are outstanding not discussed in clause
(i) above:
(a) in the case of the Class of Class M Certificates
then outstanding with the lowest numerical designation, or
in the event the Class M Certificates are no longer
outstanding, the Class of Class B Certificates then
outstanding with the lowest numerical designation and each
other Class of Class M Certificates and Class B 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
Class M Certificates then outstanding with the lowest
numerical designation, or in the event the Class M
Certificates are no longer outstanding, the Class of Class B
Certificates then outstanding with the lowest numerical
designation and (2) all other Classes of Class M
Certificates and Class B Certificates for which the
respective Prepayment Distribution Triggers have been
satisfied; and
(b) in the case of each other Class of Class M
Certificates and Class B Certificates for which the
Prepayment Distribution Triggers have not been satisfied,
0%; and
(iii)Notwithstanding the foregoing, if the application of the foregoing
percentages on any Distribution Date as provided in Section 4.02
(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 Class M Certificates and Class B
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 Class M Certificates and
Class B Certificates (any such Class, a "Non-Maturing Class") shall be
recalculated in accordance with the provisions in paragraph (ii) above, as
if the Certificate Principal Balance of each Maturing Class had been
reduced to zero (such percentage as recalculated, the "Recalculated
Percentage"); (c) the total amount of the reductions in the Prepayment
Distribution Percentages of the Maturing
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Class or Classes pursuant to clause (a) of this sentence,
expressed as an aggregate percentage, shall be allocated
among the Non-Maturing Classes in proportion to their
respective Recalculated Percentages (the portion of such
aggregate reduction so allocated to any Non-Maturing Class,
the "Adjustment Percentage"); and (d) for purposes of such
Distribution Date, the Prepayment Distribution Percentage of
each Non-Maturing Class shall be equal to the sum of (1) the
Prepayment Distribution Percentage thereof, calculated in
accordance with the provisions in paragraph (ii) above as if
the Certificate Principal Balance of each Maturing Class had
not been reduced to zero, plus (2) the related Adjustment
Percentage.
Prepayment Distribution Trigger: The Class M-2 Prepayment Distribution
Trigger, Class M-3 Prepayment Distribution Trigger, Class B-1 Prepayment
Distribution Trigger, Class B-2 Prepayment Distribution Trigger or Class B-3
Prepayment Distribution Trigger.
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 related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Net Mortgage Rate on the amount of such Curtailment.
Prepayment Period: As to any Distribution Date, the calendar month
preceding the month of distribution.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or anyreplacement policy therefor referred to in Section 2.03(b)(iv)
and (v).
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is received in advance of its scheduled Due Date
and is not accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Program Guide: Collectively, the Seller 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
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related unreimbursed Advances and (ii) unpaid accrued interest at the Adjusted
Mortgage Rate (or at the Net Mortgage Rate in the case of a purchase made by the
Master Servicer) on the Stated Principal Balance thereof to the first day of the
month following the month of purchase from the Due Date to which interest was
last paid by the Mortgagor.
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, (i) have an outstanding principal balance, after
deduction of the principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than one Mortgage Loan
for a Deleted Mortgage Loan, an aggregate outstanding principal balance, after
such deduction), not in excess of the Stated Principal Balance of the Deleted
Mortgage Loan (the amount of any shortfall to be deposited by Residential
Funding in the Custodial Account in the month of substitution); (ii) have a
Mortgage Rate and a Net Mortgage Rate no lower than and not more than 1% per
annum higher than the Mortgage Rate and Net Mortgage Rate, respectively, of the
Deleted Mortgage Loan as of the date of substitution; (iii) have a Loan-to-Value
Ratio at the time of substitution no higher than that of the Deleted Mortgage
Loan at the time of substitution; (iv) have a remaining term to stated maturity
not greater than (and not more than one year less than) that of the Deleted
Mortgage Loan; (v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment Agreement; and
(vi) have a Spread 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
for the Class A-5 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: Fitch and Standard & Poor's with respect to the Class A
Certificates and Class R Certificates and Fitch with respect to the Class X-0,
Xxxxx X-0, Class M-3, Class B-1 and Class B-2 Certificates. If either 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) 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
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Certificateholders up to the last day of the month in which the Cash Liquidation
(or REO Disposition) occurred on the Stated Principal Balance of such Mortgage
Loan (or REO Property) outstanding during each Due Period that such interest was
not paid or advanced, minus (iii) the proceeds, if any, received during the
month in which such Cash Liquidation (or REO Disposition) occurred, to the
extent applied as recoveries of interest at the Net Mortgage Rate and to
principal of the Mortgage Loan, net of the portion thereof reimbursable to the
Master Servicer or any Subservicer with respect to related Advances or expenses
as to which the Master Servicer or Subservicer is entitled to reimbursement
thereunder but which have not been previously reimbursed. With respect to each
Mortgage Loan which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the object of a Debt Service Reduction, the
amount of such Debt Service Reduction.
Record Date: With respect to each Distribution Date, the close of
business on the last Business Day of the month next preceding the month in which
the related Distribution Date occurs.
Regular Certificate: Any of the Certificates other than a Class R
Certificate.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC Administrator: Residential Funding Corporation. If Residential
Funding Corporation is found by a court of competent jurisdiction to no longer
be able to fulfill its obligations as REMIC Administrator under this Agreement
the Master Servicer or Trustee acting as Master Servicer shall appoint a
successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
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.
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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) 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.
Request for Release: A request for release, the forms of which are
attached as Exhibit H hereto.
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.
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Company
and any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Department of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, 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.
Schedule of Discount Fractions: The schedule setting forth the Discount
Fractions with respect to the Discount Mortgage Loans, attached hereto as
Exhibit P.
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.
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Senior Accelerated Distribution Percentage: With respect to any
Distribution Date, the percentage indicated below:
Distribution Date
Senior Accelerated
Distribution Percentage
February 1997 through
January 2002...................................................
100%
February 2002 through
January 2003...................................................
Senior Percentage, plus 70% of the
Subordinate Percentage
February 2003 through
January 2004...................................................
Senior Percentage, plus 60% of the
Subordinate Percentage
February 2004 through
January 2005...................................................
Senior Percentage, plus 40% of the
Subordinate Percentage
February 2005 through
January 2006...................................................
Senior Percentage, plus 20% of the
Subordinate Percentage
February 2006 and
thereafter.....................................................
Senior Percentage
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
Class M and Class B 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
Class M Certificates and Class B 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 are
less than 10% of the sum of the Initial Certificate Principal Balances of the
Class M Certificates and Class B Certificates and (ii) that for any Distribution
Date on which the Senior Percentage is greater than the Original Senior
Percentage, the Senior Accelerated Distribution Percentage for such Distribution
Date shall be 100%. Notwithstanding the foregoing, upon the reduction of the
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aggregate Certificate Principal Balance of the Senior Certificates (other than
the Class A-4 Certificates) to zero, the Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificates: Any one of the Class A Certificates or Class R
Certificates.
Senior Percentage: As of any Distribution Date, the lesser of 100% and
a fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Senior Certificates (other than the
Certificate Principal Balance of the Class A-4 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 Discount Fraction of the Discount Mortgage Loans) immediately prior to
such Distribution Date.
Senior Principal Distribution Amount: As to any Distribution Date, the
lesser of (a) the balance of the Available Distribution Amount remaining after
the distribution of all amounts required to be distributed pursuant to Section
4.02(a)(i) and Section 4.02(a)(ii)(X) and (b) the sum of the amounts required to
be distributed to the Class A Certificateholders and Class R Certificateholders
on such Distribution Date pursuant to Section 4.02(a)(ii)(Y), (xvi) and (xvii).
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 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, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Sections 3.01, 3.08, 3.12(a) and 3.14, including, if the
Master Servicer or any Affiliate of the Master Servicer provides services such
as appraisals and brokerage services that are customarily provided by Persons
other than servicers of mortgage loans, reasonable compensation for such
services.
Servicing Fee: With respect to any Mortgage Loan and Distribution Date,
the fee payable monthly to the Master Servicer in respect of master servicing
compensation that accrues at an annual rate designated on the Mortgage Loan
Schedule as the "MSTR SERV FEE" for such Mortgage Loan, as may be adjusted with
respect to successor Master Servicers as provided in Section 7.02.
Servicing 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 Amount: As of any Distribution Date, an amount equal
to $651,194 minus the sum of (i) the aggregate amount of Special Hazard Losses
allocated solely to one or more
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specific Classes of Certificates in accordance with 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 the Trust Fund which has
the largest outstanding principal balance on the Distribution Date immediately
preceding such anniversary, (ii) the product of 1.00% multiplied by the
outstanding principal balance of all Mortgage Loans on the Distribution Date
immediately preceding such anniversary and (iii) the aggregate outstanding
principal balance (as of the immediately preceding Distribution Date) of the
Mortgage Loans in any single five-digit California zip code area with the
largest amount of Mortgage Loans by aggregate principal balance as of such
anniversary and (B) the greater of (i) the product of 0.50% multiplied by the
outstanding principal balance of all Mortgage Loans on the Distribution Date
immediately preceding such anniversary multiplied by a fraction, the numerator
of which is equal to the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of all of the Mortgage Loans secured by
Mortgaged Properties located in the State of California divided by the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of all of the Mortgage Loans, expressed as a percentage, and the
denominator of which is equal to 24.4% (which percentage is equal to the
percentage of Mortgage Loans initially secured by Mortgaged Properties located
in the State of California) and (ii) the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of the largest Mortgage Loan
secured by a Mortgaged Property located in the State of California.
The Special Hazard Amount may be further reduced by the Master Servicer
(including accelerating the manner in which coverage is reduced) provided that
prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Special Hazard Loss: Any Realized Loss not in excess of the cost of the
lesser of repair or replacement of a Mortgaged Property suffered by such
Mortgaged Property 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 Ratings Services, a division of
the XxXxxx-Xxxx Companies, or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, at any given time, (i) the Cut-off Date Principal Balance of the
Mortgage Loan, 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
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were received or with respect to which an Advance was made, and (b) all
Principal Prepayments with respect to such Mortgage Loan or REO Property, and
all Insurance Proceeds, Liquidation Proceeds and REO Proceeds, to the extent
applied by the Master Servicer as recoveries of principal in accordance with
Section 3.14 with respect to such Mortgage Loan or REO Property, in each case
which were distributed pursuant to Section 4.02 on any previous Distribution
Date, and (c) any Realized Loss allocated to Certificateholders with respect
thereto for any previous Distribution Date.
Subclass Notional Amount: As of any Distribution Date, with respect to
any Subclass of the Class A-5 Certificates issued pursuant to Section 5.01(c),
the aggregate Stated Principal Balance of the Mortgage Loans corresponding to
the Uncertificated REMIC Regular Interest Pool Strip Rates represented by such
Subclass immediately prior to such date.
Subclass: With respect to the Class A-5 Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent the
Uncertificated REMIC Regular Interest or Interests specified by the initial
Holder of the Class A-5 Certificates pursuant to Section 5.01(c).
Subordinate Percentage: As of any Distribution Date, 100% minus the
Senior Percentage as of such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and each Class of Class M Certificates and Class B
Certificates, (a) the sum of (i) the product of (x) the related Class M
Percentage or Class B 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); (ii) such Class's pro rata share, based on the
Certificate Principal Balance of each Class of Class M Certificates and Class B
Certificates then outstanding, of the principal collections described in Section
4.02(a)(ii)(Y)(B)(b) to the extent such collections are not otherwise
distributed to the Class A Certificates and Class R Certificates; (iii) the
product of (x) the related Prepayment Distribution Percentage and (y) the
aggregate of all Principal Prepayments in Full and Curtailments received in the
related Prepayment Period (other than the related Discount Fraction of such
Principal Payments in Full and Curtailments with respect to a Discount Mortgage
Loan) to the extent not payable to the Class A Certificates and Class R
Certificates; (iv) if such Class is the most senior Class of Certificates then
outstanding (as established in Section 4.05 hereof), any Excess Subordinate
Principal Amount for such Distribution Date; and (v) any amounts described in
clauses (i), (ii) and (iii) as determined for any previous Distribution Date,
that remain undistributed to the extent that such amounts are not attributable
to Realized Losses which have been allocated to a subordinate Class of Class M
or Class B Certificates minus (b) any Excess Subordinate Principal Amount not
payable to such Class on such Distribution Date pursuant to the definition
thereof; provided, however, that such amount shall in no event exceed the
outstanding Certificate Principal Balance of such Class of Certificates
immediately prior to such date.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is subject to a Subservicing Agreement.
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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.
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.
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 REMIC I and REMIC II due to their classification as REMICs 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, with respect to which a
REMIC election is to be made, consisting of:
(i) the Mortgage Loans and the related Mortgage Files,
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(ii) all payments on and collections in respect of the
Mortgage Loans due after the Cut-off Date as shall
be on deposit in the Custodial Account or in the
Certificate Account and identified as belonging to
the Trust Fund,
(iii) property which secured a Mortgage Loan and which has
been acquired for the benefit of the
Certificateholders by foreclosure or deed in lieu of
foreclosure, and
(iv) the hazard insurance policies and Primary Insurance
Policies, if any, and certain proceeds thereof.
Uncertificated Accrued Interest: With respect to each Distribution
Date, as to each Uncertificated REMIC Regular Interest, an amount equal to the
aggregate amount of Accrued Certificate Interest that would result under the
terms of the definition thereof on each such uncertificated interest, if the
Pass-Through Rate on such uncertificated interest was equal to the related
Uncertificated Pass-Through Rate and the notional amount of such uncertificated
interest was equal to the related Uncertificated Notional Amount; provided, that
any reduction in the amount of Accrued Certificate Interest resulting from the
allocation of Prepayment Interest Shortfalls, Realized Losses or other amounts
to the Class A-5 Certificateholders pursuant to Sections 4.02(a) and 4.05 hereof
shall be allocated to the Uncertificated REMIC Regular Interests pro rata in
accordance with the amount of interest accrued with respect to each related
Uncertificated Notional Amount and such Distribution Date.
Uncertificated Notional Amount: With respect to each Uncertificated
REMIC Regular Interest, the aggregate Stated Principal Balance of the related
Mortgage Loan.
Uncertificated Pass-Through Rate: With respect to each Uncertificated
REMIC Regular Interest, the related Uncertificated REMIC Regular Interest
Pool Strip Rate.
Uncertificated REMIC Regular Interest Pool Strip Rate: With respect
to each Uncertificated REMIC Regular Interest, the Pool Strip Rate for the
related Mortgage Loan.
Uncertificated REMIC Regular Interests: The 477 uncertificated partial
undivided beneficial ownership interests in the Trust Fund, each relating to a
particular Mortgage Loan, each having no principal balance, and each bearing
interest at the respective Uncertificated Pass-Through Rate on the
Uncertificated Notional Amount.
Uncertificated REMIC Regular Interests Distribution Amounts: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC Regular Interests for such Distribution
Date pursuant to Section 4.08(a).
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.
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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 or any political subdivision thereof, or an estate
whose income is subject to United States federal income tax regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States fiduciaries have the authority to control all substantial decisions of
the trust.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. 98.0% of all of the Voting
Rights shall be allocated among Holders of Certificates, other than the Class
A-5 Certificates and Class R Certificates, in proportion to the outstanding
Certificate Principal Balances of their respective Certificates; and 1% of all
Voting Rights shall be allocated among the Holders of the Class A-5 Certificates
(and any Subclass thereof); 1.0% of all Voting Rights shall be allocated among
Holders of the Class R Certificates allocated among the Certificates of each
such Class in accordance with their respective Percentage Interests.
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ARTICLE
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section Conveyance of Mortgage Loans.
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 on or before the Cut-off Date).
In connection with such assignment, except as set forth in
Section 2.01(c) 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):
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;
The original Mortgage with evidence of recording indicated thereon or a
copy of the Mortgage certified by the public recording office in which such
Mortgage has been recorded;
An original Assignment of the Mortgage to the Trustee with evidence of
recording indicated thereon or a copy of such assignment certified by the public
recording office in which such assignment has been recorded;
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 a copy of such assignment or assignments of the Mortgage
certified by the public recording office in which such assignment or assignments
have been recorded; and
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 certified by the
public recording office in which such document has been recorded.
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and (II) with respect to each Cooperative Loan so assigned:
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;
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;
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;
The original recognition agreement by the Cooperative of the interests of
the mortgagee with respect to the related Cooperative Loan;
The Security Agreement;
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;
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;
The original of each modification, assumption agreement or preferred loan
agreement, if any, relating to such Cooperative Loan; and
An executed UCC-1 financing statement showing the Master Servicer as
debtor, the Company as secured party and the Trustee as assignee and an executed
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.
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The Company may, in lieu of delivering the documents set
forth in Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii),
(ix) and (x) 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 below. Within ten Business
Days following the earlier of (i) the receipt of the original of each of the
documents or instruments set forth in Section 2.01(b)(I)(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.
On the Closing Date, the Master Servicer shall certify that it has in
its possession an original or copy of each of the documents referred to in
Section 2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and
(x) which has been delivered to it by the Company. Every six months after the
Closing Date, for so long as the Master Servicer is holding documents pursuant
to this Section 2.01(c), the Master Servicer shall deliver to (i) Moody's if it
is one of the Rating Agencies, (ii) the Trustee and (iii) each Custodian a
report setting forth the status of the documents which it is holding.
In the event that in connection with any Mortgage Loan the
Company cannot deliver the Mortgage, any assignment, modification, assumption
agreement or preferred loan agreement (or copy thereof certified by the public
recording office) with evidence of recording thereon concurrently with the
execution and delivery of this Agreement solely because of 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, the Company shall deliver or cause to be delivered to
the Trustee or the respective Custodian a true and correct photocopy 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 in states where, in the opinion of counsel
acceptable to the Trustee and the Master Servicer, such recording is not
required to protect the Trustee's interests in the Mortgage Loan against the
claim of any subsequent transferee or any successor to or creditor of the
Company or the originator of such Mortgage Loan 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 certified by the public recording
office) with evidence of recording indicated thereon upon receipt thereof from
the public recording office or from the related Subservicer. In connection with
its servicing of
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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.
Any of the items set forth in Sections 2.01(b)(I)(iv) and (v) and
(II)(vi) and (vii) and that may be delivered as a copy rather than the original
may be delivered in microfiche form.
It is intended that the conveyances by the Company to the
Trustee of the Mortgage Loans as provided for in this Section 2.01 be construed
as a sale by the Company to the Trustee of the Mortgage Loans for the benefit of
the Certificateholders. Further, it is not intended that any such conveyance be
deemed to be a pledge of the Mortgage Loans by the Company to the Trustee to
secure a debt or other obligation of the Company. However, in the event that the
Mortgage Loans 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, then it is intended that (a) this Agreement
shall also be deemed to 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 Sections
2.01 and 2.06 shall be deemed to be (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 (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, Cooperative Lease, any insurance policies
and all other documents in the related Mortgage File and (ii) with respect to
each Mortgage Loan other than a Cooperative Loan, the related Mortgage Note, the
Mortgage, any insurance policies and all other documents in the related Mortgage
File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with
the terms thereof and (C) any and all general intangibles consisting of, arising
from or relating to any of the foregoing, and 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,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to the
Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction (including, without limitation, Section 9-305, 8-313 or
8-321 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, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
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39
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
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. Without limiting the
generality of the foregoing, the 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 as evidenced by an Officer's 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 or (3) any transfer of any interest of
Residential Funding or the Company in any Mortgage Loan.
The Master Servicer hereby acknowledges the receipt by it of
cash in an amount equal to $144,994 (the "Initial Monthly Payment Fund"),
representing scheduled principal amortization and interest at the Net Mortgage
Rate for the Due Date in February 1997, for those Mortgage Loans for which the
Trustee will not be entitled to receive such payment. 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 Distribution Date in February 1997. Notwithstanding anything herein to
the contrary, the Initial Monthly Payment Fund shall not be an asset of the
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 the REMIC, (2) it shall be owned by the Seller and (3)
amounts transferred by the 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.
Section 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) through (iii) above (except that for purposes of such acknowledgment
only, a Mortgage Note may be endorsed in blank and an Assignment of Mortgage may
be 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, 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
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40
received, and that such documents relate to the Mortgage Loans identified on the
Mortgage Loan Schedule, as supplemented, that have been conveyed to it. 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. The
Trustee or Custodian (such Custodian being so obligated under a Custodial
Agreement) agrees to review each Mortgage File delivered to it pursuant to
Section 2.01(c) within 45 days after receipt thereof to ascertain that all
documents required to be delivered pursuant to such Section have been received,
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, as supplemented, that have been conveyed to it.
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 in
any material respect, 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.
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. 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 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 Representations, Warranties and Covenants of the Master Servicer
and the Company.
The Master Servicer hereby represents and warrants to the
Trustee for the benefit of the Certificateholders that:
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;
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 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;
This Agreement, assuming due authorizat ion, 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;
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;
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;
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;
No information, certificate of an officer, statement furnished in writing
or report delivered to the Company, any Affiliate of the Company or the Trustee
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42
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; and
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.
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 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.
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):
No Mortgage Loan is one month or more 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;
The information set forth in Exhibit F hereto with respect to each Mortgage
Loan or the Mortgage Loans, as the case may be, is true and correct in all
material respects at the date or dates respecting which such information is
furnished;
The Mortgage Loans are fully-amortizing, fixed-rate mortgage loans with
level Monthly Payments due on the first day of each month and terms to maturity
at origination or modification of not more than 15 years;
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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 (a)
at least 25% of the principal balance of the Mortgage Loan at origination if the
Loan-to-Value Ratio is between 95.00% and 90.01%, (b) at least 12% of such
balance if the Loan-to-Value Ratio is between 90.00% and 85.01% and (c) at least
6% of such balance if the Loan-to-Value Ratio is between 85.00% and 80.01%. To
the best of the Company's knowledge, each such Primary Insurance Policy is in
full force and effect and the Trustee is entitled to the benefits thereunder;
The issuers of the Primary Insurance Policies are insurance companies whose
claims-paying abilities are currently acceptable to each Rating Agency;
No more than 0.8% of the Mortgage Loans by aggregate Stated Principal
Balance as of the Cut-off Date are secured by Mortgaged Properties located in
any one zip code area in California and no more than 0.8% of the Mortgage Loans
by aggregate Stated Principal Balance as of the Cut-off Date are secured by
Mortgaged Properties located in any one zip code area outside California. Two of
the Mortgage Loans, representing approximately 0.2% of the Mortgage Loans by
aggregate Stated Principal Balance as of the Cut-off Date, are Cooperative
Loans;
If the improvements securing a Mortgage Loan are in a federally designated
special flood hazard area, flood insurance in the amount required under the
Program Guide covers the related Mortgaged Property (either by coverage under
the federal flood insurance program or by coverage by private insurers);
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; None of the Mortgage Loans were
underwritten under a reduced loan documentation program requiring no income
verification and no asset verification; 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;
None of the Mortgage Loans were Buydown Mortgage Loans;
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);
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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;
With respect to a Mortgage Loan that is a Cooperative Loan, the Cooperative
Stock that is pledged as security for the Mortgage Loan is held by a person as a
tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code);
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;
Interest on each Mortgage Loan is calculated on the basis of a 360-day year
consisting of twelve 30-day months; and
One of the Mortgage Loans contains in the related Mortgage File a Destroyed
Mortgage Note.
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) 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); provided, however, that in the
event of a breach of the representation and warranty set forth in Section
2.03(b)(xii), the party discovering such breach shall give such notice within
five days of discovery. Within 90 days of its discovery or its receipt of notice
of breach, the Company shall either (i) cure such breach in all material
respects or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that the Company
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the omission or defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days
from the date such breach was discovered. Any such substitution shall be
effected by the Company under the same terms and conditions as provided in
Section 2.04 for substitutions by Residential Funding. It is understood and
agreed that the obligation of the Company to cure such breach or to so purchase
or substitute for any Mortgage Loan as to which such a breach has occurred and
is continuing shall constitute the sole remedy respecting such breach available
to the Certificateholders or the Trustee on behalf
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45
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 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 applicable to a Mortgage Loan. Insofar as the Assignment
Agreement or such Seller's Agreement relates to the representations and
warranties made by Residential Funding or the related Seller in respect of such
Mortgage Loan and any remedies provided thereunder for any breach of such
representations and warranties, such right, title and interest may be enforced
by the Master Servicer on behalf of the Trustee and the Certificateholders. Upon
the discovery by the Company, the Master Servicer, the Trustee or any Custodian
of a breach of any of the representations and warranties made in a Seller's
Agreement or 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 or substitution must occur within 90 days from the date the breach was
discovered. In the event that Residential Funding elects to substitute a
Qualified Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant
to this Section 2.04, Residential Funding shall deliver to the Trustee for the
benefit of the Certificateholders with respect to such Qualified Substitute
Mortgage Loan or Loans, the original Mortgage Note, the Mortgage, an Assignment
of the Mortgage in recordable form, and such other documents and agreements as
are required by Section 2.01, with the Mortgage Note endorsed as required by
Section 2.01. No substitution will be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall not be
part of the Trust Fund and will be retained by the Master Servicer and remitted
by the Master Servicer to Residential Funding on the next succeeding
Distribution Date. For the month of substitution, distributions to the
Certificateholders will include the Monthly Payment due on a Deleted Mortgage
Loan for such month and thereafter Residential Funding shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan. The Master
Servicer shall amend or cause to be amended the Mortgage Loan Schedule, for the
benefit of the
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Certificateholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualified Substitute Mortgage Loan or Loans and the Master
Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon
such substitution, the Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement and the related Subservicing Agreement in
all respects, 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,
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 the
Trust Fund to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (or in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing shall constitute the sole
remedy respecting such breach available to the Certificateholders or the Trustee
on behalf of Certificateholders. If the Master Servicer is Residential Funding,
then the Trustee shall also have the right to give the notification and require
the purchase or substitution provided for in the second preceding paragraph in
the event of such a breach of a representation or warranty made by Residential
Funding in the Assignment Agreement. In connection with the purchase of or
substitution for any such Mortgage Loan by Residential Funding, the Trustee
shall assign to Residential Funding all of the 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 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.
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ARTICLE
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section Master Servicer to Act as Servicer.
The Master Servicer shall service and administer the
Mortgage Loans in accordance with the terms of this Agreement and the respective
Mortgage Loans and shall have full power and authority, acting alone or through
Subservicers as provided in Section 3.02, to do any and all things which it may
deem necessary or desirable in connection with such servicing and
administration. Without limiting the generality of the foregoing, the Master
Servicer in its own name or in the name of a Subservicer is hereby authorized
and empowered by the Trustee when the Master Servicer or the Subservicer, as the
case may be, believes it appropriate in its best judgment, to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, or of consent to assumption or modification in connection
with a proposed conveyance, or of assignment of any Mortgage and Mortgage Note
in connection with the repurchase of a Mortgage Loan and all other comparable
instruments, or with respect to the modification or re-recording of a Mortgage
for the purpose of correcting the Mortgage, the subordination of the lien of the
Mortgage in favor of a public utility company or government agency or unit with
powers of eminent domain, the taking of a deed in lieu of foreclosure, the
completion of judicial or non-judicial foreclosure, the conveyance of a
Mortgaged Property to an 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. 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 the Trust Fund
to fail to qualify as such under the Code. The Trustee shall furnish the Master
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Master Servicer to service and administer the Mortgage
Loans. The Trustee shall not be liable for any action taken by the Master
Servicer or any Subservicer pursuant to such powers of attorney. In servicing
and administering any Nonsubserviced Mortgage Loan, the Master Servicer shall,
to the extent not inconsistent with this Agreement, comply with the Program
Guide as if it were the originator of such Mortgage Loan and had retained the
servicing rights and obligations in respect thereof. In connection with
servicing and administering the Mortgage Loans, the Master Servicer and any
Affiliate of the Master Servicer (i) may perform services such as appraisals and
brokerage services that are not customarily provided by servicers of mortgage
loans, and shall be entitled to reasonable compensation therefor in accordance
with Section 3.10 and (ii) may, at its own discretion and on behalf of the
Trustee, obtain credit information in the form of a "credit score" from a credit
repository.
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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).
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 Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations .
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 G. With the approval of the Master
Servicer, a Subservicer may delegate its servicing obligations to third-party
servicers, but such Subservicer will remain obligated under the related
Subservicing Agreement. The Master Servicer and a Subservicer may enter into
amendments thereto or a different form of Subservicing Agreement, and the form
referred to or included in the Program Guide is merely provided for information
and shall not be deemed to limit in any respect the discretion of the Master
Servicer to modify or enter into different Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of either this Agreement or the Program Guide in
a manner which would materially and adversely affect the interests of the
Certificateholders.
As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustee, the Certificateholders shall use its
best reasonable efforts to enforce the obligations of each Subservicer under the
related Subservicing Agreement and of each Seller under the related Seller's
Agreement, to the extent that the non-performance of any such obligation would
have a
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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.
Section Successor Subservicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Servicer or any Affiliate of
Residential Funding acts as servicer, it will not assume liability for the
representations and warranties of the Subservicer which it replaces. If the
Master Servicer enters into a Subservicing Agreement with a successor
Subservicer, the Master Servicer shall use reasonable efforts to have the
successor Subservicer assume liability for the representations and warranties
made by the terminated Subservicer in respect of the related Mortgage Loans and,
in the event of any such assumption by the successor Subservicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Subservicer from liability for such representations and warranties.
Section 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,
the Certificateholders for the servicing and administering of the Mortgage Loans
in accordance with the provisions of Section 3.01 without diminution of such
obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer or the Company
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. The Master
Servicer shall be entitled to enter into any agreement with a Subservicer or
Seller for indemnification of the Master Servicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification.
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Section 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, 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 Assumption or Termination of Subservicing Agreements by
Trustee.
In the event the Master Servicer shall for any reason no
longer be the master servicer (including by reason of an Event of Default), the
Trustee, 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.
The Master Servicer shall, upon request of the Trustee but
at the expense of the Master Servicer, deliver to the assuming party all
documents and records relating to each Subservicing Agreement and the Mortgage
Loans then being serviced and an accounting of amounts collected and held by it
and otherwise use its best efforts to effect the orderly and efficient transfer
of each Subservicing Agreement to the assuming party.
Section Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account.
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. In the event of any such arrangement, the Master Servicer shall make
timely advances on the related Mortgage Loan
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during the scheduled period in accordance with the amortization schedule of such
Mortgage Loan without modification thereof by reason of such arrangements unless
otherwise agreed to by the Holders of the Classes of Certificates affected
thereby; provided, however, that no such extension shall be made if any advance
would be a Nonrecoverable Advance. Consistent with the terms of this Agreement,
the Master Servicer may also waive, modify or vary any term of any Mortgage Loan
or consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in the Master Servicer's
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Certificateholders (taking into
account any estimated Realized Loss that might be 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), 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. 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.
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):
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;
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;
Insurance Proceeds and Liquidation Proceeds (net of any related expenses of
the Subservicer);
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All proceeds of any Mortgage Loans purchased pursuant to Section 2.02,
2.03, 2.04 or 4.07 and all amounts required to be deposited in connection with
the substitution of a Qualified Substitute Mortgage Loan pursuant to Section
2.03 or 2.04;
Any amounts required to be deposited pursuant to Section 3.07(c) or 3.21;
and
All amounts transferred from the Certificate Account to the Custodial
Account in accordance with Section 4.02(a).
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.
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.
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The Master Servicer shall give notice to the Trustee and the
Company of any change in the location of the Custodial Account and the location
of the Certificate Account prior to the use thereof.
Section Subservicing Accounts; Servicing Accounts.
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.
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 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).
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
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the payment of taxes, assessments, hazard insurance premiums, Primary Insurance
Policy premiums, if applicable, or comparable items for the account of the
Mortgagors. Each Servicing Account shall satisfy the requirements for a
Subservicing Account and, to the extent permitted by the Program Guide or as is
otherwise acceptable to the Master Servicer, may also function as a Subservicing
Account. Withdrawals of amounts related to the Mortgage Loans from the Servicing
Accounts may be made only to effect timely payment of taxes, assessments, hazard
insurance premiums, Primary Insurance Policy premiums, if applicable, or
comparable items, to reimburse the Master Servicer or Subservicer out of related
collections for any payments made pursuant to Sections 3.11 (with respect to the
Primary Insurance Policy) and 3.12(a) (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required, to Mortgagors on balances in the Servicing Account or to
clear and terminate the Servicing Account at the termination of this Agreement
in accordance with Section 9.01 or in accordance with the Program Guide. As part
of its servicing duties, the Master Servicer shall, and the Subservicers will,
pursuant to the Subservicing Agreements, be required to pay to the Mortgagors
interest on funds in this account to the extent required by law.
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 Access to Certain Documentation and Information Regarding
the Mortgage Loans.
In the event that compliance with this Section 3.09 shall make any
Class of Certificates legal for investment by federally insured savings and loan
associations, the Master Servicer shall provide, or cause the Subservicers to
provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices designated by the Master
Servicer. The Master Servicer shall permit such representatives to photocopy any
such documentation and shall provide equipment for that purpose at a charge
reasonably approximating the cost of such photocopying to the Master Servicer.
Section
Permitted Withdrawals from the Custodial Account.
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:
to make deposits into the Certificate
Account in the amounts and in the manner provided for in Section 4.01;
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to reimburse itself or the related Subservicer for previously
unreimbursed advances or 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 particular Mortgage Loans (including,
for this purpose, REO Proceeds, Insurance Proceeds, Liquidation
Proceeds and proceeds from the purchase of a Mortgage Loan pursuant to
Section 2.02, 2.03, 2.04 or 4.07) which represent (A) Late Collections
of Monthly Payments for which any such advance was made in the case of
Subservicer Advances or Advances pursuant to Section 4.04 and (B)
recoveries of amounts in respect of which such advances were made in
the case of Servicing Advances;
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 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;
to pay to itself as additional servicing compensation any interest or
investment income earned on funds deposited in the Custodial Account
that it is entitled to withdraw pursuant to Section 3.07(c);
to pay to itself as additional servicing compensation any Foreclosure
Profits, and any amounts remitted by Subservicers as interest in respect of
Curtailments pursuant to Section 3.08(b);
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;
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 or any Advance reimbursable to the Master Servicer pursuant to Section
4.02(a)(iii);
to reimburse itself or the Company for expenses incurred by and
reimbursable to it or the Company pursuant to Sections 3.13, 3.14(c), 6.03,
10.01 or otherwise, or in connection with enforcing any repurchase, substitution
or indemnification obligation of any Seller (other than an Affiliate of the
Company) pursuant to the related Seller's Agreement;
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to reimburse itself for amounts expended by it (a) pursuant to Section 3.14
in good faith in connection with the restoration of property damaged by an
Uninsured Cause, and (b) in connection with the liquidation of a Mortgage Loan
or disposition of an REO Property to the extent not otherwise reimbursed
pursuant to clause (ii) or (viii) above; and
to withdraw any amount deposited in the Custodial Account that was not
required to be deposited therein pursuant to Section 3.07.
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.
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 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 Maintenance of the Primary Insurance Policies; Collections
Thereunder.
The Master Servicer shall not take, or permit any
Subservicer to take, any action which would result in non-coverage under any
applicable Primary Insurance Policy of any loss which, but for the actions of
the Master Servicer or Subservicer, would have been covered thereunder. To the
extent coverage is available, the Master Servicer shall keep or cause to be kept
in full force and effect each such Primary Insurance Policy until the principal
balance of the related Mortgage Loan secured by a Mortgaged Property is reduced
to 80% or less of the Appraised Value in the case of such a Mortgage Loan having
a Loan-to-Value Ratio at origination in excess of 80%, provided that such
Primary Insurance Policy was in place as of the Cut-off Date and the Company had
knowledge of such Primary Insurance Policy. The Master Servicer shall be
entitled to cancel or permit the discontinuation of any Primary Insurance Policy
as to any Mortgage Loan, if the Stated Principal Balance of the Mortgage Loan is
reduced below an amount equal to 80% of the appraised value of the related
Mortgaged Property as determined in any appraisal thereof after the Closing
Date, or if the Loan-to-Value Ratio is reduced below 80% as a result of
principal payments on the Mortgage Loan after the Closing Date. In the event
that the Company gains knowledge that as of the Closing Date, a Mortgage Loan
had a Loan-to-Value Ratio at origination in excess of 80% and is not the subject
of a Primary Insurance Policy (and was not included in any exception to the
representation in Section 2.03(b)(iv)) and that such Mortgage Loan has a current
Loan-to-Value Ratio in excess of 80% then the Master Servicer shall use its
reasonable efforts to obtain and maintain a Primary Insurance Policy to the
extent that such
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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.
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, Certificateholders claims to the Insurer under
any Primary Insurance Policies, in a timely manner in accordance with such
policies, and, in this regard, to take or cause to be taken such reasonable
action as shall be necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Section 3.07, any
Insurance Proceeds collected by or remitted to the Master Servicer under any
Primary Insurance Policies shall be deposited in the Custodial Account, subject
to withdrawal pursuant to Section 3.10.
Section Maintenance of Fire Insurance and Omissions and Fidelity Coverage.
The Master Servicer shall cause to be maintained for each
Mortgage Loan (other than a Cooperative Loan) fire insurance with extended
coverage in an amount which is equal to the lesser of the principal balance
owing on such Mortgage Loan or 100 percent of the insurable value of the
improvements; provided, however, that such coverage may not be less than the
minimum amount required to fully compensate for any loss or damage on a
replacement cost basis. To the extent it may do so without breaching the related
Subservicing Agreement, the Master Servicer shall replace any Subservicer that
does not cause such insurance, to the extent it is available, to be maintained.
The Master Servicer shall also cause to be maintained on property acquired upon
foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan (other than a
Cooperative Loan), fire insurance with extended coverage in an amount which is
at least equal to the amount necessary to avoid the application of any
co-insurance clause contained in the related hazard insurance policy. Pursuant
to Section 3.07, any amounts collected by the Master Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the Master Servicer's normal servicing procedures)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 3.10. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating monthly distributions to the
Certificateholders be added to the amount owing under the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs shall
be recoverable by the Master Servicer out of related late payments by the
Mortgagor or out of Insurance Proceeds and Liquidation Proceeds to the extent
permitted by Section 3.10. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage Loan other than pursuant
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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).
In the event that the Master Servicer shall obtain and maintain a
blanket fire insurance policy with extended coverage insuring against hazard
losses on all of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its obligations as set forth in the first sentence of this Section
3.12(a), it being understood and agreed that such policy may contain a
deductible clause, in which case the Master Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 3.12(a) and there shall have
been a loss which would have been covered by such policy, deposit in the
Certificate Account the amount not otherwise payable under the blanket policy
because of such deductible clause. Any such deposit by the Master Servicer shall
be made on the Certificate Account Deposit Date next preceding the Distribution
Date which occurs in the month following the month in which payments under any
such policy would have been deposited in the Custodial Account. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
Master Servicer agrees to present, on behalf of itself, the Trustee, the
Certificateholders claims under any such blanket policy.
The Master Servicer shall obtain and maintain at its own
expense and keep in full force and effect throughout the term of this Agreement
a blanket fidelity bond and an errors and omissions insurance policy covering
the Master Servicer's officers and employees and other persons acting on behalf
of the Master Servicer in connection with its activities under this Agreement.
The amount of coverage shall be at least equal to the coverage that would be
required by FNMA or FHLMC, whichever is greater, with respect to the Master
Servicer if the Master Servicer were servicing and administering the Mortgage
Loans for FNMA or FHLMC. In the event that any such bond or policy ceases to be
in effect, the Master Servicer shall obtain a comparable replacement bond or
policy from an issuer or insurer, as the case may be, meeting the requirements,
if any, of the Program Guide and acceptable to the Company. Coverage of the
Master Servicer under a policy or bond obtained by an Affiliate of the Master
Servicer and providing the coverage required by this Section 3.12(b) shall
satisfy the requirements of this Section 3.12(b).
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Section Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments.
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:
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
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.
Subject to the Master Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 3.13(a), in any case in
which a Mortgaged Property is to be conveyed to a Person by a Mortgagor, and
such Person is to enter into an assumption or modification agreement or
supplement to the Mortgage Note or Mortgage which requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master Servicer
is authorized, subject to the requirements of the sentence next following, to
execute and deliver, on behalf of the Trustee, the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments as
are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person; provided, however,
none of such terms and requirements shall both (a) constitute a "significant
modification" effecting an exchange or reissuance of such Mortgage Loan under
the Code (or final, temporary or proposed Treasury Regulations promulgated
thereunder) and (b) cause either the Trust Fund 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 constitute "contributions" after the
start-up date under the REMIC Provisions. The Master Servicer shall execute and
deliver such documents only if it reasonably determines that (i) its execution
and delivery thereof will not conflict with or violate any terms of this
Agreement or cause the unpaid balance and interest on the Mortgage Loan to be
uncollectible in whole or in part, (ii) any required consents of insurers under
any Required Insurance Policies have been obtained and (iii) subsequent to the
closing of the transaction involving the assumption or transfer (A) the Mortgage
Loan will continue to be secured by a first mortgage lien pursuant to the terms
of the Mortgage, (B) such transaction will not adversely affect the coverage
under any Required Insurance Policies, (C) the Mortgage Loan will fully amortize
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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.
The Master Servicer or the related Subservicer, as the case
may be, shall be entitled to approve a request from a Mortgagor for a partial
release of the related Mortgaged Property, the granting of an easement thereon
in favor of another Person, any alteration or demolition of the related
Mortgaged Property or other similar matters if it has determined, exercising its
good faith business judgment in the same manner as it would if it were the owner
of the related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected thereby
and that the Trust Fund would 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 the 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.
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 O, in
form and substance satisfactory to the Trustee and Master Servicer, providing
the following: (i) that the Mortgage Loan is secured by Mortgaged Property
located in a jurisdiction in which an assignment in lieu of satisfaction is
required to preserve lien priority, minimize or avoid mortgage recording taxes
or otherwise comply with, or facilitate a refinancing under, the laws of such
jurisdiction; (ii) that the substance of the assignment is, and is intended to
be, a refinancing of such Mortgage Loan and that the form of the transaction is
solely to comply with, or facilitate the transaction under, such local laws;
(iii) that the Mortgage Loan following the proposed assignment will have a rate
of interest at least 0.25 percent below or above the rate of interest on such
Mortgage Loan prior to such proposed assignment; and (iv) that such assignment
is at the request of the borrower under the related Mortgage Loan. Upon approval
of an assignment in lieu of satisfaction with respect to any Mortgage Loan, the
Master Servicer shall receive cash in an amount equal to the unpaid principal
balance of and accrued interest on such Mortgage Loan and the Master Servicer
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shall treat such amount as a Principal Prepayment in Full with respect to such
Mortgage Loan for all purposes hereof.
Section Realization Upon Defaulted Mortgage Loans.
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. 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 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. 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 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
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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.
In the event that title to any Mortgaged Property is
acquired by the Trust Fund as an REO Property by foreclosure or by deed in lieu
of foreclosure, the deed or certificate of sale shall be issued to the Trustee
or to its nominee on behalf of Certificateholders. Notwithstanding any such
acquisition of title and cancellation of the related Mortgage Loan, such REO
Property shall (except as otherwise expressly provided herein) be considered to
be an Outstanding Mortgage Loan held in the Trust Fund until such time as the
REO Property shall be sold. Consistent with the foregoing for purposes of all
calculations hereunder so long as such REO Property shall be considered to be an
Outstanding Mortgage Loan it shall be assumed that, notwithstanding that the
indebtedness evidenced by the related Mortgage Note shall have been discharged,
such Mortgage Note and the related amortization schedule in effect at the time
of any such acquisition of title (after giving effect to any previous
Curtailments and before any adjustment thereto by reason of any bankruptcy or
similar proceeding or any moratorium or similar waiver or grace period) remain
in effect.
In the event that the Trust Fund acquires any REO Property
as aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer on behalf of the Trust Fund shall dispose of
such REO Property within two years after its acquisition by the Trust Fund for
purposes of Section 860G(a)(8) of the Code or, at the expense of the Trust Fund,
request, more than 60 days before the day on which the two-year grace period
would otherwise expire, an extension of the two-year 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 two-year
period will not result in the imposition of taxes on "prohibited transactions"
as defined in Section 860F of the Code or cause the Trust Fund to fail to
qualify as a REMIC at any time that any Certificates are outstanding, in which
case the Trust Fund may continue to hold such REO Property (subject to any
conditions contained in such Opinion of Counsel). The Master Servicer shall be
entitled to be reimbursed from the Custodial Account for any costs incurred in
obtaining such Opinion of Counsel, as provided in Section 3.10. Notwithstanding
any other provision of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used by
or on behalf of the Trust Fund in such a manner or pursuant to any terms that
would (i) cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code or (ii) subject the Trust
Fund to the imposition of any federal income taxes on the income earned from
such REO Property, including any taxes imposed by reason of Section 860G(c) of
the Code, unless the Master Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such taxes.
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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 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)(provided that if any such Class of Certificates to which such
Realized Loss was allocated is no longer outstanding, such subsequent recovery
shall be distributed to the persons who were the Holders of such Class of
Certificates when it was retired); 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.
Section Trustee to Cooperate; Release of Mortgage Files.
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 H
requesting delivery to it of the Mortgage File. Upon receipt of such
certification and request, the Trustee shall promptly 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. 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.
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 H hereto, 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
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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.
The Trustee or the Master Servicer on the Trustee's behalf
shall execute and deliver to the Master Servicer, if necessary, any court
pleadings, requests for trustee's sale or other documents necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity. Together with such documents or pleadings (if signed by the
Trustee), the Master Servicer shall deliver to the Trustee a certificate of a
Servicing Officer requesting that such pleadings or documents be executed by the
Trustee and certifying as to the reason such documents or pleadings are required
and that the execution and delivery thereof by the Trustee will not invalidate
any insurance coverage under any Required Insurance Policy or invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section Servicing and Other Compensation; Compensating Interest.
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 the related Net Mortgage Rate, the Master Servicer shall be
entitled to retain therefrom and to pay to itself and/or the related Subservicer
any Servicing Fee or Subservicing Fee considered to be accrued but unpaid.
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.
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
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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.
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.
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); second, to any
income or gain realized from any investment of funds held in the Custodial
Account or the Certificate Account to which the Master Servicer is entitled
pursuant to Sections 3.07(c) or 4.01(b), respectively; and third, to any amounts
of servicing compensation to which the Master Servicer is entitled pursuant to
Section 3.10(a)(v) or (vi). 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); (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) and (iii) will not withdraw from the Custodial Account any such amount
of servicing compensation to which it is entitled pursuant to Section 3.10(a)(v)
or (vi).
Section 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 Annual Statement as to Compliance.
The Master Servicer will deliver to the Company and the Trustee on or
before March 31 of each year, beginning with the first March 31 that occurs at
least six months after the Cut-off Date, 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
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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.
Section Annual Independent Public Accountants' Servicing Report.
On or before March 31 of each year, beginning with the first March 31
that occurs at least six months after the Cut-off Date, 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 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
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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 Administration of Buydown Funds.
With respect to any Buydown Mortgage Loan, the Subservicer
has deposited Buydown Funds in an account that satisfies the requirements for a
Subservicing Account (the "Buydown Account"). The Master Servicer shall cause
the Subservicing Agreement to require that upon receipt from the Mortgagor of
the amount due on a Due Date for each Buydown Mortgage Loan, the Subservicer
will withdraw from the Buydown Account the predetermined amount that, when added
to the amount due on such date from the Mortgagor, equals the full Monthly
Payment and transmit that amount in accordance with the terms of the
Subservicing Agreement to the Master Servicer together with the related payment
made by the Mortgagor or advanced by the Subservicer.
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.
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ARTICLE
PAYMENTS TO CERTIFICATEHOLDERS
Section Certificate Account.
The Master Servicer on behalf of the Trustee shall establish
and maintain a Certificate Account in which the Master Servicer shall cause to
be deposited on behalf of the Trustee on or before 2:00 P.M. New York time on
each Certificate Account Deposit Date by wire transfer of immediately available
funds an amount equal to the sum of (i) any Advance for the immediately
succeeding Distribution Date, (ii) any amount required to be deposited in the
Certificate Account pursuant to Section 3.12(a), (iii) any amount required to be
deposited in the Certificate Account pursuant to Section 3.16(e) or Section
4.07, (iv) any amount required to be paid pursuant to Section 9.01 and (v) all
other amounts constituting the Available Distribution Amount for the immediately
succeeding Distribution Date.
The Trustee shall, upon written request from the Master
Servicer, invest or cause the institution maintaining the Certificate Account to
invest the funds in the Certificate Account in Permitted Investments designated
in the name of the Trustee for the benefit of the Certificateholders, which
shall mature not later than the Business Day next preceding the Distribution
Date next following the date of such investment (except that (i) any investment
in the institution with which the Certificate Account is maintained may mature
on such Distribution Date and (ii) any other investment may mature on such
Distribution Date if the Trustee shall advance funds on such Distribution Date
to the Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
distributions on the Certificates) and shall not be sold or disposed of prior to
maturity. 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 Distributions.
On each Distribution Date (x) the Master Servicer on behalf
of the Trustee or (y) the Paying Agent appointed by the Trustee, shall
distribute to the Master Servicer, in the case of a distribution pursuant to
Section 4.02(a)(iii), the amount required to be distributed to the Master
Servicer or a Subservicer pursuant to Section 4.02(a)(iii), 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 in
immediately available funds (by wire transfer or otherwise) to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder has so notified the Master Servicer or the
Paying Agent, as the case may be, or, if such Certificateholder has not so
notified the Master Servicer or the Paying Agent by the Record Date, by check
mailed to such Certificateholder at the address of such Holder appearing
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in the Certificate Register such Certificateholder's share (which share (A) with
respect to each Class of Certificates (other than the Class A-5 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
the Class A-5 Certificates, shall be equal to the amount (if any) distributed
pursuant to Section 4.02(a)(i) below to the Holder of the Class A-5 Certificate
or to each Holder of a Subclass thereof, as applicable) of the following
amounts, in the following order of priority (subject to the provisions of
Section 4.02(b)), in each case to the extent of the Available Distribution
Amount:
to the Class A Certificateholders (other than the Class A-4
Certificateholders), Class R Certificateholders on a pro rata basis based on
Accrued Certificate Interest payable on such Certificates with respect to such
Distribution Date, Accrued Certificate Interest on such Classes of Certificates
(or Subclasses, if any, with respect to the Class A-5 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);
(X) to the Class A-4 Certificateholders, the Class A-4 Principal
Distribution Amount; and
(Y) to the Class A Certificateholders (other than Class A-4
Certificateholders) and Class R Certificateholders, in the priorities and
amounts set forth in Section 4.02(b)(ii) through (iv) and Section 4.02(c)
through (g), the sum of the following (applied to reduce the Certificate
Principal Balances of such Class A Certificates or Class R Certificates, as
applicable):
the Senior Percentage for such Distribution Date times the sum of the
following: the principal portion of each
Monthly Payment due during the related Due Period on
each Outstanding Mortgage Loan (other than the
related Discount Fraction of the principal portion
of such payment with respect to a Discount Mortgage
Loan), whether or not received on or prior to the
related Determination Date, minus the principal
portion of any Debt Service Reduction (other than
the related Discount Fraction of the principal
portion of such Debt Service Reductions with respect
to each Discount Mortgage Loan) which together with
other Bankruptcy Losses exceeds the Bankruptcy
Amount;
the Stated Principal Balance of any
Mortgage Loan repurchased during the related
Prepayment Period (or deemed to have been so
repurchased in accordance with Section 3.07(b))
pursuant to Section 2.02, 2.03, 2.04 or 4.07 and the
amount of any shortfall deposited in the Custodial
Account in connection with the substitution of a
Deleted Mortgage Loan pursuant to Section 2.03 or
2.04 during the related
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Prepayment Period (other than the related Discount
Fraction of such Stated Principal Balance or
shortfall with respect to a Discount Mortgage Loan);
and
the principal portion of all other
unscheduled collections (other than Principal
Prepayments in Full and Curtailments and amounts
received in connection with a Cash Liquidation or
REO Disposition of a Mortgage Loan described in
Section 4.02(a)(ii)(Y)(B), including without
limitation Insurance Proceeds, Liquidation Proceeds
and REO Proceeds) received during the related
Prepayment Period (or deemed to have been so
received in accordance with Section 3.07(b)) to the
extent applied by the Master Servicer as recoveries
of principal of the related Mortgage Loan pursuant
to Section 3.14 (other than the related Discount
Fraction of the principal portion of such
unscheduled, collections, with respect to a Discount
Mortgage Loan);
with respect to each Mortgage Loan for which
a Cash Liquidation or a REO Disposition occurred during the
related Prepayment Period (or was deemed to have occurred
during such period in accordance with Section 3.07(b)) and
did not result in any Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary
Losses, an amount equal to the lesser of (a) the Senior
Percentage for such Distribution Date times the Stated
Principal Balance of such Mortgage Loan (other than the
related Discount Fraction of such Stated Principal Balance,
with respect to a Discount Mortgage Loan) and (b) the Senior
Accelerated Distribution Percentage for such Distribution
Date times the related unscheduled collections (including
without limitation Insurance Proceeds, Liquidation Proceeds
and REO Proceeds) to the extent applied by the Master
Servicer as recoveries of principal of the related Mortgage
Loan pursuant to Section 3.14 (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));
the Senior Accelerated Distribution
Percentage for such Distribution Date times the aggregate of
all Principal Prepayments in Full and Curtailments received
in the related Prepayment Period (other than the related
Discount Fraction of such Principal Prepayments in Full and
Curtailments, with respect to a Discount Mortgage Loan);
any Excess Subordinate Principal Amount for such Distribution
Date;
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
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Losses which have been allocated to the Class M Certificates or Class B
Certificates;
if the Certificate Principal Balances of the Class M Certificates and Class
B Certificates have not been reduced to zero, to the Master Servicer or a
Subservicer, by remitting for deposit to the Custodial Account, to the extent of
and in reimbursement for any Advances or Subservicer Advances previously made
with respect to any Mortgage Loan or REO Property which remain unreimbursed in
whole or in part following the Cash Liquidation or REO Disposition of such
Mortgage Loan or REO Property, minus any such Advances that were made with
respect to delinquencies that ultimately constituted Excess Special Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses;
to the Holders of the Class M-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
to the Holders of the Class M-1 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates for
such Distribution Date, minus (y) the amount of any Class A-4 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) are insufficient
therefor, applied in reduction of the Certificate Principal Balance of the Class
M-1 Certificates;
to the Holders of the Class M-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date, except as
provided below;
to the Holders of the Class M-2 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates for
such Distribution Date, minus (y) the amount of any Class A-4 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) are insufficient therefor,
applied in reduction of the Certificate Principal Balance of the Class M-2
Certificates;
to the Holders of the Class M-3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date, except as
provided below;
to the Holders of the Class M-3 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates for
such Distribution Date minus (y) the amount of any Class A-4 Collection
Shortfalls for such Distribution Date or remaining unpaid for all previous
Distribution Dates, to the extent
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the amounts available pursuant to clause (x) of Sections 4.02(a)(xi),
(xiii), (xiv) and (xv) are insufficient therefor, applied in reduction
of the Certificate Principal Balance of the Class M-3 Certificates;
to the Holders of the Class B-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date, except as
provided below; to the Holders of the Class B-1 Certificates, an amount equal to
(x)
the Subordinate Principal Distribution Amount for such Class of
Certificates for such Distribution Date minus (y) the amount of any
Class A-4 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) are insufficient therefor, applied in reduction of the Certificate
Principal Balance of the Class B-1 Certificates;
to the Holders of the Class B-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date, except as
provided below;
to the Holders of the Class B-2 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates for
such Distribution Date minus (y) the amount of any Class A-4 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) are insufficient therefor, applied in
reduction of the Certificate Principal Balance of the Class B-2 Certificates;
to the Holders of the Class B-3 Certificates, an amount equal to (x) the
Accrued Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below minus (y) the amount of any Class
A-4 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) are insufficient therefor;
to the Holders of the Class B-3 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates for
such Distribution Date minus (y) the amount of any Class A-4 Collection
Shortfalls for such Distribution Date or remaining unpaid for all previous
Distribution Dates applied in reduction of the Certificate Principal Balance of
the Class B-3 Certificates; to the Class A Certificateholders and Class R
Certificateholders in the priority set forth in Section 4.02(b), the portion, if
any, of the Available Distribution Amount remaining after the foregoing
distributions, applied to reduce the Certificate Principal Balances of such
Class A and Class R Certificates, but in no event more than the
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aggregate of the outstanding Certificate Principal Balances of each
such Class of Class A and Class R Certificates, and thereafter, to each
Class of Class M Certificates then outstanding beginning with such
Class with the lowest numerical designation, any portion of the
Available Distribution Amount remaining after the Class A Certificates
and Class R Certificates have been retired, applied to reduce the
Certificate Principal Balance of each such Class of Class M
Certificates, but in no event more than the outstanding Certificate
Principal Balance of each such Class of Class M Certificates; and
thereafter to each such Class of Class B Certificates then outstanding
beginning with such Class with the lowest numerical designation, any
portion of the Available Distribution Amount remaining after the Class
M Certificates have been retired, applied to reduce the Certificate
Principal Balance of each such Class of Class B Certificates, but in no
event more than the outstanding Certificate Principal Balance of each
such Class of Class B Certificates; and
to the Class R Certificateholders, the balance, if any, of the Available
Distribution Amount.
Notwithstanding the foregoing, on any Distribution Date, with respect
to the Class of Class B Certificates outstanding on such Distribution Date with
the highest numerical designation, or in the event the Class B Certificates are
no longer outstanding, the Class of Class M Certificates then outstanding with
the highest numerical designation, or in the event the Class B Certificates and
Class M Certificates are no longer outstanding, the Class A and Class R
Certificates, Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date will be distributable only to the extent that such
unpaid Accrued Certificate Interest was attributable to interest shortfalls
relating to Nonrecoverable Advances as determined by the Master Servicer with
respect to the related Mortgage Loan where such Mortgage Loan has not yet been
the subject of a Cash Liquidation or REO Disposition.
Distributions of principal on the Class A Certificates
(other than the Class A-5 Certificates) and Class R Certificates on each
Distribution Date occurring prior to the occurrence of the Credit Support
Depletion Date will be made as follows:
first, to the Class A-4 Certificates, until the Certificate Principal
Balance thereof is reduced to zero, an amount (the "Class A-4 Principal
Distribution Amount") equal to the aggregate of:
the related Discount Fraction of the
principal portion of each Monthly Payment on each Discount
Mortgage Loan due during the related Due Period, whether or
not received on or prior to the related Determination Date,
minus the Discount Fraction of the principal portion of any
related Debt Service Reduction which together with other
Bankruptcy Losses exceeds the Bankruptcy Amount;
the related Discount Fraction of the
principal portion of all unscheduled collections on each
Discount Mortgage Loan received during the preceding
calendar month (other than amounts received in connection
with a Cash
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Liquidation or REO Disposition of a Discount Mortgage Loan
described in clause (C) below), including Principal
Prepayments in Full, Curtailments and repurchases (including
deemed repurchases under Section 3.07(b)) of Discount
Mortgage Loans (or, in the case of a substitution of a
Deleted Mortgage Loan, the Discount Fraction of the amount
of any shortfall deposited in the Custodial Account in
connection with such substitution);
in connection with the Cash Liquidation or
REO Disposition of a Discount Mortgage Loan that did not
result in any Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses or Extraordinary Losses, an
amount equal to the lesser of (1) the applicable Discount
Fraction of the Stated Principal Balance of such Discount
Mortgage Loan immediately prior to such Distribution Date
and (2) the aggregate amount of the collections on such
Mortgage Loan to the extent applied as recoveries of
principal;
any amounts allocable to principal for any
previous Distribution Date (calculated pursuant to clauses
(A) through (C) above) that remain undistributed; and
the amount of any Class A-4 Collection
Shortfalls for such Distribution Date and the amount of any
Class A-4 Collection Shortfalls remaining unpaid for all
previous Distribution Dates, but only to the extent of the
Eligible Funds for such Distribution Date;
the balance of the Senior Principal Distribution Amount, if any, remaining
after the distributions described in clause 4.02(b)(i) above shall be
distributed to the Class R Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
the balance of the Senior Principal Distribution Amount, if any, remaining
after the distribution described in clause (ii) above, shall be distributed to
the Class A-3 Certificates in reduction of the Certificate Principal Balance
thereof, up to an amount equal to the sum of the following:
(X) the Class A-3 Certificates' pro rata share
(based on the aggregate Certificate Principal Balance
thereof relative to the aggregate Certificate Principal
Balance of the Senior Certificates (other than the Class A-4
Certificates) of the aggregate of the collections described
in clauses 4.02(a)(ii)(Y)(A), (B) and (E) (other than any
amounts relating to clause (C) and (D) included in clause
(E)) with application of the Senior Percentage or Senior
Accelerated Distribution Percentage; and
(Y) the Lockout Prepayment Percentage of the Class
A-3 Certificates' pro rata share (based on the aggregate
Certificate Principal Balance thereof relative to the
aggregate Certificate Principal Balance of the Senior
Certificates
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(other than the Class A-4 Certificates)) of the collections
described in clause 4.02(a)(ii)(Y)(C) with application of
the Senior Accelerated Distribution Percentage;
provided that if the aggregate of the amounts set forth in clauses
4.02(a)(ii)(Y)(A) through (E) is more than the balance of the Available
Distribution Amount remaining after the Senior Interest Distribution
Amount and the Class A-4 Principal Distribution Amount have been
distributed, the amounts paid to the Class A-3 Certificates pursuant to
this clause (iii) shall be reduced by an amount equal to the Class A-3
Certificates' pro rata share (based on the aggregate Certificate
Principal Balance thereof relative to the aggregate Certificate
Principal Balance of the Senior Certificates (other than the Class A-4
Certificates)) of such difference;
the balance, if any, of the Senior Principal Distribution Amount remaining
after the distributions described in clauses 4.02(b)(ii) and 4.02(b)(iii) above
shall be distributed as follows:
(A) first, to the Class A-1 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; and
(B) second, to the Class A-2 Certificates until the Certificate Principal
Balance thereof has been reduced to zero;
provided that if on any Distribution Date the Certificate Principal Balances of
the Senior Certificates (other than the Class A-3 Certificates and Class A-4
Certificates) have been reduced to zero, clause (iii) above shall no longer
apply and 100% of the Senior Principal Distribution Amount remaining after the
retirement of such Certificates for such Distribution Date shall be distributed
to the Class A-3 Certificates until the Certificate Principal Balance has been
reduced to zero.
On or after the occurrence of the Credit Support Depletion
Date all priorities relating to distributions as described above in respect of
principal among the various classes of Senior Certificates (other than the Class
A-4 Certificates) will be disregarded and an amount equal to the Discount
Fraction of the principal portion of scheduled or unscheduled payments received
or advanced in respect of Discount Mortgage Loans will be distributed to the
Class A-4 Certificates and the Senior Principal Distribution Amount will be
distributed among all Classes of Senior Certificates (other than the Class A-4
Certificates) pro rata in accordance with their respective outstanding
Certificate Principal Balances and the amount set forth in Section 4.02(a)(i)
will be distributed as set forth therein.
After reduction of the Certificate Principal Balances of the
Senior Certificates (other than the Class A-4 Certificates) to zero but prior to
the Credit Support Depletion Date, the Senior Certificates (other than the Class
A-4 Certificates) will be entitled to no further distributions of principal
thereon and the Available Distribution Amount will be paid solely to the holders
of the Class A-4, Class M and Class B Certificates.
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In addition to the foregoing distributions, with respect to
any Mortgage Loan that was previously the subject of a Cash Liquidation or an
REO Disposition that resulted in a Realized Loss, in the event that within two
years of the date on which such Realized Loss was determined to have occurred
the Master Servicer receives amounts, which the Master Servicer reasonably
believes to represent subsequent recoveries (net of any related liquidation
expenses), or determines that it holds surplus amounts previously reserved to
cover estimated expenses, specifically related to such Mortgage Loan (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), the
Master Servicer shall distribute such amounts to the Class or Classes to which
such Realized Loss was allocated, if applicable (with the amounts to be
distributed allocated among such Classes in the same proportions as such
Realized Loss was allocated), and within each such Class to the
Certificateholders of record as of the Record Date immediately preceding the
date of such distribution (or if such Class of Certificates is no longer
outstanding, to the Certificateholders of record at the time that such Realized
Loss was allocated); provided that no such distribution to any Class of
Certificates of subsequent recoveries related to a Mortgage Loan shall exceed,
either individually or in the aggregate and together with any other amounts paid
in reimbursement therefor, the amount of the related Realized Loss that was
allocated to such Class of Certificates. Notwithstanding the foregoing, no such
distribution shall be made with respect to the Certificates of any Class to the
extent that either (i) such Class was protected against the related Realized
Loss pursuant to any instrument or fund established under Section 12.01(e) or
(ii) such Class of Certificates has been deposited into a separate trust fund or
other structuring vehicle and separate certificates or other instruments
representing interests therein have been issued in one or more classes, and any
of such separate certificates or other instruments was protected against the
related Realized Loss pursuant to any limited guaranty, payment obligation,
irrevocable letter of credit, surety bond, insurance policy or similar
instrument or a reserve fund, or a combination thereof. Any amount to be so
distributed shall be distributed by the Master Servicer to the
Certificateholders of record as of the Record Date immediately preceding the
date of such distribution (i) with respect to the Certificates of any Class
(other than the Class A-5 Certificates), on a pro rata basis based on the
Percentage Interest represented by each Certificate of such Class as of such
Record Date and (ii) with respect to the Class A-5 Certificates, to the Class
A-5 Certificates or any Subclass thereof to which the related Realized Loss (or
portion thereof) was previously allocated. Any amounts to be so distributed
shall not be remitted to or distributed from the trust Fund, and shall
constitute subsequent recoveries with respect to Mortgage Loans that are no
longer assets of the Trust Fund.
Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Company or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
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Except as otherwise provided in Section 9.01, if the Master
Servicer anticipates that a final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Master Servicer
shall, no later than the Determination Date in the month of such final
distribution, notify the Trustee and the Trustee shall, no later than two (2)
Business Days after such Determination Date, mail on such date to each Holder of
such Class of Certificates a notice to the effect that: (i) the Trustee
anticipates that the final distribution with respect to such Class of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trustee or as otherwise
specified therein, and (ii) no interest shall accrue on such Certificates from
and after the end of the prior calendar month. In the event that
Certificateholders required to surrender their Certificates pursuant to Section
9.01(c) do not surrender their Certificates for final cancellation, the Trustee
shall cause funds distributable with respect to such Certificates to be
withdrawn from the Certificate Account and credited to a separate escrow account
for the benefit of such Certificateholders as provided in Section 9.01(d).
Section Statements to Certificateholders.
Concurrently with each distribution charged to the
Certificate Account and with respect to each Distribution Date the Master
Servicer shall forward to the Trustee and the Trustee shall forward by mail to
each Holder, and the Company a statement setting forth the following information
as to each Class of Certificates to the extent applicable:
(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;
the amount of such distribution to Holders of such Class of Certificates
allocable to interest;
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;
the amount of any Advance by the Master Servicer pursuant to Section 4.04;
the number and Pool Stated Principal Balance of the Mortgage Loans after
giving effect to the distribution of principal on such Distribution Date;
the aggregate Certificate Principal Balance of each Class of Certificates,
and each of the Senior, Class M and Class B Percentages, 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;
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the related Subordinate Principal Distribution Amount and Prepayment
Distribution Percentage, if applicable;
on the basis of the most recent reports furnished to it by
Subservicers, the number and aggregate principal balances of Mortgage Loans
that are delinquent (A) one month, (B) two months and (C) three months and the
number and aggregate principal balance of Mortgage Loans that are in
foreclosure;
the number, aggregate principal balance and book value of any REO
Properties; 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;
the Special Hazard Amount, Fraud Loss Amount and Bankruptcy Amount as of
the close of business on such Distribution Date and a description of any change
in the calculation of such amounts;
the weighted average Pool Strip Rate for such Distribution Date and the
Pass-Through Rate on the Class A-5 Certificates and each Subclass, if any,
thereof;
the occurrence of the Credit Support Depletion Date and the Accretion
Termination Date;
the Senior Accelerated Distribution Percentage applicable to such
distribution;
the Senior Percentage for such Distribution Date;
the aggregate amount of Realized Losses for such Distribution Date;
the aggregate amount of any recoveries on previously foreclosed
loans from Sellers due to a breach of representation or warranty;
the weighted average remaining term to maturity of the Mortgage
oans after giving effect to the amounts distributed on such Distribution Date;
the weighted average Mortgage Rates of the Mortgage Loans after
giving effect to the amounts distributed on such Distribution Date; and
the occurrence of the Senior Principal Adjustment 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. In addition to the
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statement provided to the Trustee as set forth in this Section 4.03(a), the
Master Servicer shall provide to any manager of a trust fund consisting of some
or all of the Certificates, upon reasonable request, such additional information
as is reasonably obtainable by the Master Servicer at no additional expense to
the Master Servicer.
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 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.
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.
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.
Section Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer.
Prior to the close of business on the Business Day next
succeeding each Determination Date, the Master Servicer shall furnish a written
statement to the Trustee, any Paying Agent and the Company (the information in
such statement to be made available to Certificateholders 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.
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
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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 Debt Service Reductions or reductions in the amount of
interest collectable from the Mortgagor pursuant to the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended, or similar legislation or regulations then
in effect, on the Outstanding Mortgage Loans as of the related Due Date, which
Monthly Payments were delinquent as of the close of business as of the related
Determination Date; provided that no Advance shall be made if it would be a
Nonrecoverable Advance, (ii) withdraw from amounts on deposit in the Custodial
Account and deposit in the Certificate Account all or a portion of the Amount
Held for Future Distribution in discharge of any such Advance, or (iii) make
advances in the form of any combination of (i) and (ii) aggregating the amount
of such Advance. Any portion of the Amount Held for Future Distribution so used
shall be replaced by the Master Servicer by deposit in the Certificate Account
on or before 11:00 A.M. New York time on any future Certificate Account Deposit
Date to the extent that funds attributable to the Mortgage Loans that are
available in the Custodial Account for deposit in the Certificate Account on
such Certificate Account Deposit Date shall be less than payments to
Certificateholders required to be made on the following Distribution Date. The
Master Servicer shall be entitled to use any Advance made by a Subservicer as
described in Section 3.07(b) that has been deposited in the Custodial Account on
or before such Distribution Date as part of the Advance made by the Master
Servicer pursuant to this Section 4.04. The amount of any reimbursement pursuant
to Section 4.02(a)(iii) 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 a certificate of a Servicing
Officer delivered to the Seller and the Trustee.
In the event that the Master Servicer determines as of the Business Day
preceding any Certificate Account Deposit Date that it will be unable to deposit
in the Certificate Account an amount equal to the Advance required to be made
for the immediately succeeding Distribution Date, it shall give notice to the
Trustee of its inability to advance (such notice may be given by telecopy), not
later than 3:00 P.M., New York time, on such Business Day, specifying the
portion of such amount that it will be unable to deposit. Not later than 3:00
P.M., New York time, on the Certificate Account Deposit Date the Trustee shall,
unless by 12:00 Noon, New York time, on such day the Trustee shall have been
notified in writing (by telecopy) that the Master Servicer shall have directly
or indirectly deposited in the Certificate Account such portion of the amount of
the Advance as to which the Master Servicer shall have given notice pursuant to
the preceding sentence, pursuant to Section 7.01, (a) terminate all of the
rights and obligations of the Master Servicer under this Agreement in accordance
with Section 7.01 and (b) assume the rights and obligations of the Master
Servicer hereunder, including the obligation to deposit in the Certificate
Account an amount equal to the Advance for the immediately succeeding
Distribution Date.
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The Trustee shall deposit all funds it receives pursuant to this
Section 4.04 into the Certificate Account.
Section Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine
the total amount of Realized Losses, if any, that resulted from any Cash
Liquidation, Debt Service Reduction, Deficient Valuation or REO Disposition that
occurred during the related Prepayment Period. The amount of each Realized Loss
shall be evidenced by an Officers' Certificate. All Realized Losses, other than
Excess Special Hazard Losses, Extraordinary Losses, Excess Bankruptcy Losses or
Excess Fraud Losses, shall be allocated as follows: first, to the Class B-3
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; second, to the Class B-2 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; third, to the Class B-1 Certificates
until the Certificate Principal Balance thereof has been reduced to zero;
fourth, to the Class M-3 Certificates until the Certificate Principal Balance
thereof has been reduced to zero; fifth, to the Class M-2 Certificates until the
Certificate Principal Balance thereof has been reduced to zero; sixth, to the
Class M-1 Certificates until the Certificate Principal Balance thereof has been
reduced to zero; and, thereafter, if such Realized Losses are on a Discount
Mortgage Loan, to the Class A-4 Certificates, in an amount equal to the Discount
Fraction of the principal portion thereof, and the remainder of such Realized
Losses and the entire amount of such Realized Losses on Non-Discount Mortgage
Loans among all the Class A Certificates (other than the Class A-4
Certificates), Class R Certificates and, in respect of the interest portion of
such Realized Losses, on a pro rata basis, as described below. Any Excess
Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses and
Extraordinary Losses on Non-Discount Mortgage Loans will be allocated among the
Class A (other than the Class A-4 Certificates), Class M, Class B and Class R
Certificates, and, in respect of the interest portion of such Realized Losses,
on a pro rata basis, as described below. The principal portion of such losses on
Discount Mortgage Loans will be allocated to the Class A-4 Certificates in an
amount equal to the related Discount Fraction thereof, and the remainder of such
losses on Discount Mortgage Loans will be allocated among the Class A
Certificates (other than the Class A-4 Certificates), Class M, Class B and Class
R Certificates on a pro rata basis, as described below.
As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date in the case of the principal portion of a Realized Loss or based on the
Accrued Certificate Interest thereon payable on such Distribution Date (without
regard to any Compensating Interest for such Distribution Date) in the case of
an interest portion of a Realized Loss. Except as provided in the following
sentence, any allocation of the principal portion of Realized Losses (other than
Debt Service Reductions) to a Class of Certificates shall be made by reducing
the Certificate Principal Balance thereof by the amount so allocated, which
allocation shall be deemed to have occurred on such Distribution Date. Any
allocation of the principal portion of Realized Losses (other than Debt Service
Reductions) to the Class B Certificates or, after the Certificate Principal
Balances of the Class B Certificates have been reduced to zero, to
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the Class of Class M Certificates then outstanding with the highest numerical
designation shall be made by operation of the definition of "Certificate
Principal Balance" and by operation of the provisions of Section 4.02(a).
Allocations of the interest portions of Realized Losses shall be made by
operation of the definition of "Accrued Certificate Interest" and 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 (other than the Class A-5 Certificates)
evidenced thereby. All Realized Losses and all other losses allocated to the
Class A-5 Certificates hereunder will be allocated to the Class A-5 Certificates
and, if any Subclasses thereof have been issued pursuant to Section 5.01(c),
such Realized Losses and other losses shall be allocated among the Subclasses of
such Class in proportion to the respective amounts of Accrued Certificate
Interest payable on such Distribution Date that would have resulted absent such
reductions.
Section Reports of Foreclosures and Abandonment of Mortgaged Property.
The Master Servicer or the Subservicers shall file information returns
with respect to the receipt of mortgage interests received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P,
respectively, of the Code, and deliver to the Trustee an Officers' Certificate
on or before March 31 of each year stating that such reports have been filed.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
Section 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, the Trustee or the Trust Fund
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. Notwithstanding anything to the contrary in this Section 4.07,
the Master Servicer shall continue to service any such Mortgage Loan after the
date of such purchase in accordance with the terms of this Agreement and, if any
Realized Loss with respect to such Mortgage Loan occurs, allocate such Realized
Loss to the Class or Classes of Certificates that would have borne such Realized
Loss in accordance with the terms hereof as if such Mortgage Loan had not been
so purchased. For purposes of this Agreement, a payment of the Purchase Price by
the Master Servicer pursuant to this Section 4.07 will be viewed as an
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advance, and the amount of any Realized Loss shall be recoverable pursuant to
the provisions for the recovery of unreimbursed Advances under Section 4.02(a)
or, to the extent not recoverable under such provisions, as a Nonrecoverable
Advance as set forth herein.
Section Distributions on the Uncertificated REMIC Regular Interests.
On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as the holder of the Uncertificated REMIC Regular
Interests, Uncertificated Accrued Interest on the Uncertificated REMIC Regular
Interests for such Distribution Date, plus any Uncertificated Accrued Interest
thereon remaining unpaid from any previous Distribution Date.
In determining from time to time the Uncertificated REMIC
Regular Interest Distribution Amounts, Realized Losses allocated to the Class
A-5 Certificates under Section 4.05 shall be deemed allocated to Uncertificated
REMIC Regular Interests on a pro rata basis based on the Uncertificated Accrued
Interest for the related Distribution Date.
On each Distribution Date, the Trustee shall be deemed to
distribute from the Trust Fund, in the priority set forth in Sections 4.02(a),
to the Class A-5 Certificates, the amounts distributable thereon from the
Uncertificated REMIC Regular Interest Distribution Amounts deemed to have been
received by the Trustee from the Trust Fund under this Section 4.08. The amount
deemed distributable hereunder with respect to the Class A-5 Certificates shall
equal 100% of the amounts payable with respect to the Uncertificated REMIC
Regular Interests.
Notwithstanding the deemed distributions on the
Uncertificated REMIC Regular Interests described in this Section 4.07,
distributions of funds from the Certificate Account shall be made only in
accordance with Section 4.02.
ARTICLE
THE CERTIFICATES
Section The Certificates.
The Class A, Class M, Class B and Class R Certificates,
respectively, shall be substantially in the forms set forth in Exhibits A, B, C
and D and shall, on original issue, be executed and delivered by the Trustee to
the Certificate Registrar for authentication and delivery to or upon the order
of the Company and in the case of any Certificates issued on the Closing Date,
upon receipt by the Trustee or one or more Custodians of the documents specified
in Section 2.01. The Class A-1, Class A-2, Class A-3, Class A-4 and Class M-1
Certificates shall be issuable in minimum dollar denominations of $25,000 and
integral multiples of $1 (in the case of the Class M-1 Certificates, $1,000) in
excess thereof. The Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3
Certificates shall be issuable in minimum dollar denominations of $250,000 and
integral multiples of $1,000 in excess thereof), except that one Certificate of
the Class A-4, Class B-1, Class B-2 and Class B-3 Certificates may be issued in
a denomination equal
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to the denomination set forth as follows for such Class or the sum of such
denomination and an integral multiple of $1,000:
Class A-4 $ 25,098.92
Class B-1 $250,500.00
Class B-2 $250,400.00
Class B-3 $250,721.16
The Class A-5 Certificates and Class R Certificates shall be issuable
in minimum denominations of not less than a 20% Percentage Interest (except as
provided in Section 5.01(c) with respect to the Class A-5 Certificates);
provided, however, that one Class R Certificate will be issuable to Residential
Funding as "tax matters person" pursuant to Section 10.01(c) and (e) in a
minimum denomination representing a Percentage Interest of not less than 0.01%.
Each Subclass of the Class A-5 Certificates shall be issuable in minimum
denominations of not less than a 100% Percentage Interest, except as provided in
Section 5.01(c).
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.
The Class A Certificates, other than the Class A-4 and Class
A-5 Certificates, shall initially be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as provided
below, registration of such Certificates may not be transferred by the Trustee
except to another Depository that agrees to hold such Certificates for the
respective Certificate Owners with Ownership Interests therein. The
Certificateholders shall hold their respective Ownership Interests in and to
each of the Class A Certificates, other than the Class A-4 Certificates and
Class A-5 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
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Depository as the authorized representative of the Certificate Owners with
respect to the respective Classes of Book-Entry Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the respective Classes of Book-Entry Certificates shall
be limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of any Class of Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with respect
to different Certificate Owners. The Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If (i)(A) the Company advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Company is unable to locate a
qualified successor or (ii) the Company at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Definitive Certificates. Neither the
Company, the Master Servicer nor the Trustee shall be liable for any actions
taken by the Depository or its nominee, including, without limitation, any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Company in connection with the issuance of the Definitive
Certificates pursuant to this Section 5.01 shall be deemed to be imposed upon
and performed by the Trustee, and the Trustee and the Master Servicer shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
From time to time, Residential Funding, as the initial Holder
of the Class A-5 Certificates may exchange such Holder's Class A-5 Certificates
for Subclasses of Class A-5 Certificates to be issued under this Agreement by
delivering a "Request for Exchange" substantially in the form attached hereto as
Exhibit Q executed by an authorized officer, which Subclasses, in the aggregate,
will represent the Uncertificated REMIC Regular Interests corresponding to the
Class A-5 Certificates so surrendered for exchange. Any Subclass so issued shall
bear a numerical designation commencing with Class A-5-1 and continuing
sequentially thereafter, and will evidence ownership of the Uncertificated REMIC
I Regular Interest or Interests specified in writing by such initial Holder to
the Trustee. 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
transfer or exchange shall ( is do 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.
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Section Registration of Transfer and Exchange of Certificates.
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.
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 and aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class (or
Subclass) and aggregate Percentage Interest, upon surrender of the Certificates
to be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange the Trustee shall execute and the Certificate Registrar
shall authenticate and deliver the Certificates of such Class which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
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. Except as provided in Section 5.02(e), 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; 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 an Affiliate of the Company and (B) the Trustee
shall require the transferee to execute a representation letter, substantially
in the form of Exhibit J-1 hereto, and the Trustee shall require the transferor
to execute a representation letter, substantially in the form of Exhibit K
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
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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 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 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 L
attached hereto (or such other form as the Company in its sole discretion deems
acceptable), which investment letter shall not be an expense of the Trustee, the
Company or the Master Servicer, and which investment letter states that, among
other things, such transferee (A) is a "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A, and (B) is aware
that the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule
144A. The Holder of any such Certificate desiring to effect any such transfer,
sale, pledge or other disposition shall, and does hereby agree to, indemnify the
Trustee, the Company, the Master Servicer and the Certificate Registrar against
any liability that may result if the transfer, sale, pledge or other disposition
is not so exempt or is not made in accordance with such federal and state laws.
In the case of any Class M, Class B or Class R Certificate
presented for registration in the name of any Plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code (or comparable provisions of any subsequent enactments), any Person
acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring such Certificates with "plan assets" of a Plan within the meaning of
the Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101, the
prospective transferee shall provide the Trustee, the Company and the Master
Servicer with either (i) an Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee, the Company and the Master Servicer to
the effect that the purchase of Certificates is permissible under applicable
law, will not constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Trustee, the Company or the
Master Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Company or the Master Servicer or (ii) in lieu of such
Opinion of Counsel, a certification in the form of Exhibit J-2 to this Agreement
(with respect to any Class M Certificate or Class B Certificate or a
certification to the effect set forth in paragraph 5 of Exhibit I-1 (with
respect to any Class R Certificate) which the Trustee may rely upon without
further inquiry or investigation; provided, however, that such Opinion of
Counsel or certification will not be required in connection with the initial
transfer of any such Certificate by the Company or any Affiliate thereof to an
Affiliate of the Company (in which case, the Company or any Affiliate thereof
shall have deemed to have represented that such Affiliate is not a Plan or a
Person investing "plan assets" of any Plan) 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.
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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:
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.
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 I-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 I-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.
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.
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 I-2.
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 Regulation Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring
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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."
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 I-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.
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 Regulation 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.
If any purported Transferee shall become a
Holder of a Class R Certificate in violation of the
restrictions in this Section 5.02(f) and to the extent that
the retroactive restoration of the rights of the Holder of
such Class R Certificate as described in clause (iii)(A) above
shall be invalid, illegal or unenforceable, then the Master
Servicer shall have the right, without notice to the holder or
any prior holder of such Class R Certificate, to sell such
Class R Certificate to a purchaser selected by the Master
Servicer on such terms as the Master Servicer may choose. Such
purported Transferee shall promptly endorse and deliver each
Class R Certificate in accordance with the instructions of the
Master Servicer. Such purchaser may be the Master Servicer
itself or any Affiliate of the Master Servicer. The proceeds
of such sale, net of the commissions (which may include
commissions payable to the Master Servicer or its Affiliates),
expenses and taxes due, if any, will be remitted by the Master
Servicer to such purported Transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be
determined in the sole discretion of the Master Servicer, and
the Master Servicer shall not be liable to any Person having
an Ownership Interest in a Class R Certificate as a result of
its exercise of such discretion.
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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.
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:
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 Class A, Class M, Class B or Class R 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
subject to Section 10.01(f), a certificate
of the Master Servicer stating that the Master Servicer has
received an Opinion of Counsel, in form and substance
satisfactory to the Master Servicer, to the effect that such
modification, addition to or absence of such provisions will
not cause the Trust Fund to cease to qualify as a REMIC and
will not cause (x) the Trust Fund 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.
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.
All Certificates surrendered for transfer and exchange shall
be destroyed by the Certificate Registrar.
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Section 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 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Company, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name 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,
and neither the Company, the Master Servicer, the Trustee, the Certificate
Registrar nor any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary except as
provided in Section 5.02(f).
Section Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to the Certificateholders pursuant to Section 4.02. In the event
of any such appointment, on or prior to each Distribution Date the Master
Servicer on behalf of the Trustee shall deposit or cause to be deposited with
the Paying Agent a sum sufficient to make the payments to the Certificateholders
in the amounts and in the manner provided for in Section 4.02, such sum to be
held in trust for the benefit of the Certificateholders.
The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Any sums so
held by such Paying Agent shall be held only in Eligible Accounts to the extent
such sums are not distributed to the Certificateholders on the date of receipt
by such Paying Agent.
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Section Optional Purchase of Certificates.
On any Distribution Date on which the Pool Stated Principal
Balance is less than ten percent of the Cut-off Date Principal Balance of the
Mortgage Loans, either the Master Servicer or the Company 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 one month's Accrued Certificate Interest thereon
and any previously unpaid Accrued Certificate Interest.
The Master Servicer or the Company, as applicable, shall give
the Trustee not less than 60 days' prior notice of the Distribution Date on
which the Master Servicer or the Company, as applicable, anticipates that it
will purchase the Certificates pursuant to Section 5.06(a). Notice of any such
purchase, specifying the Distribution Date upon which the Holders may surrender
their Certificates to the Trustee for payment in accordance with this Section
5.06, shall be given promptly by the Master Servicer or the Company, as
applicable, by letter to Certificateholders (with a copy to the Certificate
Registrar and each Rating Agency) mailed not earlier than the 15th day and not
later than the 25th day of the month next preceding the month of such final
distribution, specifying:
the Distribution Date upon which purchase of the Certificates is
anticipated to be made upon presentation and surrender of such Certificates at
the office or agency of the Trustee therein designated,
the purchase price therefor, if known, and
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified.
If either the Master Servicer or the Company gives the notice specified above,
the Master Servicer or the Company, as applicable, shall deposit in the
Certificate Account before the Distribution Date on which the purchase pursuant
to Section 5.06(a) is to be made, in immediately available funds, an amount
equal to the purchase price for the Certificates computed as provided above.
Upon presentation and surrender of the Certificates to be
purchased pursuant to Section 5.06(a) by the Holders thereof, the Trustee shall
distribute to such Holders an amount equal to the outstanding Certificate
Principal Balance thereof plus the sum of one month's Accrued Certificate
Interest thereon and any previously unpaid Accrued Certificate Interest with
respect thereto.
In the event that any Certificateholders do not surrender
their Certificates on or before the Distribution Date on which a purchase
pursuant to this Section 5.06 is to be made, the Trustee shall on such date
cause all funds in the Certificate Account deposited therein by the Master
Servicer or the Company, as applicable, pursuant to Section 5.06(b) to be
withdrawn therefrom and deposited in a separate escrow account for the benefit
of such Certificateholders,
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and the Master Servicer or the Company, as applicable, 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 or the
Company, as applicable, 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 5.06, the Trustee shall pay to the Master
Servicer or the Company, as applicable, all amounts distributable to the Holders
thereof and the Master Servicer or the Company, as applicable, 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 or the Company, as applicable, as a result of such
Certificateholder's failure to surrender its Certificate(s) for payment in
accordance with this Section 5.06. Any Certificate that is not surrendered on
the Distribution Date on which a purchase pursuant to this Section 5.06 occurs
as provided above will be deemed to have been purchased and the Holder as of
such date will have no rights with respect thereto except to receive the
purchase price therefor minus any costs and expenses associated with such escrow
account and notices allocated thereto. Any Certificates so purchased or deemed
to have been purchased on such Distribution Date shall remain outstanding
hereunder. The Master Servicer or the Company, as applicable, shall be for all
purposes the Holder thereof as of such date.
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ARTICLE
THE COMPANY AND THE MASTER SERVICER
Section 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 Merger or Consolidation of the Company or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master
Servicer.
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.
Any Person into which the Company or the Master Servicer may
be merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Company or the Master Servicer shall be a party, or
any Person succeeding to the business of the Company or the Master Servicer,
shall be the successor of the Company or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
FNMA or FHLMC; and provided further that each Rating Agency's ratings, if any,
of the Class A, Class M, Class B or Class R 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).
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 FNMA or FHLMC, 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
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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.
Section Limitation on Liability of the Company, the Master Servicer and
Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Company, the Master Servicer or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Company, the Master Servicer and any
director, officer, employee or agent of the Company or the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company,
the Master Servicer and any director, officer, employee or agent of the Company
or the Master Servicer shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder.
Neither the Company nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Company or the Master Servicer
may in its discretion undertake any such action, proceeding, hearing or
examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Company and the Master Servicer shall be entitled to be reimbursed therefor out
of amounts attributable to the Mortgage Loans on deposit in the Custodial
Account as provided by Section 3.10 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated
in reduction of the Accrued Certificate Interest on each Class entitled thereto
in the same manner as if such expenses and costs constituted a Prepayment
Interest Shortfall.
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Section Company and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Company nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities and
obligations in accordance with Section 7.02.
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ARTICLE
DEFAULT
Section 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):
the Master Servicer shall fail to distribute or cause to be distributed
to the Holders of Certificates of any Class any distribution required
to be made under the terms of the Certificates of such Class and this
Agreement and, in either case, such failure shall continue unremedied
for a period of 5 days after the date upon which written notice of such
failure, requiring such failure to be remedied, shall have been given
to the Master Servicer by the Trustee or the Company or to the Master
Servicer, the Company and the Trustee by the Holders of Certificates of
such Class evidencing Percentage Interests aggregating not less than
25%; or
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
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
the Master Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities, or similar proceedings of, or relating to, the Master
Servicer or of, or relating to, all or substantially all of the property of the
Master Servicer; or
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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
the Master Servicer shall notify the Trustee pursuant to Section 4.04(b)
that it is unable to deposit in the Certificate Account an amount equal to the
Advance.
If an Event of Default described in clauses (i)-(v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, either the Company or the Trustee may, and
at the direction of Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, by notice in writing to the Master Servicer
(and to the Company if given by the Trustee or to the Trustee if given by the
Company), terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder. If an Event of Default
described in clause (vi) hereof shall occur, the Trustee shall, by notice to the
Master Servicer and the Company, immediately terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder as provided in Section 4.04(b). On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder thereof) or the Mortgage Loans or
otherwise, shall subject to Section 7.02 pass to and be vested in the Trustee or
the Trustee's designee appointed pursuant to Section 7.02; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its designee for administration by it of all cash
amounts which shall at the time be credited to the Custodial Account or the
Certificate Account or thereafter be received with respect to the Mortgage
Loans. No such termination shall release the Master Servicer for any liability
that it would otherwise have hereunder for any act or omission prior to the
effective time of such termination.
Notwithstanding any termination of the activities of Residential
Funding in its capacity as Master Servicer hereunder, Residential Funding shall
be entitled to receive, out of any late collection of a Monthly Payment on a
Mortgage Loan which was due prior to the notice terminating Residential
Funding's rights and obligations as Master Servicer hereunder and received after
such notice, that portion to which Residential Funding would have been entitled
pursuant to Sections 3.10(a)(ii), (vi) and (vii) as well as its Servicing Fee in
respect thereof, and any other amounts payable to Residential Funding hereunder
the entitlement to which arose prior
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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 Trustee or Company to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 or resigns in accordance with Section 6.04,
the Trustee or, upon notice to the Company and with the Company's consent (which
shall not be unreasonably withheld) a designee (which meets the standards set
forth below) of the Trustee, shall be the successor in all respects to the
Master Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer (except for the responsibilities, duties and liabilities contained in
Sections 2.02 and 2.03(a), excluding the duty to notify related Subservicers or
Sellers as set forth in such Sections, and its obligations to deposit amounts in
respect of losses incurred prior to such notice or termination on the investment
of funds in the Custodial Account or the Certificate Account pursuant to
Sections 3.07(c) and 4.01(b) by the terms and provisions hereof); provided,
however, that any failure to perform such duties or responsibilities caused by
the preceding Master Servicer's failure to provide information required by
Section 4.04 shall not be considered a default by the Trustee hereunder. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to charge
to the Custodial Account or the Certificate Account if the Master Servicer had
continued to act hereunder and, in addition, shall be entitled to the income
from any Permitted Investments made with amounts attributable to the Mortgage
Loans held in the Custodial Account or the Certificate Account. If the Trustee
has become the successor to the Master Servicer in accordance with Section 6.04
or Section 7.01, then notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution, which is also a FNMA- or FHLMC-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.
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Section Notification to Certificateholders.
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.
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 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 12.01(b)(i), (ii) or (iii). Upon any such waiver of a default or Event
of Default by the Holders representing the requisite percentage of Voting Rights
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
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ARTICLE
CONCERNING THE TRUSTEE
Section Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 4.03, 4.06, 7.03 and 10.01. The Trustee shall furnish in a
timely fashion to the Master Servicer such information as the Master Servicer
may reasonably request from time to time for the Master Servicer to fulfill its
duties as set forth in this Agreement. The Trustee covenants and agrees that it
shall perform its obligations hereunder in a manner so as to maintain the status
of the Trust Fund 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.
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:
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
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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;
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;
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;
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
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.
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.
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Section Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
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;
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;
The Trustee shall be under no obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default (which
has not been cured), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their exercise
as a prudent investor would exercise or use under the circumstances in the
conduct of such investor's own affairs;
The Trus tee 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;
Prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing 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;
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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
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.
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 the Trust Fund
to fail to qualify as a REMIC at any time that any Certificates are outstanding
or (ii) cause the Trust Fund to be subject to any federal tax as a result of
such contribution (including the imposition of any federal tax on "prohibited
transactions" imposed under Section 860F(a) of the Code).
Section 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. 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 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.
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Section Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.
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.
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, provided that:
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;
while maintaining control over its own defense, the Trustee shall cooperate
and consult fully with the Master Servicer in preparing such defense; and
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.
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Section 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 Resignation and Removal of the Trustee.
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.
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
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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.
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.
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 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files at
the time held by a Custodian, which shall become the agent of any successor
trustee hereunder), and the Company, the Master Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties and obligations.
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.
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 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
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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
Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
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.
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.
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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 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer and the
Company, appoint one or more Custodians who are not Affiliates of the Company,
the Master Servicer or any Seller to hold all or a portion of the Mortgage Files
as agent for the Trustee, by entering into a Custodial Agreement. Subject to
Article VIII, the Trustee agrees to comply with the terms of each Custodial
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 12.01. The
Trustee shall notify the Certificateholders of the appointment of any Custodian
(other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11.
Section Appointment of Office or Agency.
The Trustee will maintain an office or agency in the City of New York
where Certificates may be surrendered for registration of transfer or exchange.
The Trustee initially designates its offices located at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 for the purpose of keeping the Certificate Register. The
Trustee will maintain an office at the address stated in Section 12.05(c) hereof
where notices and demands to or upon the Trustee in respect of this Agreement
may be served.
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ARTICLE
TERMINATION
Section Termination Upon Purchase by the Master Servicer or the
Company or Liquidation of All Mortgage Loans.
Subject to Section 9.03, 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:
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
the purchase by the Master Servicer or the Company of all Mortgage Loans
and all property acquired in respect of any Mortgage Loan remaining in the Trust
Fund at a price equal to 100% of the unpaid principal balance of each Mortgage
Loan or, if less than such unpaid principal balance, the fair market value of
the related underlying property of such Mortgage Loan with respect to Mortgage
Loans as to which title has been acquired if such fair market value is less than
such unpaid principal balance (net of any unreimbursed Advances attributable to
principal) on the day of repurchase plus accrued interest thereon at the Net
Mortgage Rate 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 the Trust Fund as a REMIC.
The right of the Master Servicer or the Company 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 being less than
ten percent of the Cut-off Date Principal Balance of the Mortgage Loans. If such
right is exercised by the Master Servicer, the Master Servicer shall be deemed
to have been reimbursed for the full amount of any unreimbursed Advances
theretofore made by it with respect to the Mortgage Loans. In addition, the
Master Servicer or the Company, as applicable, shall provide to the Trustee the
certification required by Section 3.15 and the Trustee and any Custodian shall,
promptly following payment of the purchase price, release to the Master Servicer
or the Company, as applicable, the Mortgage Files pertaining to the Mortgage
Loans being purchased.
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The Master Servicer or, in the case of a final distribution as
a result of the exercise by the Company of its right to purchase the assets of
the Trust Fund, the Company shall give the Trustee not less than 60 days' prior
notice of the Distribution Date on which the Master Servicer or the Company, as
applicable, anticipates that the final distribution will be made to
Certificateholders (whether as a result of the exercise by the Master Servicer
or the Company of its right to purchase the assets of the Trust Fund or
otherwise). 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, shall be given promptly by the Master Servicer or
the Company, as applicable (if it is exercising its right to purchase the assets
of the Trust Fund), or by the Trustee (in any other case) by letter to the
Certificateholders mailed not earlier than the 15th day and not later than the
25th day of the month next preceding the month of such final distribution
specifying:
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,
the amount of any such final payment, if known, and
that the Record Date otherwise applicable to such Distribution Date is not
applicable, and in the case of the Class A Certificates, Class M Certificates
and Class R Certificates, that payment will be made only upon presentation and
surrender of the Certificates at the office or agency of the Trustee therein
specified.
If the Xxxx
xx Servicer or the Company, as applicable, 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. In
the event such notice is given by the Master Servicer or the Company, the Master
Servicer or the Company, as applicable, shall deposit in the Certificate Account
before the Final Distribution Date in immediately available funds an amount
equal to the purchase price for the assets of the Trust Fund computed as above
provided.
In the case of the Class A, Class M and the Class R
Certificates, upon presentation and surrender of the Certificates by the
Certificateholders thereof, the Trustee shall distribute to the
Certificateholders (i) the amount otherwise distributable on such Distribution
Date, if not in connection with the Master Servicer's or the Company's election
to repurchase, or (ii) if the Master Servicer or the Company elected to so
repurchase, an amount determined as follows: (A) with respect to each
Certificate the outstanding Certificate Principal Balance thereof, plus one
month's Accrued Certificate Interest and (B) with respect to the Class R
Certificates, any excess of the amounts available for distribution (including
the repurchase price specified in clause (ii) of subsection (a) of this Section)
over the total amount distributed under the immediately preceding clause (A).
In the event that any Certificateholders shall not surrender
their Certificates for final payment and cancellation on or before the Final
Distribution Date (if so required by the
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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 or the Company, as applicable (if it
exercised its right to purchase the assets of the Trust Fund), or the Trustee
(in any other case) shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice any Certificate shall not have been surrendered for cancellation,
the Trustee shall take appropriate steps as directed by the Master Servicer or
the Company, as applicable, to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining the escrow account and of contacting Certificateholders shall be
paid out of the assets which remain in the escrow account. If within nine months
after the second notice any Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to the Master Servicer or the Company, as
applicable, all amounts distributable to the holders thereof and the Master
Servicer or the Company, as applicable, 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 or the Company, as applicable, as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with this Section 9.01.
Section Additional Termination Requirements.
The Trust Fund, as the case may be, 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 the Trust Fund, as the case may be, 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 the Trust Fund to fail to qualify as a REMIC at any
time that any Certificate is outstanding:
The Master Servicer shall establish a 90-day liquidation period for
the Trust Fund, as the case may be, 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 the Trust Fund, as the case may be, under Section 860F of the Code
and regulations thereunder;
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
If the Master Servicer or the Company is exercising its right to
purchase the assets of the Trust Fund, the Master Servicer shall,
during the 90-day liquidation period and at or prior to the Final
Distribution Date, purchase all of the assets
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of the Trust Fund for cash; provided, however, that in the event that a
calendar quarter ends after the commencement of the 90-day liquidation
period but prior to the Final Distribution Date, the Master Servicer or
the Company shall not purchase any of the assets of the Trust Fund
prior to the close of that calendar quarter.
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 the Trust Fund at the expense of the
Trust Fund in accordance with the terms and conditions of this Agreement.
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ARTICLE
REMIC PROVISIONS
Section REMIC Administration.
(a) The REMIC Administrator shall make an election to treat
the Trust Fund as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of the REMIC election in respect of
the Trust Fund, each of the Class A, Class M and Class B Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the REMIC. The REMIC
Administrator and the Trustee shall not permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Trust Fund other than
the regular interests and the interests represented by the Class R Certificates,
respectively.
(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 of the Class R Certificates and shall
be designated as "the tax matters person" with respect to the Trust Fund in the
manner provided under Treasury regulations section 1.860F-4(d) and temporary
Treasury regulations section 301.6231(a)(7)-1T. The Remic Administrator, as tax
matters person, shall (i) act on behalf of the Trust Fund 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 a REMIC Administrator and shall be paid reasonable compensation
not to exceed $3,000 per year by any successor Master Servicer hereunder for so
acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be
prepared all of the Tax Returns that it determines are required with respect to
the Trust Fund created hereunder and deliver such Tax Returns in a timely manner
to the Trustee and the Trustee shall sign and file such Tax Returns in a timely
manner. The expenses of preparing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor. The REMIC
Administrator agrees to indemnify and hold harmless the Trustee with respect to
any tax or liability arising from the Trustee's signing of Tax Returns that
contain errors or omissions. The Trustee and Master
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Servicer shall promptly provide the REMIC Administrator with such information,
within their respective control, 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 the Trust Fund.
(f) The Master Servicer and the REMIC Administrator shall take
such actions and shall cause the Trust Fund created hereunder to take such
actions as are reasonably within the Master Servicer's or the REMIC
Administrator's control and the scope of its duties more specifically set forth
herein as shall be necessary or desirable to maintain the status thereof as a
REMIC under the REMIC Provisions (and the Trustee shall assist the Master
Servicer and the REMIC Administrator, to the extent reasonably requested by the
Master Servicer and the REMIC Administrator to do so). 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 the Trust Fund as a REMIC or (ii) 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 set forth in Section 860G(d) of the Code) (either such
event, in the absence of an Opinion of Counsel or the indemnification referred
to in this sentence, an "Adverse REMIC Event") unless the Master Servicer or the
REMIC Administrator, as applicable, has received an Opinion of Counsel (at the
expense of the party seeking to take such action or, if such party fails to pay
such expense, and the Master Servicer or the REMIC Administrator, as applicable,
determines that taking such action is in the best interest of the Trust Fund and
the Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Master Servicer, the REMIC Administrator or the Trustee) to the
effect that the contemplated action will not, with respect to the Trust Fund
created hereunder, endanger such status or, unless the Master Servicer, 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
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action. In addition, prior to taking any action with respect to the Trust Fund
or its assets, or causing the Trust Fund to take any action, which is not
expressly permitted under the terms of this Agreement, the Trustee 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 the Trust Fund, and the Trustee shall not
take any such action or cause the Trust Fund to take any such action as to which
the Master Servicer or the REMIC Administrator, as applicable, has advised it in
writing that an Adverse REMIC Event could occur. The Master Servicer or the
REMIC Administrator, as applicable, may consult with counsel to make such
written advice, and the cost of same shall be borne by the party seeking to take
the action not expressly permitted by this Agreement, but in no event at the
expense of the Master Servicer or the REMIC Administrator. At all times as may
be required by the Code, the Master Servicer will to the extent within its
control and the scope of its duties more specifically set forth herein, maintain
substantially all of the assets of the Trust Fund 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 the Trust Fund created hereunder as defined in Section
860F(a)(2) of the Code, on "net income from foreclosure property" of the Trust
Fund as defined in Section 860G(c) of the Code, on any contributions to the
Trust Fund 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 the Trust Fund
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 the Trust Fund unless
(subject to 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 the Trust Fund
will not cause the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the Trust Fund to any tax under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(j) Neither the Master Servicer nor the Trustee shall (subject
to Section 10.01(f)) enter into any arrangement by which the Trust Fund will
receive a fee or other
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compensation for services nor permit either 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 representing a
regular interest in the Trust Fund is February 25, 2027, which is the
Distribution Date immediately following the latest scheduled maturity of any
Mortgage Loan.
(l) Within 30 days after the Closing Date, the REMIC
Administrator shall prepare and file with the Internal Revenue Service Form
8811, "Information Return for Real Estate Mortgage Investment Conduits (REMIC)
and Issuers of Collateralized Debt Obligations" for the Trust Fund.
(m) Neither the Trustee nor the Master Servicer shall sell,
dispose of or substitute for any of the Mortgage Loans (except in connection
with (i) the default, imminent default or foreclosure of a Mortgage Loan,
including but not limited to, the acquisition or sale of a Mortgaged Property
acquired by deed in lieu of foreclosure, (ii) the bankruptcy of Trust Fund,
(iii) the termination of the Trust Fund 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 the Trust Fund, nor sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain nor
accept any contributions to the Trust Fund 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 the Trust Fund as a
REMIC or (b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause the Trust Fund to be subject to
a tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section Master Servicer, REMIC Administrator and Trustee
Indemnification.
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.
The REMIC Administrator agrees to indemnify the Trust Fund, the
Company, the Master Servicer and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the Master Servicer or the Trustee, as a result of
a breach of the REMIC Administrator's covenants set forth in this Article X with
respect to compliance with the REMIC Provisions, including without limitation,
any penalties arising from the Trustee's execution of Tax Returns prepared by
the REMIC Administrator that contain errors or omissions; provided,
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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.
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 or the Trustee, as a result of a breach of the Master
Servicer's covenants set forth in this Article X or in Article III with respect
to compliance with the REMIC Provisions, including without limitation, any
penalties arising from the Trustee's execution of Tax Returns prepared by the
Master Servicer that contain errors or omissions.
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ARTICLE
[RESERVED]
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ARTICLE
MISCELLANEOUS PROVISIONS
Section Amendment.
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:
to cure any ambiguity,
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,
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,
to change the timing and/or nature of deposits into the Custodial Account
or the Certificate Account or to change the name in which the Custodial Account
is maintained, provided that (A) the Certificate Account Deposit Date shall in
no event be later than the related Distribution Date, (B) such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Certificateholder and (C) such change shall not result in a
reduction of the rating assigned to any Class of Certificates below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date, as evidenced by a letter from each Rating Agency to such effect,
to modify, eliminate or add to the provisions of Section 5.02(f) or any
other provision hereof restricting transfer of the Class R Certificates, by
virtue of their being the "residual interests" in the Trust Fund, respectively,
provided that (A) such change shall not result in reduction of the rating
assigned to any such Class of Certificates below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date, as
evidenced by a letter from each Rating Agency to such effect, and (B) such
change shall not (subject to Section 10.01(f)), as evidenced by an Opinion of
Counsel (at the expense of the party seeking so to modify, eliminate or add such
provisions), cause the Trust Fund or any of the Certificateholders (other than
the transferor) to be subject to a federal tax caused by a transfer to a Person
that is not a Permitted Transferee, or
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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.
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 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:
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,
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.
The Trustee shall not consent to any amendment to this Agreement unless it
shall have first received an Opinion of Counsel (subject to Section 10.01(f) and
at the expense of the party seeking such amendment) to the effect that such
amendment or the exercise of any power granted to the Master Servicer, the
Company or the Trustee in accordance with such amendment will not result in the
imposition of a federal tax on the Trust Fund or cause the Trust Fund to fail to
qualify as a REMIC at any time that any Certificate is outstanding. The Trustee
may but shall not be obligated to enter into any amendment pursuant to this
Section that affects its rights, duties and immunities and this agreement or
otherwise; provided however, such consent shall not be unreasonably withheld.
Promptly after the execution of any such amendment the Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 12.01 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.
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
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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 Class A Certificateholders, the Class R
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) the Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is outstanding. In the event that the Company elects to provide such
coverage in the form of a limited guaranty provided by General Motors Acceptance
Corporation, the Company may elect that the text of such amendment to this
Agreement shall be substantially in the form attached hereto as Exhibit M (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 N, 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 Recordation of Agreement; Counterparts.
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.
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.
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Section Limitation on Rights of Certificateholders.
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.
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.
No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates of any Class evidencing in the aggregate not less than
25% of the related Percentage Interests of such Class, shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
of any Class shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates of such Class or any other Class, or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the common benefit of Certificateholders of such Class
or all Classes, as the case may be. For the protection and enforcement of the
provisions of this Section 12.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section Governing Law.
This agreement and the Certificates shall be governed by and construed
in accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
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Section Notices.
All demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid (except for notices to the Trustee which shall
be deemed to have been duly given only when received), to (a) in the case of the
Company, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: President or such other address as may hereafter be furnished
to the Master Servicer and the Trustee in writing by the Company, (b) in the
case of the Master Servicer, 00 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxxxxx
Xxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxxxx or such other address as may be
hereafter furnished to the Company and the Trustee by the Master Servicer in
writing, (c) in the case of the Trustee, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Residential Funding Corporation Series
1997-S1 or such other address as may hereafter be furnished to the Company and
the Master Servicer in writing by the Trustee, (d) in the case of Fitch, Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as may
hereafter be furnished to the Company, Trustee and the Master Servicer in
writing by Fitch and (e) in the case of Standard & Poor's, 00 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or such other address as may be hereafter furnished to the
Company, Trustee and Master Servicer by Standard & Poor's. Any notice required
or permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section Notices to Rating Agency.
The Company, the Master Servicer or the Trustee, as applicable, shall
notify each Rating Agency and the Subservicer at such time as it is otherwise
required pursuant to this Agreement to give notice of the occurrence of, any of
the events described in clause (a), (b), (c), (d), (g), (h), (i) or (j) below or
provide a copy to each Rating Agency at such time as otherwise required to be
delivered pursuant to this Agreement of any of the statements described in
clauses (e) and (f) below:
a material change or amendment to this Agreement,
the occurrence of an Event of Default,
the termination or appointment of a successor Master Servicer or Trustee
or a change in the majority ownership of the Trustee,
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 statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
126
the statements required to be delivered pursuant to Sections 3.18 and 3.19,
a change in the location of the Custodial Account or the Certificate
Account,
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,
the occurrence of the Final Distribution Date, and
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 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 Supplemental Provisions for Resecuritization.
This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Certificates issued hereunder, under the following
circumstances. With respect to any Class or Classes of Certificates issued
hereunder, or any portion of any such Class, as to which the Company or any of
its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Company may deposit such Resecuritized
Certificates into a new REMIC, grantor trust or custodial arrangement (a
"Restructuring Vehicle") to be held by the Trustee pursuant to a Supplemental
Article. The instrument adopting such Supplemental Article shall be executed by
the Company, the Master Servicer and the Trustee; provided, that neither the
Master Servicer nor the Trustee shall withhold their consent thereto if their
respective interests would not be materially adversely affected thereby. To the
extent that the terms of the Supplemental Article do not in any way affect any
provisions of this Agreement as to any of the Certificates initially issued
hereunder, the adoption of the Supplemental Article shall not constitute an
"amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions
relating to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
127
to be made thereon, and any other provisions necessary for the purposes thereof.
In connection with each Supplemental Article, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that (i) the Restructuring Vehicle
will qualify as a REMIC, grantor trust or other entity not subject to taxation
for federal income tax purposes and (ii) the adoption of the Supplemental
Article will not endanger the status of the Trust Fund as a REMIC or (subject to
Section 10.01(f)) result in the imposition of a tax upon the Trust Fund
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC as set
forth in Section 860G(d) of the Code.
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
128
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
RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
[Seal]
By:
Name:
Title: Vice President
Attest:
Name:
Title: Director
RESIDENTIAL FUNDING CORPORATION
[Seal]
By:
Name:
Title: Director
Attest:
Name:
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
[Seal]
By:
Name:
Title:
Attest:
Name:
Title:
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the 30th day of January, 1997 before me, a notary public in
and for said State, personally appeared Xxxxxxx Xxx Xxx, 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 January, 1997 before me, a notary public in
and for said State, personally appeared Xxxxx Xxxx, known to me to be a Director
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]
[YOUN7950:~5.NY01B] 16069-00385 02/04/97 7:45pm
STATE OF )
) ss.:
COUNTY OF )
On the 30th day of January, 1997 before me, a notary public in
and for said State, personally appeared Xxxxxx Xxxxxx, known to me to be an Vice
President of The First National Bank of Chicago, a national banking corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[NO TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS THE
TRANSFEREE PROVIDES EITHER (I) AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER
SERVICER, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE IS
PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND
SERVICING AGREEMENT (THE "AGREEMENT") OR (II) A CERTIFICATION IN THE FORM SET
FORTH IN EXHIBIT J-2 OF THE AGREEMENT.]
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO
SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.]
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES
OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JANUARY 30, 1997.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ___% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A CONSTANT
PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_______ PER $1,000
OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING THE APPROXIMATE METHOD.
NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE STANDARD PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY
OF THE PASS-THROUGH RATE.]
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
Certificate No. __ [_____%] [_____%] [_____%] [_____%]
[Variable] Pass-Through Rate
Class A-__ Senior
Date of Pooling and Servicing Percentage Interest: ____%
Agreement and Cut-off Date:
January 1, 1997
First Distribution Date: Aggregate Initial Certificate Principal Balance of
February 25, 1997 the Class A-1 Certificates: $____________
Master Servicer: Initial Certificate Principal
Residential Funding Corporation Balance of this Certificate:
$------------
Assumed Final CUSIP _________
Distribution Date:
January 25, 2012
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1997-S1
evidencing a percentage interest in the distributions allocable to the
Class A-__ Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional one- to four-family fixed interest
rate first mortgage loans formed and sold by RESIDENTIAL FUNDING
MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Residential
Funding Mortgage Securities I, Inc., the Master Servicer, the Trustee referred
to below or GMAC Mortgage Corporation or any of their affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality or by Residential Funding Mortgage
Securities I, Inc., the Master Servicer, the Trustee or GMAC Mortgage
Corporation or any of their affiliates. None of the Company, the Master
Servicer, GMAC Mortgage Corporation or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that _____________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the aggregate Initial Certificate Principal Balance of all Class
A-___ Certificates, both as specified above) in certain distributions with
respect to the Trust Fund consisting primarily of an interest in a pool of
conventional one- to four-family fixed interest
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
rate first mortgage loans (the "Mortgage Loans"), formed and sold by Residential
Funding Mortgage Securities I, Inc. (hereinafter called the "Company", which
term includes any successor entity under the Agreement referred to below). The
Trust Fund was created pursuant to a Pooling and Servicing Agreement dated as
specified above (the "Agreement") among the Company, the Master Servicer and The
First National Bank of Chicago, as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of [interest
and] principal, if any required to be distributed to Holders of Class A-__
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the
Master Servicer acting on behalf of the Trustee or by a Paying Agent appointed
by the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The Initial Certificate Principal Balance of this Certificate is set forth
above. The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein
provided, the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Company, the Master Servicer, the Trustee nor any such agent shall be affected
by notice to the contrary.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
5
This Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: January 30, 1997 FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-__ Certificates referred to in the
within-mentioned Agreement.
THE FIRST NATIONAL BANK OF CHICAGO, as
Certificate Registrar
By:
Authorized Signatory
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto (Please print or typewrite name and address including
postal zip code of assignee) a Percentage Interest evidenced by the within
Mortgage Pass-Through Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to for the account of
-----------------------------------------------------------------------------
account number , or, if mailed by check, to Applicable statements should be
mailed to .
This information is provided by , the assignee named above, or , as its
agent.
EXHIBIT B
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES[,] [AND] [CLASS R CERTIFICATES] [,] [AND] [CLASS M-1 CERTIFICATES]
[,] [AND] [CLASS M-2 CERTIFICATES] [AND CLASS M-3 CERTIFICATES] AS DESCRIBED IN
THE AGREEMENT (AS DEFINED BELOW).
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES EITHER (I) AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER,
THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE
UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT (THE
"AGREEMENT") OR (II) A CERTIFICATION IN THE FORM SET FORTH IN EXHIBIT J-2 OF THE
AGREEMENT.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS JANUARY 30, 1997.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $_____________ OF OID PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $__________ PER
$1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE APPROXIMATE
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE STANDARD PREPAYMENT ASSUMPTION [OR AT ANY OTHER RATE.]
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
Certificate No. ___ _____% Pass-Through Rate
Class M- Mezzanine Aggregate Certificate Principal Balance of the
Class M-_ Certificates:
$---------------
Date of Pooling and Servicing Percentage Interest: ____%
Agreement and Cut-off Date:
January 1, 1997 Initial Certificate Principal
Balance of this Certificate:
$---------------
First Distribution Date:
February 25, 1997
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP ____________
January 25, 2012
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1997-S1
evidencing a percentage interest in any distributions allocable to the
Class M-_ Certificates with respect to the Trust Fund consisting
primarily of a pool of conventional one- to four-family fixed interest
rate first mortgage loans formed and sold by RESIDENTIAL FUNDING
MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Residential
Funding Mortgage Securities I, Inc., the Master Servicer, the Trustee referred
to below or GMAC Mortgage Corporation or any of their affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality or by Residential Funding Mortgage
Securities I, Inc., the Master Servicer, the Trustee or GMAC Mortgage
Corporation or any of their affiliates. None of the Company, the Master
Servicer, GMAC Mortgage Corporation or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that _________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the aggregate Initial Certificate Principal Balance of all Class
M-_ Certificates, both as specified above) in certain distributions with respect
to a Trust
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
Fund consisting primarily of a pool of conventional one- to four-family fixed
interest rate first mortgage loans (the "Mortgage Loans"), formed and sold by
Residential Funding Mortgage Securities I, Inc. (hereinafter called the
"Company", which term includes any successor entity under the Agreement referred
to below). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as specified above (the "Agreement") among the Company, the
Master Servicer and The First National Bank of Chicago, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any required to be distributed to Holders of Class M-_
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the
Master Servicer acting on behalf of the Trustee or by a Paying Agent appointed
by the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The Initial Certificate Principal Balance of this Certificate is set forth
above. The Certificate Principal Balance hereof will be reduced to the extent of
the distributions allocable to principal and any Realized Losses allocable
hereto.
No transfer of this Class M-_ Certificate will be made unless
the transferee provides the Trustee with either (i) an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee, the Company
and the Master Servicer with respect to the permissibility of such transfer
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and Section 4975 of the Internal Revenue Code (the "Code") and stating, among
other things, that the transferee's acquisition of a Class M-_ Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code and will not subject the Trustee, the Company or the Master Servicer to
any obligation or liability in addition to those undertaken in the Agreement or
(ii) in
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
lieu of such opinion of counsel, a certification in the form set forth in
Exhibit J-2 to the Agreement.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein
provided, the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same Class and
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Company, the Master Servicer, the Trustee nor any such agent shall be affected
by notice to the contrary.
This Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: January 30, 1997 THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-__ Certificates referred to in the
within-mentioned Agreement.
THE FIRST NATIONAL BANK OF CHICAGO, as
Certificate Registrar
By:
Authorized Signatory
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto (Please print or typewrite name and address including
postal zip code of assignee) a Percentage Interest evidenced by the within
Mortgage Pass-Through Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to for the account of
-----------------------------------------------------------------------------
account number , or, if mailed by check, to Applicable statements should be
mailed to
.
This information is provided by ,
the assignee named above, or , as its agent.
EXHIBIT C
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS R CERTIFICATES [,] [AND] THE CLASS M CERTIFICATES [,]
[AND] [THE CLASS B-1 CERTIFICATES] [AND THE CLASS B-2 CERTIFICATES] AS DESCRIBED
IN THE AGREEMENT (AS DEFINED HEREIN).
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS THE TRANSFEREE
PROVIDES EITHER (I) AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER,
THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE IS PERMISSIBLE
UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN ANY NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT (THE
"AGREEMENT") OR (II) A CERTIFICATION IN THE FORM SET FORTH IN EXHIBIT J-2 OF THE
AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS JANUARY 30, 1997. ASSUMING THAT THE
MORTGAGE LOANS PREPAY AT ____% OF THE STANDARD PREPAYMENT ASSUMPTION (AS
DESCRIBED IN THE PROSPECTUS SUPPLEMENT), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $___ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS ____% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL
ACCRUAL PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT
THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE STANDARD PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.]
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
Certificate No. __ _____% Pass-Through Rate
Class B-__ Subordinate Aggregate Certificate
Principal Balance
of the Class B-__
Certificates as of
Date of Pooling and Servicing the Cut-off Date:
Agreement and Cut-off Date: $_______________
January 1, 1997
Initial Certificate Principal
Balance of this Certificate:
First Distribution Date: $_______________
February 25, 1997
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
January 25, 2012
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1997-S1
evidencing a percentage interest in any distributions allocable to the
Class B-__ Certificates with respect to the Trust Fund consisting
primarily of a pool of conventional one- to four-family fixed interest
rate first mortgage loans formed and sold by RESIDENTIAL FUNDING
MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Residential
Funding Mortgage Securities I, Inc., the Master Servicer, the Trustee referred
to below or GMAC Mortgage Corporation or any of their affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality or by Residential Funding Mortgage
Securities I, Inc., the Master Servicer, the Trustee or GMAC Mortgage
Corporation or any of their affiliates. None of the Company, the Master
Servicer, GMAC Mortgage Corporation or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that Residential Funding Mortgage Securities I,
Inc. is the registered owner of the Percentage Interest evidenced by this
Certificate (obtained by dividing the Initial Certificate Principal Balance of
this Certificate by the aggregate Initial Certificate Principal Balance of all
Class B-__ Certificates, both as specified above) in certain distributions with
respect to a Trust Fund consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans (the "Mortgage Loans"),
formed and sold by Residential Funding
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
Mortgage Securities I, Inc. (hereinafter called the "Company", which term
includes any successor entity under the Agreement referred to below). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as
specified above (the "Agreement") among the Company, the Master Servicer and The
First National Bank of Chicago, as trustee (the "Trustee"), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if such
last day is not a Business Day, the Business Day immediately preceding such last
day) of the month next preceding the month of such distribution (the "Record
Date"), from the Available Distribution Amount in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount (of
interest and principal, if any) required to be distributed to Holders of Class B
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the
Master Servicer acting on behalf of the Trustee or by a Paying Agent appointed
by the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The Initial Certificate Principal Balance of this Certificate is set forth
above. The Certificate Principal Balance hereof will be reduced to the extent of
the distributions allocable to principal and any Realized Losses allocable
hereto.
No transfer of this Class B Certificate will be made unless
the transferee provides the Trustee with either (i) an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee, the Company
and the Master Servicer with respect to the permissibility of such transfer
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and Section 4975 of the Internal Revenue Code (the "Code") and stating, among
other things, that the transferee's acquisition of a Class B Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code and will not subject the Trustee, the Company or the Master Servicer to
any obligation or liability in addition to those undertaken in the Agreement or
(ii) in lieu of such opinion of counsel, a certification in the form set forth
in Exhibit J-2 to the Agreement.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein
provided, the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Company, the Master Servicer, the Trustee nor any such agent shall be affected
by notice to the contrary.
This Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: January 30, 1997 THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-__ Certificates referred to in the
within-mentioned Agreement.
THE FIRST NATIONAL BANK OF CHICAGO, as
Certificate Registrar
Authorized Signatory
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto (Please print or typewrite name and address including
postal zip code of assignee) a Percentage Interest evidenced by the within
Mortgage Pass-Through Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to for the account of
-----------------------------------------------------------------------------
account number , or, if mailed by check, to
Applicable statements should be mailed to
.
This information is provided by ,
the assignee named above,
or , as its agent.
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A
NON-UNITED STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED
BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER
SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE, (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREIN
REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR
AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
Certificate No. ___ _____% Pass-Through Rate
Class R Senior Aggregate Initial Certificate Principal
Balance of the Class R Certificates:
Date of Pooling and Servicing $100.00
Agreement and Cut-off Date:
January 1, 1997 Initial Certificate Principal
Balance of this Certificate:
First Distribution Date: $_______________
February 25, 1997
Percentage Interest:
Master Servicer: _______%
Residential Funding Corporation
CUSIP ______-_____
Assumed Final Distribution Date:
January 25, 2012
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1997-S1
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to a Trust Fund consisting primarily
of a pool of conventional one- to four-family fixed interest rate first
mortgage loans formed and sold by RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Residential
Funding Mortgage Securities I, Inc., the Master Servicer, the Trustee referred
to below or GMAC Mortgage Corporation or any of their affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality or by Residential Funding Mortgage
Securities I, Inc., the Master Servicer, the Trustee or GMAC Mortgage
Corporation or any of their affiliates. None of the Company, the Master
Servicer, GMAC Mortgage Corporation or any of their affiliates will have any
obligation with respect to any certificate or other obligation secured by or
payable from payments on the Certificates.
This certifies that _________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the aggregate Initial Certificate Principal Balance of all Class
R Certificates, both as specified above) in certain distributions with respect
to a Trust Fund, consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans (the "Mortgage Loans"),
formed and sold by Residential Funding Mortgage Securities I, Inc. (hereinafter
called the "Company", which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as specified above (the "Agreement") among the
Company, the Master Servicer
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
and The First National Bank of Chicago, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class R
Certificates on such Distribution Date.
Each Holder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer of
any Ownership Interest in this Certificate will be conditioned upon the delivery
to the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Company will have the right, in its
sole discretion and without notice to the Holder of this Certificate, to sell
this Certificate to a purchaser selected by the Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The Initial Certificate Principal Balance of this Certificate is set forth
above. The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
Notwithstanding the reduction of the Certificate Principal Balance hereof to
zero, this Certificate will remain outstanding under the Agreement and the
Holder hereof may have additional obligations with respect to this Certificate,
including tax liabilities, and may be entitled to certain additional
distributions hereon, in accordance with the terms and provisions of the
Agreement.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein
provided, the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
The Company, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Company, the Master Servicer, the Trustee nor any such agent shall be affected
by notice to the contrary.
This Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purpose have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
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5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: January 30, 1997 THE FIRST NATIONAL BANK OF CHICAGO, as
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
THE FIRST NATIONAL BANK OF CHICAGO, as
Certificate Registrar
By:
Authorized Signatory
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6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto (Please print or typewrite name and address including
postal zip code of assignee) a Percentage Interest evidenced by the within
Mortgage Pass-Through Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of the
Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise,
in immediately available funds to for the account of
-----------------------------------------------------------------------------
account number , or, if mailed by check, to
Applicable statements should be mailed to
.
This information is provided by ,
the assignee named above, or , as its agent.
EXHIBIT E
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from
time to time, the "Agreement"), dated as of January 1, 1997, by and among THE
FIRST NATIONAL BANK OF CHICAGO, as trustee (including its successors under the
Pooling Agreement defined below, the "Trustee"), RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC., as company (together with any successor in interest, the
"Company"), RESIDENTIAL FUNDING CORPORATION, as master servicer (together with
any successor in interest or successor under the Pooling Agreement referred to
below, the "Master Servicer"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(together with any successor in interest or any successor appointed hereunder,
the "Custodian").
W I T N E S S E T H T H A T :
WHEREAS, the Company, the Master Servicer, and the Trustee
have entered into a Pooling and Servicing Agreement, dated as of January 1,
1997, relating to the issuance of Residential Funding Mortgage Securities I,
Inc., Mortgage Pass-Through Certificates, Series 1997-S1 (as in effect on the
date of this agreement, the "Original Pooling Agreement," and as amended and
supplemented from time to time, the "Pooling Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the
Trustee for the purposes of receiving and holding certain documents and other
instruments delivered by the Company and the Master Servicer under the Pooling
Agreement, all upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the Trustee, the Company,
the Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms used in this Agreement and not defined
herein shall have the meanings assigned in the Original Pooling Agreement,
unless otherwise required by the context herein.
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ARTICLE II
Custody of Mortgage Documents
Section 2.1. Custodian to Act as Agent; Acceptance of Mortgage
Files. The Custodian, as the duly appointed agent of the Trustee for these
purposes, acknowledges receipt of the Mortgage Files relating to the Mortgage
Loans identified on the schedule attached hereto (the "Mortgage Files") and
declares that it holds and will hold the Mortgage Files as agent for the
Trustee, in trust, for the use and benefit of all present and future
Certificateholders.
Section 2.2. Recordation of Assignments. If any Mortgage File
includes one or more assignments to the Trustee of Mortgage Notes and related
Mortgages that have not been recorded, each such assignment shall be delivered
by the Custodian to the Company for the purpose of recording it in the
appropriate public office for real property records, and the Company, at no
expense to the Custodian, shall promptly cause to be recorded in the appropriate
public office for real property records each such assignment and, upon receipt
thereof from such public office, shall return each such assignment to the
Custodian.
Section 2.3. Review of Mortgage Files.
(a) On or prior to the Closing Date, the Custodian shall
deliver to the Trustee an Initial Certification in the form annexed hereto as
Exhibit One evidencing receipt of a Mortgage File for each Mortgage Loan listed
on the Schedule attached hereto (the "Mortgage Loan Schedule").
(b) Within 45 days of the initial issuance of the
Certificates, the Custodian agrees, for the benefit of Certificateholders, to
review, in accordance with the provisions of Section 2.02 of the Pooling
Agreement, each Mortgage File, and shall deliver to the Trustee an Interim
Certification in the form annexed hereto as Exhibit Two to the effect that all
documents required to be delivered pursuant to Section 2.01(b) of the Pooling
Agreement have been executed and received and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule, except for any
exceptions listed on Schedule A attached to such Interim Certification. Within
45 days of receipt of the documents required to be delivered pursuant to Section
2.01(c) of the Pooling Agreement, the Custodian agrees, for the benefit of
Certificateholders, to review, in accordance with the provisions of Section 2.02
of the Pooling Agreement, each such document, and shall deliver to the Trustee
either (i) an Interim Certification in the form attached hereto as Exhibit Two
to the effect that all 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 or (ii) a Final Certification as set
forth in subsection (c) below. The Custodian shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable, or appropriate for the represented purpose or that they have
actually been recorded or that they are other than what they purport to be on
their face. If in performing the review required by this Section 2.3 the
Custodian finds any document or documents constituting a part of a Mortgage File
to be defective in any material respect, the Custodian shall promptly so notify
the Company, the Master
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2
Servicer and the Trustee. Upon receipt of written notification from the Master
Servicer, signed by a Servicing Officer, that the Master Servicer or a
Subservicer, as the case may be, has made a deposit into the Certificate Account
in payment for the purchase of the related Mortgage Loan in an amount equal to
the Purchase Price for such Mortgage Loan, the Custodian shall release to the
Master Servicer the related Mortgage File.
(c) Upon receipt of all documents required to be in the
Mortgage Files the Custodian shall deliver to the Trustee a Final Certification
in the form annexed hereto as Exhibit Three evidencing the completeness of the
Mortgage Files.
Upon receipt of written request from the Trustee, the
Custodian shall as soon as practicable supply the Trustee with a list of all of
the documents relating to the Mortgage Loans then contained in the Mortgage
Files.
Section 2.4. Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Master Servicer or the Company as set forth in the Pooling
Agreement or by a Seller in a Seller's Agreement or by Residential Funding or
the Company in the Assignment Agreement with respect to a Mortgage Loan relating
to a Mortgage File, the Custodian shall give prompt written notice to the
Company, the Master Servicer and the Trustee.
Section 2.5. Custodian to Cooperate; Release of Mortgage
Files. Upon the repurchase or substitution of any Mortgage Loan pursuant to
Article II of the Pooling Agreement or payment in full of any Mortgage Loan, or
the receipt by the Master Servicer of a notification that payment in full will
be escrowed in a manner customary for such purposes, the Master Servicer shall
immediately notify the Custodian by a certification (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 of the Pooling Agreement have been or will be
so deposited) of a Servicing Officer and shall request delivery to it of the
Mortgage File. The Custodian agrees, upon receipt of such certification and
request, promptly to release to the Master Servicer the related Mortgage File.
The Master Servicer shall deliver to the Custodian and the Custodian agrees to
accept the Mortgage Note and other documents constituting the Mortgage File with
respect to any Qualified Substitute Mortgage Loan.
From time to time as is appropriate for the servicing or
foreclosures of any Mortgage Loan, including, for this purpose, collection under
any Primary Insurance Policy or any Mortgage Pool Insurance Policy, the Master
Servicer shall deliver to the Custodian a certificate of a Servicing Officer
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 of the Required
Insurance Policies. With such certificate, the Master Servicer shall deliver to
the Custodian a trust receipt signed by a Servicing Officer on behalf of the
Master Servicer, and upon receipt of the foregoing, the Custodian shall deliver
the Mortgage File or such document to the Master Servicer. The Master Servicer
shall cause each Mortgage
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
File or any document therein so released to be returned to the Custodian when
the need therefor by the Master Servicer no longer exists, unless (i) the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to the
Mortgage Loan have been deposited in the Custodial Account or (ii) the Mortgage
File or such document has been delivered to an attorney, or to a public trustee
or other public official as required by law, for purposes of initiating or
pursuing legal action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially, and the Master Servicer has
delivered to the Custodian 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 Custodian shall deliver the Trust Receipt
with respect thereto to the Master Servicer upon deposit of the related
Liquidation Proceeds in the Custodial Account as provided in the Pooling
Agreement.
Section 2.6. Assumption Agreements. In the event that any
assumption agreement or substitution of liability agreement is entered into with
respect to any Mortgage Loan subject to this Agreement in accordance with the
terms and provisions of the Pooling Agreement, the Master Servicer shall notify
the Custodian that such assumption or substitution agreement has been completed
by forwarding to the Custodian the original of such assumption or substitution
agreement, which shall be added to the related Mortgage File and, for all
purposes, shall be considered a part of such Mortgage File to the same extent as
all other documents and instruments constituting parts thereof.
ARTICLE III
Concerning the Custodian
Section 3.1. Custodian a Bailee and Agent of the Trustee. With
respect to each Mortgage Note, Mortgage and other documents constituting each
Mortgage File which are delivered to the Custodian, the Custodian is exclusively
the bailee and agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee, holds
such documents for the benefit of Certificateholders and undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. Except upon compliance with the provisions of Section 2.5 of this
Agreement, no Mortgage Note, Mortgage or other document constituting a part of a
Mortgage File shall be delivered by the Custodian to the Company or the Master
Servicer or otherwise released from the possession of the Custodian.
Section 3.2. Indemnification. The Company hereby agrees to
indemnify and hold the Custodian harmless from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the Custodian
may incur or with which the Custodian may be threatened by reason of its acting
as custodian under this Agreement, including indemnification of the Custodian
against any and all expenses, including attorney's fees if counsel for the
Custodian has been approved by the Company, and the cost of defending any
action, suit or proceedings or resisting any claim.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
Notwithstanding the foregoing, it is specifically understood and agreed that in
the event any such claim, liability, loss, action, suit or proceeding or other
expense, fee or charge shall have been caused by reason of any negligent act,
negligent failure to act or willful misconduct on the part of the Custodian, or
which shall constitute a willful breach of its duties hereunder, the
indemnification provisions of this Agreement shall not apply.
Section 3.3. Custodian May Own Certificates. The Custodian in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Custodian.
Section 3.4. Master Servicer to Pay Custodian's Fees and
Expenses. The Master Servicer covenants and agrees to pay to the Custodian from
time to time, and the Custodian shall be entitled to, reasonable compensation
for all services rendered by it in the exercise and performance of any of the
powers and duties hereunder of the Custodian, and the Master Servicer will pay
or reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith.
Section 3.5. Custodian May Resign; Trustee May Remove
Custodian. The Custodian may resign from the obligations and duties hereby
imposed upon it as such obligations and duties relate to its acting as Custodian
of the Mortgage Loans. Upon receiving such notice of resignation, the Trustee
shall either take custody of the Mortgage Files itself and give prompt notice
thereof to the Company, the Master Servicer and the Custodian, or promptly
appoint a successor Custodian by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Custodian and one copy to
the successor Custodian. If the Trustee shall not have taken custody of the
Mortgage Files and no successor Custodian shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time. In such
event, the Trustee shall appoint, or petition a court of competent jurisdiction
to appoint, a successor Custodian hereunder. Any successor Custodian shall be a
depository institution subject to supervision or examination by federal or state
authority and shall be able to satisfy the other requirements contained in
Section 3.7 and shall be unaffiliated with the Master Servicer or the Company.
Any resignation or removal of the Custodian and appointment of
a successor Custodian pursuant to any of the provisions of this Section 3.5
shall become effective upon acceptance of appointment by the successor
Custodian. The Trustee shall give prompt notice to the Company and the Master
Servicer of the appointment of any successor Custodian. No successor Custodian
shall be appointed by the Trustee without the prior approval of the Company and
the Master Servicer.
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5
Section 3.6. Merger or Consolidation of Custodian. Any Person
into which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 3.7. Representations of the Custodian. The Custodian
hereby represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $15,000,000 and is qualified to do business in the jurisdictions in
which it will hold any Mortgage File.
ARTICLE IV
Miscellaneous Provisions
Section 4.1. Notices. All notices, requests, consents and
demands and other communications required under this Agreement or pursuant to
any other instrument or document delivered hereunder shall be in writing and,
unless otherwise specifically provided, may be delivered personally, by telegram
or telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar notice
in writing), in which case the notice will be deemed delivered when received.
Section 4.2. Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto, and neither the Company, the Master
Servicer nor the Trustee shall enter into any amendment hereof except as
permitted by the Pooling Agreement. The Trustee shall give prompt notice to the
Custodian of any amendment or supplement to the Pooling Agreement and furnish
the Custodian with written copies thereof.
SECTION 4.3. GOVERNING LAW. THIS AGREEMENT SHALL BE
DEEMED A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4. Recordation of Agreement. To the extent permitted
by applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer and at its expense on
direction by the Trustee (pursuant to the request of holders of Certificates
evidencing undivided interests in the aggregate of not less than 25% of the
Trust Fund), but only upon direction accompanied by an Opinion of Counsel
reasonably satisfactory to the Master Servicer to the effect that the
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6
failure to effect such recordation is likely to materially and adversely affect
the interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 4.5. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
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7
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
Address: THE FIRST NATIONAL BANK
OF CHICAGO,
as Trustee
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Residential Funding Corporation
Series 1997-S1
By:
Name:
Title: Vice President
Address: RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:
Name:
Title: Vice President
Address: RESIDENTIAL FUNDING
CORPORATION, as Master Servicer
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:
Name:
Title: Director
Address: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
By:
Name: Xxxxxxxx Xxxxxxxx
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
8
Title: Trust Officer
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
9
STATE OF ILLINOIS )
) ss.:
COUNTY OF ______________ )
On the _____ day of January, 1997, before me, a notary public
in and for said State, personally appeared _______________________, known to me
to be a Vice President of The First National Bank of Chicago, a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said 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
[SEAL]
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the _____ day of January, 1997, before me, a notary public
in and for said State, personally appeared Xxxxxxxx Xxxxxxxx, known to me to be
a Trust Officer of Norwest Bank Minnesota, National Association, a national
banking association that executed the within instrument, and also known to me to
be the person who executed it on behalf of said national banking association,
and acknowledged to me that such national banking association executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[SEAL]
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the _____ day of January, 1997, before me, a notary public
in and for said State, personally appeared ________________, known to me to be a
Vice President of Residential Funding Mortgage Securities I, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
On the _____ day of January, 1997, before me, a notary public
in and for said State, personally appeared ________________, known to me to be a
Director 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]
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EXHIBIT ONE
FORM OF CUSTODIAN
INITIAL CERTIFICATION
January 30, 1997
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Residential Funding Corporation Series 1997-S1
Re: Custodial Agreement, dated as of January 1, 1997, by and among The
First National Bank of Chicago, Residential Funding Mortgage
Securities I, Inc., Residential Funding Corporation and Norwest Bank
Minnesota, National Association, Mortgage Pass-Through Certificates,
Series 1997-S1
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, and subject to Section 2.02 of the Pooling Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage File
(which contains an original Mortgage Note) to the extent required in Section
2.01(b) of the Pooling Agreement with respect to each Mortgage Loan listed in
the Mortgage Loan Schedule.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
________________ ____, 1997
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Residential Funding Corporation Series 1997-S1
Re: Custodial Agreement dated as of January 1, 1997, by and among The
First National Bank of Chicago, Residential Funding Mortgage
Securities I, Inc., Residential Funding Corporation and Norwest Bank
Minnesota, National Association, Mortgage Pass-Through Certificates,
Series 1997-S1
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that it has
received a Mortgage File to the extent required pursuant to Section 2.01(b) of
the Pooling Agreement with respect to each Mortgage Loan listed in the Mortgage
Loan Schedule, and it has reviewed the Mortgage File and the Mortgage Loan
Schedule and has determined that: all required documents have been executed and
received and that such documents related to the Mortgage Loans identified on the
Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
EXHIBIT THREE
FORM OF CUSTODIAN FINAL CERTIFICATION
_____________ ___, 1997
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Residential Funding Corporation Series 1997-S1
Re: Custodial Agreement dated as of January 1, 1997, by and among The
First National Bank of Chicago, Residential Funding Mortgage
Securities I, Inc., Residential Funding Corporation and Norwest Bank
Minnesota, National Association, Mortgage Pass-Through Certificates,
Series 1997-S1
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned
Custodial Agreement, the undersigned, as Custodian, hereby certifies that it has
received a Mortgage File with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule containing (I) with respect to each such Mortgage Loan
(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 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 with evidence of recording
indicated thereon or a copy of the Mortgage certified by the public
recording office in which such mortgage has been recorded;
(iii) An original Assignment of the Mortgage to the Trustee
with evidence of recording indicated thereon or a copy of such
assignment certified by the public recording office in which such
assignment has been recorded;
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
(iv) With respect to each Mortgage Loan other than a
Cooperative Loan, 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 a copy of such
assignment or assignments of the Mortgage certified by the public
recording office in which such assignment or assignments have been
recorded; 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 certified by the public recording office in which such
document has been recorded;
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;
(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;
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
(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) An executed UCC-1 financing statement showing the Master
Servicer as debtor, the Company as secured party and the Trustee as assignee and
an executed 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.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
5
EXHIBIT F
MORTGAGE LOAN SCHEDULE
RUN ON : 01/16/97 RFC DISCLOSURE SYSTEM RFFSD177-01
AT : 07.14.33 FIXED RATE LOAN LISTING AMORTIZED BALANCE
SERIES : RFMSI I 1997-S1 CUTOFF : 01/01/97
POOL : 0004235
:
:
POOL STATUS: F
RFC LOAN # S/S CODE PMT TYPE ORIGINAL BAL LOAN FEATURE
ORIG TERM PRINCIPAL BAL # OF UNITS
ADDRESS ORIG RATE ORIGINAL P+I LTV
ADDRESS LINE 2 CURR NET CURRENT P+I VALUE
CITY STATE ZIP LOAN PURP NOTE DATE MI CO CODE
SERVICER LOAN # PROP TYPE 1ST PMT DATE MI CVG
SELLER LOAN # OCCP CODE MATURITY DATE
INVESTOR LOAN #
______________________________________________________________________________
1382493 686/686 F 92,600.00 ZZ
180 81,964.71 1
0000 XXXXXXXX XXXXXX 7.750 871.63 75
7.500 871.63 123,466.00
XXXXXX XX 00000 2 03/21/94 00
30815922000 05 05/01/94 0
30815922000 O 04/01/09
0
1382977 686/686 F 140,000.00 ZZ
180 126,249.89 1
000 XXXXXXX XX 8.125 1,348.04 61
7.875 1,348.04 229,508.00
XXXXXXXXXX XX 00000 5 05/02/94 00
030816082069 05 07/01/94 0
30816082069 O 06/01/09
0
1441668 299/299 F 350,000.00 ZZ
180 333,278.41 1
000 XXXXX XXXX 7.250 3,195.02 70
7.000 3,195.02 500,000.00
XXXXXXXXX XX 00000 5 10/30/95 00
298251 05 12/01/95 0
298251 O 11/01/10
0
1441858 070/F06 F 500,000.00 ZZ
180 451,357.71 1
0000 00XX XXXXXX XXXXXXXXX 8.250 4,850.70 78
8.000 4,850.70 645,000.00
XXX XXXXXX XX 00000 4 05/23/94 00
9754060 05 07/01/94 0
1
5092788 O 06/01/09
0
1461978 070/728 F 80,000.00 ZZ
180 75,548.50 1
0000 XXXXXXXX XXXXX 7.750 753.02 56
7.500 753.02 145,000.00
PINSON AL 35126 1 11/01/95 00
0380305749 05 12/01/95 0
4507207 O 11/01/10
0
1472248 A35/G01 F 400,000.00 ZZ
180 388,614.56 1
0000 XXXXXXXX XXXXX 7.250 3,651.45 73
7.000 3,651.45 549,365.00
XXX XXXXX XX 00000 1 03/12/96 00
0430054270 03 05/01/96 0
UNKNOWN O 04/01/11
0
1479680 E33/E33 F 450,000.00 ZZ
180 437,325.27 1
CASANOVA 0 X X XX 0XX XXXXXX 7.375 4,139.66 60
7.125 4,139.66 750,000.00
XXXXXX-XX-XXX-X XX 00000 2 03/13/96 00
35408 05 05/01/96 0
35408 O 04/01/11
0
1500494 A26/G01 F 279,000.00 ZZ
180 277,452.18 1
000 XXXXXX XXXXXX 8.500 2,747.43 80
8.250 2,747.43 350,000.00
XXXXXX XXXXXX XX 00000 2 10/31/96 00
0430099903 05 12/01/96 0
UNKNOWN O 11/01/11
0
1503009 E89/728 F 225,000.00 ZZ
180 221,811.30 1
0000 XXXXXXXXX XXXXX 8.375 2,199.21 57
8.125 2,199.21 395,000.00
XXXX XXXXXX XX 00000 2 07/24/96 00
0380504986 05 09/01/96 0
13947 O 08/01/11
0
1
1508948 116/116 F 259,100.00 ZZ
180 254,773.65 1
000 XXXXXXX XXXX XXXXX 8.625 2,570.49 86
8.500 2,570.49 304,187.00
XXXX XXXXXXX XX 00000 4 06/24/96 10
091065785 05 08/01/96 12
091065785 O 07/01/11
0
1517837 828/728 F 101,500.00 ZZ
180 100,365.77 1
0000 XXXXXXXXX XXXXX 8.500 999.52 48
8.250 999.52 213,000.00
XXXXXX XX 00000 1 08/22/96 00
0380506007 05 10/01/96 0
65010039 O 09/01/11
0
1518726 757/757 F 689,250.00 ZZ
180 681,462.88 1
0000 XXXXXXXXXX XXXX 8.375 6,736.91 75
8.125 6,736.91 919,000.00
XXXXXXX XX 00000 1 08/23/96 00
2860575 05 10/01/96 0
2860575 O 09/01/11
0
1521716 F27/G01 F 250,000.00 ZZ
180 247,794.08 1
6409 NOBLE ROCK COURT 7.875 2,371.13 56
7.625 2,371.13 449,820.00
XXXXXXX XX 00000 1 09/13/96 00
0430101618 05 11/01/96 0
116199095 O 10/01/11
0
1527695 074/G01 F 275,000.00 ZZ
180 269,263.17 1
0 XXXXX XXXXX XXXX 7.875 2,608.24 79
7.625 2,608.24 350,000.00
XX XXXXXX XX 00000 4 05/24/96 00
0430036467 05 07/01/96 0
1507135393 O 06/01/11
0
1528045 A83/G01 F 109,000.00 ZZ
180 108,395.29 1
0 XXXXXXXXX XXX 8.500 1,073.37 65
8.250 1,073.37 169,000.00
1
XXXXXXXXXX XX 00000 1 10/28/96 00
0430099853 03 12/01/96 0
149827 O 11/01/11
0
1529202 A35/G01 F 230,000.00 ZZ
180 229,357.13 1
00 XXXXXXXX XXXXX 8.375 2,248.08 58
8.125 2,248.08 400,000.00
XXX XXXX XX 00000 2 11/08/96 00
0430111088 05 01/01/97 0
FWW3746 O 12/01/11
0
1529934 640/G01 F 340,000.00 ZZ
180 337,097.19 1
0000 XXXXX XXXXX XXXX 8.250 3,298.48 80
8.000 3,298.48 425,000.00
XXXXXXX XX 00000 1 09/17/96 00
0430051706 05 11/01/96 0
9608373 O 10/01/11
0
1530312 965/G01 F 80,000.00 ZZ
180 79,778.88 1
00000 XXXXX 00XX XXXXX 8.500 787.79 62
8.250 787.79 130,000.00
XXXXXXXX XX 00000 2 11/07/96 00
0430093369 03 01/01/97 0
1530312 O 12/01/11
0
1531312 686/G01 F 140,000.00 ZZ
180 138,751.11 1
00 XXX XXXXXXXXXXX XXXX 7.750 1,317.79 69
7.500 1,317.79 205,000.00
XXXXXX XX 00000 1 09/20/96 00
0430051763 05 11/01/96 0
817639396 O 10/01/11
0
1531325 686/G01 F 77,200.00 ZZ
180 76,517.31 1
000 XXXXX XXXXXX 7.850 731.10 66
7.600 731.10 117,000.00
XXXXXXXXXXXX XX 00000 1 09/26/96 00
0430052134 05 11/01/96 0
817558414 O 10/01/11
0
1
1531339 686/G01 F 56,000.00 ZZ
180 55,502.62 1
0000 X 00XX XXXXXX 7.800 528.72 53
7.550 528.72 107,000.00
XXX XXXXXXX XX 00000 5 09/20/96 00
0430052621 05 11/01/96 0
817475650 O 10/01/11
0
1531344 686/G01 F 114,750.00 ZZ
180 113,683.35 1
0000 XXXXX 000XX XXXXX 7.750 1,080.12 75
7.500 1,080.12 153,000.00
XXXXXXX XXX XX 00000 1 09/26/96 00
0430052761 05 11/01/96 0
817894579 O 10/01/11
0
1531777 A86/G01 F 560,000.00 ZZ
180 556,680.35 1
0 XXXXX XXXXX XXXX 7.750 5,271.15 75
7.500 5,271.15 750,000.00
MANCHESTER BY T MA 01944 2 10/25/96 00
0430060103 05 12/01/96 0
6372 O 11/01/11
0
1532467 998/G01 F 146,625.00 ZZ
180 145,345.32 1
14 MERCATO 8.000 1,401.23 75
7.750 1,401.23 195,500.00
XXXXXX XXXXXX XX 00000 1 09/13/96 00
0430057489 03 11/01/96 0
99172009 O 10/01/11
0
1532527 163/G01 F 413,850.00 ZZ
180 410,158.19 1
0000 XXXXXXXXX XXXXXXX 7.750 3,895.47 49
7.500 3,895.47 850,000.00
XXXXXXXX XXXXXX XX 00000 2 09/05/96 00
0430053983 03 11/01/96 0
3915434147 O 10/01/11
0
1532635 635/635 F 65,000.00 ZZ
180 64,647.34 1
1
000 XXXXXXXX XXXXXX 8.750 649.65 57
XXXX 00 8.500 649.65 116,000.00
XXXXXX XX 00000 1 10/04/96 00
658325600 01 12/01/96 0
658325600 O 11/01/11
0
1532659 076/076 F 310,000.00 ZZ
180 307,234.62 1
000 XXXXXXX XXX 7.750 2,917.95 61
7.500 2,917.95 510,000.00
XXX XXXXXXXXX XX 00000 1 09/18/96 00
6362612 05 11/01/96 0
6362612 O 10/01/11
0
1533324 976/G01 F 294,000.00 ZZ
180 293,102.29 1
000 XXXXXXX XXXXX 7.375 2,704.58 72
7.125 2,704.58 410,000.00
XXXXXXXX XX 00000 2 11/01/96 00
0430096735 05 01/01/97 0
321396 O 12/01/11
0
1533494 964/G01 F 150,000.00 ZZ
180 149,120.52 1
000 XXXXXXX XXXXX 7.875 1,422.68 54
7.625 1,422.68 283,000.00
XXX XXXXXX XX 00000 2 10/08/96 00
0430055368 05 12/01/96 0
17515 O 11/01/11
0
1534684 429/429 F 432,500.00 ZZ
180 428,641.82 1
00 XXXXXX XXXXXXX 7.750 4,071.02 60
7.500 4,071.02 732,500.00
XXXXXX XX 00000 1 09/05/96 00
10350209 05 11/01/96 0
10350209 O 10/01/11
0
1534723 526/526 F 166,500.00 ZZ
180 166,013.49 1
000 XXXXXX XXXXX 7.875 1,579.17 75
7.625 1,579.17 222,000.00
XX XXXXX XX 00000 5 11/04/96 00
152721 05 01/01/97 0
1
152721 O 12/01/11
0
1534853 074/G01 F 336,500.00 ZZ
180 333,658.62 1
0000 000XX XXXXXX X 8.375 3,289.04 68
8.125 3,289.04 500,000.00
XXXXXXXXX XX 00000 2 08/28/96 00
0430063412 05 11/01/96 0
1576024074 O 10/01/11
0
1534965 976/G01 F 250,000.00 ZZ
180 248,597.56 1
0000 XXXXXXXXXX XXXXX XXXXX 8.375 2,443.57 65
8.125 2,443.57 385,000.00
XXXXXXXXXX XX 00000 1 10/15/96 00
0430098137 03 12/01/96 0
81158 O 11/01/11
0
1535310 808/G01 F 100,000.00 ZZ
180 99,707.80 2
0000-0000 XXXXX XXXXXXX XXXXXX 7.875 948.45 67
7.625 948.45 150,000.00
XXX XXXXXXX XX 00000 1 11/05/96 00
0430079996 05 01/01/97 0
9301475 O 12/01/11
0
1536046 491/491 F 309,600.00 ZZ
180 305,956.19 1
0000 XXXX XXXXXX #0 8.500 3,048.76 80
8.250 3,048.76 387,000.00
XXX XXXXXXXXX XX 00000 1 08/01/96 00
0061209856 01 10/01/96 0
0061209856 O 09/01/11
0
1536199 A91/G01 F 70,000.00 ZZ
180 69,795.47 1
000 XXXX 00XX XXXXXX 7.875 663.91 59
XXXX 00X 7.625 663.91 120,000.00
XXX XXXX XX 00000 1 11/01/96 00
0430068015 06 01/01/97 0
UNKNOWN O 12/01/11
0
1
1536504 637/G01 F 202,000.00 ZZ
180 202,000.00 1
000 XXXXXXX XXXXXX 7.500 1,872.57 75
7.250 1,872.57 270,000.00
XXXXXXX XX 00000 1 12/09/96 00
0430118653 05 02/01/97 0
9382003 O 01/01/12
0
1536529 070/070 F 500,000.00 T
180 495,731.18 1
0000 XXXXX XXXXX 8.250 4,850.70 77
8.000 4,850.70 650,000.00
XXXXX XXXX XXXX XX 00000 1 09/25/96 00
1042141 05 11/01/96 0
1042141 O 10/01/11
0
1536532 070/070 F 426,150.00 ZZ
180 422,471.41 1
0000 XX 00XX XXXXX 8.125 4,103.32 79
7.875 4,103.32 540,000.00
XXXX XXXXX XX 00000 2 09/25/96 00
2376789 03 11/01/96 0
2376789 O 10/01/11
0
1536545 070/070 F 550,000.00 ZZ
180 545,457.57 1
0000 XXXXXXXX XXXXXX 8.625 5,456.44 63
8.375 5,456.44 875,000.00
XXXXXXXX XX 00000 2 09/13/96 00
3098537 05 11/01/96 0
3098537 O 10/01/11
0
1536551 070/070 F 216,750.00 ZZ
180 214,380.92 1
0000 XXXXXXXX XXXXX 8.750 2,166.30 91
8.500 2,166.30 238,940.00
XX XXXXXXX XX 00000 1 09/06/96 14
4450206 05 10/01/96 30
4450206 O 09/01/11
0
1536561 070/070 F 80,000.00 ZZ
180 79,286.35 1
000 XXXXXXX XXXXX 7.750 753.02 50
7.500 753.02 160,000.00
1
XXXXX XX 00000 5 09/24/96 00
4916445 01 11/01/96 0
4916445 O 10/01/11
0
1536563 070/070 F 400,000.00 ZZ
180 396,584.95 1
0000 XXXXXX XXXXXX 8.250 3,880.56 64
8.000 3,880.56 630,000.00
XXX XXXXXXX XX 00000 1 09/23/96 00
4924342 05 11/01/96 0
4924342 O 10/01/11
0
1536707 B65/G01 F 417,400.00 ZZ
180 416,193.77 1
000 XXXX XXXXX XXXXX 8.000 3,988.90 77
7.750 3,988.90 545,000.00
XXXXX XX 00000 2 11/18/96 00
0430076836 05 01/01/97 0
31096623 O 12/01/11
0
1536862 764/G01 F 342,000.00 ZZ
180 341,000.68 1
00 XXXX XXXXXXXX XXXX 7.875 3,243.70 75
7.625 3,243.70 456,000.00
XXXXXXX XX 00000 1 11/19/96 00
0430098830 05 01/01/97 0
890477 O 12/01/11
0
1536909 461/G01 F 152,250.00 ZZ
180 151,347.46 1
00000 XXXXXXXX XXXXXX 7.750 1,433.10 75
7.500 1,433.10 203,000.00
XXX XXXXX XX 00000 1 10/29/96 00
0430071597 05 12/01/96 0
21061460 O 11/01/11
0
1537440 686/G01 F 50,000.00 ZZ
180 49,704.88 1
0000 XXXXXXXX XXXX XX 7.800 472.08 44
7.550 472.08 114,413.00
XXXXXX XX 00000 1 10/15/96 00
0430074534 05 12/01/96 0
817692395 O 11/01/11
0
1
1537442 686/G01 F 262,500.00 ZZ
180 260,943.91 1
00 XXXXXX XXXX XXXX 7.750 2,470.85 70
7.500 2,470.85 375,000.00
XXXX XXXXXXXXXX XX 00000 5 10/09/96 00
0430073239 05 12/01/96 0
817857972 O 11/01/11
0
1537464 686/G01 F 168,000.00 ZZ
180 167,004.09 1
6156 XXXXXXXX 7.750 1,581.35 70
7.500 1,581.35 240,000.00
XXXX XXXXXXXXXX XX 00000 5 10/16/96 00
0430073528 05 12/01/96 0
817712748 O 11/01/11
0
1537502 686/G01 F 64,500.00 ZZ
180 64,119.31 1
00 XXXXXXXXX XXXXXXX 7.800 608.98 62
7.550 608.98 104,500.00
XXXXXXXX XX 00000 1 10/31/96 00
0430074047 01 12/01/96 0
817832124 O 11/01/11
0
1538274 354/354 F 427,000.00 ZZ
180 405,042.04 1
0000 X. XXXXXX XXXXXXXXX XXXX 7.750 4,019.25 70
7.500 4,019.25 610,000.00
XXXXXX XX 00000 5 03/08/96 00
20254124 05 05/01/96 0
20254124 O 04/01/11
0
1538276 354/354 F 247,500.00 ZZ
180 243,276.18 1
0000 XXXXXX XXXXXX 8.375 2,419.13 75
8.125 2,419.13 330,000.00
XXXXXXXXXX XX 00000 5 06/27/96 00
20481339 05 08/01/96 0
20481339 O 07/01/11
0
1538277 354/354 F 315,000.00 ZZ
180 311,241.20 1
1
00000 XXXXXX XXXX 7.750 2,965.02 75
7.500 2,965.02 420,000.00
XXXXX XXXX XX 00000 2 08/16/96 00
20484663 05 10/01/96 0
20484663 O 09/01/11
0
1538278 354/354 F 540,000.00 ZZ
180 532,079.53 1
0000 XXXXX XXXXX 8.375 5,278.11 70
8.125 5,278.11 775,000.00
XXXXX XX 00000 4 07/18/96 00
20488664 05 09/01/96 0
20488664 O 08/01/11
0
1538279 354/354 F 331,200.00 ZZ
180 326,506.23 1
0000 XXXXXX XXXXXX XXXX 8.375 3,237.24 50
8.125 3,237.24 665,000.00
XXXXXXX XX 00000 2 07/10/96 00
20491528 05 09/01/96 0
20491528 O 08/01/11
0
1538282 354/354 F 269,000.00 ZZ
180 265,859.29 1
0000 XXX XXXX XXXX 8.000 2,570.70 71
7.750 2,570.70 381,000.00
XXXXXX XX 00000 2 08/08/96 00
20507943 03 10/01/96 0
20507943 O 09/01/11
0
1538283 354/354 F 231,000.00 ZZ
180 228,939.32 1
00 XXXXX XXXXXX 7.750 2,174.35 80
7.500 2,174.35 289,000.00
XXXXXXXX XX 00000 1 09/23/96 00
20544664 05 11/01/96 0
20544664 O 10/01/11
0
1538286 354/354 F 400,000.00 ZZ
180 395,329.78 1
00000 XXXX XXXXX XXXXX XXXXX 8.000 3,822.61 80
7.750 3,822.61 500,000.00
XXXXXXX XX 00000 2 08/16/96 00
20549713 03 10/01/96 0
1
20549713 O 09/01/11
0
1538287 354/354 F 460,000.00 ZZ
180 454,570.36 1
00000 XXXXXXX XXXXXX XXXXX 7.875 4,362.87 80
7.625 4,362.87 576,500.00
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1
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7052593 05 11/01/96 25
7052593 O 10/01/11
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1
1065100 O 09/01/11
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802807200 01 01/01/97 0
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FLETCHER NC 28732 5 12/16/96 00
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COLLIERVILLE TN 38017 2 12/10/96 00
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817558976 O 01/01/12
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ORLAND PARK IL 60462 1 12/18/96 00
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874431 O 01/01/12
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6230 WINKLER MILL 8.000 3,763.36 51
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ROCHESTER HILLS MI 48306 2 12/16/96 00
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1
6204432 O 01/01/12
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51860 O 01/01/12
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AIEA HI 96701 5 11/27/96 00
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1149632 O 01/01/12
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RICHMOND IN 47374 5 12/04/96 00
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410208458 O 01/01/12
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529008 O 01/01/12
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5376017 O 12/01/11
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1
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410290795 O 01/01/12
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CARY NC 27513 2 12/17/96 00
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0049828544 O 01/01/12
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120206771 O 01/01/12
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1
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410267199 O 01/01/12
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6771 TREE KNOLL DR 7.750 2,226.12 76
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TROY MI 48098 2 12/20/96 00
0430105585 05 02/01/97 0
1000009607040 O 01/01/12
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FALLS CHURCH VA 22042 2 12/18/96 11
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2277787 O 01/01/12
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GREENWOOD IN 46142 2 12/12/96 00
0410167266 05 02/01/97 0
410167266 O 01/01/12
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DEERFIELD FL 33441 5 12/18/96 00
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410256770 O 01/01/12
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PIEDMONT CA 94610 2 12/09/96 00
0430110346 05 02/01/97 0
2387702 O 01/01/12
0
1
1548166 601/G01 F 275,000.00 ZZ
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PARKVILLE MO 64152 1 12/06/96 00
0430110171 05 02/01/97 0
1114941 O 01/01/12
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1548309 E22/G01 F 159,000.00 ZZ
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410254775 O 01/01/12
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MILLBRAE CA 94030 1 12/11/96 00
0430115139 05 02/01/97 0
7019714 O 01/01/12
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1548384 601/G01 F 220,000.00 ZZ
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TACOMA WA 98422 2 12/06/96 00
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889473 O 01/01/12
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1548392 181/181 F 350,000.00 ZZ
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816 SAGE DRIVE 7.375 3,219.73 65
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MARTINEZ CA 94553 2 11/20/96 00
5395178 05 01/01/97 0
5395178 O 12/01/11
0
1548393 070/070 F 500,000.00 T
180 500,000.00 1
1
10639 E. FERNWOOD LANE 7.625 4,670.65 65
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SCOTTSDALE AZ 85262 1 12/19/96 00
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2378285 O 01/01/12
0
1548398 070/070 F 224,750.00 ZZ
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13363 MANGO DRIVE 7.375 2,067.53 77
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DEL MAR CA 92014 2 11/27/96 00
5760558 05 01/01/97 0
5760558 O 12/01/11
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180 248,000.00 1
3413 KEENAN LANE 7.625 2,316.64 66
7.375 2,316.64 379,000.00
GLENVIEW IL 60025 2 12/12/96 00
5557780 05 02/01/97 0
5557780 O 01/01/12
0
1548438 181/181 F 170,000.00 T
180 169,503.26 1
133 DISCOVERY BAY 7.875 1,612.37 85
7.750 1,612.37 200,000.00
MILLEDGEVILLE GA 31061 2 12/06/96 19
5375622 05 01/01/97 25
5375622 O 12/01/11
0
1548482 624/G01 F 299,500.00 ZZ
180 299,500.00 2
751-753 COLE STREET 7.500 2,776.40 55
7.250 2,776.40 545,000.00
SAN FRANCISCO CA 94117 2 12/19/96 00
0430116657 05 02/01/97 0
21000760126 O 01/01/12
0
1548496 822/G01 F 250,000.00 ZZ
180 250,000.00 1
400 YANKEE COURT 6.990 2,245.68 49
6.740 2,245.68 518,742.00
NEWTOWN SQUARE PA 19073 1 12/20/96 00
0430113415 03 02/01/97 0
1
1306007178 O 01/01/12
0
1548506 387/387 F 270,000.00 ZZ
180 269,202.31 1
164 LAKEVIEW AVENUE 7.750 2,541.44 56
7.500 2,541.44 490,000.00
ATLANTA GA 30305 2 11/11/96 00
832659 05 01/01/97 0
832659 O 12/01/11
0
1548514 387/387 F 499,000.00 ZZ
180 497,573.87 1
259 KINGS COURT 8.125 4,804.78 41
7.875 4,804.78 1,220,000.00
SAN CARLOS CA 94070 2 11/04/96 00
832113 05 01/01/97 0
832113 O 12/01/11
0
1548516 387/387 F 255,000.00 ZZ
180 254,246.61 1
4900 WESTRIDGE AVENUE 7.750 2,400.26 73
7.500 2,400.26 350,000.00
FORT WORTH TX 76116 2 11/22/96 00
838797 03 01/01/97 0
838797 O 12/01/11
0
1548517 387/387 F 350,000.00 ZZ
180 348,942.96 1
4572 CAMINO MOLINERO 7.500 3,244.54 56
7.250 3,244.54 625,000.00
SANTA BARBARA CA 93110 2 11/15/96 00
834648 05 01/01/97 0
834648 O 12/01/11
0
1548518 387/387 F 313,200.00 ZZ
180 312,314.77 1
6110 RUNNING SPRINGS ROAD 8.250 3,038.48 80
8.000 3,038.48 392,000.00
SAN JOSE CA 95135 2 11/18/96 00
835769 05 01/01/97 0
835769 O 12/01/11
0
1
1548533 070/070 F 368,000.00 ZZ
180 365,935.62 1
4200 EVERGREEN DRIVE 8.375 3,596.93 80
8.125 3,596.93 460,000.00
LISLE IL 60532 1 10/31/96 00
3084321 05 12/01/96 0
3084321 O 11/01/11
0
1548541 070/070 F 228,500.00 ZZ
180 228,500.00 1
2288 WEST CANTERWOOD DRIVE 7.875 2,167.21 75
7.625 2,167.21 305,000.00
SOUTH JORDAN UT 84095 2 12/13/96 00
5789653 05 02/01/97 0
5789653 O 01/01/12
0
1548827 661/661 F 121,000.00 ZZ
180 121,000.00 1
16412 EAGLE LANE 7.750 1,138.95 61
7.500 1,138.95 200,000.00
HUNTINGTON BEAC CA 92649 5 12/26/96 00
UNKNOWN 05 02/01/97 0
UNKNOWN O 01/01/12
0
1548843 E22/G01 F 210,000.00 ZZ
180 210,000.00 1
433 WHITEGATE ROAD 7.625 1,961.67 39
THOUSAND OAKS 7.375 1,961.67 550,000.00
NEWBURY PARK AR CA 91320 1 12/23/96 00
0410308936 05 02/01/97 0
410308936 O 01/01/12
0
1548952 227/G01 F 220,000.00 ZZ
180 218,609.45 1
8750 SWAN ROAD 7.875 2,086.59 80
7.625 2,086.59 275,000.00
COLORADO SPRING CO 80908 1 10/30/96 00
0430118000 05 12/01/96 0
1688264 O 11/01/11
0
1548957 403/403 F 240,000.00 ZZ
180 240,000.00 1
20 RIVERBEND ROAD 7.375 2,207.82 75
7.125 2,207.82 322,000.00
1
TRUMBULL CT 06611 2 12/16/96 00
00006536650 05 02/01/97 0
00006536650 O 01/01/12
0
1548981 E22/G01 F 50,000.00 ZZ
180 50,000.00 1
5708 VASSAR DRIVE 8.000 477.83 31
7.750 477.83 162,000.00
COLLEGE PARK MD 20740 5 12/20/96 00
0410256333 05 02/01/97 0
410256333 O 01/01/12
0
1549054 077/077 F 296,000.00 ZZ
180 296,000.00 1
2827 WOODHOLLOW TRAIL 7.000 2,660.53 80
6.750 2,660.53 370,000.00
FORT WAYNE IN 46825 1 12/23/96 00
366120 05 02/01/97 0
366120 O 01/01/12
0
1549196 181/181 F 308,000.00 ZZ
180 308,000.00 1
144 GOLDEN HILL PLACE 8.000 2,943.41 62
7.750 2,943.41 500,000.00
WALNUT CREEK CA 94596 2 12/16/96 00
5400813 05 02/01/97 0
5400813 O 01/01/12
0
TOTAL NUMBER OF LOANS : 477
TOTAL ORIGINAL BALANCE : 131,221,900.00
TOTAL PRINCIPAL BALANCE : 130,238,820.08
TOTAL ORIGINAL P+I : 1,249,709.17
TOTAL CURRENT P+I : 1,249,709.17
***************************
* END OF REPORT *
***************************
RUN ON : 01/21/97 RFC DISCLOSURE SYSTEM RFFSDFIX-01
AT : 08.51.13 FIXED PASSTHRU REPORT AMORTIZED BALANCE
SERIES : RFMSI I 1997-S1 CUTOFF : 01/01/97
POOL : 0004235
:
:
POOL STATUS: F
RFC LOAN NUMBER SUB SERV FEE
PRINCIPAL BALANCE MSTR SERV FEE
CURR NOTE RATE ALL EXP
RFC NET RATE MISC EXP
NET MTG RATE(INVSTR RATE) SPREAD
POST STRIP RATE STRIP
-------------------------------------------------------------
1382493 .2500
81,964.71 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1382977 .2500
126,249.89 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1441668 .2500
333,278.41 .0800
7.2500 .0000
7.0000 .0000
6.9200 .0000
6.9200 .0000
1441858 .2500
451,357.71 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1461978 .2500
75,548.50 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1472248 .2500
388,614.56 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
1
1479680 .2500
437,325.27 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0450 .0450
1500494 .2500
277,452.18 .0300
8.5000 .0000
8.2500 .0000
8.2200 .0000
8.2200 1.2200
1503009 .2500
221,811.30 .0300
8.3750 .0000
8.1250 .0000
8.0950 .0000
8.0950 1.0950
1508948 .1250
254,773.65 .0800
8.6250 .0000
8.5000 .0000
8.4200 .0000
8.4200 1.4200
1517837 .2500
100,365.77 .0300
8.5000 .0000
8.2500 .0000
8.2200 .0000
8.2200 1.2200
1518726 .2500
681,462.88 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1521716 .2500
247,794.08 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1527695 .2500
269,263.17 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1
1528045 .2500
108,395.29 .0300
8.5000 .0000
8.2500 .0000
8.2200 .0000
8.2200 1.2200
1529202 .2500
229,357.13 .0300
8.3750 .0000
8.1250 .0000
8.0950 .0000
8.0950 1.0950
1529934 .2500
337,097.19 .0300
8.2500 .0000
8.0000 .0000
7.9700 .0000
7.9700 .9700
1530312 .2500
79,778.88 .0300
8.5000 .0000
8.2500 .0000
8.2200 .0000
8.2200 1.2200
1531312 .2500
138,751.11 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1531325 .2500
76,517.31 .0300
7.8500 .0000
7.6000 .0000
7.5700 .0000
7.5700 .5700
1531339 .2500
55,502.62 .0300
7.8000 .0000
7.5500 .0000
7.5200 .0000
7.5200 .5200
1531344 .2500
113,683.35 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1
1531777 .2500
556,680.35 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1532467 .2500
145,345.32 .0300
8.0000 .0000
7.7500 .0000
7.7200 .0000
7.7200 .7200
1532527 .2500
410,158.19 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1532635 .2500
64,647.34 .0800
8.7500 .0000
8.5000 .0000
8.4200 .0000
8.4200 1.4200
1532659 .2500
307,234.62 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1533324 .2500
293,102.29 .0300
7.3750 .0000
7.1250 .0000
7.0950 .0000
7.0950 .0950
1533494 .2500
149,120.52 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1534684 .2500
428,641.82 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1
1534723 .2500
166,013.49 .0800
7.8750 .0000
7.6250 .0000
7.5450 .0000
7.5450 .5450
1534853 .2500
333,658.62 .0300
8.3750 .0000
8.1250 .0000
8.0950 .0000
8.0950 1.0950
1534965 .2500
248,597.56 .0300
8.3750 .0000
8.1250 .0000
8.0950 .0000
8.0950 1.0950
1535310 .2500
99,707.80 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1536046 .2500
305,956.19 .0800
8.5000 .0000
8.2500 .0000
8.1700 .0000
8.1700 1.1700
1536199 .2500
69,795.47 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1536504 .2500
202,000.00 .0300
7.5000 .0000
7.2500 .0000
7.2200 .0000
7.2200 .2200
1536529 .2500
495,731.18 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1
1536532 .2500
422,471.41 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1536545 .2500
545,457.57 .0800
8.6250 .0000
8.3750 .0000
8.2950 .0000
8.2950 1.2950
1536551 .2500
214,380.92 .0800
8.7500 .0000
8.5000 .0000
8.4200 .0000
8.4200 1.4200
1536561 .2500
79,286.35 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1536563 .2500
396,584.95 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1536707 .2500
416,193.77 .0300
8.0000 .0000
7.7500 .0000
7.7200 .0000
7.7200 .7200
1536862 .2500
341,000.68 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1536909 .2500
151,347.46 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1
1537440 .2500
49,704.88 .0300
7.8000 .0000
7.5500 .0000
7.5200 .0000
7.5200 .5200
1537442 .2500
260,943.91 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1537464 .2500
167,004.09 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1537502 .2500
64,119.31 .0300
7.8000 .0000
7.5500 .0000
7.5200 .0000
7.5200 .5200
1538274 .2500
405,042.04 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1538276 .2500
243,276.18 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1538277 .2500
311,241.20 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1538278 .2500
532,079.53 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1
1538279 .2500
326,506.23 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1538282 .2500
265,859.29 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.6700 .6700
1538283 .2500
228,939.32 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1538286 .2500
395,329.78 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.6700 .6700
1538287 .2500
454,570.36 .0800
7.8750 .0000
7.6250 .0000
7.5450 .0000
7.5450 .5450
1538288 .2500
241,006.00 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1538290 .2500
644,073.84 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.1700 .1700
1538291 .2500
528,811.60 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1
1538292 .2500
291,136.43 .0800
8.7500 .0000
8.5000 .0000
8.4200 .0000
8.4200 1.4200
1538293 .2500
223,298.43 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1538294 .2500
297,466.80 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1538295 .2500
289,168.69 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1538296 .2500
231,170.91 .0800
7.2500 .0000
7.0000 .0000
6.9200 .0000
6.9200 .0000
1538297 .2500
355,736.71 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1538298 .2500
254,134.04 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1538300 .2500
352,895.58 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1
1538302 .2500
404,043.29 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.6700 .6700
1538303 .2500
869,788.08 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1538304 .2500
279,960.37 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1538305 .2500
275,317.74 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1538306 .2500
347,616.97 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1538309 .2500
405,581.40 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1538311 .2500
254,139.80 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.6700 .6700
1538312 .2500
619,012.25 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1
1538314 .2500
270,848.66 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1538315 .2500
222,073.72 .0800
6.7500 .0000
6.5000 .0000
6.4200 .0000
6.4200 .0000
1538316 .2500
228,535.92 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1538318 .2500
268,451.44 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1538319 .2500
298,202.03 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1538321 .2500
259,366.55 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1538322 .2500
258,076.32 .0800
8.6250 .0000
8.3750 .0000
8.2950 .0000
8.2950 1.2950
1538324 .2500
298,202.03 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1
1538325 .2500
278,266.07 .0800
7.2500 .0000
7.0000 .0000
6.9200 .0000
6.9200 .0000
1538729 .2500
78,868.36 .0300
7.8500 .0000
7.6000 .0000
7.5700 .0000
7.5700 .5700
1538760 .2500
249,244.97 .0300
7.5000 .0000
7.2500 .0000
7.2200 .0000
7.2200 .2200
1538774 .2500
135,000.00 .0300
8.2500 .0000
8.0000 .0000
7.9700 .0000
7.9700 .9700
1538797 .2500
298,000.00 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1538805 .2500
79,768.81 .0300
8.0000 .0000
7.7500 .0000
7.7200 .0000
7.7200 .7200
1538838 .2500
448,670.51 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1538861 .2500
89,728.19 .0300
7.5000 .0000
7.2500 .0000
7.2200 .0000
7.2200 .2200
1
1538980 .2500
590,923.99 .0300
7.6250 .0000
7.3750 .0000
7.3450 .0000
7.3450 .3450
1539202 .2500
516,984.52 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.6700 .6700
1539335 .2500
244,924.28 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1539345 .2500
246,542.29 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.1700 .1700
1539489 .1250
328,900.00 .0800
7.1250 .0000
7.0000 .0000
6.9200 .0000
6.9200 .0000
1539497 .2500
139,000.00 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1539732 .2500
429,439.14 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1539844 .2500
225,000.00 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1
1539863 .2500
197,613.43 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1539890 .2500
90,000.00 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1540048 .2500
45,000.00 .0300
7.3750 .0000
7.1250 .0000
7.0950 .0000
7.0950 .0950
1540058 .2500
324,000.00 .0300
7.6250 .0000
7.3750 .0000
7.3450 .0000
7.3450 .3450
1540219 .2500
141,811.06 .0300
8.5500 .0000
8.3000 .0000
8.2700 .0000
8.2700 1.2700
1540221 .2500
296,941.60 .0300
7.2000 .0000
6.9500 .0000
6.9200 .0000
6.9200 .0000
1540223 .2500
745,612.26 .0300
7.9000 .0000
7.6500 .0000
7.6200 .0000
7.6200 .6200
1540225 .2500
34,788.86 .0300
7.5500 .0000
7.3000 .0000
7.2700 .0000
7.2700 .2700
1
1540227 .2500
229,341.20 .0300
8.1000 .0000
7.8500 .0000
7.8200 .0000
7.8200 .8200
1540228 .2500
32,901.20 .0300
7.6000 .0000
7.3500 .0000
7.3200 .0000
7.3200 .3200
1540229 .2500
82,254.10 .0300
7.6500 .0000
7.4000 .0000
7.3700 .0000
7.3700 .3700
1540236 .2500
299,133.04 .0300
8.0000 .0000
7.7500 .0000
7.7200 .0000
7.7200 .7200
1540787 .2500
229,357.13 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1540806 .2500
195,433.59 .0300
8.0000 .0000
7.7500 .0000
7.7200 .0000
7.7200 .7200
1540817 .2500
229,178.02 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1540997 .2500
299,133.04 .0300
8.0000 .0000
7.7500 .0000
7.7200 .0000
7.7200 .7200
1
1541108 .5000
136,782.32 .0800
7.8750 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1541111 .5000
108,325.63 .0800
7.8750 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1541147 .2500
195,000.00 .0300
8.1250 .0000
7.8750 .0000
7.8450 .0000
7.8450 .8450
1541176 .2500
86,742.96 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
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7.2500 .0000
7.2200 .0000
7.2200 .2200
1548137 .2500
264,000.00 .0300
7.6250 .0000
7.3750 .0000
7.3450 .0000
7.3450 .3450
1548166 .2500
275,000.00 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1548309 .2500
159,000.00 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1
1548350 .2500
260,000.00 .0300
7.7500 .0000
7.5000 .0000
7.4700 .0000
7.4700 .4700
1548384 .2500
220,000.00 .0300
7.0000 .0000
6.7500 .0000
6.7200 .0000
6.7200 .0000
1548392 .2500
348,931.31 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0450 .0450
1548393 .2500
500,000.00 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1548398 .2500
224,063.75 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0450 .0450
1548432 .2500
248,000.00 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.2950 .2950
1548438 .1250
169,503.26 .0800
7.8750 .0000
7.7500 .0000
7.6700 .0000
7.6700 .6700
1548482 .2500
299,500.00 .0300
7.5000 .0000
7.2500 .0000
7.2200 .0000
7.2200 .2200
1
1548496 .2500
250,000.00 .0300
6.9900 .0000
6.7400 .0000
6.7100 .0000
6.7100 .0000
1548506 .2500
269,202.31 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1548514 .2500
497,573.87 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.7950 .7950
1548516 .2500
254,246.61 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1548517 .2500
348,942.96 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.1700 .1700
1548518 .2500
312,314.77 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.9200 .9200
1548533 .2500
365,935.62 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
8.0450 1.0450
1548541 .2500
228,500.00 .0800
7.8750 .0000
7.6250 .0000
7.5450 .0000
7.5450 .5450
1
1548827 .2500
121,000.00 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.4200 .4200
1548843 .2500
210,000.00 .0300
7.6250 .0000
7.3750 .0000
7.3450 .0000
7.3450 .3450
1548952 .2500
218,609.45 .0300
7.8750 .0000
7.6250 .0000
7.5950 .0000
7.5950 .5950
1548957 .2500
240,000.00 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0450 .0450
1548981 .2500
50,000.00 .0300
8.0000 .0000
7.7500 .0000
7.7200 .0000
7.7200 .7200
1549054 .2500
296,000.00 .0800
7.0000 .0000
6.7500 .0000
6.6700 .0000
6.6700 .0000
1549196 .2500
308,000.00 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.6700 .6700
TOTAL NUMBER OF LOANS: 477
TOTAL BALANCE........: 130,238,820.08
RUN ON : 01/21/97 RFC DISCLOSURE SYSTEM RFFSDFIX-01
AT : 08.51.13 INITIAL SECURITY FEES AMORTIZED BALANCE
SERIES : RFMSI I 1997-S1 FIXED SUMMARY REPORT CUTOFF : 01/01/97
POOL : 0004235
:
:
POOL STATUS: F
WEIGHTED AVERAGES FROM TO
--------------------------------------------------------------------------
CURR NOTE RATE 7.9115 6.7500 9.0000
RFC NET RATE 7.6489 6.5000 8.7500
NET MTG RATE(INVSTR RATE) 7.5881 6.4200 8.7200
POST STRIP RATE 7.5881 6.4200 8.7200
SUB SERV FEE .2627 .1250 1.0450
MSTR SERV FEE .0607 .0300 .0800
ALL EXP .0000 .0000 .0000
MISC EXP .0000 .0000 .0000
SPREAD .0000 .0000 .0000
STRIP .5969 .0000 1.7200
TOTAL NUMBER OF LOANS: 477
TOTAL BALANCE........: 130,238,820.08
***************************
* END OF REPORT *
***************************
To be provided upon request.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
EXHIBIT G
FORM OF SELLER/SERVICER CONTRACT
This Seller/Servicer Contract (as may be amended, supplemented or
otherwise modified from time to time, this "Contract") is made this _________
day of _______, 19____, by and between Residential Funding Corporation, its
successors and assigns ("Residential Funding") and _____________________ (the
"Seller/Servicer," and, together with Residential Funding, the "parties" and
each, individually, a "party").
WHEREAS, the Seller/Servicer desires to sell Loans to, and/or service
Loans for, Residential Funding, and Residential Funding desires to purchase
Loans from the Seller/Servicer and/or have the Seller/Servicer service various
of its Loans, pursuant to the terms of this Contract and the Residential Funding
Seller and Servicer Guides incorporated herein by reference, as amended,
supplemented or otherwise modified, from time to time (together, the "Guides").
NOW, THEREFORE, in consideration of the premises, and the terms,
conditions and agreements set forth below, the parties agree as follows:
1. Incorporation of Guides by Reference.
The Seller/Servicer acknowledges that it has received and read the
Guides. All provisions of the Guides are incorporated by reference into and made
a part of this Contract, and shall be binding upon the parties; provided,
however, that the Seller/Servicer shall be entitled to sell Loans to and/or
service Loans for Residential Funding only if and for so long as it shall have
been authorized to do so by Residential Funding in writing. Specific reference
in this Contract to particular provisions of the Guides and not to other
provisions does not mean that those provisions of the Guides not specifically
cited in this Contract are not applicable. All terms used herein shall have the
same meanings as such terms have in the Guides, unless the context clearly
requires otherwise.
2. Amendments.
This Contract may not be amended or modified orally, and no provision
of this Contract may be waived or amended except in writing signed by the party
against whom enforcement is sought. Such a written waiver or amendment must
expressly reference this Contract. However, by their terms, the Guides may be
amended or supplemented by Residential Funding from time to time. Any such
amendment(s) to the Guides shall be binding upon the parties hereto.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3. Representations and Warranties.
a. Reciprocal Representations and Warranties.
The Seller/Servicer and Residential Funding each represents
and warrants to the other that as of the date of this Contract:
(1) Each party is duly organized, validly existing, and in good standing
under the laws of its jurisdiction of organization, is qualified, if
necessary, to do business and in good standing in each jurisdiction in
which it is required to be so qualified, and has the requisite power and
authority to enter into this Contract and all other agreements which are
contemplated by this Contract and to carry out its obligations hereunder
and under the Guides and under such other agreements.
(2) This Contract has been duly authorized, executed and
delivered by each party and constitutes a valid and
legally binding agreement of each party enforceable
in accordance with its terms.
(3) There is no action, proceeding or investigation
pending or threatened, and no basis therefor is known
to either party, that could affect the validity or
prospective validity of this Contract.
(4) Insofar as its capacity to carry out any obligation under this Contract is
concerned, neither party is in violation of any charter, articles of
incorporation, bylaws, mortgage, indenture, indebtedness, agreement,
instrument, judgment, decree, order, statute, rule or regulation and none
of the foregoing adversely affects its capacity to fulfill any of its
obligations under this Contract. Its execution of, and performance
pursuant to, this Contract will not result in a violation of any of the
foregoing.
b. Seller/Servicer's Representations, Warranties and Covenants.
In addition to the representations, warranties and covenants
made by the Seller/Servicer pursuant to subparagraph (a) of
this paragraph 3, the Seller/Servicer makes the
representations, warranties and covenants set forth in the
Guides and, upon request, agrees to deliver to Residential
Funding the certified Resolution of Board of Directors which
authorizes the execution and delivery of this Contract.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
4. Remedies of Residential Funding.
If an Event of Seller Default or an Event of Servicer Default shall
occur, Residential Funding may, at its option, exercise one or more of those
remedies set forth in the Guides.
5. Seller/Servicer's Status as Independent Contractor.
At no time shall the Seller/Servicer represent that it is acting as an
agent of Residential Funding. The Seller/Servicer shall, at all times, act as an
independent contractor.
6. Prior Agreements Superseded.
This Contract restates, amends and supersedes any and all prior Seller
Contracts or Servicer Contracts between the parties except that any subservicing
agreement executed by the Seller/Servicer in connection with any loan-security
exchange transaction shall not be affected.
7. Assignment.
This Contract may not be assigned or transferred, in whole or in part,
by the Seller/Servicer without the prior written consent of Residential Funding.
Residential Funding may sell, assign, convey, hypothecate, pledge or in any
other way transfer, in whole or in part, without restriction, its rights under
this Contract and the Guides with respect to any Commitment or Loan.
8. Notices.
All notices, requests, demands or other communications that are to be
given under this Contract shall be in writing, addressed to the appropriate
parties and sent by telefacsimile or by overnight courier or by United States
mail, postage prepaid, to the addresses and telefacsimile numbers specified
below. However, another name, address and/or telefacsimile number may be
substituted by the Seller/Servicer pursuant to the requirements of this
paragraph 8, or Residential Funding pursuant to an amendment to the Guides.
If to Residential Funding, notices must be sent to the appropriate address or
telefacsimile number specified in the Guides.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
If to the Seller/Servicer, notice must be sent to:
Attention:
Telefacsimile Number: (___) ___-____
9. Jurisdiction and Venue.
Each of the parties irrevocably submits to the jurisdiction of any
state or federal court located in Hennepin County, Minnesota, over any action,
suit or proceeding to enforce or defend any right under this Contract or
otherwise arising from any loan sale or servicing relationship existing in
connection with this Contract, and each of the parties irrevocably agrees that
all claims in respect of any such action or proceeding may be heard or
determined in such state or federal court. Each of the parties irrevocably
waives the defense of an inconvenient forum to the maintenance of any such
action or proceeding and any other substantive or procedural rights or remedies
it may have with respect to the maintenance of any such action or proceeding in
any such forum. Each of the parties agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
Each of the parties further agrees not to institute any legal actions or
proceedings against the other party or any director, officer, employee,
attorney, agent or property of the other party, arising out of or relating to
this Contract in any court other than as hereinabove specified in this paragraph
9.
10. Miscellaneous.
This Contract, including all documents incorporated by reference
herein, constitutes the entire understanding between the parties hereto and
supersedes all other agreements, covenants, representations, warranties,
understandings and communications between the parties, whether written or oral,
with respect to the transactions contemplated by this Contract. All paragraph
headings contained herein are for convenience only and shall not be construed as
part of this Contract. Any provision of this Contract that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction, and, to this end, the provisions hereof are
severable. This Contract shall be governed by, and construed and enforced in
accordance with, applicable federal laws and the laws of the State of Minnesota.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
IN WITNESS WHEREOF, the duly authorized officers of the Seller/Servicer
and Residential Funding have executed this Seller/Servicer Contract as of the
date first above written.
ATTEST: SELLER/SERVICER
[Corporate Seal]
(Name of Seller/Servicer)
By: By:
(Signature) (Signature)
By:
(Typed Name) (Typed Name)
Title: Title:
ATTEST: RESIDENTIAL FUNDING CORPORATION
By: By:
(Signature) (Signature)
By:
(Typed Name) (Typed Name)
Title: Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
5
EXHIBIT H
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
Residential Funding Corporation
Authorized Signature
****************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s)of Mortgage or Deed
of Trust
[ ] Title Insurance Policy
[ ] Other:
Name
Title
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
Date
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
EXHIBIT I-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
: ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Mortgage Pass-Through Certificates, Series 1997-S1,
Class R (the "Owner")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of __________________] [the United
States], on behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of [date of transfer] within the meaning of Section 860E(e)(5)
of the Internal Revenue Code of 1986, as amended (the "Code"), (ii) will
endeavor to remain other than a disqualified organization for so long as it
retains its ownership interest in the Class R Certificates, and (iii) is
acquiring the Class R Certificates for its own account or for the account of
another Owner from which it has received an affidavit and agreement in
substantially the same form as this affidavit and agreement. (For this purpose,
a "disqualified organization" means the United States, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality all of the activities of which are subject to tax
and, except for the Federal Home Loan Mortgage Corporation, a majority of whose
board of directors is not selected by any such governmental entity) or any
foreign government, international organization or any agency or instrumentality
of such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that
is generally exempt from federal income tax unless such organization is subject
to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be
imposed on transfers of Class R Certificates to disqualified organizations under
the Code, that applies to all transfers of Class R Certificates after March 31,
1988; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
disqualified organization, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that the Class R Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4. That the Owner is aware of the tax imposed on a
"pass-through entity" holding Class R Certificates if at any time during the
taxable year of the pass-through entity a disqualified organization is the
record holder of an interest in such entity. (For this purpose, a "pass through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee will not register
the transfer of any Class R Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Owner expressly agrees that it will not consummate any such transfer if it knows
or believes that any of the representations contained in such affidavit and
agreement are false.
6. That the Owner has reviewed the restrictions set forth on
the face of the Class R Certificates and the provisions of Section 5.02(f) of
the Pooling and Servicing Agreement under which the Class R Certificates were
issued (in particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which
authorize the Trustee to deliver payments to a person other than the Owner and
negotiate a mandatory sale by the Trustee in the event the Owner holds such
Certificates in violation of Section 5.02(f)). The Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is not a disqualified
organization.
8. The Owner's Taxpayer Identification Number is ______________.
9. This affidavit and agreement relates only to the Class R
Certificates held by the Owner and not to any other holder of the Class R
Certificates. The Owner understands that the liabilities described herein relate
only to the Class R Certificates.
10. That no purpose of the Owner relating to the transfer of
any of the Class R Certificates by the Owner is or will be to impede the
assessment or collection of any tax.
11. That the Owner has no present knowledge or expectation
that it will be unable to pay any United States taxes owed by it so long as any
of the Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the person from whom it acquired the Class
R Certificate that the Owner intends to pay taxes associated with holding such
Class R Certificate as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Class R
Certificate.
12. That the Owner has no present knowledge or expectation
that it will become insolvent or subject to a bankruptcy proceeding for so long
as any of the Class R Certificates remain outstanding.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
13. The Owner is 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 or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ____ day of _______________, 199__.
[NAME OF OWNER]
By:
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of
Officer], known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to me
that he executed the same as his free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of
________________, 199__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the
____ day of
_______________, 19__.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
__________________, 19__
Residential Funding Mortgage
Securities I, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, Minnesota 55437
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Residential Funding Corporation Series 1997-S1
Re: Mortgage Pass-Through Certificates,
Series 1997-S1, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________________ (the "Seller") to
_______________________________ (the "Purchaser") of $_____________ Initial
Certificate Principal Balance of Mortgage Pass-Through Certificates, Series
1997-S1, Class R (the "Certificates"), pursuant to Section 5.02 of the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
January 1, 1997 among Residential Funding Mortgage Securities I, Inc., as seller
(the "Company"), Residential Funding Corporation, as master servicer, and The
First National Bank of Chicago, as trustee (the "Trustee"). All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Seller hereby certifies, represents and
warrants to, and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate by
the Seller to the Purchaser is or will be to impede the assessment or collection
of any tax.
2. The Seller understands that the Purchaser has delivered to
the Trustee and the Master Servicer a transfer affidavit and agreement in the
form attached to the Pooling and Servicing Agreement as Exhibit I-1. The Seller
does not know or believe that any representation contained therein is false.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3. The Seller has at the time of the transfer conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Seller has determined that the Purchaser has
historically paid its debts as they become due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Seller understands that the transfer of a
Class R Certificate may not be respected for United States income tax purposes
(and the Seller may continue to be liable for United States income taxes
associated therewith) unless the Seller has conducted such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee is not
both a United States Person and a Permitted Transferee.
Very truly yours,
(Seller)
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
EXHIBIT J-1
FORM OF INVESTOR REPRESENTATION LETTER
______________, 19__
Residential Funding Mortgage
Securities I, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, MN 55437
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Residential Funding Corporation Series 1997-S1
RE: Mortgage Pass-Through Certificates,
Series 1997-S1, Class B-__
Ladies and Gentlemen:
_________________________ (the "Purchaser") intends to
purchase from ___________________________ (the "Seller") $_____________ Initial
Certificate Principal Balance of Mortgage Pass-Through Certificates, Series
1997-S1, Class __ (the "Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of January
1, 1997 among Residential Funding Mortgage Securities I, Inc., as seller (the
"Company"), Residential Funding Corporation, as master servicer, and The First
National Bank of Chicago, as trustee (the "Trustee"). All terms used herein and
not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Purchaser hereby certifies, represents and warrants to,
and covenants with, the Company and the Trustee that:
1. The Purchaser understands that (a) the Certificates
have not been and will not be registered or qualified under
the Securities Act of 1933, as amended (the "Act") or any
state securities law, (b) the Company is not required to so
register or qualify the Certificates, (c) the Certificates may
be resold only if registered and qualified pursuant to the
provisions of the Act or any state securities law, or if an
exemption from such registration and qualification is
available, (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates and
(e) the Certificates will bear a legend to the foregoing
effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
distribution thereof in any manner that would violate the Act
or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such
matters related to securities similar to the Certificates,
such that it is capable of evaluating the merits and risks of
investment in the Certificates, (b) able to bear the economic
risks of such an investment and (c) an "accredited investor"
within the meaning of Rule 501(a) promulgated pursuant to the
Act.
4. The Purchaser has been furnished with, and has had
an opportunity to review (a) [a copy of the Private Placement
Memorandum, dated ____________, 199_, relating to the
Certificates (b)] a copy of the Pooling and Servicing
Agreement and [b] [c] such other information concerning the
Certificates, the Mortgage Loans and the Company as has been
requested by the Purchaser from the Company or the Seller and
is relevant to the Purchaser's decision to purchase the
Certificates. The Purchaser has had any questions arising from
such review answered by the Company or the Seller to the
satisfaction of the Purchaser. [If the Purchaser did not
purchase the Certificates from the Seller in connection with
the initial distribution of the Certificates and was provided
with a copy of the Private Placement Memorandum (the
"Memorandum") relating to the original sale (the "Original
Sale") of the Certificates by the Company, the Purchaser
acknowledges that such Memorandum was provided to it by the
Seller, that the Memorandum was prepared by the Company solely
for use in connection with the Original Sale and the Company
did not participate in or facilitate in any way the purchase
of the Certificates by the Purchaser from the Seller, and the
Purchaser agrees that it will look solely to the Seller and
not to the Company with respect to any damage, liability,
claim or expense arising out of, resulting from or in
connection with (a) error or omission, or alleged error or
omission, contained in the Memorandum, or (b) any information,
development or event arising after the date of the
Memorandum.]
5. The Purchaser has not and will not nor has it
authorized or will it authorize any person to (a) offer,
pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicit any
offer to buy or to accept a pledge, disposition of other
transfer of any Certificate, any interest in any Certificate
or any other similar security from any person in any manner,
(c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (d) make any
general solicitation by means of general advertising or in any
other manner or (e) take any other action, that (as to any of
(a) through (e) above) would constitute a distribution of any
Certificate under the Act, that would render the disposition
of any Certificate a violation of Section 5 of the Act or
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
any state securities law, or that would require registration
or qualification pursuant thereto. The Purchaser will not sell
or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Pooling and Servicing
Agreement.
*6. The Purchaser represents that either (a) or (b) is satisfied,
as marked below:
a. is not any employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the Internal
Revenue Code of 1986 (the "Code"), a Person acting, directly or indirectly, on
behalf of any such plan or any Person acquiring such Certificates with "plan
assets" of a Plan within the meaning of the Department of Labor regulation
promulgated at 29 C.F.R. ss.2510.3-101; or
b. will provide the Trustee, the Company and the Master Servicer
with either: (i) an opinion of counsel, satisfactory to the Trustee, the Company
and the Master Servicer, to the effect that the purchase and holding of a
Certificate by or on behalf of the Purchaser is permissible under applicable
law, will not constitute or result in a prohibited transaction under Section 406
of ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Trustee, the Company or the Master Servicer
to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of the Trustee, the
Company or the Master Servicer; or (ii) in lieu of such opinion of counsel, a
certification in the form of Exhibit J-2 to the Pooling and Servicing Agreement.
* To be inserted when Prohibited Transaction Exemption 94-29, the
individual exemption granted to RFC by the Department of Labor, will
not exempt a transaction from the application of the prohibited
transaction provisions of ERISA and the Code.
Very truly yours,
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
EXHIBIT J-2
FORM OF ERISA REPRESENTATION LETTER
_____________, 199__
Residential Funding Corporation
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, MS 55437
Residential Funding Mortgage
Securities I, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, MS 55437
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Residential Funding Corporation Series 1997-S1
Re: Mortgage Pass-Through Certificates,
Series 1997-S1, Class____
Dear Sirs:
___________________ (the "Purchaser") intends to purchase from
___________________ (the "Seller") $ _________________ Initial Certificate
Principal Balance of Mortgage Pass-Through Certificates, Series 1997-S1, Class
____ (the "Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the"Pooling and Servicing Agreement"), dated as of January 1, 1997,
among Residential Funding Mortgage Securities I, Inc., as seller (the
"Company"), Residential Funding Corporation, as master servicer (the "Master
Servicer") and The First National Bank of Chicago, as trustee (the "Trustee").
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Purchaser hereby certifies,
represents and warrants to, and covenants with the Company, the Trustee and the
Master Servicer that the following statements in either (1) or (2) are accurate:
(1) The Certificates (i) are not being acquired by, and will
not be transferred to, any employee benefit plan within the meaning of
section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or other retirement
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
arrangement, including individual retirement accounts and annuities,
Keogh plans and bank collective investment funds and insurance company
general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1986 (the "Code") (any of
the foregoing, a "Plan"), (ii) are not being acquired with "plan
assets" of a Plan within the meaning of the Department of Labor ("DOL")
regulation, 29 C.F.R. ss. 2510.3-101, and (iii) will not be transferred
to any entity that is deemed to be investing in plan assets within the
meaning of the DOL regulation, 29 C.F.R. ss. 2510.3-101; or
(2) The purchase of Certificates is permissible under
applicable law, will not constitute or result in any prohibited
transaction under ERISA or Section 4975 of the Code, will not subject
the Company, the Trustee or the Master Servicer to any obligation in
addition to those undertaken in the Pooling and Servicing Agreement
and, with respect to each source of funds ("Source") being used by the
Purchaser to acquire the Certificates, each of the following statements
are accurate: (a) the Purchaser is an insurance company; (b) the Source
is assets of the Purchaser's "general account;" (c) the conditions set
forth in Sections I and III of Prohibited Transaction Class Exemption
("PTCE") 95-60 issued by the DOL have been satisfied and the purchase,
holding and transfer of Certificates by or on behalf of the Purchaser
are exempt under PTCE 95-60; and (d) the amount of reserves and
liabilities for such general account contracts held by or on behalf of
any Plan do not exceed 10% of the total reserves and liabilities of
such general account plus surplus as of the date hereof (for purposes
of this clause, all Plans maintained by the same employer (or affiliate
thereof) or employee organization are deemed to be a single Plan) in
connection with its purchase and holding of such Certificates.
Very truly yours,
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
5
EXHIBIT K
FORM OF TRANSFEROR REPRESENTATION LETTER
, 19
Residential Funding Mortgage
Securities I, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, MN 55437
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Residential Funding Corporation Series 1997-S1
Re: Mortgage Pass-Through Certificates,
Series 1997-S1, [Class B-]
Ladies and Gentlemen:
In connection with the sale by (the "Seller") to (the -------------
------------------ "Purchaser") of $ Initial Certificate Principal Balance of
Mortgage Pass-Through ----------- Certificates, Series 1997-S1, Class (the
"Certificates"), issued pursuant to the Pooling and
-
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
January 1, 1997 among Residential Funding Mortgage Securities I, Inc., as seller
(the "Company"), Residential Funding Corporation, as master servicer, and The
First National Bank of Chicago, as trustee (the "Trustee"). The Seller hereby
certifies, represents and warrants to, and covenants with, the Company and the
Trustee that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
Act of 1933 (the "Act"), that would render the disposition of any Certificate a
violation of Section 5 of the Act or any state securities law, or that would
require registration or qualification pursuant thereto. The Seller will not act,
in any manner set forth in the foregoing sentence with respect to any
Certificate. The Seller has not and will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
Very truly yours,
(Seller)
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
EXHIBIT L
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including
numbers:
===============================================
===============================================
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with,
the Seller, the Trustee and the Master Servicer (as defined in the Pooling and
Servicing Agreement (the "Agreement"), dated as of January 1, 1997 among
Residential Funding Corporation as Master Servicer, Residential Funding Mortgage
Securities I, Inc. as depositor pursuant to Section 5.02 of the Agreement and
The First National Bank of Chicago, as trustee, as follows:
a. The Buyer understands that the Rule 144A Securities
have not been registered under the 1933 Act or the securities laws of
any state.
b. The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Seller, the Trustee or the Servicer.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that
term is defined in Rule 144A under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be
resold, pledged or transferred only (i) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
*3. The Buyer represents that either (a) or (b) is satisfied, as marked
below: :
a. is not any employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the Internal
Revenue Code of 1986 (the "Code"), a Person acting, directly or indirectly, on
behalf of any such plan or any Person acquiring such Certificates with "plan
assets" of a Plan within the meaning of the Department of Labor regulation
promulgated at 29 C.F.R. ss.2510.3-101; or
b. will provide the Trustee, the Company and the Master Servicer
with either: (i) an opinion of counsel, satisfactory to the Trustee, the Company
and the Master Servicer, to the effect that the purchase and holding of a
Certificate by or on behalf of the Buyer is permissible under applicable law,
will not constitute or result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments) and will not subject the Trustee, the Company or the Master Servicer
to any obligation or liability (including liabilities under ERISA or Section
4975 of the Code) in addition to those undertaken in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of the Trustee, the
Company or the Master Servicer; or (ii) in lieu of such opinion of counsel, a
certification in the form of Exhibit J-2 to the Pooling and Servicing Agreement.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
* To be inserted when Prohibited Transaction Exemption 94-29, the
individual exemption granted to RFC by the Department of Labor, will
not exempt a transaction from the application of the prohibited
transaction provisions of ERISA and the Code.
4. This document may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this
document as of the date set forth below.
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No. No.
Date: Date:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $______________________ in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
4
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the
-------------
Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State or territory or the District
of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and ----------
whose participants are exclusively (a) plans established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees, or (b)
employee benefit plans within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, but is not a trust fund that includes as
participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
5
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer
agrees that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule 144A.
In addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
Print Name of Buyer
By:
Name:
Title:
Date:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
6
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
7
5. The Buyer is familiar with Rule 144A and understands that
each of the parties to which this certification is made are relying and will
continue to rely on the statements made herein because one or more sales to the
Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
Print Name of Buyer
By:
Name:
Title:
IF AN ADVISER:
Print Name of Buyer
Date:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
8
EXHIBIT M
[TEXT OF AMENDMENT TO POOLING AND SERVICING
AGREEMENT PURSUANT TO SECTION 11.01(E) FOR A
LIMITED GUARANTY]
ARTICLE XII
Subordinate Certificate Loss Coverage; Limited Guaranty
Section 12.01. Subordinate Certificate Loss Coverage; Limited
Guaranty. (a) Subject to subsection (c) below, prior to the later of the third
Business Day prior to each Distribution Date or the related Determination Date,
the Master Servicer shall determine whether it or any Subservicer will be
entitled to any reimbursement pursuant to Section 4.02(a) on such Distribution
Date for Advances or Subservicer Advances previously made, (which will not be
Advances or Subservicer Advances that were made with respect to delinquencies
which were subsequently determined to be Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses) and, if so, the
Master Servicer shall demand payment from Residential Funding of an amount equal
to the amount of any Advances or Subservicer Advances reimbursed pursuant to
Section 4.02(a), to the extent such Advances or Subservicer Advances have not
been included in the amount of the Realized Loss in the related Mortgage Loan,
and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a).
(b) Subject to subsection (c) below, prior to the later of the
third Business Day prior to each Distribution Date or the related Determination
Date, the Master Servicer shall determine whether any Realized Losses (other
than Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
and Extraordinary Losses) will be allocated to the Class B Certificates on such
Distribution Date pursuant to Section 4.05, and, if so, the Master Servicer
shall demand payment from Residential Funding of the amount of such Realized
Loss and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a);
provided, however, that the amount of such demand in respect of any Distribution
Date shall in no event be greater than the sum of (i) the additional amount of
Accrued Certificate Interest that would have been paid for the Class B
Certificateholders on such Distribution Date had such Realized Loss or Losses
not occurred plus (ii) the amount of the reduction in the Certificate Principal
Balances of the Class B Certificates on such Distribution Date due to such
Realized Loss or Losses. Notwithstanding such payment, such Realized Losses
shall be deemed to have been borne by the Certificateholders for purposes of
Section 4.05. Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses and Extraordinary Losses allocated to the Class B Certificates
will not be covered by the Subordinate Certificate Loss Obligation.
(c) Demands for payments pursuant to this Section shall be
made prior to the later of the third Business Day prior to each Distribution
Date or the related Determination
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
Date by the Master Servicer with written notice thereof to the Trustee. The
maximum amount that Residential Funding shall be required to pay pursuant to
this Section on any Distribution Date (the "Amount Available") shall be equal to
the lesser of (X) minus the sum of (i) all previous payments made under
subsections (a) and (b) hereof and (ii) all draws under the Limited Guaranty
made in lieu of such payments as described below in subsection (d) and (Y) the
then outstanding Certificate Principal Balances of the Class B Certificates, or
such lower amount as may be established pursuant to Section 12.02. Residential
Funding's obligations as described in this Section are referred to herein as the
"Subordinate Certificate Loss Obligation."
(d) The Trustee will promptly notify General Motors Acceptance
Corporation of any failure of Residential Funding to make any payments hereunder
and shall demand payment pursuant to the limited guaranty (the "Limited
Guaranty"), executed by General Motors Acceptance Corporation, of Residential
Funding's obligation to make payments pursuant to this Section, in an amount
equal to the lesser of (i) the Amount Available and (ii) such required payments,
by delivering to General Motors Acceptance Corporation a written demand for
payment by wire transfer, not later than the second Business Day prior to the
Distribution Date for such month, with a copy to the Master Servicer.
(e) All payments made by Residential Funding pursuant to this
Section or amounts paid under the Limited Guaranty shall be deposited directly
in the Certificate Account, for distribution on the Distribution Date for such
month to the Class B Certificateholders.
(f) The Company shall have the option, in its sole discretion,
to substitute for either or both of the Limited Guaranty or the Subordinate
Certificate Loss Obligation another instrument in the form of a corporate
guaranty, an irrevocable letter of credit, a surety bond, insurance policy or
similar instrument or a reserve fund; provided that (i) the Company obtains
(subject to the provisions of Section 10.01(f) as if the Company was substituted
for the Master Servicer solely for the purposes of such provision) an Opinion of
Counsel (which need not be an opinion of Independent counsel) to the effect that
obtaining such substitute corporate guaranty, irrevocable letter of credit,
surety bond, insurance policy or similar instrument or reserve fund will not
cause either (a) any federal tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions" under
Section 860(F)(a)(1) of the Code or on "contributions after the startup date"
under Section 860(G)(d)(1) of the Code or (b) the Trust Fund to fail to qualify
as a REMIC at any time that any Certificate is outstanding, and (ii) no such
substitution shall be made unless (A) the substitute Limited Guaranty or
Subordinate Certificate Loss Obligation is for an initial amount not less than
the then current Amount Available and contains provisions that are in all
material respects equivalent to the original Limited Guaranty or Subordinate
Certificate Loss Obligation (including that no portion of the fees,
reimbursements or other obligations under any such instrument will be borne by
the Trust Fund), (B) the long term debt obligations of any obligor of any
substitute Limited Guaranty or Subordinate Certificate Loss Obligation (if not
supported by the Limited Guaranty) shall be rated at least the lesser of (a) the
rating of the long term debt obligations of General Motors Acceptance
Corporation as of the date of issuance of the Limited Guaranty and (b) the
rating of the long term debt obligations of General Motors
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
Acceptance Corporation at the date of such substitution and (C) the Company
obtains written confirmation from each nationally recognized credit rating
agency that rated the Class B Certificates at the request of the Company that
such substitution shall not lower the rating on the Class B Certificates below
the lesser of (a) the then-current rating assigned to the Class B Certificates
by such rating agency and (b) the original rating assigned to the Class B
Certificates by such rating agency. Any replacement of the Limited Guaranty or
Subordinate Certificate Loss Obligation pursuant to this Section shall be
accompanied by a written Opinion of Counsel to the substitute guarantor or
obligor, addressed to the Master Servicer and the Trustee, that such substitute
instrument constitutes a legal, valid and binding obligation of the substitute
guarantor or obligor, enforceable in accordance with its terms, and concerning
such other matters as the Master Servicer and the Trustee shall reasonably
request. Neither the Company, the Master Servicer nor the Trustee shall be
obligated to substitute for or replace the Limited Guaranty or Subordinate
Certificate Loss Obligation under any circumstance.
Section 12.02. Amendments Relating to the Limited Guaranty.
Notwithstanding Sections 11.01 or 12.01: (i) the provisions of this Article XII
may be amended, superseded or deleted, (ii) the Limited Guaranty or Subordinate
Certificate Loss Obligation may be amended, reduced or canceled, and (iii) any
other provision of this Agreement which is related or incidental to the matters
described in this Article XII may be amended in any manner; in each case by
written instrument executed or consented to by the Company and Residential
Funding but without the consent of any Certificateholder and without the consent
of the Master Servicer or the Trustee being required unless any such amendment
would impose any additional obligation on, or otherwise adversely affect the
interests of, the Master Servicer or the Trustee, as applicable; provided that
the Company shall also obtain a letter from each nationally recognized credit
rating agency that rated the Class B Certificates at the request of the Company
to the effect that such amendment, reduction, deletion or cancellation will not
lower the rating on the Class B Certificates below the lesser of (a) the
then-current rating assigned to the Class B Certificates by such rating agency
and (b) the original rating assigned to the Class B Certificates by such rating
agency, unless (A) the Holder of 100% of the Class B Certificates is Residential
Funding or an Affiliate of Residential Funding, or (B) such amendment,
reduction, deletion or cancellation is made in accordance with Section 11.01(e)
and, provided further that the Company obtains (subject to the provisions of
Section 10.01(f) as if the Company was substituted for the Master Servicer
solely for the purposes of such provision), in the case of a material amendment
or supersession (but not a reduction, cancellation or deletion of the Limited
Guaranty or the Subordinate Certificate Loss Obligation), an Opinion of Counsel
(which need not be an opinion of Independent counsel) to the effect that any
such amendment or supersession will not cause either (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code or
(b) the Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is outstanding. A copy of any such instrument shall be provided to
the Trustee and the Master Servicer together with an Opinion of Counsel that
such amendment complies with this Section 12.02.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
EXHIBIT N
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates
Series 1997-S1
, 199__
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Residential Funding Corporation Series 1997-S1
Ladies and Gentlemen:
WHEREAS, Residential Funding Corporation, a Delaware
corporation ("Residential Funding"), an indirect wholly-owned subsidiary of
General Motors Acceptance Corporation, a New York corporation ("GMAC"), plans to
incur certain obligations as described under Section 12.01 of the Pooling and
Servicing Agreement dated as of January 1, 1997 (the "Servicing Agreement"),
among Residential Funding Mortgage Securities I, Inc. (the "Company"),
Residential Funding and The First National Bank of Chicago (the "Trustee") as
amended by Amendment No. ___ thereto, dated as of ________, with respect to the
Mortgage Pass-Through Certificates, Series 1997-S1 (the "Certificates"); and
WHEREAS, pursuant to Section 12.01 of the Servicing Agreement,
Residential Funding agrees to make payments to the Holders of the Class B
Certificates with respect to certain losses on the Mortgage Loans as described
in the Servicing Agreement; and
WHEREAS, GMAC desires to provide certain assurances with
respect to the ability of Residential Funding to secure sufficient funds and
faithfully to perform its Subordinate Certificate Loss Obligation;
NOW THEREFORE, in consideration of the premises herein
contained and certain other good and valuable consideration, the receipt of
which is hereby acknowledged, GMAC agrees as follows:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
1. Provision of Funds. (a) GMAC agrees to contribute and
deposit in the Certificate Account on behalf of Residential Funding (or
otherwise provide to Residential Funding, or to cause to be made available to
Residential Funding), either directly or through a subsidiary, in any case prior
to the related Distribution Date, such moneys as may be required by Residential
Funding to perform its Subordinate Certificate Loss Obligation when and as the
same arises from time to time upon the demand of the Trustee in accordance with
Section 12.01 of the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall
be absolute, irrevocable and unconditional and shall not be affected by the
transfer by GMAC or any other person of all or any part of its or their interest
in Residential Funding, by any insolvency, bankruptcy, dissolution or other
proceeding affecting Residential Funding or any other person, by any defense or
right of counterclaim, set-off or recoupment that GMAC may have against
Residential Funding or any other person or by any other fact or circumstance.
Notwithstanding the foregoing, GMAC's obligations under clause (a) shall
terminate upon the earlier of (x) substitution for this Limited Guaranty
pursuant to Section 12.01(f) of the Servicing Agreement, or (y) the termination
of the Trust Fund pursuant to the Servicing Agreement.
2. Waiver. GMAC hereby waives any failure or delay on the part
of Residential Funding, the Trustee or any other person in asserting or
enforcing any rights or in making any claims or demands hereunder. Any defective
or partial exercise of any such rights shall not preclude any other or further
exercise of that or any other such right. GMAC further waives demand,
presentment, notice of default, protest, notice of acceptance and any other
notices with respect to this Limited Guaranty, including, without limitation,
those of action or nonaction on the part of Residential Funding or the Trustee.
3. Modification, Amendment and Termination. This Limited
Guaranty may be modified, amended or terminated only by the written agreement of
GMAC and the Trustee and only if such modification, amendment or termination is
permitted under Section 12.02 of the Servicing Agreement. The obligations of
GMAC under this Limited Guaranty shall continue and remain in effect so long as
the Servicing Agreement is not modified or amended in any way that might affect
the obligations of GMAC under this Limited Guaranty without the prior written
consent of GMAC.
4. Successor. Except as otherwise expressly provided herein, the guarantee
herein set forth shall be binding upon GMAC and its respective successors.
5. Governing Law. This Limited Guaranty shall be governed by the laws of the
State of New York.
6. Authorization and Reliance. GMAC understands that a copy of this
Limited Guaranty shall be delivered to the Trustee in connection with the
execution of Amendment No. 1 to the Servicing Agreement and GMAC hereby
authorizes the Company and the Trustee to rely on the covenants and agreements
set forth herein.
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
2
7. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meaning given them in the Servicing Agreement.
8. Counterparts.
This Limited Guaranty may be executed in any number of counterparts, each of
which shall be deemed to be an original and such counterparts shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to
be executed and delivered by its respective officers thereunto duly authorized
as of the day and year first above written.
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:
Name:
Title:
Acknowledged by:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
Name:
Title:
RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
3
EXHIBIT O
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
__________________, 19____
Residential Funding Mortgage
Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Residential Funding Corporation Series 1997-S1
Re: Mortgage Pass-Through Certificates, Series 1997-S1 Assignment of
Mortgage Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the
assignment by _________________ (the "Trustee") to _______________________ (the
"Lender") of _______________ (the "Mortgage Loan") pursuant to Section 3.13(d)
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of January 1, 1997 among Residential Funding Mortgage Securities I,
Inc., as seller (the "Company"), Residential Funding Corporation, as master
servicer, and the Trustee. All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The Lender
hereby certifies, represents and warrants to, and covenants with, the Master
Servicer and the Trustee that:
(i) the Mortgage Loan is secured by Mortgaged Property located in a
jurisdiction in which an assignment in lieu of satisfaction is required to
preserve lien priority, minimize or avoid mortgage recording taxes or otherwise
comply with, or facilitate a refinancing under, the laws of such jurisdiction;
(ii) the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and the form of the transaction is solely to
comply with, or facilitate the transaction under, such local laws;
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
(iii) the Mortgage Loan following the proposed assignment will be
modified to have a rate of interest at least 0.25 percent below or above the
rate of interest on such Mortgage Loan prior to such proposed assignment; and
(iv) such assignment is at the request of the borrower under the
related Mortgage Loan.
Very truly yours,
(Lender)
By:
Name:
Title:
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
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EXHIBIT P
SCHEDULE OF DISCOUNT FRACTIONS
Schedule of Discount Fractions
NET
PRINCIPAL MORTGAGE DISCOUNT
LOAN # BALANCE RATE FRACTION
1538315 222,073.72 6.42 0.082857142857
1542379 226,033.04 6.67 0.047142857143
1542723 424,257.25 6.67 0.047142857143
1549054 296,000.00 6.67 0.047142857143
1548496 250,000.00 6.71 0.041428571429
1544294 236,000.00 6.72 0.04
1544510 229,274.36 6.72 0.04
1548384 220,000.00 6.72 0.04
1542328 279,624.61 6.795 0.029285714286
1545362 347,779.18 6.795 0.029285714286
1547759 259,437.80 6.795 0.029285714286
1541457 220,723.81 6.845 0.022142857143
1543548 408,082.46 6.845 0.022142857143
1441668 333,278.41 6.92 0.011428571429
1538296 231,170.91 6.92 0.011428571429
1538325 278,266.07 6.92 0.011428571429
1539489 328,900.00 6.92 0.011428571429
1540221 296,941.60 6.92 0.011428571429
1543799 347,832.58 6.92 0.011428571429
1472248 388,614.56 6.97 0.004285714286
$5,824,290.36 0.028003226972
[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
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EXHIBIT Q
FORM OF REQUEST FOR EXCHANGE
[Date]
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates, Series 1997-S1
Residential Funding Corporation, as the Holder of a ____%
Percentage Interest of the [Class/Subclass] of Class A-5 Certificates, hereby
requests the Trustee to exchange the above-referenced Certificates for the
Subclasses referred to below:
1. Class A-5 Certificates, corresponding to the
following Uncertificated REMIC Regular Interests:
[List numbers corresponding to the related loans and
Pool Strip Rates from the Mortgage Loan Schedule].
The Initial Notional Amount and the initial
Pass-Through Rate on the Class A-5 Certificates will
be $___________ and _____%, respectively.
[2. Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate
all of the Uncertificated REMIC Regular Interests represented by the Class A-5
Certificates surrendered for exchange.
The capitalized terms used but not defined herein shall have
the meanings set forth in the Pooling and Servicing Agreement, dated as of
January 1, 1997, among Residential Funding Mortgage Securities I, Inc.,
Residential Funding Corporation and The First National Bank of Chicago, as
trustee.
RESIDENTIAL FUNDING CORPORATION
By:
Name:
Title:
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[NY01:257611.1] 16069-00385 01/23/97 5:57pm AND [NY01B:301395.1]
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