EXECUTION COPY
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RESIDENTIAL ACCREDIT LOANS, INC.,
Company,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Trustee
SERIES SUPPLEMENT,
DATED AS OF JULY 1, 2005,
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
dated as of August 1, 2004
Mortgage Asset-Backed Pass-Through Certificates
Series 2005-QS11
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Article I DEFINITIONS....................................................................4
Section 1.01. Definitions..........................................................4
Section 1.02. Use of Words and Phrases............................................20
Section 1.03. Determination of LIBOR..............................................21
Article II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL
ISSUANCE OF CERTIFICATES...........................................................23
Section 2.01. Conveyance of Mortgage Loans.......................................23
Section 2.02. Acceptance by Trustee. (See Section 2.02 of the Standard Terms)...24
Section 2.03. Representations, Warranties and Covenants of the
Master Servicer and the Company......................................24
Section 2.04. Representations and Warranties of Sellers............................27
Section 2.05. Execution and Authentication of Certificates/Issuance of Certificates
Evidencing Interests in REMIC I Certificates.........................27
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II Regular Interests;
Acceptance by the Trustee............................................27
Section 2.07. Issuance of Certificates Evidencing Interest in REMIC II.............27
Section 2.08. Purposes and Powers of the Trust (See Section 2.08 of the Standard
Terms)...............................................................27
Article III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS................................28
Article IV PAYMENTS TO CERTIFICATEHOLDERS.................................................29
Section 4.01. Certificate Account. (See Section 4.01 of the Standard Terms)........29
Section 4.02. Distributions. ......................................................29
Section 4.03. Statements to Certificateholders; Statements to the Rating Agencies;
Exchange Act Reporting (See Section 4.03 of the Standard Terms)......36
Section 4.04. Distribution of Reports to the Trustee and the Company; Advances by
the Master Servicer (See Section 4.04 of the Standard Terms).........36
Section 4.05. Allocation of Realized Losses. ......................................36
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property. (See
Section 4.06 of the Standard Terms)..................................38
Section 4.07. Optional Purchase of Defaulted Mortgage Loans. (See Section 4.07 of
the Standard Terms)..................................................38
Section 4.08. Surety Bond. (See Section 4.08 of the Standard Terms)................38
Article V THE CERTIFICATES................................................................39
Article VI THE COMPANY AND THE MASTER SERVICER..........................................40
Article VII DEFAULT......................................................................41
Article VIII CONCERNING THE TRUSTEE.......................................................42
Article IX TERMINATION..................................................................43
Article X REMIC PROVISIONS............................................................44
Section 10.01.REMIC Administration. (See Section 10.01 of the Standard Terms).....44
Section 10.02.Master Servicer; REMIC Administrator and Trustee Indemnification.
(See Section 10.02 of the Standard Terms)............................44
Section 10.03.Designation of REMICs................................................44
Section 10.04.Distributions on the Uncertificated REMIC I and REMIC II
Regular Interests................................................... 44
Section 10.05.Compliance with Withholding Requirements.............................46
Article XI MISCELLANEOUS PROVISIONS......................................................47
Section 11.01.Amendment. (See Section 11.01 of the Standard Terms)................47
Section 11.02.Recordation of Agreement; Counterparts. (See Section 11.02 of the
Standard Terms)......................................................47
Section 11.03.Limitation on Rights of Certificateholders. (See Section 11.03 of the
Standard Terms)......................................................47
Section 11.04.Governing Laws. (See Section 11.04 of the Standard Terms)...........47
Section 11.05.Notices..............................................................47
Section 11.06.Required Notices to Rating Agency and Subservicer. (See Section 11.06
of the Standard Terms)...............................................48
Section 11.07.Severability of Provisions. (See Section 11.07 of the Standard Terms)49
Section 11.08.Supplemental Provisions for Resecuritization. (See Section 11.08 of
the Standard Terms)..................................................49
Section 11.09.Allocation of Voting Rights..........................................49
Section 00.00.Xx Petition..........................................................49
EXHIBITS
Exhibit One: Mortgage Loan Schedule
Exhibit Two: Schedule of Discount Fractions
Exhibit Three: Information to be Included in
Monthly Distribution Date Statement
Exhibit Four: Standard Terms of Pooling and Servicing
Agreement Dated as of August 1, 2004
This is a Series Supplement, dated as of July 1, 2005 (the "Series
Supplement"), to the Standard Terms of Pooling and Servicing Agreement, dated as
of August 1, 2004 and attached as Exhibit Four hereto (the "Standard Terms" and,
together with this Series Supplement, the "Pooling and Servicing Agreement" or
"Agreement"), among RESIDENTIAL ACCREDIT LOANS, 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 DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Trustee (together with its permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell mortgage asset-backed 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, and subject
to this Agreement (including the Mortgage Loans), as two real estate mortgage
investment conduits (each, a "REMIC") for federal income tax purposes.
The terms and provisions of the Standard Terms are hereby incorporated
by reference herein as though set forth in full herein. If any term or provision
contained herein shall conflict with or be inconsistent with any provision
contained in the Standard Terms, the terms and provisions of this Series
Supplement shall govern. All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Standard Terms. The Pooling and
Servicing Agreement shall be dated as of the date of this Series Supplement.
1
The following table sets forth the designation, type, Pass-Through Rate,
aggregate Initial Certificate Principal Balance, Maturity Date, initial ratings
and certain features for each Class of Certificates comprising the interests in
the Trust Fund created hereunder.
AGGREGATE
INITIAL
CERTIFICATE FITCH/
PASS-THROUGH PRINCIPAL MATURITY ------------ MINIMUM
DESIGNATION RATE BALANCE FEATURES(1) DATE S&P DENOMINATIONS(2)
Class A-1 5.50% $ 36,149,700.00 Senior/Lockout/Fixed July 25, 2035 AAA/AAA $25,000.00
Rate
Class A-2 Adjustable $145,078,000.00 Senior/Super July 25, 2035 AAA/AAA $25,000.00
Rate(3) Senior/Floater/Adjustable
Rate
Class A-3 Adjustable $ 0.00 Senior/Interest July 25, 2035 AAA/AAA $2,000,000.00
Rate(3) Only/Inverse
Floater/Adjustable
Rate
Class A-4 5.50% $ 13,000,000.00 Senior/Lockout/Fixed July 25, 2035 AAA/AAA $25,000.00
Rate
Class A-5 5.50% $ 8,364,400.00 Senior/Senior July 25, 2035 AAA/AAA $25,000.00
Support/Lockout/Fixed
Rate
Class A-P 0.00% $ 369,201.92 Senior/Principal Only July 25, 2035 AAA/AAA $25,000.00
Class A-V Variable $ 0.00(5) Senior/Interest July 25, 2035 AAA/AAA $2,000,000.00
Rate(4) Only/Variable Rate
Class R-I 5.50% $ 50.00 Senior/Residual/Fixed July 25, 2035 AAA/AAA (6)
Rate
Class R-II 5.50% $ 50.00 Senior/Residual/Fixed July 25, 2035 AAA/AAA (6)
Rate
Class M-1 5.50% $ 5,341,600.00 Mezzanine/Fixed Rate July 25, 2035 AA/NA $25,000.00
Class M-2 5.50% $ 1,816,000.00 Mezzanine/Fixed Rate July 25, 2035 A/NA $250,000.00
Class M-3 5.50% $ 1,281,800.00 Mezzanine/Fixed Rate July 25, 2035 BBB/NA $250,000.00
Class B-1 5.50% $ 854,600.00 Subordinate/Fixed Rate July 25, 2035 BB/NA $250,000.00
Class B-2 5.50% $ 747,800.00 Subordinate/Fixed Rate July 25, 2035 B/NA $250,000.00
Class B-3 5.50% $ 641,035.31 Subordinate/Fixed Rate July 25, 2035 NA/NA $250,000.00
______________
(1) The Certificates, other than the Class B and Class R Certificates shall
be Book-Entry Certificates. The Class B Certificates and the Class R
Certificates shall be delivered to the holders thereof in physical form.
(2) The Certificates, other than the Class R Certificates, shall be issuable
in minimum dollar denominations as indicated above (by Certificate
Principal Balance or Notional Amount, as applicable) and integral
multiples of $1 (or $1,000 in the case of the Class B-1, Class B-2 and
Class B-3 Certificates) in excess thereof, except that one Certificate
of any of the Class B-1, Class B-2 and Class B-3 Certificates that
contain an uneven multiple of $1,000 shall be issued in a denomination
equal to the sum of the related minimum denomination set forth above and
such uneven multiple for such Class or the sum of such denomination and
an integral multiple of $1,000.
(3)
--------------------------------------------------------------------
Adjustable Initial Formula Maximum Minimum
Rates:
-------------- ---------------- ----------------------- -------- ---
Class A-2 3.84% LIBOR + 0.50% Subject to the 0.50%
available funds cap
Class A-3 1.66% 5.00% - LIBOR 5.00% 0.00%
The Class A-3 Certificates do not have a certificate principal balance. For the
purpose of calculating interest payments, interest on the Class A-3 Certificates
will accrue on a notional amount equal to the certificate principal balance of
the Class A-2 Certificates immediately prior to the related distribution date.
(4) The initial Pass-Through Rate on the Class A-V Certificates is 0.4322%.
(5) The Class A-V Certificates do not have a certificate principal balance.
For the purpose of calculating interest payments, interest on the Class
A-V Certificates will accrue on a notional amount equal to the aggregate
Stated Principal Balance of the Mortgage Loans immediately prior to the
related Distribution Date.
(6) Each class of the Class R Certificates shall be issuable in minimum
denominations of not less than a 20% Percentage Interest; provided,
however, that one Class R Certificate of each Class 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%.
2
The Mortgage Loans have an aggregate principal balance as of the Cut-off
Date of $213,644,237.23.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
3
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Adjustable Rate Certificates: Any of the Class A-2 Certificates and
Class A-3 Certificates.
Available Funds Cap: With respect to any Distribution Date on or before
the Distribution Date in December 2011 and the Class A-2 Certificates, 5.50% per
annum, plus amounts, if any, paid pursuant to the Yield Maintenance Agreement,
expressed as a per annum rate. With respect to any Distribution Date after
December 2011 and the Class A-2 Certificates, 5.50% per annum.
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 of
this Series Supplement. As of any date of determination on or after the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of
(1) the lesser of (a) the Bankruptcy Amount calculated as of the
close of business on the Business Day immediately preceding the most
recent anniversary of the Cut-off Date coinciding with or preceding such
date of determination (or, if such date of determination is an
anniversary of the Cut-off Date, the Business Day immediately preceding
such date of determination) (for purposes of this definition, the
"Relevant Anniversary") and (b) the greater of
(A) the greater of (i) the product of (x) an amount equal
to the largest difference in the related Monthly Payment for any
Non-Primary Residence Loan remaining in the Mortgage Pool (other
than Additional Collateral Loans) which had an original
Loan-to-Value Ratio of 80% or greater that would result if the
Net Mortgage Rate thereof was equal to the weighted average
(based on the principal balance of the Mortgage Loans as of the
Relevant Anniversary) of the Net Mortgage Rates of all Mortgage
Loans as of the Relevant Anniversary less 1.25% per annum, (y) a
number equal to the weighted average remaining term to maturity,
in months, of all Non-Primary Residence Loans remaining in the
Mortgage Pool as of the Relevant Anniversary, and (z) one plus
the quotient of the number of all Non-Primary Residence Loans
remaining in the Mortgage Pool divided by the total number of
Outstanding Mortgage Loans in the Mortgage Pool as of the
Relevant Anniversary, and (ii) $50,000, and
(B) the greater of (i) 0.0006 times the aggregate
principal balance of all the Mortgage Loans in the Mortgage Pool
as of the Relevant Anniversary having a Loan-to-Value Ratio
(other than Additional Collateral Loans) at origination which
exceeds 75% and (ii) $100,000,
4
over (2) the aggregate amount of Bankruptcy Losses allocated
solely to one or more specific Classes of Certificates in accordance
with Section 4.05 since the Relevant Anniversary.
The Bankruptcy Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Certificate: Any Class A, Class M, Class B or Class R Certificate.
Certificate Account: The separate account or accounts created and
maintained pursuant to Section 4.01 of the Standard Terms, which shall be
entitled "Deutsche Bank Trust Company Americas, as trustee, in trust for the
registered holders of Residential Accredit Loans, Inc., Mortgage Asset-Backed
Pass-Through Certificates, Series 2005-QS11" and which must be an Eligible
Account.
Certificate Policy: None.
Class A Certificate: Any one of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class A-5, Class A-V or Class A-P Certificates, executed by the
Trustee and authenticated by the Certificate Registrar substantially in the form
annexed to the Standard Terms as Exhibit A.
Class A-1 Lockout Amount: With respect to any Distribution Date, an
amount equal to the product of (i) the Lockout Percentage for that Distribution
Date, (ii) a fraction, the numerator of which is sum of $10,110,000 and the
Certificate Principal Balance of the Class A-1 Certificates and the denominator
of which is the aggregate Certificate Principal Balance of all Classes of
Certificates (other than the Class A-P Certificates)) and (iii) the aggregate of
the collections described in clauses (A), (B), (C), (D) and (E) (net of amounts
set forth in clause (F)) of Section 4.02(a)(ii)(Y), without application of the
Senior Percentage or the Senior Accelerated Distribution Percentage; provided,
however, that if the aggregate of the amounts set forth in clauses (A), (B),
(C), (D) and (E) (net of amounts set forth in clause (F)) of Section
4.02(a)(ii)(Y) is more than the balance of the Available Distribution Amount
remaining after the Senior Interest Distribution Amount and the Class A-P
Principal Distribution Amount have been distributed, the Class A-1 Lockout
Amount shall be reduced by an amount equal to the product of such difference and
the fraction described in clause (ii) above.
Class A-4/A-5 Lockout Amount: With respect to any Distribution Date, an
amount equal to the product of (i) the Lockout Percentage for that distribution
date, (ii) a fraction, the numerator of which the aggregate Certificate
Principal Balance of the Class A-4 Certificates and Class A-5 Certificates and
the denominator of which is the aggregate Certificate Principal Balance of all
classes of Certificates (other than the Class A-P Certificates)) and (iii) the
aggregate of the collections described in clauses (A), (B), (C), (D) and (E)
(net of amounts set forth in clause (F)) of Section 4.02(a)(ii)(Y), without
application of the Senior Percentage or the Senior Accelerated Distribution
Percentage; provided, however, that if the aggregate of the amounts set forth in
5
clauses (A), (B), (C), (D) and (E) (net of amounts set forth in clause (F)) of
Section 4.02(a)(ii)(Y) is more than the balance of the Available Distribution
Amount remaining after the Senior Interest Distribution Amount and the Class A-P
Principal Distribution Amount have been distributed, the Class A-4/A-5 Lockout
Amount shall be reduced by an amount equal to the product of such difference and
the fraction described in clause (ii) above.
Class R Certificate: Any one of the Class R-I Certificates and Class
R-II Certificates.
Class R-I Certificate: Any one of the Class R-I Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit D and evidencing an interest
designated as a "residual interest" in REMIC I for purposes of the REMIC
Provisions.
Class R-II Certificate: Any one of the Class R-II Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed to the Standard Terms as Exhibit D and evidencing an interest
designated as a "residual interest" in REMIC II for purposes of the REMIC
Provisions.
Closing Date: July 28, 2005.
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 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, Attention: Residential Funding Corporation Series 2005-QS11.
Cut-off Date: July 1, 2005.
Determination Date: With respect to any Distribution Date, the second
Business Day prior to each Distribution Date.
Discount Net Mortgage Rate: 5.50% per annum.
Due Period: With respect to each Distribution Date, the calendar month
in which such Distribution Date occurs.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Certificates have a
claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
6
maintained, or (iii) in the case of the Custodial Account, a trust account or
accounts maintained in the corporate trust department of U.S. Bank, National
Association, or (iv) in the case of the Certificate Account, a trust account or
accounts maintained in the corporate trust division of the Trustee, or (v) an
account or accounts of a depository institution acceptable to each Rating Agency
(as evidenced in writing by each Rating Agency that use of any such account as
the Custodial Account or the Certificate Account will not reduce the rating
assigned to any Class of Certificates by such Rating Agency below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency).
Eligible Funds: On any Distribution Date, the excess, if any, of the
Available Distribution Amount over the sum of (i) the aggregate amount of
Accrued Certificate Interest on the Senior Certificates, (ii) the Senior
Principal Distribution Amount (determined without regard to Section
4.02(a)(ii)(Y)(D) hereof), (iii) the Class A-P Principal Distribution Amount
(determined without regard to clause (E) of the definition of Class A-P
Principal Distribution Amount) and (iv) the aggregate amount of Accrued
Certificate Interest on the Class M, Class B-1 and Class B-2 Certificates.
Floater Certificates: The Class A-2 Certificates.
Fraud Loss Amount: As of any date of determination after the Cut-off
Date, an amount equal to: (X) prior to the first anniversary of the Cut-off Date
an amount equal to 2.00% of the aggregate outstanding principal balance of all
of the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of Certificates in
accordance with Section 4.05 of this Series Supplement since the Cut-off Date up
to such date of determination, (Y) from the first to, but not including, the
second 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) 2.00% of the aggregate outstanding principal balance of all of the Mortgage
Loans as of the most recent anniversary of the Cut-off Date minus (2) the
aggregate amount of Fraud Losses allocated solely to one or more specific
Classes of Certificates in accordance with Section 4.05 since the most recent
anniversary of the Cut-off Date up to such date of determination, and (Z) from
the second to, but not including, 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) 1.00% of the aggregate
outstanding principal balance of all of the Mortgage Loans as of the most recent
anniversary of the Cut-off Date minus (2) the aggregate amount of Fraud Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 4.05 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.
7
Initial Monthly Payment Fund: $38,523 representing scheduled principal
amortization and interest at the Net Mortgage Rate payable during the August
2005 Due Period, for those Mortgage Loans for which the Trustee will not be
entitled to receive such payment.
Initial Notional Amount: With respect to the Class A-3 Certificates,
$145,078,000. With respect to the Class A-V Certificates or Subclass thereof
issued pursuant to Section 5.01(c) of the Standard Terms, the aggregate Cut-off
Date Principal Balance of the Mortgage Loans corresponding to the Uncertificated
REMIC I Regular Interests Z represented by such Class or Subclass on such date.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Certificate Principal Balance of such Class of Subordinate Certificates divided
by the aggregate Stated Principal Balance of all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 2.50% Class B-1: 0.40%
Class M-2: 0.85% Class B-2: 0.35%
Class M-3: 0.60% Class B-3: 0.30%
Interest Accrual Period: With respect to any Class of Certificates
(other than the Adjustable Rate Certificates) and any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs. With
respect to the Adjustable Rate Certificates and any Distribution Date, the
period beginning on the 25th day of the month preceding the month in which such
Distribution Date occurs and ending on the 24th day of the month in which such
Distribution Date occurs.
Interest Only Certificates: Any one of the Class A-3 or Class A-V
Certificates. The Interest Only Certificates will have no Certificate Principal
Balance.
Inverse Floater Certificates: The Class A-3 Certificates.
LIBOR: With respect to any Distribution Date, the arithmetic mean of the
London interbank offered rate quotations for one-month U.S. Dollar deposits,
expressed on a per annum basis, determined in accordance with Section 1.03.
Lockout Certificates: The Class A-1, Class A-4, and Class A-5
Certificates.
Lockout Percentage: For any Distribution Date occurring prior to the
Distribution Date in August 2010, 0%, and for any Distribution Date thereafter,
as follows: 30% for any Distribution Date on or after August 2010 and prior to
August 2011; 40% for any Distribution Date on or after August 2011 and prior to
August 2012; 60% for any Distribution Date on or after August 2012 and prior to
August 2013; 80% for any Distribution Date on or after August 2013 and prior to
August 2014; and 100% for any Distribution Date thereafter.
Maturity Date: July 25, 2035, the Distribution Date immediately
following the latest scheduled maturity date of any Mortgage Loan.
8
Mortgage Loan Schedule: The list or lists of the Mortgage Loans attached
hereto as Exhibit One (as amended from time to time to reflect the addition of
Qualified Substitute Mortgage Loans), which list or lists shall set forth the
following information as to each Mortgage Loan:
(i) the Mortgage Loan identifying number ("RFC LOAN #");
(ii) the maturity of the Mortgage Note ("MATURITY DATE");
(iii) the Mortgage Rate ("ORIG RATE");
(iv) the Subservicer pass-through rate ("CURR NET");
(v) the Net Mortgage Rate ("NET MTG RT");
(vi) the Pool Strip Rate ("STRIP");
(vii) the initial scheduled monthly payment of principal, if any,
and interest ("ORIGINAL P & I");
(viii) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(ix) the Loan-to-Value Ratio at origination ("LTV");
(x) the rate at which the Subservicing Fee accrues ("SUBSERV FEE")
and at which the Servicing Fee accrues ("MSTR SERV FEE");
(xi) 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
(xii) 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.
Notional Amount: As of any Distribution Date, (i) with respect to the
Class A-3 Certificates, an amount equal to the Certificate Principal Balance of
the Class A-2 Certificates immediately prior to such date, provided, however,
for federal income tax purposes, as of any Distribution Date, with respect to
the Class A-3 Certificates, the equivalent of the foregoing, expressed as the
Uncertificated Principal Balance of Uncertificated REMIC I Regular Interest W;
and (iii) with respect to any Class A-V Certificates or Subclass thereof issued
pursuant to Section 5.01(c) of the Standard Terms, the aggregate Stated
Principal Balance of the Mortgage Loans corresponding to the Uncertificated
REMIC I Regular Interests Z represented by such Class or Subclass immediately
prior to such date.
9
Pass-Through Rate: With respect to the Senior Certificates (other than
the Adjustable Rate, Class A-V and Class A-P Certificates), Class M Certificates
and Class B Certificates and any Distribution Date, the per annum rates set
forth in the Preliminary Statement hereto.
o With respect to the Class A-2 and the initial Interest Accrual
Period, 3.84% per annum, and as to any Interest Accrual Period
thereafter, a per annum rate equal to LIBOR plus 0.50%, subject
to a maximum rate equal to the Available Funds Cap and a minimum
rate of 0.50% per annum. For federal income tax purposes, the
Pass-Through Rate described above will be subject to a maximum
rate equal to 5.50%.
o With respect to the Class A-3 Certificates and the initial
Interest Accrual Period, 1.66% per annum, and as to any Interest
Accrual Period thereafter, a per annum rate equal to 5.00% minus
LIBOR, subject to a maximum rate of 5.00% per annum and a minimum
rate of 0.00% per annum. For federal income tax purposes, the
Pass-Through Rate described above will be subject to a maximum
rate equal to 5.00%.
With respect to the Class A-V 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 related Due Period, weighted on the basis of the respective
Stated Principal Balances of such Mortgage Loans as of the day immediately
preceding such Distribution Date (or, with respect to the initial Distribution
Date, at the close of business on the Cut-off Date). With respect to the Class
A-V Certificates and the initial Distribution Date the Pass-Through Rate is
equal to 0.4322% per annum. With respect to any Subclass of Class A-V
Certificates and any Distribution Date, a rate equal to the weighted average,
expressed as a percentage, of the Pool Strip Rates of all Mortgage Loans
corresponding to the Uncertificated REMIC I Regular Interests Z represented by
such Subclass as of the Due Date in the related Due Period, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans as of
the day immediately preceding such Distribution Date (or with respect to the
initial Distribution Date, at the close of business on the Cut-off Date). The
Principal Only Certificates have no Pass-Through Rate and are not entitled to
Accrued Certificate Interest.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to timely payment of 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 short-term debt 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
10
of a foreign depository institution or trust company; provided that the
debt obligations of such depository institution or trust company at the
date of acquisition thereof have been rated by each Rating Agency in its
highest short-term rating available; and, provided further that, if the
original maturity of such short-term obligations of a domestic branch of
a foreign depository institution or trust company shall exceed 30 days,
the short-term rating of such institution shall be A-1+ in the case of
Standard & Poor's if Standard & Poor's is a Rating Agency;
(iv) commercial paper and demand notes (having original maturities of not
more than 365 days) of any corporation incorporated under the laws of
the United States or any state thereof which on the date of acquisition
has been rated by each Rating Agency in its highest short-term rating
available; provided that such commercial paper shall have a remaining
maturity of not more than 30 days;
(v) any mutual fund, money market fund, common trust fund or other pooled
investment vehicle, the assets of which are limited to instruments that
otherwise would constitute Permitted Investments hereunder and have been
rated by each Rating Agency in its highest short-term rating available
(in the case of Standard & Poor's such rating shall be either AAAm or
AAAm-G), including any such fund that is managed by the Trustee or any
affiliate of the Trustee or for which the Trustee or any of its
affiliates acts as an adviser; 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
(without giving effect to any Certificate Policy (if any) in the case of
Insured Certificates (if any)) below the then-current rating, as
evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment if
it represents, either (1) the right to receive only interest payments with
respect to the underlying debt instrument or (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity greater than 120% of the yield to
maturity at par of such underlying obligations. References herein to the highest
rating available on unsecured long-term debt shall mean AAA in the case of
Standard & Poor's and Fitch and Aaa in the case of Moody's, and for purposes of
this Agreement, any references herein to the highest rating available on
unsecured commercial paper and short-term debt obligations shall mean the
following: A-1 in the case of Standard & Poor's, P-1 in the case of Moody's and
F-1 in the case of Fitch; provided, however, that any Permitted Investment that
is a short-term debt obligation rated A-1 by Standard & Poor's must satisfy the
following additional conditions: (i) the total amount of debt from A-1 issuers
must be limited to the investment of monthly principal and interest payments
11
(assuming fully amortizing collateral); (ii) the total amount of A-1 investments
must not represent more than 20% of the aggregate outstanding Certificate
Principal Balance of the Certificates and each investment must not mature beyond
30 days; (iii) the terms of the debt must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary; and (iv) if the
investments may be liquidated prior to their maturity or are being relied on to
meet a certain yield, interest must be tied to a single interest rate index plus
a single fixed spread (if any) and must move proportionately with that index.
Prepayment Assumption: The prepayment assumption to be used for
determining the accrual of original issue discount and premium and market
discount on the Certificates for federal income tax purposes, which assumes a
constant prepayment rate of 6.0% per annum of the then outstanding principal
balance of the related Mortgage Loans in the first month of the life of such
Mortgage Loans and an additional approximately 1.090909% per annum in each month
thereafter until the twelfth month, and beginning in the twelfth month and in
each month thereafter during the life of the Mortgage Loans, a constant
prepayment rate of 18.0% per annum.
Prepayment Distribution Percentage: With respect to any Distribution
Date and each Class of Subordinate Certificates, under the applicable
circumstances set forth below, the respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date in
August 2010 (unless the Certificate Principal Balances of the
Senior Certificates (other than the Class A-P Certificates) have
been reduced to zero), 0%.
(ii) For any Distribution Date not discussed in clause (i) above on
which any Class of Subordinate Certificates are outstanding:
(a) in the case of the Class of Subordinate Certificates
then outstanding with the Highest Priority and each other Class
of Subordinate Certificates for which the related Prepayment
Distribution Trigger has been satisfied, a fraction, expressed as
a percentage, the numerator of which is the Certificate Principal
Balance of such Class immediately prior to such date and the
denominator of which is the sum of the Certificate Principal
Balances immediately prior to such date of (1) the Class of
Subordinate Certificates then outstanding with the Highest
Priority and (2) all other Classes of Subordinate Certificates
for which the respective Prepayment Distribution Triggers have
been satisfied; and
(b) in the case of each other Class of Subordinate
Certificates for which the Prepayment Distribution Triggers have
not been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in
Section 4.02 of this Series Supplement (determined without
regard to the proviso to the definition of "Subordinate
Principal Distribution Amount") would result in a distribution
in respect of principal of any Class or Classes of Subordinate
Certificates in an amount greater than the remaining Certificate
Principal Balance thereof (any such class, a "Maturing Class"),
then: (a) the Prepayment Distribution Percentage of each
Maturing Class shall be reduced to a level that, when applied as
12
described above, would exactly reduce the Certificate Principal
Balance of such Class to zero; (b) the Prepayment Distribution
Percentage of each other Class of Subordinate Certificates (any
such Class, a "Non-Maturing Class") shall be recalculated in
accordance with the provisions in paragraph (ii) above, as if
the Certificate Principal Balance of each Maturing Class had
been reduced to zero (such percentage as recalculated, the
"Recalculated Percentage"); (c) the total amount of the
reductions in the Prepayment Distribution Percentages of the
Maturing Class or Classes pursuant to clause (a) of this
sentence, expressed as an aggregate percentage, shall be
allocated among the Non-Maturing Classes in proportion to their
respective Recalculated Percentages (the portion of such
aggregate reduction so allocated to any Non-Maturing Class, the
"Adjustment Percentage"); and (d) for purposes of such
Distribution Date, the Prepayment Distribution Percentage of
each Non-Maturing Class shall be equal to the sum of (1) the
Prepayment Distribution Percentage thereof, calculated in
accordance with the provisions in paragraph (ii) above as if the
Certificate Principal Balance of each Maturing Class had not
been reduced to zero, plus (2) the related Adjustment
Percentage.
Principal Only Certificates: Any one of the Class A-P Certificates.
Record Date: With respect to each Distribution Date and each Class of
Certificates (other than the Adjustable Rate Certificates for so long as the
Adjustable Rate Certificates are in book-entry form), the close of business on
the last Business Day of the month preceding the month in which the related
Distribution Date occurs. With respect to each Distribution Date and the
Adjustable Rate Certificates (so long as they are Book-Entry Certificates), the
close of business on the Business Day prior to such Distribution Date.
Related Classes: As to any Uncertificated REMIC I Regular Interest,
those classes of Certificates identified as "Related Classes of Certificates" to
such Uncertificated REMIC I Regular Interest in the definition of Uncertificated
REMIC I Regular Interest.
REMIC I: The segregated pool of assets (exclusive of the Yield
Maintenance Agreement, which is not an asset of any REMIC), with respect to
which a REMIC election is to be made, consisting of:
(i) the Mortgage Loans and the related Mortgage Files,
(ii) all payments and collections in respect of the Mortgage
Loans due after the Cut-off Date (other than Monthly
Payments due in the month of the Cut-off Date) as shall be
on deposit in the Custodial Account or in the Certificate
Account and identified as belonging to the Trust Fund,
including the proceeds from the liquidation of Additional
Collateral for any Additional Collateral Loan, but not
including amounts on deposit in the Initial Monthly
Payment 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,
13
(iv) the hazard insurance policies and Primary Insurance
Policies, if any, the Pledged Assets with respect to each
Pledged Asset Mortgage Loan, and the interest in the
Surety Bond transferred to the Trustee pursuant to Section
2.01 herein, and
(v) all proceeds of clauses (i) through (iv) above.
REMIC I Certificates: The Class R-I Certificates.
--------------------
REMIC II: The segregated pool of assets consisting of the Uncertificated
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
the holders of each Class of Certificates (other than the Class R-I
Certificates) pursuant to Section 2.06, with respect to which a separate REMIC
election is to be made.
Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date, 100%.
With respect to any Distribution Date thereafter and any such Loan Group, if
applicable, as follows:
(i) for any Distribution Date after the 60th Distribution Date but on or
prior to the 72nd Distribution Date, the Senior Percentage for such
Distribution Date plus 70% of the Subordinate Percentage for such
Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but on or
prior to the 84th Distribution Date, the Senior Percentage for such
Distribution Date plus 60% of the Subordinate Percentage for such
Distribution Date;
(iii) for any Distribution Date after the 84th Distribution Date but on or
prior to the 96th Distribution Date, the Senior Percentage for such
Distribution Date plus 40% of the Subordinate Percentage for such
Distribution Date;
(iv) for any Distribution Date after the 96th Distribution Date but on or
prior to the 108th Distribution Date, the Senior Percentage for such
Distribution Date plus 20% of the Subordinate Percentage for such
Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for such
Distribution Date;
provided, however,
-------- -------
(i) that any scheduled reduction to the Senior Accelerated Distribution
Percentage described above shall not occur as of any Distribution Date unless
either
(a)(1)(X) the outstanding principal balance of the Mortgage Loans
delinquent 60 days or more (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with
respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding Certificate Principal Balance of the Subordinate
Certificates, is less than 50% or (Y) the outstanding principal balance
of Mortgage Loans delinquent 60 days or more (including Mortgage Loans
14
which are in foreclosure, have been foreclosed or otherwise liquidated,
or with respect to which the Mortgagor is in bankruptcy and any REO
Property) averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged
over the last six months, does not exceed 2% and (2) Realized Losses on
the Mortgage Loans to date for such Distribution Date if occurring
during the sixth, seventh, eighth, ninth or tenth year (or any year
thereafter) after the Closing Date are less than 30%, 35%, 40%, 45% or
50%, respectively, of the sum of the Initial Certificate Principal
Balances of the Subordinate Certificates or
(b)(1) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with
respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans averaged over the
last six months, does not exceed 4% and (2) Realized Losses on the
Mortgage Loans to date for such Distribution Date, if occurring during
the sixth, seventh, eighth, ninth or tenth year (or any year thereafter)
after the Closing Date are less than 10%, 15%, 20%, 25% or 30%,
respectively, of the sum of the Initial Certificate Principal Balances
of the Subordinate Certificates, and
(ii) that for any Distribution Date on which the Senior Percentage is
greater than the Senior Percentage as of the Closing Date, the Senior
Accelerated Distribution Percentage for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the Class A-P
Certificates, if any) to zero, the related Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificate: Any one of the Class A Certificates or Class R
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit A
and Exhibit D.
Senior Interest Distribution Amount: With respect to any Distribution
Date, the aggregate amount of Accrued Certificate Interest to be distributed to
the Holders of the Senior Certificates for that Distribution Date.
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 Class
A-P Certificates) immediately prior to such Distribution Date and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of each Discount Mortgage Loan) immediately prior to such Distribution
Date.
Senior Principal Distribution Amount: With respect 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
therefrom pursuant to Section 4.02(a)(i) and Section 4.02(a)(ii)(X) (excluding
any amount distributable pursuant to clause (E) of the definition of "Class A-P
Principal Distribution Amount") and (b) the sum of the amounts required to be
distributed to the Senior Certificateholders on such Distribution Date pursuant
to Sections 4.02(a)(ii)(Y), 4.02(a)(xvi) and 4.02(a)(xvii).
15
Senior Support Certificates: The Class A-5 Certificates.
Special Hazard Amount: As of any Distribution Date, an amount equal to
$3,769,400 minus the sum of (i) the aggregate amount of Special Hazard Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 4.05 of this Series Supplement and (ii) the Adjustment Amount (as
defined below) as most recently calculated. For each anniversary of the Cut-off
Date, the Adjustment Amount shall be equal to the amount, if any, by which the
amount calculated in accordance with the preceding sentence (without giving
effect to the deduction of the Adjustment Amount for such anniversary) exceeds
the greater of (A) the greater of (i) the product of the Special Hazard
Percentage for such anniversary multiplied by the outstanding principal balance
of all the Mortgage Loans on the Distribution Date immediately preceding such
anniversary and (ii) twice the outstanding principal balance of the Mortgage
Loan with the largest outstanding principal balance as of the Distribution Date
immediately preceding 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 20.74% (which
percentage is equal to the percentage of Mortgage Loans by aggregate principal
balance 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 (or, with respect to a Cooperative Loan, the related
Cooperative Apartment) 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 Percentage: As of each anniversary of the Cut-off Date,
the greater of (i) 1.0% and (ii) the largest percentage obtained by dividing the
aggregate outstanding principal balance (as of immediately preceding
Distribution Date) of the Mortgage Loans secured by Mortgaged Properties located
in a single, five-digit zip code area in the State of California by the
outstanding principal balance of all the Mortgage Loans as of the immediately
preceding Distribution Date.
16
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and each Class of Subordinate Certificates, (a) the sum of (i)
the product of (x) the related Subordinate Class Percentage for such Class and
(y) the aggregate of the amounts calculated (without giving effect to the
related Senior Percentages) 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 Subordinate Certificates then
outstanding, of the principal collections described in Section
4.02(a)(ii)(Y)(B)(b) (without giving effect to the Senior Accelerated
Distribution Percentage) to the extent such collections are not otherwise
distributed to the Senior Certificates; (iii) the product of (x) the related
Prepayment Distribution Percentage and (y) the aggregate of all Principal
Prepayments in Full received in the related Prepayment Period and Curtailments
received in the preceding calendar month (other than the related Discount
Fraction of such Principal Prepayments in Full and Curtailments with respect to
a Discount Mortgage Loan) to the extent not payable to the Senior Certificates;
(iv) if such Class is the Class of Subordinate Certificates with the Highest
Priority, any Excess Subordinate Principal Amount for such Distribution Date not
paid to the Senior Certificates; and (v) any amounts described in clauses (i),
(ii) and (iii) as determined for any previous Distribution Date, that remain
undistributed to the extent that such amounts are not attributable to Realized
Losses which have been allocated to a Class of Subordinate Certificates; minus
(b) the sum of (i) with respect to the Class of Subordinate Certificates with
the Lowest Priority, any Excess Subordinate Principal Amount for such
Distribution Date; and (ii) the Capitalization Reimbursement Amount for such
Distribution Date, other than the related Discount Fraction of any portion of
that amount related to each Discount Mortgage Loan, multiplied by a fraction,
the numerator of which is the Subordinate Principal Distribution Amount for such
Class of Subordinate Certificates, without giving effect to this clause (b)(ii),
and the denominator of which is the sum of the principal distribution amounts
for all Classes of Certificates other than the Class A-P Certificates, without
giving effect to any reductions for the Capitalization Reimbursement Amount.
Super Senior Certificates: The Class A-2 Certificates.
Super Senior Optimal Percentage: As to any Distribution Date on and
after the Credit Support Depletion Date, a fraction, expressed as a percentage,
the numerator of which is the Certificate Principal Balance of the Super Senior
Certificates immediately prior to that Distribution Date and the denominator of
which is the aggregate Certificate Principal Balance of the Senior Certificates,
other than the Class A-P Certificates, immediately prior to such Distribution
Date.
Super Senior Optimal Principal Distribution Amount: As to any
Distribution Date on and after the Credit Support Depletion Date, an amount
equal to the product of (a) the then applicable Super Senior Optimal Percentage
and (b) the amounts described in Section 4.02(a)(ii)(Y).
Uncertificated Accrued Interest: With respect to each Distribution Date,
(i) as to each Uncertificated REMIC I Regular Interest other than each
Uncertificated REMIC I Regular Interest Z, an amount equal to the aggregate
amount of Accrued Certificate Interest that would result under the terms of the
definition thereof on the Related Classes of Certificates (excluding any
Interest Only Certificates) if the Pass-Through Rate on such Classes were equal
to the Uncertificated Pass-Through Rate on such Uncertificated REMIC I Regular
Interest, (ii) as to each Uncertificated REMIC I Regular Interest Z and each
Uncertificated REMIC II Regular Interest Z, an amount equal to one month's
interest at the Pool Strip Rate of the related Mortgage Loan on the principal
balance of such Mortgage Loan reduced by such Interest's pro-rata share of any
prepayment interest shortfalls or other reductions of interest allocable to the
Class A-V Certificates.
17
Uncertificated Pass-Through Rate: With respect to each of the
Uncertificated REMIC I Regular Interests, other than the Uncertificated REMIC I
Regular Interests Z, the per annum rate specified in the definition of
Uncertificated REMIC I Regular Interests. With respect to each Uncertificated
REMIC I Regular Interest Z and each Uncertificated REMIC II Regular Interest Z,
the Pool Strip Rate for the related Mortgage Loan.
Uncertificated Principal Balance: With respect to each Uncertificated
REMIC I Regular Interest, as defined in the definition of Uncertificated REMIC I
Regular Interest.
Uncertificated REMIC I Regular Interests: The Uncertificated REMIC I
Regular Interests Z together with the interests identified in the table below,
each representing an undivided beneficial ownership interest in REMIC I, and
having the following characteristics:
1. The principal balance from time to time of each Uncertificated
REMIC I Regular Interest identified in the table below shall be
the amount identified as the Initial Principal Balance thereof
in such table, minus the sum of (x) the aggregate of all amounts
previously deemed distributed with respect to such interest and
applied to reduce the Uncertificated Principal Balance thereof
pursuant to Section 10.04(a)(ii) and (y) the aggregate of all
reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses that were previously
deemed allocated to the Uncertificated Principal Balance of such
Uncertificated REMIC I Regular Interest pursuant to Section
10.04(d), which equals the aggregate principal balance of the
Classes of Certificates identified as related to such
Uncertificated REMIC I Regular Interest in such table.
2. The Uncertificated Pass-Through Rate for each Uncertificated
REMIC I Regular Interest identified in the table below shall be
the per annum rate set forth in the Pass-Through Rate column of
such table.
3. The Uncertificated REMIC I Distribution Amount for each REMIC I
Regular Interest identified in the table below shall be, for any
Distribution Date, the amount deemed distributed with respect to
such Uncertificated REMIC I Regular Interest on such
Distribution Date pursuant to the provisions of Section
10.04(a).
18
----------------------- --------------------------------- ------------------ --------------------
Uncertificated REMIC Related Classes of Certificates Pass-Through Rate Initial Principal
I Regular Interest Balance
----------------------- --------------------------------- ------------------ --------------------
----------------------- --------------------------------- ------------------ --------------------
W Class A-2, Class A-3 5.50% $145,078,000.00
----------------------- --------------------------------- ------------------ --------------------
----------------------- --------------------------------- ------------------ --------------------
X Class A-P 0.00% $369,201.92
----------------------- --------------------------------- ------------------ --------------------
----------------------- --------------------------------- ------------------ --------------------
Y Class X-0, Xxxxx X-0, Class 5.50% $68,196,985.31
A-5, Class R-II, Class M-1,
Class M-2, Class M-3, Class
B-1, Class B-2, Class B-3
----------------------- --------------------------------- ------------------ --------------------
Uncertificated REMIC I Regular Interests Z: Each of the 1,105
uncertificated partial undivided beneficial ownership interests in the Trust
Fund, numbered sequentially from 1 to 1,105, each relating to the particular
Mortgage Loan identified by such sequential number on the Mortgage Loan
Schedule, each having no principal balance, and each bearing interest at the
respective Pool Strip Rate on the Stated Principal Balance of the related
Mortgage Loan.
Uncertificated REMIC I Regular Interests Z Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interests Z for such
Distribution Date pursuant to Section 10.04(a).
Uncertificated REMIC I Regular Interest Distribution Amounts: With
respect to each Uncertificated REMIC I Regular Interest, other than the
Uncertificated REMIC I Regular Interests Z, the amount specified as the
Uncertificated REMIC I Regular Interest Distribution Amount with respect thereto
in the definition of Uncertificated REMIC I Regular Interests. With respect to
the Uncertificated REMIC I Regular Interests Z, the Uncertificated REMIC I
Regular Interests Z Distribution Amount.
Uncertificated REMIC II Regular Interests Z: Each of the 1,105
uncertificated partial undivided beneficial ownership interests in REMIC II
numbered sequentially from 1 through 1,105, each relating to the identically
numbered Uncertificated REMIC I Regular Interests Z, each having no principal
balance and bearing interest at a rate equal to the related Pool Strip Rate on
the Stated Principal Balance of the Mortgage Loan related to the identically
numbered Uncertificated REMIC I Regular Interests Z, comprising such
Uncertificated REMIC II Regular Interests Z's pro rata share of the amount
distributed pursuant to Section 10.04(a).
Uncertificated REMIC II Regular Interests Distribution Amount: With
respect to any Distribution Date, the sum of the amounts deemed to be
distributed on the Uncertificated REMIC I Regular Interests Z for such
Distribution Date pursuant to Section 10.04(a).
Underwriter: Bear, Xxxxxxx & Co., Inc..
Yield Maintenance Agreement: The agreement dated as of the Closing Date,
between the Trustee and the Yield Maintenance Agreement Provider, relating to
the Class A-2 Certificates, or any replacement, substitute, collateral or other
arrangement in lieu thereof.
19
Yield Maintenance Agreement Provider: Bear, Xxxxxxx Financial Products
Inc., and its successors and assigns or any party to any replacement,
substitute, collateral or other arrangement in lieu thereof.
Yield Maintenance Payment: For any Distribution Date, the payment, if
any, due under the Yield Maintenance Agreement in respect of such Distribution
Date.
Section 1.02. Use of Words and Phrases.
"Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to the Pooling and Servicing Agreement as a
whole. All references herein to Articles, Sections or Subsections shall mean the
corresponding Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definitions set forth herein include both the singular and the
plural.
Section 1.03. Determination of LIBOR.
----------------------
LIBOR applicable to the calculation of the Pass-Through Rates on the
Adjustable Rate Certificates for any Interest Accrual Period (other than the
initial Interest Accrual Period) will be determined as described below:
On each Distribution Date, LIBOR shall be established by the Trustee
and, as to any Interest Accrual Period, will equal the rate for one month United
States dollar deposits that appears on the Telerate Screen Page 3750 of the
Moneyline Telerate Capital Markets Report as of 11:00 a.m., London time, on the
second LIBOR Business Day prior to the first day of such Interest Accrual Period
("LIBOR Rate Adjustment Date"). "Telerate Screen Page 3750" means the display
designated as page 3750 on the Telerate Service (or such other page as may
replace page 3750 on that service for the purpose of displaying London interbank
offered rates of major banks). If such rate does not appear on such page (or
such other page as may replace that page on that service, or if such service is
no longer offered, any other service for displaying LIBOR or comparable rates as
may be selected by the Trustee after consultation with the Master Servicer), the
rate will be the Reference Bank Rate. The "Reference Bank Rate" will be
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which shall be any three major banks that are
engaged in transactions in the London interbank market, selected by the Trustee
after consultation with the Master Servicer) as of 11:00 a.m., London time, on
the day that is one LIBOR Business Day prior to the immediately preceding
Distribution Date to prime banks in the London interbank market for a period of
one month in amounts approximately equal to the aggregate Certificate Principal
Balance of the Adjustable Rate Certificates then outstanding. The Trustee will
request the principal London office of each of the reference banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
will be the arithmetic mean of the quotations rounded up to the next multiple of
1/16%. If on such date fewer than two quotations are provided as requested, the
rate will be the arithmetic mean of the rates quoted by one or more major banks
in New York City, selected by the Trustee after consultation with the Master
Servicer, as of 11:00 a.m., New York City time, on such date for loans in U.S.
Dollars to leading European banks for a period of one month in amounts
approximately equal to the aggregate Certificate Principal Balance of the
20
Adjustable Rate Certificates then outstanding. If no such quotations can be
obtained, the rate will be LIBOR for the prior Distribution Date, or, in the
case of the first LIBOR Rate Adjustment Date, 3.34% per annum; provided,
however, if, under the priorities described above, LIBOR for a Distribution Date
would be based on LIBOR for the previous Distribution Date for the third
consecutive Distribution Date, the Trustee shall, after consultation with the
Master Servicer, select an alternative comparable index (over which the Trustee
has no control), used for determining one-month Eurodollar lending rates that is
calculated and published (or otherwise made available) by an independent party.
"LIBOR Business Day" means any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the city of London, England are required
or authorized by law to be closed.
The establishment of LIBOR by the Trustee on any LIBOR Rate Adjustment
Date and the Master Servicer's subsequent calculation of the Pass-Through Rates
applicable to each of the Adjustable Rate Certificates for the relevant Interest
Accrual Period, in the absence of manifest error, will be final and binding.
Promptly following each LIBOR Rate Adjustment Date the Trustee shall
supply the Master Servicer with the results of its determination of LIBOR on
such date. Furthermore, the Trustee will supply the Pass-Through Rates on each
of the Adjustable Rate Certificates for the current and the immediately
preceding Interest Accrual Period via the Trustee's internet website, which may
be obtained by telephoning the Trustee at (000) 000-0000.
21
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
(a) (See Section 2.01(a) of the Standard Terms).
(b) (See Section 2.01(b) of the Standard Terms).
(c) The Company may, in lieu of delivering the original of the documents
set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section
(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by
Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such
documents to the Master Servicer, and the Master Servicer shall hold such
documents in trust for the use and benefit of all present and future
Certificateholders until such time as is set forth in the next sentence. Within
thirty Business Days following the earlier of (i) the receipt of the original of
all of the documents or instruments set forth in Section 2.01(b)(I)(ii), (iii),
(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies
thereof as permitted by such Section) for any Mortgage Loan and (ii) a written
request by the Trustee to deliver those documents with respect to any or all of
the Mortgage Loans then being held by the Master Servicer, the Master Servicer
shall deliver a complete set of such documents to the Trustee or the Custodian
or Custodians that are the duly appointed agent or agents of the Trustee.
The parties hereto agree that it is not intended that any Mortgage Loan
be included in the Trust Fund that is either (i) a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Act effective November 27, 2003, (ii) a
"High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a "High Cost Home Mortgage Loan" as defined in
the Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
or (iv) a "High-Cost Home Loan" as defined in the Indiana House Enrolled Act No.
1229, effective as of January 1, 2005.
(d) (See Section 2.01(d) of the Standard Terms).
(e) (See Section 2.01(e) of the Standard Terms).
(f) (See Section 2.01(f) of the Standard Terms).
(g) (See Section 2.01(g) of the Standard Terms).
(h) (See Section 2.01(h) of the Standard Terms).
(i) In connection with such assignment, and contemporaneously with the
delivery of this Agreement, the Company delivered or caused to be delivered
hereunder to the Trustee, the Yield Maintenance Agreement (the delivery of which
shall evidence that the fixed payment for the Yield Maintenance Agreement has
been paid and the Trustee and the Trust Fund shall have no further payment
obligation thereunder and that such fixed payment has been authorized hereby).
22
Section 2.02. Acceptance by Trustee. (See Section 2.02 of the Standard Terms)
Section 2.03. Representations, Warranties and Covenants
of the Master Servicer and the Company.
(a) For representations, warranties and covenants of the Master
Servicer, see Section 2.03(a) of the Standard Terms.
(b) The Company hereby represents and warrants to the Trustee for the
benefit of Certificateholders that as of the Closing Date (or, if otherwise
specified below, as of the date so specified):
(i) No Mortgage Loan is 30 or more days Delinquent in payment of principal
and interest as of the Cut-off Date and no Mortgage Loan has been so
Delinquent more than once in the 12-month period prior to the Cut-off
Date;
(ii) The information set forth in Exhibit One hereto with respect to each
Mortgage Loan or the Mortgage Loans, as the case may be, is true and
correct in all material respects at the date or dates respecting which
such information is furnished;
(iii) The Mortgage Loans are fully-amortizing (subject to interest only
periods, if applicable), fixed-rate mortgage loans with level Monthly
Payments due, with respect to a majority of the Mortgage Loans, on the
first day of each month and terms to maturity at origination or
modification of not more than 30 years;
(iv) To the best of the Company's knowledge, except in the case of four
Mortgage Loans representing approximately 0.3% of the aggregate
principal balance of the Mortgage Loans, 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 35% of the Stated Principal Balance of
the Mortgage Loan at origination if the Loan-to-Value Ratio is between
100.00% and 95.01%, (b) at least 30% of the Stated Principal Balance of
the Mortgage Loan at origination if the Loan-to-Value Ratio is between
95.00% and 90.01%, (c) at least 25% of such balance if the Loan-to-Value
Ratio is between 90.00% and 85.01% and (d) at least 12% of such balance
if the Loan-to-Value Ratio is between 85.00% and 80.01%. To the best of
the Company's knowledge, each such Primary Insurance Policy is in full
force and effect and the Trustee is entitled to the benefits thereunder;
(v) The issuers of the Primary Insurance Policies are insurance companies
whose claims-paying abilities are currently acceptable to each Rating
Agency;
(vi) No more than 1.4% 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 0.6% 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;
(vii) The improvements upon the Mortgaged Properties are insured against loss
by fire and other hazards as required by the Program Guide, including
flood insurance if required under the National Flood Insurance Act of
1968, as amended. The Mortgage requires the Mortgagor to maintain such
casualty insurance at the Mortgagor's expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Mortgagor's expense and to seek
reimbursement therefor from the Mortgagor;
23
(viii) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company had good title to, and was the sole owner of, each
Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest (other than rights to servicing and related
compensation) and such assignment validly transfers ownership of the
Mortgage Loans to the Trustee free and clear of any pledge, lien,
encumbrance or security interest;
(ix) Approximately 69.27% of the Mortgage Loans by aggregate Stated Principal
Balance as of the Cut-off Date were underwritten under a reduced loan
documentation program, approximately 13.42% of the Mortgage Loans by
aggregate Stated Principal Balance as of the Cut-off Date were
underwritten under a no-stated income program, and approximately 13.36%
of the Mortgage Loans by aggregate Stated Principal Balance as of the
Cut-off Date were underwritten under a no income/no asset program;
(x) Except with respect to approximately 17.35% of the Mortgage Loans by
aggregate Stated Principal Balance as of the Cut-off Date, the Mortgagor
represented in its loan application with respect to the related Mortgage
Loan that the Mortgaged Property would be owner-occupied;
(xi) None of the Mortgage Loans is a Buy-Down Mortgage Loan;
(xii) Each Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1), (2), (4), (5) and (6), without reliance on the
provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury
Regulation Section 1.860G-2(f)(2) or any other provision that would
allow a Mortgage Loan to be treated as a "qualified mortgage"
notwithstanding its failure to meet the requirements of Section
860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1), (2), (4), (5) and (6);
(xiii) A policy of title insurance was effective as of the closing of each
Mortgage Loan and is valid and binding and remains in full force and
effect, unless the Mortgaged Properties are located in the State of Iowa
and an attorney's certificate has been provided as described in the
Program Guide;
(xiv) None of the Mortgage Loans is a Cooperative Loan;
(xv) With respect to each Mortgage Loan originated under a "streamlined"
Mortgage Loan program (through which no new or updated appraisals of
Mortgaged Properties are obtained in connection with the refinancing
thereof), the related Seller has represented that either (a) the value
of the related Mortgaged Property as of the date the Mortgage Loan was
originated was not less than the appraised value of such property at the
time of origination of the refinanced Mortgage Loan or (b) the
Loan-to-Value Ratio of the Mortgage Loan as of the date of origination
of the Mortgage Loan generally meets the Company's underwriting
guidelines;
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(xvi) Interest on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of twelve 30-day months;
(xvii) None of the Mortgage Loans contain in the related Mortgage File a
Destroyed Mortgage Note;
(xviii) None of the Mortgage Loans has been made to an International Borrower,
and no such Mortgagor is a member of a foreign diplomatic mission with
diplomatic rank;
(xix) No Mortgage Loan provides for payments that are subject to reduction by
withholding taxes levied by any foreign (non-United States) sovereign
government; and
(xx) None of the Mortgage Loans is an Additional Collateral Loan and none of
the Mortgage Loans is a Pledged Asset Loan.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the Trustee or any Custodian.
Upon discovery by any of the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any of the representations and warranties set
forth in this Section 2.03(b) that materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); provided, however, that in the
event of a breach of the representation and warranty set forth in Section
2.03(b)(xii), the party discovering such breach shall give such notice within
five days of discovery. Within 90 days of its discovery or its receipt of notice
of breach, the Company shall either (i) cure such breach in all material
respects or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that the Company
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the omission or defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days
from the date such breach was discovered. Any such substitution shall be
effected by the Company under the same terms and conditions as provided in
Section 2.04 for substitutions by Residential Funding. It is understood and
agreed that the obligation of the Company to cure such breach or to so purchase
or substitute for any Mortgage Loan as to which such a breach has occurred and
is continuing shall constitute the sole remedy respecting such breach available
to the Certificateholders or the Trustee on behalf of the Certificateholders.
Notwithstanding the foregoing, the Company shall not be required to cure
breaches or purchase or substitute for Mortgage Loans as provided in this
Section 2.03(b) if the substance of the breach of a representation set forth
above also constitutes fraud in the origination of the Mortgage Loan.
25
Section 2.04. Representations and Warranties of Sellers. (See Section 2.04 of
the Standard Terms)
Section 2.05. Execution and Authentication of Certificates/Issuance of
Certificates Evidencing Interests in REMIC I 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 and/or the applicable REMIC, 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 Class R-I Certificates in
authorized denominations which together with the Uncertificated REMIC I Regular
Interests, evidence the beneficial interest in REMIC I.
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II
Regular Interests; Acceptance by the Trustee.
The Company, as of the Closing Date, and concurrently with the execution
and delivery hereof, does hereby assign without recourse all the right, title
and interest of the Company in and to the Uncertificated REMIC I Regular
Interests to the Trustee for the benefit of the Holders of each Class of
Certificates (other than the Class R-I Certificates). The Trustee acknowledges
receipt of the Uncertificated REMIC I Regular Interests and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of each Class of Certificates (other than the Class
R-I Certificates). The rights of the Holders of each Class of Certificates
(other than the Class R-I Certificates) to receive distributions from the
proceeds of REMIC II in respect of such Classes, and all ownership interests of
the Holders of such Classes in such distributions, shall be as set forth in this
Agreement.
Section 2.07. Issuance of Certificates Evidencing Interest in REMIC II.
The Trustee acknowledges the assignment to it of the Uncertificated
REMIC I Regular Interests and, concurrently therewith and in exchange therefor,
pursuant to the written request of the Company executed by an officer of the
Company, the Trustee has executed and caused to be authenticated and delivered
to or upon the order of the Company, all Classes of Certificates (other than the
Class R-I Certificates) in authorized denominations, which evidence the
beneficial interest in the entire REMIC II.
Section 2.08. Purposes and Powers of the Trust. (See Section 2.08 of the
Standard Terms).
26
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
(SEE ARTICLE III OF THE STANDARD TERMS)
27
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account. (See Section 4.01 of the Standard Terms)
--------------------------------------------------------------
Section 4.02. Distributions.
-------------
(a) On each Distribution Date the Master Servicer on behalf of the
Trustee (or the Paying Agent appointed by the Trustee) shall distribute to the
Master Servicer, in the case of a distribution pursuant to Section 4.02(a)(iii)
below, and to each Certificateholder of record on the next preceding Record Date
(other than as provided in Section 9.01 of the Standard Terms respecting the
final distribution) either in immediately available funds (by wire transfer or
otherwise) to the account of such Certificateholder at a bank or other entity
having appropriate facilities therefor, if such Certificateholder has so
notified the Master Servicer or the Paying Agent, as the case may be, or, if
such Certificateholder has not so notified the Master Servicer or the Paying
Agent by the Record Date, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register such
Certificateholder's share (which share (A) with respect to each Class of
Certificates (other than any Subclass of the Class A-V Certificates), shall be
based on the aggregate of the Percentage Interests represented by Certificates
of the applicable Class held by such Holder or (B) with respect to any Subclass
of the Class A-V Certificates, shall be equal to the amount (if any) distributed
pursuant to Section 4.02(a)(i) below to each Holder of a Subclass thereof) of
the following amounts, in the following order of priority (subject to the
provisions of Section 4.02(b), (c) and (e) below), in each case to the extent of
the Available Distribution Amount:
(i) to the Senior Certificates (other than the Class A-P
Certificates), 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-V Certificates) for such
Distribution Date (provided that for the purpose of this Section
4.02(a)(i) the Available Funds Cap shall be 5.50%), plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date except as provided in the last paragraph of this
Section 4.02(a); and
(ii) (X) to the Class A-P Certificates, the Class A-P
Principal Distribution Amount (applied to reduce the Certificate
Principal Balance of such Senior Certificates); and
(Y) to the Senior Certificates (other than the Class A-P,
Class A-3 and Class A-V Certificates), in the priorities and amounts set
forth in Section 4.02(b) and (c), the sum of the following (applied to
reduce the Certificate Principal Balances of such Senior Certificates,
as applicable):
(A) the Senior Percentage for such Distribution Date times the sum of the
following:
28
(1) the principal portion of each Monthly Payment due during the related Due
Period on each Outstanding Mortgage Loan (other than the related
Discount Fraction of the principal portion of such payment with respect
to a Discount Mortgage Loan), 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;
(2) the Stated Principal Balance of any Mortgage Loan repurchased during the
preceding calendar month (or deemed to have been so repurchased in
accordance with Section 3.07(b) of the Standard Terms) pursuant to
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
preceding calendar month (other than the related Discount Fraction of
such Stated Principal Balance or shortfall with respect to each Discount
Mortgage Loan); and
(3) the principal portion of all other unscheduled collections (other than
Principal Prepayments in Full and Curtailments and amounts received in
connection with a Cash Liquidation or REO Disposition of a Mortgage Loan
described in Section 4.02(a)(ii)(Y)(B) of this Series Supplement,
including without limitation Insurance Proceeds, Liquidation Proceeds
and REO Proceeds), including Subsequent Recoveries, received during the
preceding calendar month (or deemed to have been so received in
accordance with Section 3.07(b) of the Standard Terms) to the extent
applied by the Master Servicer as recoveries of principal of the related
Mortgage Loan pursuant to Section 3.14 of the Standard Terms (other than
the related Discount Fraction of the principal portion of such
unscheduled collections, with respect to each Discount Mortgage Loan);
(B) with respect to each Mortgage Loan for which a Cash Liquidation or a
REO Disposition occurred during the preceding calendar month (or was deemed to
have occurred during such period in accordance with Section 3.07(b) of the
Standard Terms) and did not result in any Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses, an amount equal
to the lesser of (a) the Senior Percentage for such Distribution Date times the
Stated Principal Balance of such Mortgage Loan (other than the related Discount
Fraction of such Stated Principal Balance, with respect to each Discount
Mortgage Loan) and (b) the Senior Accelerated Distribution Percentage for such
Distribution Date times the related unscheduled collections (including without
limitation Insurance Proceeds, Liquidation Proceeds and REO Proceeds) to the
extent applied by the Master Servicer as recoveries of principal of the related
Mortgage Loan pursuant to Section 3.14 of the Standard Terms (in each case other
than the portion of such unscheduled collections, with respect to a Discount
Mortgage Loan, included in clause (C) of the definition of Class A-P Principal
Distribution Amount);
29
(C) the Senior Accelerated Distribution Percentage for such Distribution
Date times the aggregate of all Principal Prepayments in Full received in the
related Prepayment Period and Curtailments received in the preceding calendar
month (other than the related Discount Fraction of such Principal Prepayments in
Full and Curtailments, with respect to each Discount Mortgage Loan);
(D) any Excess Subordinate Principal Amount for such Distribution Date;
and
(E) any amounts described in subsection (ii)(Y), clauses (A), (B) and
(C) of this Section 4.02(a), as determined for any previous Distribution Date,
which remain unpaid after application of amounts previously distributed pursuant
to this clause (E) to the extent that such amounts are not attributable to
Realized Losses which have been allocated to the Subordinate Certificates; minus
(F) the Capitalization Reimbursement Amount for such Distribution Date,
other than the related Discount Fraction of any portion of that amount related
to each Discount Mortgage Loan, multiplied by a fraction, the numerator of which
is the Senior Principal Distribution Amount, without giving effect to this
clause (F), and the denominator of which is the sum of the principal
distribution amounts for all Classes of Certificates other than the Class A-P
Certificates, without giving effect to any reductions for the Capitalization
Reimbursement Amount;
(iii) if the Certificate Principal Balances of the Subordinate
Certificates have not been reduced to zero, to the Master Servicer or a
Sub-Servicer, by remitting for deposit to the Custodial Account, to the
extent of and in reimbursement for any Advances or Sub-Servicer Advances
previously made with respect to any Mortgage Loan or REO Property which
remain unreimbursed in whole or in part following the Cash Liquidation
or REO Disposition of such Mortgage Loan or REO Property, minus any such
Advances that were made with respect to delinquencies that ultimately
constituted Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses;
(iv) to the Holders of the Class M-1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(v) to the Holders of the Class M-1 Certificates, an amount equal
to (x) the Subordinate Principal Distribution Amount for such Class of
Certificates for such Distribution Date, minus (y) the amount of any
Class A-P Collection Shortfalls for such Distribution Date or remaining
unpaid for all previous Distribution Dates, to the extent the amounts
available pursuant to clause (x) of Sections 4.02(a)(vii), (ix), (xi),
(xiii), (xiv) and (xv) of this Series Supplement are insufficient
therefor, applied in reduction of the Certificate Principal Balance of
the Class M-1 Certificates;
30
(vi) to the Holders of the Class M-2 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(vii) to the Holders of the Class M-2 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date, minus (y) the amount
of any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of 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;
(viii) to the Holders of the Class M-3 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(ix) to the Holders of the Class M-3 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date minus (y) the amount of
any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of 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;
(x) to the Holders of the Class B-1 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(xi) to the Holders of the Class B-1 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date minus (y) the amount of
any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of 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;
(xii) to the Holders of the Class B-2 Certificates, the Accrued
Certificate Interest thereon for such Distribution Date, plus any
Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(xiii) to the Holders of the Class B-2 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date minus (y) the amount of
any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections 4.02(a)(xiv) and
(xv) are insufficient therefor, applied in reduction of the Certificate
Principal Balance of the Class B-2 Certificates;
31
(xiv) to the Holders of the Class B-3 Certificates, an amount
equal to (x) the Accrued Certificate Interest thereon for such
Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date, except as provided
below, minus (y) the amount of any Class A-P Collection Shortfalls for
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;
(xv) to the Holders of the Class B-3 Certificates, an amount
equal to (x) the Subordinate Principal Distribution Amount for such
Class of Certificates for such Distribution Date minus (y) the amount of
any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates applied in
reduction of the Certificate Principal Balance of the Class B-3
Certificates;
(xvi) to the Senior Certificates, on a pro rata basis in
accordance with their respective outstanding Certificate Principal
Balances, the portion, if any, of the Available Distribution Amount
remaining after the foregoing distributions applied to reduce the
Certificate Principal Balances of such Senior Certificates, but in no
event more than the aggregate of the outstanding Certificate Principal
Balances of each such Class of Senior Certificates, and thereafter, to
each Class of Subordinate Certificates then outstanding beginning with
such Class with the Highest Priority, any portion of the Available
Distribution Amount remaining after the Senior Certificates have been
retired, applied to reduce the Certificate Principal Balance of each
such Class of Subordinate Certificates, but in no event more than the
outstanding Certificate Principal Balance of each such Class of
Subordinate Certificates; and
(xvii) to the Class R-II Certificates, the balance, if any, of
the Available Distribution Amount.
Notwithstanding the foregoing, on any Distribution Date, with respect to
the Class of Subordinate Certificates outstanding on such Distribution Date with
the Lowest Priority, or in the event the Subordinate Certificates are no longer
outstanding, the Senior Certificates, Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date will be distributable only
to the extent that (1) a shortfall in the amounts available to pay Accrued
Certificate Interest on any Class of Certificates results from an interest rate
reduction in connection with a Servicing Modification, or (2) such unpaid
Accrued Certificate Interest was attributable to interest shortfalls relating to
the failure of the Master Servicer to make any required Advance, or the
determination by the Master Servicer that any proposed Advance would be a
Nonrecoverable Advance with respect to the related Mortgage Loan where such
Mortgage Loan has not yet been the subject of a Cash Liquidation or REO
Disposition or the related Liquidation Proceeds, Insurance Proceeds and REO
Proceeds have not yet been distributed to the Certificateholders.
32
(b) Distributions of principal on the Senior Certificates on each
Distribution Date will be made as follows:
(i) the Class A-P Principal Distribution Amount shall be distributed
to the Class A-P Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
(ii) the Senior Principal Distribution Amount shall be distributed to
the Class R-I Certificates and Class R-II Certificates, on a pro rata
basis in accordance with their respective Certificate Principal
Balances, until the Certificate Principal Balance thereof have been
reduced to zero;
(iii) the lesser of (x) the balance of the Senior Principal
Distribution Amount remaining after the distributions, if any, described
in clause (b)(ii) above and (y) the Class A-4/A-5 Lockout Amount, shall
be distributed, concurrently, to the Class A-4 Certificates and Class
A-5 Certificates, on a pro rata basis in accordance with their
respective Certificate Principal Balances, until the Certificate
Principal Balances thereof have been reduced to zero;
(iv) the lesser of (x) the balance of the Senior Principal
Distribution Amount remaining after the distributions, if any, described
in clauses (b)(ii) and (b)(iii) above and (y) the Class A-1 Lockout
Amount, shall be distributed to the Class A-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(v) the balance of the Senior Principal Distribution Amount remaining
after the distributions, if any, described in clauses (b)(ii), (b)(iii)
and (b)(iv) above shall be distributed to the Class A-2 Certificates
until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) the balance of the Senior Principal Distribution Amount
remaining after the distributions, if any, described in clauses (b)(ii),
(b)(iii), (b)(iv) and (b)(v) above shall be distributed to the Class A-1
Certificates, without regard to the Class A-1 Lockout Amount, until the
Certificate Principal Balance thereof has been reduced to zero; and
(vii) the balance of the Senior Principal Distribution Amount
remaining after the distributions, if any, described in clauses (b)(ii),
(b)(iii), (b)(iv), (b)(v) and (b)(vi) above shall be distributed,
concurrently, to the Class A-4 Certificates and Class A-5 Certificates,
on a pro rata basis in accordance with their respective Certificate
Principal Balances, without regard to the Class A-4/A-5 Lockout Amount,
until the Certificate Principal Balances thereof have been reduced to
zero.
(c) Notwithstanding Section 4.02(b), on or after the Credit Support
Depletion Date, an amount equal to the Class A-P Principal Distribution Amount
will be distributed to the Class A-P Certificates and then the Senior Principal
Distribution Amount will be distributed to the remaining Senior Certificates
(other than the Class A-P Certificates and the Class A-V Certificates) pro rata
in accordance with their respective outstanding Certificate Principal Balances;
provided, however, that until reduction of the Certificate Principal Balance of
the Senior Support Certificates to zero, the aggregate amount distributable to
the Super Senior Certificates and Senior Support Certificates in respect of the
aggregate Accrued Certificate Interest thereon and in respect of their aggregate
pro rata portion of the Senior Principal Distribution Amount will be distributed
among such Senior Certificates in the following priority: first, to the Super
Senior Certificates, up to an amount equal to the Accrued Certificate Interest
on the Super Senior Certificates; second, to the Super Senior Certificates, up
33
to an amount equal to the Super Senior Optimal Principal Distribution Amount, in
reduction of the Certificate Principal Balance thereof, until the Certificate
Principal Balance thereof has been reduced to zero; third, to the Senior Support
Certificates, up to an amount equal to the Accrued Certificate Interest thereon;
and fourth, to the Senior Support Certificates, the remainder, until the
Certificate Principal Balance thereof has been reduced to zero.
(d) After the reduction of the Certificate Principal Balances of the
Senior Certificates (other than the Class A-P Certificates) to zero but prior to
the Credit Support Depletion Date, the Senior Certificates (other than the Class
A-P Certificates) will be entitled to no further distributions of principal
thereon and the Available Distribution Amount will be distributed solely to the
holders of the Class A-P, Class A-V and Subordinate Certificates, in each case
as described herein.
(e) In addition to the foregoing distributions, with respect to any
Subsequent Recoveries, the Master Servicer shall deposit such funds into the
Custodial Account pursuant to Section 3.07(b)(iii) of the Standard Terms. If,
after taking into account such Subsequent Recoveries, the amount of a Realized
Loss is reduced, the amount of such Subsequent Recoveries will be applied to
increase the Certificate Principal Balance of the Class of Subordinate
Certificates with a Certificate Principal Balance greater than zero with the
highest payment priority to which Realized Losses, other than Excess Bankruptcy
Losses, Excess Fraud Losses, Excess Special Hazard Losses and Extraordinary
Losses, have been allocated, but not by more than the amount of Realized Losses
previously allocated to that Class of Certificates pursuant to Section 4.05. The
amount of any remaining Subsequent Recoveries will be applied to increase from
zero the Certificate Principal Balance of the Class of Certificates with the
next lower payment priority, up to the amount of Realized Losses previously
allocated to that Class of Certificates pursuant to Section 4.05. Any remaining
Subsequent Recoveries will in turn be applied to increase from zero the
Certificate Principal Balance of the Class of Certificates with the next lower
payment priority up to the amount of Realized Losses previously allocated to
that Class of Certificates pursuant to Section 4.05, and so on. Holders of such
Certificates will not be entitled to any payment in respect of Accrued
Certificate Interest on the amount of such increases for any Interest Accrual
Period preceding the Interest Accrual Period that relates to the Distribution
Date on which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(f) On each Distribution Date, the Yield Maintenance Payment will be
distributed to the Class A-2 Certificates.
(g) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be solely
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm") for which it acts as agent. Each brokerage
firm shall be responsible for disbursing funds to the Certificate Owners that it
represents. None of the Trustee, the Certificate Registrar, the Company or the
Master Servicer shall have any responsibility therefor.
34
(h) Except as otherwise provided in Section 9.01 of the Standard Terms,
if the Master Servicer anticipates that a final distribution with respect to any
Class of Certificates will be made on 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 related Interest Accrual Period. In the event that
Certificateholders required to surrender their Certificates pursuant to Section
9.01(c) of the Standard Terms do not surrender their Certificates for final
cancellation, the Trustee shall cause funds distributable with respect to such
Certificates to be withdrawn from the Certificate Account and credited to a
separate escrow account for the benefit of such Certificateholders as provided
in Section 9.01(d) of the Standard Terms.
Section 4.03. Statements to Certificateholders; Statements to the Rating
Agencies; Exchange Act Reporting. (See Section 4.03 of the Standard
Terms)
Section 4.04. Distribution of Reports to the Trustee and the Company; Advances
by the Master Servicer. (See Section 4.04 of the Standard Terms)
Section 4.05. Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine the
total amount of Realized Losses, if any, that resulted from any Cash
Liquidation, Servicing Modification, Debt Service Reduction, Deficient Valuation
or REO Disposition that occurred during the related Prepayment Period or, in the
case of a Servicing Modification that constitutes a reduction of the interest
rate on a Mortgage Loan, the amount of the reduction in the interest portion of
the Monthly Payment due during the related Due Period. The amount of each
Realized Loss shall be evidenced by an Officers' Certificate. All Realized
Losses, other than Excess Special Hazard Losses, Extraordinary Losses, Excess
Bankruptcy Losses or Excess Fraud Losses, shall be allocated as follows: first,
to the Class B-3 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; second, to the Class B-2 Certificates until the
Certificate Principal Balance thereof has been reduced to zero; third, to the
Class B-1 Certificates until the Certificate Principal Balance thereof has been
reduced to zero; fourth, to the Class M-3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; fifth, to the Class M-2
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; sixth, to the Class M-1 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; and, thereafter, if any such Realized
Loss is on a Discount Mortgage Loan, to the Class A-P Certificates in an amount
equal to the related Discount Fraction of the principal portion of the Realized
Loss until the Certificate Principal Balance of the Class A-P Certificates has
been reduced to zero, and the remainder of such Realized Losses on the Discount
Mortgage Loans and the entire amount of such Realized Losses on the Non-Discount
Mortgage Loans shall be allocated among all Senior Certificates (other than the
Class A-P Certificates) on a pro rata basis, as described below; provided,
however, that after the Credit Support Depletion Date, Realized Losses otherwise
35
allocable to the Super Senior Certificates will be allocated to the Senior
Support Certificates until the Certificate Principal Balance of the Senior
Support Certificates has been reduced to zero. The principal portion of any
Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses and
Extraordinary Losses on the Discount Mortgage Loans shall be allocated to the
Class A-P Certificates in an amount equal to the related Discount Fraction
thereof and the remainder of the principal portion and the entire interest
portion of such Realized Losses on the Discount Mortgage Loans and the entire
principal and interest portion of such Realized Losses on Non-Discount Mortgage
Loans will be allocated among the Senior Certificates (other than the Class A-P
Certificates) and the Subordinate Certificates, on a pro rata basis, as
described below; provided, however, that such Realized Losses otherwise
allocable to the Super Senior Certificates will be allocated to the Senior
Support Certificates until the Certificate Principal Balance of the Senior
Support Certificates is reduced to zero.
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; provided
that no such reduction shall reduce the aggregate Certificate Principal Balance
of the Certificates below the aggregate Stated Principal Balance of the Mortgage
Loans. Any allocation of the principal portion of Realized Losses (other than
Debt Service Reductions) to the Subordinate Certificates then outstanding with
the Lowest Priority shall be made by operation of the definition of "Certificate
Principal Balance" and by operation of the provisions of Section 4.02(a).
Allocations of the interest portions of Realized Losses (other than any interest
rate reduction resulting from a Servicing Modification) shall be made in
proportion to the amount of Accrued Certificate Interest and by operation of the
definition of "Accrued Certificate Interest" and by operation of the provisions
of Section 4.02(a). Allocations of the interest portion of a Realized Loss
resulting from an interest rate reduction in connection with a Servicing
Modification shall be made by operation of the provisions of Section 4.02(a).
Allocations of the principal portion of Debt Service Reductions shall be made by
operation of the provisions of Section 4.02(a). All Realized Losses and all
36
other losses allocated to a Class of Certificates hereunder will be allocated
among the Certificates of such Class in proportion to the Percentage Interests
evidenced thereby; provided that if any Subclasses of the Class A-V Certificates
have been issued pursuant to Section 5.01(c) of the Standard Terms, such
Realized Losses and other losses allocated to the Class A-V Certificates shall
be allocated among such Subclasses in proportion to the respective amounts of
Accrued Certificate Interest payable on such Distribution Date that would have
resulted absent such reductions.
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.
(See Section 4.06 of the Standard Terms)
Section 4.07. Optional Purchase of Defaulted Mortgage Loans. (See Section 4.07
of the Standard Terms)
Section 4.08. Surety Bond. (See Section 4.08 of the Standard Terms)
Section 4.09. Reserve Fund
(a) On or before the Closing Date, the Trustee shall establish a Reserve
Fund on behalf of the Holders of the Class A-2 Certificates. The Reserve Fund
must be an Eligible Account. The Reserve Fund shall be entitled "Reserve Fund,
Deutsche Bank Trust Company Americas as Trustee for the benefit of holders of
Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through
Certificates, Series 2005-QS11". The Trustee shall demand payment of all money
payable by the Yield Maintenance Agreement Provider under the Yield Maintenance
Agreement. The Trustee shall deposit in the Reserve Fund all payments received
by it from the Yield Maintenance Agreement Provider pursuant to the Yield
Maintenance Agreement. On each Distribution Date, the Trustee shall remit
amounts received by it from the Yield Maintenance Agreement Provider to the
Holders of the Class A-2 Certificates in the manner provided in Section 4.02(f)
as it is directed by the Master Servicer.
(b) The Reserve Fund is an "outside reserve fund" within the meaning of
Treasury Regulation ss.1.860G-2(h) and shall be an asset of the Trust Fund but
not an asset of any 2005-QS11 REMIC. The Trustee on behalf of the Trust shall be
the nominal owner of the Reserve Fund. Bear, Xxxxxxx & Co. Inc. shall be the
beneficial owner of the Reserve Fund, subject to the power of the Trustee to
distribute amounts under Section 4.02(f). Amounts in the Reserve Fund shall be
held uninvested in a trust account of the Trustee with no liability for interest
or other compensation thereon.
37
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) (See Section 5.01(a) of the Standard Terms)
(b) Except as provided below, registration of Book-Entry
Certificates may not be transferred by the Trustee except to another Depository
that agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. The Holders of the Book-Entry Certificates shall
hold their respective Ownership Interests in and to each of such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to Definitive Certificates in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing such Certificate Owner. Each Depository Participant shall transfer
the Ownership Interests only in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
If (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 notifies the Depository of its intent to terminate the book-entry
system and, upon receipt of notice of such intent from the Depository, the
Depository Participants holding beneficial interest in the Book-Entry
Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall issue the
Definitive Certificates. In addition, if an Event of Default has occurred and is
continuing, each Certificate Owner materially adversely affected thereby may at
its option request a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in the related Class of Certificates. In order to make such
a request, such Certificate Owner shall, subject to the rules and procedures of
the Depository, provide the Depository or the related Depository Participant
with directions for the Certificate Registrar to exchange or cause the exchange
of the Certificate Owner's interest in such Class of Certificates for an
equivalent Percentage Interest in fully registered definitive form. Upon receipt
38
by the Certificate Registrar of instructions from the Depository directing the
Certificate Registrar to effect such exchange (such instructions shall contain
information regarding the Class of Certificates and the Certificate Principal
Balance being exchanged, the Depository Participant account to be debited with
the decrease, the registered holder of and delivery instructions for the
Definitive Certificate, and any other information reasonably required by the
Certificate Registrar), (i) the Certificate Registrar shall instruct the
Depository to reduce the related Depository Participant's account by the
aggregate Certificate Principal Balance of the Definitive Certificate, (ii) the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in accordance with the registration and delivery instructions provided
by the Depository, a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in such Class of Certificates and (iii) the Trustee shall
execute and the Certificate Registrar shall authenticate a new Book-Entry
Certificate reflecting the reduction in the aggregate Certificate Principal
Balance of such Class of Certificates by the Certificate Principal Balance of
the Definitive Certificate.
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 any instructions required under Section
5.01 and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Trustee and the
Master Servicer shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(c) (See Section 5.01(c) of the Standard Terms)
Section 5.02. Registration of Transfer and Exchange of Certificates. (See
Section 5.02 of the Standard Terms)
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates. (See Section
5.03 of the Standard Terms)
Section 5.04. Persons Deemed Owners. (See Section 5.04 of the Standard Terms)
Section 5.05. Appointment of Paying Agent. (See Section 5.05 of the Standard
Terms)
Section 5.06. U.S.A Patriot Act Compliance. (See Section 5.06 of the Standard
Terms)
39
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
40
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
41
ARTICLE VIII
CONCERNING THE TRUSTEE
(SEE ARTICLE VIII OF THE STANDARD TERMS)
42
ARTICLE IX
TERMINATION
(SEE ARTICLE IX OF THE STANDARD TERMS)
Section 9.01 OPTIONAL PURCHASE BY THE MASTER SERVICER OF ALL
CERTIFICATES; TERMINATION UPON PURCHASE BY THE MASTER
SERVICER OR LIQUIDATION OF ALL MORTGAGE LOANS.
(a) (See Section 9.01(a) of the Standard Terms)
(b) (See Section 9.01(b) of the Standard Terms)
(c) (See Section 9.01(c) of the Standard Terms)
(d) (See Section 9.01(d) of the Standard Terms)
(e) (See Section 9.01(e) of the Standard Terms)
(f) Upon termination of the Trust Fund pursuant to this Section 9.01, the
Trustee on behalf of the Trust Fund shall, under documents prepared by the
Master Servicer or Holders of the Class A-2 Certificates, assign without
recourse, representation or warranty all the right, title and interest of the
Trustee and the Trust Fund in and to the Yield Maintenance Agreement to Bear,
Xxxxxxx & Co., Inc.
Section 9.02 Additional Termination Requirements. (See Section 9.02 of
the Standard Terms)
Section 9.03 Termination of Multiple REMICs. (See Section 9.03 of the
Standard Terms)
43
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration. (See Section 10.01 of the Standard Terms)
Section 10.02. Master Servicer; REMIC Administrator and Trustee Indemnification.
(See Section 10.02 of the Standard Terms)
Section 10.03. Designation of REMICs.
The REMIC Administrator shall make an election to treat the entire
segregated pool of assets described in the definition of REMIC I, and subject to
this Agreement (including the Mortgage Loans) as a REMIC ("REMIC I") and shall
make an election to treat the pool of assets comprised of the Uncertificated
REMIC I Regular Interests as a REMIC ("REMIC II") for federal income tax
purposes.
The Uncertificated REMIC I Regular Interests will be "regular interests"
in REMIC I and the Class R-I Certificates will be the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions (as defined herein)
under the federal income tax law.
The Class A-1, Class A-2 (exclusive of any rights to payment of amounts
received pursuant to the Yield Maintenance Agreement), Class A-3, Class X-0,
Xxxxx X-0, Class A-P, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and
Class B-3 Certificates and the Uncertificated REMIC II Regular Interests Z, the
rights in and to which will be represented by the Class A-V Certificates, will
be "regular interests" in REMIC II, and the Class R-II Certificates will be the
sole class of "residual interests" therein for purposes of the REMIC Provisions
(as defined herein) under federal income tax law. On and after the date of
issuance of any Subclass of Class A-V Certificates pursuant to Section 5.01(c)
of the Standard Terms, any such Subclass will represent the Uncertificated REMIC
II Regular Interest or Interests Z specified by the initial Holder of the Class
A-V Certificates pursuant to said Section.
Section 10.04. Distributions on the Uncertificated REMIC I and REMIC II Regular
Interests.
(a)On each Distribution Date the Trustee shall be deemed to distribute
to itself, as the holder of the Uncertificated REMIC I Regular Interests, the
Uncertificated REMIC I Regular Interest Distribution Amounts in the following
order of priority to the extent of the Available Distribution Amount reduced by
distributions made to the Class R-I Certificates pursuant to Section 4.02(a):
(i) Uncertificated Accrued Interest on the Uncertificated REMIC I
Regular Interests for such Distribution Date, plus any Uncertificated
Accrued Interest thereon remaining unpaid from any previous Distribution
Date; and
(ii) In accordance with the priority set forth in Section
10.04(b), an amount equal to the sum of the amounts in respect of
principal distributable on each Class of Certificates (other than the
Class R-I Certificates) under Section 4.02(a), as allocated thereto
pursuant to Section 4.02(b).
44
(b)The amount described in Section 10.04(a)(ii) shall be deemed
distributed to (i) Uncertificated REMIC I Regular Interest W, (ii)
Uncertificated REMIC I Regular Interest X, (iii) and Uncertificated REMIC I
Regular Interest Y with the amount to be distributed allocated among such
interests in accordance with the priority assigned to each Related Class of
Certificates (other than the Class R-I Certificates), respectively, under
Section 4.02(b) until the Uncertificated Principal Balance of each such interest
is reduced to zero.
(c)The portion of the Uncertificated REMIC I Regular Interest
Distribution Amounts described in Section 10.04(a)(ii) shall be deemed
distributed by REMIC I to REMIC II in accordance with the priority assigned to
the Uncertificated REMIC I Regular Interests relative to that assigned to the
Certificates under Section 4.02(b).
(d)In determining from time to time the Uncertificated REMIC I Regular
Interest Distribution Amounts and Uncertificated REMIC II Regular Interest
Distribution Amounts:
(i) Realized Losses allocated to the Class A-V Certificates under
Section 4.05 shall be deemed allocated to the Uncertificated REMIC II
Regular Interests Z pro-rata according to the respective amounts of
Uncertificated Accrued Interest that would have accrued on such
Uncertificated REMIC II Regular Interests Z for the Distribution Date
for which such allocation is being made in the absence of such
allocation;
(ii) Realized Losses allocated to the Class A-2 Certificates and
Class A-3 Certificates under Section 4.05 shall be deemed allocated to
Uncertificated REMIC I Regular Interest W;
(iii) Realized Losses allocated to the Class A-P Certificates
under Section 4.05 shall be deemed allocated to Uncertificated REMIC I
Regular Interest X;
(v) Realized Losses allocated to the Class X-0, Xxxxx X-0, Class
A-5, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3
and Class R-II Certificates under Section 4.05 shall be deemed allocated
to Uncertificated REMIC I Regular Interest Y; and
(vi) Realized Losses allocated to the Uncertificated REMIC II
Regular Interests Z under clause (i), above, shall be deemed allocated,
in each case, to the related Uncertificated REMIC I Regular Interest Z.
(e)On each Distribution Date the Trustee shall be deemed to distribute
from REMIC II, in the priority set forth in Sections 4.02(a) and (b), to the
Holders of each Class of Certificates (other than the Class R-I Certificates)
the amounts distributable thereon from the Uncertificated REMIC I Regular
Interest Distribution Amounts deemed to have been received by REMIC II from
REMIC I under this Section 10.04. The amounts deemed distributed hereunder with
respect to the Class A-V Certificates shall be deemed to have been distributed
in respect of the Uncertificated REMIC II Regular Interests Z in accordance with
their respective Uncertificated REMIC II Regular Interest Distribution Amounts,
as such Uncertificated REMIC II Regular Interests Z comprise the Class A-V
Certificates.
45
(f)Notwithstanding the deemed distributions on the Uncertificated REMIC
I Regular Interests described in this Section 10.04, distributions of funds from
the Certificate Account shall be made only in accordance with Section 4.02.
Section 10.05. Compliance with Withholding Requirements.
-----------------------------------------
Notwithstanding any other provision of this Agreement, the
Trustee or any Paying Agent, as applicable, shall comply with all federal
withholding requirements respecting payments to Certificateholders, including
interest or original issue discount payments or advances thereof that the
Trustee or any Paying Agent, as applicable, reasonably believes are applicable
under the Code. The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee or any Paying Agent, as applicable, does
withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee or any Paying Agent, as applicable, shall indicate the
amount withheld to such Certificateholder pursuant to the terms of such
requirements.
46
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment. (See Section 11.01 of the Standard Terms)
Section 11.02. Recordation of Agreement; Counterparts. (See Section 11.02 of the
Standard Terms)
Section 11.03. Limitation on Rights of Certificateholders. (See Section 11.03 of
the Standard Terms)
Section 11.04. Governing Law. (See Section 11.04 of the Standard Terms)
Section 11.05. Notices. All demands and notices hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail, postage prepaid (except for notices to the Trustee which
shall be deemed to have been duly given only when received), to the appropriate
address for each recipient listed in the table below or, in each case, such
other address as may hereafter be furnished in writing to the Master Servicer,
the Trustee and the Company, as applicable:
RECIPIENT ADDRESS
Company 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President
Master Servicer 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Managing Director/Master Servicing
Trustee Corporate Trust Xxxxxx
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000,
Attention: Residential Accredit Loans, Inc.
Series 2005-QS11
The Trustee designates its offices located at
c/o DTC Transfer Services, 00 Xxxxx Xxxxxx,
Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, for the purposes of Section 8.12
of the Standard Terms
Fitch Ratings Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's 00 Xxxxx Xxxxxx Ratings Services,
a division of Xxx Xxxx, Xxx Xxxx 00000
The XxXxxx-Xxxx Companies, Inc.
47
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
Section 11.06. Required Notices to Rating Agency and Subservicer. (See Section
11.06 of the Standard Terms)
Section 11.07. Severability of Provisions. (See Section 11.07 of the Standard
Terms)
Section 11.08. Supplemental Provisions for Resecuritization. (See Section 11.08
of the Standard Terms)
Section 11.09. Allocation of Voting Rights.
Ninety-seven percent of all Voting Rights will be allocated among
all Holders of the Certificates, other than the Interest Only Certificates and
Class R Certificates, in proportion to their then outstanding Certificate
Principal Balances of their respective Certificates, in accordance with each
Class's Percentage Interests; 1.0% of all Voting Rights will be allocated among
the Holders of the Class A-3 Certificates, in accordance with their respective
Percentage Interests; 1.0% of all Voting Rights shall be allocated among the
Holders of the Class A-V Certificates, in accordance with their respective
Percentage Interests; 0.5% of all Voting Rights shall be allocated among the
Holders of the Class R-I Certificates, in accordance with their respective
Percentage Interests; and 0.5% of all Voting Rights shall be allocated among the
Holders of the Class R-II Certificates, in accordance with their respective
Percentage Interests.
Section 11.10. No Petition.
The Depositor, Master Servicer and the Trustee, by entering into
this Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the Trust
Fund, or join in any institution against the Trust Fund of, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligation with respect to the Certificates or this
Agreement.
48
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 ACCREDIT LOANS, INC.
[Seal]
By:
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Attest: ____________________
Name: Xxxxxx Xxxxxx
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
[Seal]
By:
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate
Attest:____________________
Name: Xxxxxxx Xxxxxxxx
Title: Associate
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
[Seal]
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Attest:____________________
Name:
Title:
STATE OF MINNESOTA
)
) ss.:
COUNTY OF HENNEPIN )
On the 28th day of July, 2005 before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxxx, known to me to be a Vice
President of Residential Accredit Loans, 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 28th day of July, 2005 before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxx, known to me to be an
Associate of Residential Funding Corporation, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
STATE OF CALIFORNIA
)
) ss.:
COUNTY OF ORANGE )
On the 28th day of July, 2005 before me, a notary public in and
for said State, personally appeared _______________, known to me to be a(n)
_________________ of Deutsche Bank Trust Company Americas, the New York banking
corporation that executed the within instrument, and also known to me to be the
person who executed it on behalf of said banking corporation and acknowledged to
me that such banking 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 CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 28th day of July, 2005 before me, a notary public in and
for said State, personally appeared _______________, known to me to be a(n)
_________________ of Deutsche Bank Trust Company Americas, the New York banking
corporation that executed the within instrument, and also known to me to be the
person who executed it on behalf of said banking corporation and acknowledged to
me that such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
EXHIBIT ONE
MORTGAGE LOAN SCHEDULE
Fixed Rate Loan
Loan Number S/S Code Payment Type Original Bal Loan Feature
Orig Term Principal Bal # of Units
Orig Rate Original PI LTV
Net Curr Current PI
City State Zip Loan Purp Note Date MI Co Code
Servicer Loan # Prop Type First Pay Date MI Coverage
Seller Loan # Occup Code Maturity Date
Investor Loan #
9655956 286/286 F 116,000.00 ZZ
360 115,606.81 1
6.8750 762.04 80
6.6250 762.04
XXXXXXX XX 00000 1 02/01/05 00
0003846427 05 04/01/05 0.0000
0003846427 N 03/01/35
0
9669460 286/286 F 145,775.00 ZZ
360 145,199.46 1
7.2500 994.45 85
6.7500 994.45
XXXXXXX XX 00000 1 01/21/05 41
0003846764 03 03/01/05 12.0000
0003846764 O 02/01/35
0
9669596 286/286 F 109,350.00 ZZ
360 108,523.45 2
7.0000 727.51 90
6.7500 727.51
XXXXXXXXXX XX 00000 1 12/10/04 01
0003707156 05 02/01/05 25.0000
0003707156 N 01/01/35
0
9734164 286/286 F 130,000.00 ZZ
360 129,609.79 1
6.0000 779.42 60
5.7500 779.42
XXXXXX XX 00000 5 03/10/05 00
0003377634 05 05/01/05 0.0000
0003377634 O 04/01/35
0
9734280 286/286 F 162,925.00 ZZ
360 162,203.64 1
7.5000 1139.20 95
6.7100 1139.20
XXXXXX XX 00000 1 03/07/05 41
0000000000 05 05/01/05 25.0000
0000000000 O 04/01/35
0
9734288 286/286 F 163,000.00 ZZ
324 162,440.05 1
6.5000 1068.56 71
6.2500 1068.56
XXXXXX XX 00000 5 03/26/05 00
0003871527 05 05/01/05 0.0000
0003871527 O 04/01/32
0
9734556 286/286 F 148,500.00 T
360 148,199.06 1
8.0000 1089.65 90
7.2100 1089.65
XXXXXXXX XX 00000 1 03/21/05 45
0003895418 01 05/01/05 25.0000
0003895418 O 04/01/35
0
9734764 286/286 F 114,750.00 ZZ
360 114,466.15 1
7.0000 763.44 90
6.2100 763.44
XXXX XXXX XXXXXX 00000 1 03/14/05 45
0003930504 03 05/01/05 25.0000
0003930504 O 04/01/35
0
9735014 286/286 F 156,000.00 ZZ
360 155,642.67 1
7.5000 1090.78 80
7.2500 1090.78
XXXXX XXXXXXX XX 00000 1 03/31/05 00
0003974211 05 05/01/05 0.0000
0003974211 O 04/01/35
0
9743550 286/286 F 179,450.00 ZZ
360 178,589.54 1
6.2500 1104.91 97
6.0000 1104.91
XXXXXX XXXX XX 00000 1 01/20/05 01
0003771457 05 03/01/05 18.0000
0003771457 O 02/01/35
0
9743610 286/286 F 324,950.00 ZZ
360 323,615.00 1
5.8750 1922.21 97
5.6250 1922.21
XXX XXXXX XX 00000 1 02/17/05 11
0003871144 05 04/01/05 18.0000
0003871144 O 03/01/35
0
9751442 Y21/G02 F 296,000.00 ZZ
360 295,153.01 1
6.2500 1822.53 80
6.0000 1822.53
XXXXXXX XX 00000 1 03/31/05 00
0439265976 01 05/01/05 0.0000
205150454 O 04/01/35
0
9751472 Y21/G02 F 142,500.00 ZZ
360 142,287.81 1
7.5000 996.39 95
7.2500 996.39
XXXXXXX XX 00000 1 04/18/05 10
0439255373 05 06/01/05 30.0000
205205755 O 05/01/35
0
9751508 Y21/G02 F 140,000.00 ZZ
360 139,720.54 1
6.0000 839.38 68
5.7500 839.38
XXXXXXX XX 00000 5 04/08/05 00
0439234139 06 06/01/05 0.0000
205231799 O 05/01/35
0
9751544 Y21/G02 F 315,750.00 ZZ
360 315,750.00 1
6.1250 1611.64 80
5.8750 1611.64
XXXXXXX XX 00000 1 04/28/05 00
0439233925 03 06/01/05 0.0000
205263763 O 05/01/35
0
9751568 Y21/G02 F 306,000.00 T
360 306,000.00 1
6.5000 1657.50 80
6.2500 1657.50
XXXXXX XX 00000 1 04/08/05 00
0439233826 01 06/01/05 0.0000
205282989 O 05/01/35
0
9751598 Y21/G02 F 348,000.00 ZZ
360 348,000.00 1
6.2500 1812.50 80
6.0000 1812.50
XXXXXX XXXXXXXXX 00000 1 04/25/05 00
0439231192 05 06/01/05 0.0000
205309968 O 05/01/35
0
9751604 Y21/G02 F 141,200.00 T
360 141,200.00 1
6.0000 706.00 80
5.7500 706.00
XXX XXXXXX XXXXX 00000 1 04/28/05 00
0439248527 01 06/01/05 0.0000
205319874 O 05/01/35
0
9782148 Y21/G02 F 120,000.00 ZZ
360 119,886.13 1
6.2500 738.87 65
6.0000 738.87
XXXXXXX XXXXX XX 00000 5 05/06/05 00
0439348012 05 07/01/05 0.0000
205308708 O 06/01/35
0
9782172 Y21/G02 F 134,000.00 ZZ
360 133,863.37 1
5.8750 792.67 69
5.6250 792.67
XXXXXXXXXX XX 00000 5 04/28/05 00
0439337502 05 07/01/05 0.0000
205335977 O 06/01/35
0
9783822 286/286 F 22,400.00 ZZ
360 22,362.24 1
6.8750 147.16 80
6.6250 147.16
XXXXXXXXXXXX XX 00000 1 04/20/05 00
0003378543 05 06/01/05 0.0000
0003378543 N 05/01/35
0
9783856 286/286 F 101,250.00 ZZ
360 101,052.67 2
6.1250 615.21 75
5.8750 615.21
XXXXXXXXX XX 00000 5 04/20/05 00
0003846519 05 06/01/05 0.0000
0003846519 N 05/01/35
0
9783956 286/286 F 116,000.00 ZZ
360 115,827.28 1
7.5000 811.09 80
7.2500 811.09
WEST SPRINGFIEMA 01089 1 04/06/05 00
0003939346 05 06/01/05 0.0000
0003939346 O 05/01/35
0
9783960 286/286 F 209,500.00 ZZ
360 208,900.54 2
6.2500 1289.93 78
6.0000 1289.93
XXXXXX XX 00000 5 03/30/05 00
0003939664 05 05/01/05 0.0000
0003939664 O 04/01/35
0
9783964 286/286 F 210,000.00 ZZ
360 209,590.73 1
6.1250 1275.99 75
5.8750 1275.99
XXXXXXXXX XX 00000 5 04/11/05 00
0003941428 05 06/01/05 0.0000
0003941428 O 05/01/35
0
9783998 286/286 F 210,000.00 ZZ
360 209,365.56 1
6.5000 1327.35 70
6.2500 1327.35
XXXXXXXXXX XX 00000 5 03/29/05 00
0000000000 05 05/01/05 0.0000
0000000000 O 04/01/35
0
9784010 286/286 F 197,000.00 ZZ
360 196,634.09 1
6.3750 1229.03 70
6.1250 1229.03
XXXXXX XX 00000 5 04/01/05 00
0003958954 05 06/01/05 0.0000
0003958954 O 05/01/35
0
9784100 286/286 F 36,720.00 ZZ
360 36,662.53 1
7.2500 250.50 80
7.0000 250.50
XXXXXX XX 00000 1 04/07/05 00
0003973071 05 06/01/05 0.0000
0003973071 N 05/01/35
0
9784118 286/286 F 126,000.00 ZZ
360 125,624.51 1
6.6250 806.80 72
6.3750 806.80
XXXX XXXXX XX 00000 5 03/18/05 00
0003977173 05 05/01/05 0.0000
0003977173 O 04/01/35
0
9784134 286/286 F 215,000.00 ZZ
360 214,413.73 1
6.5000 1358.95 71
6.2500 0000.00
(XXXXX XXXX) LCA 91702 5 03/30/05 00
0003980230 05 05/01/05 0.0000
0003980230 O 04/01/35
0
9784148 286/286 F 230,000.00 TX
360 175,294.90 1
6.6250 1472.72 71
6.3750 1472.72
XXX XXXXXXXX XX 00000 5 04/13/05 00
0000000000 05 06/01/05 0.0000
0000000000 O 05/01/35
0
9784152 286/286 F 132,800.00 ZZ
360 132,597.28 1
7.3750 917.22 80
7.1250 917.22
XXXXXXXX XX 00000 1 04/05/05 00
0003989877 05 06/01/05 0.0000
0003989877 N 05/01/35
0
9789122 286/286 F 123,750.00 TX
360 123,241.60 1
5.8750 732.03 75
5.6250 732.03
XXXXXXX XX 00000 5 02/04/05 00
0003793579 05 04/01/05 0.0000
0003793579 O 03/01/35
0
9789128 286/286 F 500,000.00 TX
360 498,870.90 1
5.7500 2917.87 73
5.5000 2917.87
XXXXXX XXXXXX XX 00000 5 04/27/05 00
0003930034 03 06/01/05 0.0000
0003930034 O 05/01/35
0
9789142 286/286 F 187,500.00 TX
360 187,143.26 1
6.2500 1154.47 75
6.0000 1154.47
XXXXX XXXX XX 00000 5 04/18/05 00
0004003281 05 06/01/05 0.0000
0004003281 O 05/01/35
0
9789148 286/286 F 120,000.00 TX
360 119,782.43 1
6.5000 758.49 80
6.2500 758.49
XXXXXXX XX 00000 5 04/25/05 00
0004031140 05 06/01/05 0.0000
0004031140 O 05/01/35
0
9789150 286/286 F 632,000.00 TX
360 631,400.33 1
6.2500 3891.34 79
6.0000 3891.34
XXXXX XX 00000 5 05/05/05 00
0004031440 05 07/01/05 0.0000
0004031440 O 06/01/35
0
9789152 286/286 F 400,000.00 TX
360 399,620.46 1
6.2500 2462.87 80
6.0000 2462.87
XXXXXX XX 00000 5 05/09/05 00
0004034451 01 07/01/05 0.0000
0004034451 O 06/01/35
0
9789154 286/286 F 138,500.00 TX
360 137,862.12 1
6.0000 830.38 75
5.7500 830.38
XXXX XXXXXXX XX 00000 5 05/09/05 00
0004053070 05 07/01/05 0.0000
0004053070 O 06/01/35
0
9789296 286/286 F 101,200.00 ZZ
360 100,630.08 1
6.3750 631.36 80
6.1250 631.36
XXXXXXXXX XX 00000 1 12/23/04 00
0003765541 05 02/01/05 0.0000
0003765541 O 01/01/35
0
9789304 286/286 F 89,250.00 ZZ
360 88,914.64 1
7.5000 624.05 85
7.2500 624.05
TURNERS XXXXX XX 00000 1 01/19/05 10
0003820235 05 03/01/05 20.0000
0003820235 N 02/01/35
0
9789306 286/286 F 107,120.00 ZZ
360 106,747.95 1
6.7500 694.78 80
6.5000 694.78
XXXXXXXXX XX 00000 1 02/25/05 00
0003837405 07 04/01/05 0.0000
0003837405 N 03/01/35
0
9789314 286/286 F 180,000.00 ZZ
360 179,812.06 1
5.7500 1050.44 80
5.5000 1050.44
XXXXXXX XX 00000 2 05/06/05 00
0003892260 05 07/01/05 0.0000
0003892260 O 06/01/35
0
9789324 286/286 F 155,200.00 ZZ
360 155,049.15 1
6.1250 943.02 80
5.8750 943.02
XXXXXXXX XX 00000 5 05/03/05 00
0003931154 05 07/01/05 0.0000
0003931154 O 06/01/35
0
9789330 286/286 F 223,200.00 ZZ
360 223,012.48 1
6.8750 1466.27 80
6.6250 1466.27
XXXXXXXX XX 00000 2 05/13/05 00
0003939363 05 07/01/05 0.0000
0003939363 O 06/01/35
0
9789332 286/286 F 73,350.00 ZZ
360 73,286.84 1
6.7500 475.75 90
6.5000 475.75
XXXXXXXXXXX XX 00000 1 05/10/05 01
0003944819 01 07/01/05 30.0000
0003944819 O 06/01/35
0
9789336 286/286 F 288,000.00 ZZ
241 287,417.09 1
6.5000 2142.91 80
6.2500 2142.91
XXXXXXX XX 00000 2 05/10/05 00
0003947667 05 07/01/05 0.0000
0003947667 O 07/01/25
0
9789348 286/286 F 150,000.00 ZZ
360 149,861.07 1
6.3750 935.81 75
6.1250 935.81
TAOS SKI VALLENM 87525 5 05/06/05 00
0003963716 01 07/01/05 0.0000
0003963716 N 06/01/35
0
9789352 286/286 F 126,000.00 ZZ
360 125,894.14 1
6.8750 827.74 90
6.6250 827.74
XXXXXXX XX 00000 1 05/13/05 11
0003975107 05 07/01/05 25.0000
0003975107 N 06/01/35
0
9789354 286/286 F 113,905.00 ZZ
360 113,806.93 1
6.7500 738.79 95
6.5000 738.79
XXXXXXX XX 00000 1 05/20/05 11
0003983313 05 07/01/05 30.0000
0003983313 O 06/01/35
0
9789360 286/286 F 93,200.00 ZZ
360 93,111.57 1
6.2500 573.85 80
6.0000 573.85
XXXXXXXXX XX 00000 1 05/04/05 00
0003986566 05 07/01/05 0.0000
0003986566 O 06/01/35
0
9789364 286/286 F 100,800.00 ZZ
360 100,708.87 1
6.5000 637.13 80
6.2500 637.13
XXXXXXXXXXX XX 00000 1 05/19/05 00
0003987048 05 07/01/05 0.0000
0003987048 N 06/01/35
0
9789372 286/286 F 140,000.00 ZZ
360 139,867.16 1
6.2500 862.01 80
6.0000 862.01
XXXXXXX XX 00000 1 05/13/05 00
0003993627 05 07/01/05 0.0000
0003993627 O 06/01/35
0
9789380 286/286 F 110,700.00 ZZ
360 110,604.69 1
6.7500 718.00 90
6.5000 718.00
XXXXXXX XX 00000 5 05/04/05 04
0003998606 05 07/01/05 25.0000
0003998606 O 06/01/35
0
9789388 286/286 F 96,800.00 ZZ
360 96,714.59 1
6.6250 619.83 80
6.3750 619.83
VIRGINIA BEACHVA 23453 5 05/17/05 00
0004004926 07 07/01/05 0.0000
0004004926 N 06/01/35
0
9789390 286/286 F 79,200.00 ZZ
360 79,130.12 1
6.6250 507.13 80
6.3750 507.13
VIRGINIA BEACHVA 23453 5 05/17/05 00
0004004928 07 07/01/05 0.0000
0004004928 N 06/01/35
0
9789396 286/286 F 180,000.00 ZZ
360 179,837.27 1
6.5000 1137.73 90
6.2500 1137.73
XXX XXXXXXXXXXXX 00000 1 05/06/05 04
0004005885 05 07/01/05 25.0000
0004005885 O 06/01/35
0
9789398 286/286 F 104,000.00 ZZ
360 103,908.24 1
6.6250 665.93 80
6.3750 665.93
VIRGINIA BEACHVA 23452 5 05/17/05 00
0004006505 07 07/01/05 0.0000
0004006505 N 06/01/35
0
9789406 286/286 F 83,200.00 ZZ
360 83,122.94 1
6.3750 519.06 80
6.1250 519.06
XXXXX XX 00000 5 05/11/05 00
0004012564 05 07/01/05 0.0000
0004012564 N 06/01/35
0
9789422 286/286 F 81,950.00 ZZ
360 81,882.82 1
7.0000 545.22 90
6.7500 545.22
XXXXXXXX XX 00000 1 05/13/05 11
0004018849 05 07/01/05 25.0000
0004018849 O 06/01/35
0
9789432 286/286 F 197,125.00 ZZ
360 196,955.28 1
6.7500 1278.55 95
6.5000 1278.55
XXXXXXXXX XX 00000 1 05/13/05 11
0004024685 05 07/01/05 30.0000
0004024685 O 06/01/35
0
9789436 286/286 F 133,875.00 ZZ
360 133,744.88 1
6.1250 813.44 90
5.8750 813.44
XXXXXXX XX 00000 1 05/12/05 01
0004026617 03 07/01/05 30.0000
0004026617 N 06/01/35
0
9789442 286/286 F 172,000.00 ZZ
360 171,828.77 1
6.0000 1031.23 80
5.7500 1031.23
XXXXXXXXX XX 00000 1 05/20/05 00
0004027546 05 07/01/05 0.0000
0004027546 O 06/01/35
0
9789460 286/286 F 65,600.00 ZZ
360 65,539.24 1
6.3750 409.26 80
6.1250 409.26
XXXXXXXX XX 00000 1 05/13/05 00
0004032867 01 07/01/05 0.0000
0004032867 N 06/01/35
0
9789464 286/286 F 72,900.00 ZZ
360 72,827.42 1
6.0000 437.08 60
5.7500 437.08
XXXXXXXXX XXX XX 00000 1 05/06/05 00
0004033067 01 07/01/05 0.0000
0004033067 O 06/01/35
0
9789468 286/286 F 175,920.00 ZZ
360 175,740.63 1
5.8750 1040.64 80
5.6250 1040.64
XXXXXXX XX 00000 1 05/20/05 00
0004035191 05 07/01/05 0.0000
0004035191 O 06/01/35
0
9789470 286/286 F 91,200.00 ZZ
360 91,115.53 1
6.3750 568.97 80
6.1250 568.97
XXXXXXXX XX 00000 1 05/09/05 00
0004036185 05 07/01/05 0.0000
0004036185 O 06/01/35
0
9789480 286/286 F 81,600.00 ZZ
360 81,518.76 1
6.0000 489.24 80
5.7500 489.24
XXXX XXXXX XX 00000 2 05/19/05 00
0004043323 05 07/01/05 0.0000
0004043323 N 06/01/35
0
9789482 286/286 F 92,000.00 ZZ
360 91,908.41 1
6.0000 551.59 80
5.7500 551.59
XXXX XXXXX XX 00000 2 05/13/05 00
0004043327 05 07/01/05 0.0000
0004043327 N 06/01/35
0
9789484 286/286 F 179,100.00 ZZ
360 178,881.57 1
6.5000 1132.04 90
6.2500 1132.04
XXXXXX XX 00000 1 05/18/05 11
0000000000 03 07/01/05 25.0000
0000000000 O 06/01/35
0
9789488 286/286 F 308,000.00 ZZ
360 307,693.38 1
6.0000 1846.62 80
5.7500 1846.62
XXXXXX XX 00000 1 05/05/05 00
0004045722 05 07/01/05 0.0000
0004045722 O 06/01/35
0
9789490 286/286 F 130,400.00 ZZ
360 130,293.11 1
7.0000 867.56 80
6.7500 867.56
XXXXXXXXXXXXXXXX 00000 1 05/11/05 00
0004047089 05 07/01/05 0.0000
0004047089 N 06/01/35
0
9789492 286/286 F 105,600.00 ZZ
360 105,413.15 1
6.6250 676.17 80
6.3750 676.17
XXXXXXX XX 00000 1 04/27/05 00
0004047295 05 06/01/05 0.0000
0004047295 N 05/01/35
0
9789496 286/286 F 82,400.00 ZZ
300 82,298.28 1
7.0000 582.39 80
6.7500 582.39
VIRGINIA BEACHVA 23462 1 05/19/05 00
0004048393 01 07/01/05 0.0000
0004048393 N 06/01/30
0
9789506 286/286 F 193,600.00 T
360 193,424.98 1
6.5000 1223.69 80
6.2500 1223.69
XXXXXXXXXX XX 00000 1 05/20/05 00
0004049478 03 07/01/05 0.0000
0004049478 O 06/01/35
0
9789508 286/286 F 85,000.00 ZZ
360 84,917.38 1
6.1250 516.47 43
5.8750 516.47
XXXXX XXXX XX 00000 1 05/18/05 00
0004050091 05 07/01/05 0.0000
0004050091 O 06/01/35
0
9789512 286/286 F 68,800.00 ZZ
360 68,748.94 1
7.5000 481.06 80
7.2500 481.06
XXXXXXXXXXX XX 00000 1 05/09/05 00
0000000000 05 07/01/05 0.0000
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0424353688 O 07/01/35
0
10006119 E22/G02 F 104,000.00 ZZ
360 104,000.00 1
6.5000 657.35 80
6.2500 657.35
XXXXXX XX 00000 1 06/30/05 00
0424455228 05 08/01/05 0.0000
0424455228 O 07/01/35
0
10006155 E22/G02 F 86,280.00 ZZ
360 86,280.00 2
6.2500 531.24 80
6.0000 531.24
XXXXXXXXXX XX 00000 1 06/30/05 00
0424482248 05 08/01/05 0.0000
0424482248 N 07/01/35
0
10006165 E22/G02 F 136,750.00 ZZ
360 136,750.00 1
6.5000 740.73 71
6.2500 740.73
XXXXXXX XX 00000 1 06/27/05 00
0424489748 05 08/01/05 0.0000
0424489748 N 07/01/35
0
10006171 E22/G02 F 138,150.00 ZZ
360 138,150.00 4
6.3750 861.88 90
6.1250 861.88
XXXXXX XX 00000 1 06/30/05 04
0424492650 05 08/01/05 25.0000
0424492650 N 07/01/35
0
10006181 E22/G02 F 122,500.00 ZZ
360 122,500.00 1
5.8700 724.24 64
5.6200 724.24
XXXXXXX XX 00000 2 06/25/05 00
0424497519 05 08/01/05 0.0000
0424497519 N 07/01/35
0
10006223 E22/G02 F 59,920.00 ZZ
360 59,920.00 1
6.7500 388.64 80
6.5000 388.64
XXXXXXXXX XX 00000 1 06/30/05 00
0424517530 09 08/01/05 0.0000
0424517530 O 07/01/35
0
10006233 E22/G02 F 89,550.00 ZZ
360 89,550.00 1
6.6250 573.40 90
6.3750 573.40
XXXXX XX 00000 1 06/24/05 01
0424520930 05 08/01/05 30.0000
0424520930 O 07/01/35
0
10006235 E22/G02 F 71,200.00 ZZ
360 71,200.00 1
6.6250 455.90 80
6.3750 455.90
XXXXXXXXXX XX 00000 1 06/30/05 00
0424523496 01 08/01/05 0.0000
0424523496 N 07/01/35
0
10006279 E22/G02 F 111,120.00 ZZ
360 111,120.00 1
6.3750 693.24 80
6.1250 693.24
XXXXXXX XX 00000 1 06/30/05 00
0424545051 08 08/01/05 0.0000
0424545051 O 07/01/35
0
10006281 E22/G02 F 100,000.00 ZZ
360 100,000.00 2
6.3750 531.25 75
6.1250 531.25
XXXXXX XX 00000 2 06/28/05 00
0424546729 05 08/01/05 0.0000
0424546729 N 07/01/35
0
10006365 E22/G02 F 58,410.00 ZZ
360 58,410.00 1
7.1250 393.52 90
6.8750 393.52
XXXXXXX XX 00000 1 06/30/05 04
0424593838 03 08/01/05 25.0000
0424593838 N 07/01/35
0
10006393 E22/G02 F 122,500.00 ZZ
360 122,500.00 1
6.1250 625.26 70
5.8750 625.26
XXXXX XX 00000 2 06/23/05 00
0424604692 03 08/01/05 0.0000
0424604692 N 07/01/35
0
10006395 E22/G02 F 100,000.00 ZZ
360 100,000.00 1
6.2500 520.83 70
6.0000 520.83
XXXXXXXX XX 00000 2 06/22/05 00
0424605780 03 08/01/05 0.0000
0424605780 N 07/01/35
0
10006519 E22/G02 F 223,000.00 ZZ
360 223,000.00 1
6.3750 1391.23 72
6.1250 1391.23
XXXX XXXXX XX 00000 5 06/30/05 00
0424670792 01 08/01/05 0.0000
0424670792 N 07/01/35
0
10006567 E22/G02 F 102,600.00 ZZ
360 102,600.00 1
6.5000 648.50 95
6.2500 648.50
XXXXXXXX XXXXXXX 00000 1 06/30/05 10
0424695435 01 08/01/05 30.0000
0424695435 O 07/01/35
0
10006653 E22/G02 F 161,600.00 ZZ
360 161,600.00 1
6.1250 981.90 80
5.8750 981.90
XXXXXX XXXX XX 00000 1 06/30/05 00
0424813178 03 08/01/05 0.0000
0424813178 O 07/01/35
0
10006829 U42/G02 F 132,000.00 ZZ
360 132,000.00 1
6.3750 823.51 80
6.1250 823.51
XXXXXXXX XX 00000 1 06/22/05 00
0439524570 05 08/01/05 0.0000
24500450 O 07/01/35
0
10006843 U19/G02 F 86,600.00 ZZ
360 86,600.00 1
6.5000 547.37 66
6.2500 547.37
XXXXX XX 00000 2 06/16/05 00
0439516030 05 08/01/05 0.0000
4603000007 O 07/01/35
0
10006851 U19/G02 F 118,500.00 ZZ
360 118,500.00 1
5.5000 543.13 73
5.2500 543.13
XXXXXXXXX XX 00000 5 06/24/05 00
0439517269 03 08/01/05 0.0000
0000000000 O 07/01/35
0
10006853 U19/G02 F 120,000.00 ZZ
360 120,000.00 1
6.0000 719.46 64
5.7500 719.46
XXXXXXXXX XX 00000 5 06/24/05 00
0439516105 05 08/01/05 0.0000
806000264 O 07/01/35
0
10008789 U85/G02 F 150,500.00 T
360 150,500.00 1
7.3750 1039.47 70
7.1250 1039.47
XXXXXXX XXXX XX 00000 1 06/29/05 00
0439517764 20 08/01/05 0.0000
0629200501 O 07/01/35
0
10008817 G34/G02 F 87,100.00 ZZ
360 87,100.00 1
7.0000 579.48 80
6.7500 579.48
XXX XXXXX XX 00000 1 06/17/05 00
0439530452 05 08/01/05 0.0000
77501363 N 07/01/35
0
10008937 E22/G02 F 57,600.00 ZZ
360 57,600.00 1
6.5000 364.07 80
6.2500 364.07
XXXXXXX XX 00000 5 07/01/05 00
0424388825 01 08/01/05 0.0000
0424388825 N 07/01/35
0
10009075 E22/G02 F 181,500.00 ZZ
360 181,500.00 1
6.2500 1117.53 89
6.0000 1117.53
XXXXXXX XX 00000 2 06/27/05 04
0424541597 05 08/01/05 25.0000
0424541597 O 07/01/35
0
10009171 E22/G02 F 37,000.00 ZZ
360 37,000.00 2
6.2500 227.82 53
6.0000 227.82
XXXXXXXX XX 00000 2 07/01/05 00
0424634574 05 08/01/05 0.0000
0424634574 N 07/01/35
0
10009173 E22/G02 F 60,352.00 ZZ
360 60,352.00 2
6.8750 396.47 80
6.6250 396.47
XXXXXXXX XX 00000 1 07/01/05 00
0424638294 05 08/01/05 0.0000
0424638294 N 07/01/35
0
10009199 E22/G02 F 116,000.00 ZZ
360 116,000.00 1
6.5000 733.20 80
6.2500 733.20
CORPUS CHRISTITX 78411 1 07/01/05 00
0424652113 05 08/01/05 0.0000
0424652113 O 07/01/35
0
10009217 E22/G02 F 128,250.00 ZZ
360 128,250.00 1
7.0000 748.13 95
6.7500 748.13
XXXXXXXXXX XX 00000 1 07/01/05 10
0424666246 05 08/01/05 35.0000
0424666246 O 07/01/35
0
10009245 E22/G02 F 102,320.00 ZZ
360 102,320.00 1
6.3750 638.34 80
6.1250 638.34
XXXXXXX XX 00000 1 07/01/05 00
0424696888 05 08/01/05 0.0000
0424696888 O 07/01/35
0
10009313 E22/G02 F 23,700.00 ZZ
360 23,700.00 1
6.2500 145.92 51
6.0000 145.92
XXXXXXXX XX 00000 2 07/01/05 00
0423970235 05 08/01/05 0.0000
0423970235 N 07/01/35
0
10009683 E82/G02 F 221,100.00 ZZ
360 221,100.00 1
6.2500 1361.35 72
6.0000 1361.35
XXXXXXX XXXXX XX 00000 2 06/25/05 00
0401138300 05 08/01/05 0.0000
0401138300 O 07/01/35
0
10012777 L20/G02 F 111,920.00 ZZ
360 111,920.00 1
6.1250 680.04 80
5.8750 680.04
XXXXX XX 00000 1 06/29/05 00
0439518812 05 08/01/05 0.0000
1061030934 O 07/01/35
0
10012787 Q14/G02 F 85,500.00 ZZ
360 85,500.00 1
7.0000 568.83 93
6.7500 568.83
XXXXXX XX 00000 5 06/17/05 01
0439517582 05 08/01/05 30.0000
0000527808 O 07/01/35
0
10012799 A50/G02 F 92,800.00 ZZ
360 92,800.00 1
6.5000 586.56 80
6.2500 586.56
XXXXXXXXXXX XX 00000 5 06/27/05 00
0439518291 09 08/01/05 0.0000
02241461 N 07/01/35
0
10012813 A50/G02 F 124,000.00 ZZ
360 124,000.00 1
6.2500 763.49 80
6.0000 763.49
XXXXXXXXXXX XX 00000 5 06/27/05 00
0439517947 05 08/01/05 0.0000
02241602 N 07/01/35
0
10012815 A50/G02 F 136,000.00 ZZ
360 136,000.00 1
6.5000 859.62 80
6.2500 859.62
XXXXXXXXXXX XX 00000 5 06/27/05 00
0439530924 05 08/01/05 0.0000
2241594 N 07/01/35
0
10014437 E22/G02 F 58,500.00 ZZ
360 58,500.00 1
6.8750 335.16 90
6.6250 335.16
XXXXXXXXXX XX 00000 2 07/05/05 04
0423921154 05 08/01/05 25.0000
0423921154 N 07/01/35
0
10014531 E22/G02 F 111,200.00 ZZ
360 111,200.00 1
6.1250 675.66 80
5.8750 675.66
XXXXXXX XX 00000 1 07/05/05 00
0424812345 05 08/01/05 0.0000
0424812345 O 07/01/35
0
10014543 E22/G02 F 113,500.00 ZZ
360 113,500.00 1
6.6250 726.75 85
6.3750 726.75
XXXXXXXXXXX XX 00000 5 06/28/05 10
0424263333 05 08/01/05 12.0000
0424263333 O 07/01/35
0
10014711 E22/G02 F 64,800.00 ZZ
360 64,800.00 1
6.8750 425.69 90
6.6250 425.69
XXXXXXXX XXXXXXX 00000 1 07/05/05 04
0424552933 05 08/01/05 25.0000
0424552933 N 07/01/35
0
10015429 P34/G02 F 208,500.00 ZZ
360 208,500.00 3
6.5000 1317.86 75
6.2500 1317.86
XXXXXXXXXX XX 00000 2 06/08/05 00
0439539362 05 08/01/05 0.0000
1000609533 N 07/01/35
0
10018021 E22/G02 F 141,900.00 ZZ
360 141,900.00 1
6.6250 908.60 88
6.3750 908.60
XXXXXX XX 00000 2 06/30/05 04
0424541589 05 08/01/05 30.0000
0424541589 O 07/01/35
0
10018109 E22/G02 F 91,000.00 ZZ
360 91,000.00 1
6.2500 473.96 72
6.0000 473.96
XXXXX XX 00000 2 06/29/05 00
0424606432 03 08/01/05 0.0000
0424606432 N 07/01/35
0
10018181 E22/G02 F 124,000.00 ZZ
360 124,000.00 1
6.8750 710.42 80
6.6250 710.42
XXXX XXXX XXXXXX 00000 1 07/06/05 00
0424671592 05 08/01/05 0.0000
0424671592 N 07/01/35
0
10018187 E22/G02 F 96,000.00 ZZ
360 96,000.00 1
6.2500 591.09 80
6.0000 591.09
XXXXX XX 00000 2 06/30/05 00
0424674414 05 08/01/05 0.0000
0424674414 O 07/01/35
0
10018211 E22/G02 F 81,035.00 ZZ
360 81,035.00 1
7.1250 545.95 95
6.8750 545.95
XXXXX XX 00000 5 06/30/05 01
0424699361 05 08/01/05 30.0000
0424699361 O 07/01/35
0
10018559 E82/G02 F 93,400.00 ZZ
360 93,400.00 1
6.5000 590.35 95
6.2500 590.35
XXXXXXXX XX 00000 2 06/23/05 04
0401137203 05 08/01/05 30.0000
0401137203 O 07/01/35
0
10018601 E82/G02 F 104,000.00 ZZ
360 104,000.00 1
6.6250 665.92 75
6.3750 665.92
XXXXXXXXX XX 00000 2 06/20/05 00
0401129572 05 08/01/05 0.0000
0401129572 N 07/01/35
0
10021653 E22/G02 F 250,500.00 ZZ
360 250,500.00 1
6.5000 1583.33 70
6.2500 1583.33
XXXXXXXXXX XX 00000 5 06/30/05 00
0424521789 05 08/01/05 0.0000
0424521789 N 07/01/35
0
10022473 E82/G02 F 165,000.00 ZZ
360 165,000.00 1
6.2500 1015.93 53
6.0000 1015.93
XXXXX XXXXX XX 00000 1 06/30/05 00
0401137401 05 08/01/05 0.0000
0401137401 O 07/01/35
0
Total Number of Loans 1,105
Total Original Balance 213,948,328.00
Total Principal Balance 213,644,237.23
Total Original P+I 1,257,672.11
Total Current P+I 1,257,654.47
EXHIBIT TWO
SCHEDULE OF DISCOUNT FRACTIONS
Schedule of Discount Fractions
Loan Number Current Balance Net Mortgage Rate Discount Fraction XX Xxxxxxx
0000000 $498,870.90 5.470% .5455% $2,721.11
9789314 $179,812.06 5.470% .5455% $980.79
9818306 $307,878.01 5.470% .5455% $1,679.33
9818314 $222,761.60 5.345% 2.8182% $6,277.83
9818326 $235,254.13 5.470% .5455% $1,283.20
9818330 $224,765.09 5.470% .5455% $1,225.99
9818338 $149,985.41 5.470% .5455% $818.10
9891709 $599,960.22 5.470% .5455% $3,272.51
9899275 $770,000.00 5.470% .5455% $4,200.00
9899305 $165,000.00 5.470% .5455% $900.00
9899385 $390,000.00 5.470% .5455% $2,127.27
9899397 $320,000.00 5.470% .5455% $1,745.45
9899517 $449,993.00 5.470% .5455% $2,454.51
9899599 $100,000.00 5.470% .5455% $545.45
9899645 $346,500.00 5.345% 2.8182% $9,765.00
9899703 $278,000.00 5.470% .5455% $1,516.36
9899721 $152,200.00 5.470% .5455% $830.18
9902335 $350,000.00 5.470% .5455% $1,909.09
9902355 $307,799.52 5.470% .5455% $1,678.91
9902469 $110,000.00 5.470% .5455% $600.00
9902531 $321,885.56 5.470% .5455% $1,755.74
9902809 $169,502.07 5.345% 2.8182% $4,776.88
9933429 $150,000.00 5.470% .5455% $818.18
9941315 $359,650.00 5.470% .5455% $1,961.73
9945365 $157,000.00 5.470% .5455% $856.36
9946875 $138,400.00 5.470% .5455% $754.91
9947469 $206,367.70 5.470% .5455% $1,125.64
9954085 $317,600.00 5.095% 7.3636% $23,386.91
9956883 $306,353.18 5.470% .5455% $1,671.02
9958323 $498,130.14 5.345% 2.8182% $14,038.21
9958393 $119,692.93 5.345% 2.8182% $3,373.16
9958965 $147,789.99 5.470% .5455% $806.13
9959243 $140,000.00 5.470% .5455% $763.64
9964985 $327,900.00 5.470% .5455% $1,788.55
9971249 $418,678.16 5.470% .5455% $2,283.70
9977177 $680,000.00 5.220% 5.0909% $34,618.18
9981385 $286,085.82 5.345% 2.8182% $8,062.42
9981401 $123,216.12 5.345% 2.8182% $3,472.45
9981405 $79,916.47 5.470% .5455% $435.91
9981427 $259,528.75 5.470% .5455% $1,415.61
9981437 $132,161.87 5.470% .5455% $720.88
9981495 $121,473.04 5.470% .5455% $662.58
9981497 $142,333.05 5.470% .5455% $776.36
9981585 $135,000.00 5.470% .5455% $736.36
9981611 $318,400.00 5.470% .5455% $1,736.73
9981625 $109,885.14 5.470% .5455% $599.37
9981687 $131,063.02 5.470% .5455% $714.89
9981689 $95,899.77 5.470% .5455% $523.09
9981705 $149,843.39 5.470% .5455% $817.33
9981711 $111,075.39 5.095% 7.3636% $8,179.19
9981721 $170,921.35 5.470% .5455% $932.30
9981759 $96,778.85 5.470% .5455% $527.88
9981815 $96,748.87 5.470% .5455% $527.72
9981827 $127,035.60 5.095% 7.3636% $9,354.44
9981839 $176,180.69 5.470% .5455% $960.99
9981883 $179,812.06 5.470% .5455% $980.79
9981939 $140,500.00 5.470% .5455% $766.36
9981957 $119,702.89 5.345% 2.8182% $3,373.45
9981973 $76,420.12 5.470% .5455% $416.84
9982003 $147,761.86 5.345% 2.8182% $4,164.20
9982009 $165,414.43 5.095% 7.3636% $12,180.52
9982975 $583,775.53 5.470% .5455% $3,184.23
9983007 $863,772.93 5.470% .5455% $4,711.49
9984457 $162,671.75 5.220% 5.0909% $8,281.47
9984463 $129,607.98 5.220% 5.0909% $6,598.22
9984861 $359,650.00 5.470% .5455% $1,961.73
9985935 $461,517.62 5.470% .5455% $2,517.37
9987729 $87,200.00 5.470% .5455% $475.64
9992333 $184,000.00 4.970% 9.6364% $17,730.91
9992379 $237,751.52 5.470% .5455% $1,296.83
9994771 $115,878.89 5.470% .5455% $632.07
10001649 $450,000.00 4.970% 9.6364% $43,363.64
10001665 $295,750.00 5.470% .5455% $1,613.18
10001679 $171,200.00 5.470% .5455% $933.82
10001703 $150,500.00 5.220% 5.0909% $7,661.82
10001715 $355,000.00 5.470% .5455% $1,936.36
10002731 $449,600.00 5.470% .5455% $2,452.36
10003149 $433,100.00 5.345% 2.8182% $12,205.55
10003155 $486,700.00 5.220% 5.0909% $24,777.45
10004989 $435,000.00 5.345% 2.8182% $12,259.09
10005097 $150,000.00 5.345% 2.8182% $4,227.27
10006851 $118,500.00 5.220% 5.0909% $6,032.73
EXHIBIT THREE
INFORMATION TO BE INCLUDED IN
MONTHLY DISTRIBUTION DATE STATEMENT
(i) (a) the amount of such distribution to the Certificateholders of such
Class applied to reduce the Certificate Principal Balance thereof, and
(b) the aggregate amount included therein representing Principal
Prepayments;
(ii) the amount of such distribution to Holders of such Class of Certificates
allocable to interest;
(iii) if the distribution to the Holders of such Class of Certificates is less
than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the
shortfall;
(iv) the amount of any Advance by the Master Servicer pursuant to Section
4.04;
(v) the number and Pool Stated Principal Balance of the Mortgage Loans after
giving effect to the distribution of principal on such Distribution
Date;
(vi) the aggregate Certificate Principal Balance of each Class of
Certificates and each of the Senior Percentage and Subordinate Class
Percentage, after giving effect to the amounts distributed on such
Distribution Date, separately identifying any reduction thereof due to
Realized Losses other than pursuant to an actual distribution of
principal;
(vii) the related Subordinate Principal Distribution Amount and Prepayment
Distribution Percentage, if applicable;
(viii) on the basis of the most recent reports furnished to it by
Sub-Servicers, (a) the number and aggregate principal balances of
Mortgage Loans that are Delinquent (1) 30-59 days, (2) 60-89 days and
(3) 90 or more days and the number and aggregate principal balance of
Mortgage Loans that are in foreclosure, (b) the number and aggregate
principal balances of Reportable Modified Mortgage Loans that are
Delinquent (1) 30-59 days, (2) 60-89 days and (3) 90 or more days and
the number and aggregate principal balance of Reportable Modified
Mortgage Loans that are in foreclosure and are REO Property, indicating
in each case capitalized Mortgage Loans, other Servicing Modifications
and totals, and (c) for all Reportable Modified Mortgage Loans, the
number and aggregate Stated Principal Balance of Reportable Modified
Mortgage Loans that have been liquidated, the subject of pay-offs and
that have been repurchased by the Master Servicer or Seller;
(ix) the number, aggregate principal balance and book value of any REO
Properties;
(x) the aggregate Accrued Certificate Interest remaining unpaid, if any, for
each Class of Certificates, after giving effect to the distribution made
on such Distribution Date;
(xi) the amount, if any, required to be paid under the Yield Maintenance
Agreement for such Distribution Date and any shortfall in amounts
previously required to be paid under the Yield Maintenance Agreement for
prior Distribution Dates;
(xii) 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;
(xiii) the weighted average Pool Strip Rate for such Distribution Date and the
Pass-Through Rate with respect to the Class A-V Certificates and each
Subclass, if any, thereof;
(xiv) the Pass-Through Rates on the Floater Certificates and
Inverse Floater Certificates for such Distribution Date, separately
identifying LIBOR for such Distribution Date;
(xv) the Notional Amount with respect to each class of Interest
Only Certificates and each Subclass Notional Amount;
(xvi) the occurrence of the Credit Support Depletion Date;
(xvii) the related Senior Accelerated Distribution Percentage
applicable to such distribution;
(xviii)the related Senior Percentage for such Distribution Date;
(xix) the aggregate amount of Realized Losses for such
Distribution Date;
(xx) the aggregate amount of any recoveries on previously
foreclosed loans from Sellers due to a breach of a representation or
warranty assigned to the Trustee pursuant to Section 2.04;
(xxi) the weighted average remaining term to maturity of the
Mortgage Loans after giving effect to the amounts distributed on such
Distribution Date; and
(xxii) the weighted average Mortgage Rates of the Mortgage Loans
after giving effect to the amounts distributed on such Distribution
Date.
In the case of information furnished pursuant to clauses (i) and (ii)
above, the amounts shall be expressed as a dollar amount per Certificate with a
$1,000 denomination.
The Trustee's internet website, and assistance in using the website, can
be obtained by calling the Trustee's Shareholder Relations desk at (800)
735-7777. To receive this statement via first class mail, telephone the Trustee
at (000) 000-0000.
EXHIBIT FOUR
STANDARD TERMS OF POOLING AND SERVICING
AGREEMENT DATED AS OF AUGUST 1, 2004
===============================================================================
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2004
Residential Accredit Loans, Inc.
Mortgage Asset-Backed Pass-Through Certificates
===============================================================================
TABLE OF CONTENTS
PAGE
-ii-
Article I DEFINITIONS...............................................................2
Section 1.01. Definitions...........................................................2
Section 1.02. Use of Words and Phrases.............................................32
Article II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES..........33
Section 2.01. Conveyance of Mortgage Loans.........................................33
Section 2.02. Acceptance by Trustee................................................39
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer
and the Company.............................................................40
Section 2.04. Representations and Warranties of Sellers............................42
Section 2.05. Execution and Authentication of Certificates/Issuance of
Certificates Evidencing Interests in REMIC I Certificates...................44
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II Regular
Interests; Acceptance by the Trustee........................................44
Section 2.07. Issuance of Certificates Evidencing Interests in REMIC II............44
Section 2.08. Purposes and Powers of the Trust.....................................44
Article III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...........................45
Section 3.01. Master Servicer to Act as Servicer...................................45
Section 3.02. Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers' Obligations.........46
Section 3.03. Successor Subservicers...............................................47
Section 3.04. Liability of the Master Servicer.....................................48
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders..........................................................48
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee........
48
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account...........................................................49
Section 3.08. Subservicing Accounts; Servicing Accounts............................51
Section 3.09. Access to Certain Documentation and Information Regarding the
Mortgage Loans..............................................................53
Section 3.10. Permitted Withdrawals from the Custodial Account.....................53
i
Section 3.11. Maintenance of the Primary Insurance Policies; Collections
Thereunder..................................................................55
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity
Coverage....................................................................56
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments................................57
Section 3.14. Realization Upon Defaulted Mortgage Loans............................59
Section 3.15. Trustee to Cooperate; Release of Mortgage Files......................63
Section 3.16. Servicing and Other Compensation; Compensating Interest..............64
Section 3.17. Reports to the Trustee and the Company...............................65
Section 3.18. Annual Statement as to Compliance....................................65
Section 3.19. Annual Independent Public Accountants' Servicing Report..............66
Section 3.20. Rights of the Company in Respect of the Master Servicer..............66
Section 3.21. Administration of Buydown Funds......................................67
Section 3.22 Advance Facility.....................................................67
Article IV PAYMENTS TO CERTIFICATEHOLDERS...........................................68
Section 4.01. Certificate Account..................................................68
Section 4.02. Distributions........................................................68
Section 4.03. Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting............................................68
Section 4.04. Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer.............................................70
Section 4.05. Allocation of Realized Losses........................................72
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property........72
Section 4.07. Optional Purchase of Defaulted Mortgage Loans........................72
Section 4.08. Surety Bond..........................................................72
Article V THE CERTIFICATES.........................................................74
Section 5.01. The Certificates.....................................................74
Section 5.02. Registration of Transfer and Exchange of Certificates................76
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates....................81
Section 5.04. Persons Deemed Owners................................................82
ii
Section 5.05. Appointment of Paying Agent..........................................82
Section 5.06. U.S.A. Patriot Act Compliance........................................82
Article VI THE COMPANY AND THE MASTER SERVICER......................................83
Section 6.01. Respective Liabilities of the Company and the Master Servicer........83
Section 6.02. Merger or Consolidation of the Company or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer............83
Section 6.03. Limitation on Liability of the Company, the Master Servicer
and Others....................................................................
84
Section 6.04. Company and Master Servicer Not to Resign............................85
Article VII DEFAULT..................................................................86
Section 7.01. Events of Default....................................................86
Section 7.02. Trustee or Company to Act; Appointment of Successor..................88
Section 7.03. Notification to Certificateholders...................................89
Section 7.04. Waiver of Events of Default..........................................89
Article VIII CONCERNING THE TRUSTEE...................................................90
Section 8.01. Duties of Trustee....................................................90
Section 8.02. Certain Matters Affecting the Trustee................................91
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans................93
Section 8.04. Trustee May Own Certificates.........................................93
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.............................................................93
Section 8.06. Eligibility Requirements for Trustee.................................94
Section 8.07. Resignation and Removal of the Trustee...............................95
Section 8.08. Successor Trustee....................................................95
Section 8.09. Merger or Consolidation of Trustee...................................96
Section 8.10. Appointment of Co-Trustee or Separate Trustee........................96
Section 8.11. Appointment of Custodians............................................97
Section 8.12. Appointment of Office or Agency......................................98
Article IX TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES.....................99
Section 9.01. Optional Purchase by the Master Servicer of All Certificates;
Termination Upon Purchase by the Master Servicer or Liquidation of All
Mortgage Loans..............................................................99
iii
Section 9.02. Additional Termination Requirements.................................102
Section 9.03. Termination of Multiple REMICs......................................103
Article X REMIC PROVISIONS........................................................104
Section 10.01.REMIC Administration................................................104
Section 10.02.Master Servicer, REMIC Administrator and Trustee Indemnification....107
Section 10.03.Designation of REMIC(s).............................................108
Article XI MISCELLANEOUS PROVISIONS................................................109
Section 11.01.Amendment...........................................................109
Section 11.02.Recordation of Agreement; Counterparts..............................111
Section 11.03.Limitation on Rights of Certificateholders..........................112
Section 11.04.Governing Law.......................................................112
Section 11.05.Notices.............................................................113
Section 11.06.Required Notices to Rating Agency and Subservicer...................114
Section 11.07.Severability of Provisions..........................................114
Section 11.08.Supplemental Provisions for Resecuritization........................114
Section 11.09.Allocation of Voting Rights.........................................114
Section 00.00.Xx Petition.........................................................114
iv
EXHIBITS
Exhibit A: Form of Class A Certificate
Exhibit B: Form of Class M Certificate
Exhibit C: Form of Class B Certificate
Exhibit D: Form of Class R Certificate
Exhibit E: Form of Seller/Servicer Contract
Exhibit F: Forms of Request for Release
Exhibit G-1: Form of Transfer Affidavit and Agreement
Exhibit G-2: Form of Transferor Certificate
Exhibit H: Form of Investor Representation Letter
Exhibit I: Form of Transferor Representation Letter
Exhibit J: Form of Rule 144A Investment Representation Letter
Exhibit K: Text of Amendment to Pooling and Servicing Agreement Pursuant to
Section 11.01(e) for a Limited Guaranty
Exhibit L: Form of Limited Guaranty
Exhibit M: Form of Lender Certification for Assignment of Mortgage Loan
Exhibit N: Request for Exchange Form
Exhibit O: Form of Form 10-K Certification
Exhibit P: Form of Back-Up Certification to Form 10-K Certificate
Exhibit Q: Information to be Provided by the Master Servicer to the Rating
Agencies Relating to Reportable Modified Mortgage Loans
v
This is the Standard Terms of Pooling and Servicing Agreement, dated as
of August 1, 2004 (the "Standard Terms", and as incorporated by reference into a
Series Supplement dated as of the Cut-off Date, the "Pooling and Servicing
Agreement" or "Agreement"), among RESIDENTIAL ACCREDIT LOANS, INC., as the
company (together with its permitted successors and assigns, the "Company"),
RESIDENTIAL FUNDING CORPORATION, as master servicer (together with its permitted
successors and assigns, the "Master Servicer"), and the trustee named in the
applicable Series Supplement (together with its permitted successors and
assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell certain mortgage asset-backed pass-through
certificates (collectively, the "Certificates"), to be issued under the
Agreement in multiple classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Mortgage Loans.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accretion Termination Date: As defined in the Series Supplement.
Accrual Certificates: As defined in the Series Supplement.
Accrued Certificate Interest: With respect to each Distribution Date, as
to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class or
Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (to the extent not
offset by the Master Servicer with a payment of Compensating
Interest as provided in Section 4.01),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan)) of Realized Losses on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (including Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses and Extraordinary Losses) not allocated solely to one or
more specific Classes of Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on all Mortgage
Loans or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group, which
remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property and (B) made
with respect to delinquencies that were ultimately determined to
be Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Servicemembers Civil Relief Act of 1940, as
amended, or similar legislation or regulations as in effect from
time to time,
2
with all such reductions allocated (A) among all of the Certificates in
proportion to their respective amounts of Accrued Certificate Interest payable
on such Distribution Date absent such reductions or (B) if the Mortgage Pool is
comprised of two or more Loan Groups, the related Senior Percentage of such
reductions among the related Senior Certificates in proportion to the amounts of
Accrued Certificate Interest payable from the related Loan Group on such
Distribution Date absent such reductions, with the remainder of such reductions
allocated among the holders of the Class M Certificates and Class B Certificates
in proportion to their respective amounts of Accrued Certificate Interest
payable on such Distribution Date absent such reductions. In addition to that
portion of the reductions described in the preceding sentence that are allocated
to any Class of Class B Certificates or any Class of Class M Certificates,
Accrued Certificate Interest on such Class of Class B Certificates or such Class
of Class M Certificates will be reduced by the interest portion (adjusted to the
Net Mortgage Rate) of Realized Losses that are allocated solely to such Class of
Class B Certificates or such Class of Class M Certificates pursuant to Section
4.05.
Addendum and Assignment Agreement: The Addendum and Assignment
Agreement, dated as of January 31, 1995, between MLCC and the Master Servicer.
Additional Collateral: Any of the following held, in addition to the
related Mortgaged Property, as security for a Mortgage Loan: (i) all money,
securities, security entitlements, accounts, general intangibles, payment
rights, instruments, documents, deposit accounts, certificates of deposit,
commodities contracts and other investment property and other property of
whatever kind or description now existing or hereafter acquired which is pledged
as security for the repayment of such Mortgage Loan, (ii) third-party
guarantees, and (A) all money, securities, security entitlements, accounts,
general intangibles, payment rights, instruments, documents, deposit accounts,
certificates of deposit, commodities contracts and other investment property and
other property of whatever kind or description now existing or hereafter
acquired which is pledged as collateral for such guarantee or (B) any mortgaged
property securing the performance of such guarantee, or (iii) such other
collateral as may be set forth in the Series Supplement.
Additional Collateral Loan: Each Mortgage Loan that is supported by
Additional Collateral.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date
of determination, the Mortgage Rate borne by the related Mortgage Note, less the
rate at which the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master
Servicer, pursuant to Section 4.04.
Advance Facility: As defined in Section 3.22.
Advance Facility Notice: As defined in Section 3.22.
Advance Facility Trustee: As defined in Section 3.22.
Advancing Person: As defined in Section 3.22.
3
Advance Reimbursement Amounts: As defined in Section 3.22.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Ambac: Ambac Assurance Corporation (formerly known as AMBAC Indemnity
Corporation).
Amount Held for Future Distribution: As to any Distribution Date and,
with respect to any Mortgage Pool that is comprised of two or more Loan Groups,
each Loan Group, the total of the amounts held in the Custodial Account at the
close of business on the preceding Determination Date on account of (i)
Liquidation Proceeds, Subsequent Recoveries, Insurance Proceeds, Curtailments,
Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04 or 4.07 and
Mortgage Loan substitutions made pursuant to Section 2.03 or 2.04 received or
made in the month of such Distribution Date (other than such Liquidation
Proceeds, Insurance Proceeds and purchases of Mortgage Loans that the Master
Servicer has deemed to have been received in the preceding month in accordance
with Section 3.07(b)), and Principal Prepayments in Full made after the related
Prepayment Period, and (ii) payments which represent early receipt of scheduled
payments of principal and interest due on a date or dates subsequent to the
related Due Date.
Appraised Value: As to any Mortgaged Property, the lesser of (i) the
appraised value of such Mortgaged Property based upon the appraisal made at the
time of the origination of the related Mortgage Loan, and (ii) the sales price
of the Mortgaged Property at such time of origination, except in the case of a
Mortgaged Property securing a refinanced or modified Mortgage Loan as to which
it is either the appraised value determined above or the appraised value
determined in an appraisal at the time of refinancing or modification, as the
case may be.
Assigned Contracts: With respect to any Pledged Asset Loan: the Credit
Support Pledge Agreement; the Funding and Pledge Agreement, among GMAC Mortgage
Corporation, National Financial Services Corporation and the Mortgagor or other
person pledging the related Pledged Assets; the Additional Collateral Agreement,
between GMAC Mortgage Corporation and the Mortgagor or other person pledging the
related Pledged Assets; or such other contracts as may be set forth in the
Series Supplement.
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the Trustee for the benefit of
Certificateholders, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law and accompanied by an Opinion of Counsel to that effect.
4
Assignment Agreement: The Assignment and Assumption Agreement, dated the
Closing Date, between Residential Funding and the Company relating to the
transfer and assignment of the Mortgage Loans.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, the
assignment of the related Cooperative Lease from the Mortgagor to the originator
of the Cooperative Loan.
Available Distribution Amount: As to any Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, an amount equal to (a) the sum of (i) the amount relating to the Mortgage
Loans on deposit in the Custodial Account as of the close of business on the
immediately preceding Determination Date, including any Subsequent Recoveries,
and amounts deposited in the Custodial Account in connection with the
substitution of Qualified Substitute Mortgage Loans, (ii) the amount of any
Advance made on the immediately preceding Certificate Account Deposit Date,
(iii) any amount deposited in the Certificate Account on the related Certificate
Account Deposit Date pursuant to the second paragraph of Section 3.12(a), (iv)
any amount deposited in the Certificate Account pursuant to Section 4.07, (v)
any amount that the Master Servicer is not permitted to withdraw from the
Custodial Account or the Certificate Account pursuant to Section 3.16(e), (vi)
any amount received by the Trustee pursuant to the Surety Bond in respect of
such Distribution Date and (vii) the proceeds of any Pledged Assets received by
the Master Servicer, reduced by (b) the sum as of the close of business on the
immediately preceding Determination Date of (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). Such
amount shall be determined separately for each Loan Group. Additionally, with
respect to any Mortgage Pool that is comprised of two or more Loan Groups, if on
any Distribution Date Compensating Interest provided pursuant to this Section
3.16(e) is less than Prepayment Interest Shortfalls incurred on the Mortgage
Loans in connection with Principal Prepayments in Full and Curtailments made in
the prior calendar month, such Compensating Interest shall be allocated on such
Distribution Date to the Available Distribution Amount for each Loan Group on a
pro rata basis in accordance with the respective amounts of such Prepayment
Interest Shortfalls incurred on the Mortgage Loans in such Loan Group in respect
of such Distribution Date.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that neither a Deficient
Valuation nor a Debt Service Reduction shall be deemed a Bankruptcy Loss
hereunder so long as the Master Servicer has notified the Trustee in writing
that the Master Servicer is diligently pursuing any remedies that may exist in
connection with the representations and warranties made regarding the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any premiums on any applicable
primary hazard insurance policy and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Master Servicer
or a Subservicer, in either case without giving effect to any Debt Service
Reduction.
5
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, and designated as such in the Preliminary Statement
to the Series Supplement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York, the State of
Michigan, the State of California or the State of Illinois (and such other state
or states in which the Custodial Account or the Certificate Account are at the
time located) are required or authorized by law or executive order to be closed.
Buydown Funds: Any amount contributed by the seller of a Mortgaged
Property, the Company or other source in order to enable the Mortgagor to reduce
the payments required to be made from the Mortgagor's funds in the early years
of a Mortgage Loan. Buydown Funds are not part of the Trust Fund prior to
deposit into the Custodial or Certificate Account.
Buydown Mortgage Loan: Any Mortgage Loan as to which a specified amount
of interest is paid out of related Buydown Funds in accordance with a related
buydown agreement.
Capitalization Reimbursement Amount: With respect to any Distribution
Date and, with respect to any Mortgage Pool comprised of two or more Loan
Groups, each Loan Group, the amount of Advances or Servicing Advances that were
added to the Stated Principal Balance of all Mortgage Loans or, if the Mortgage
Pool is comprised of two or more Loan Groups, on the Mortgage Loans in the
related Loan Group, during the prior calendar month and reimbursed to the Master
Servicer or Subservicer on or prior to such Distribution Date pursuant to
Section 3.10(a)(vii), plus the Capitalization Reimbursement Shortfall Amount
remaining unreimbursed from any prior Distribution Date and reimbursed to the
Master Servicer or Subservicer on or prior to such Distribution Date.
Capitalization Reimbursement Shortfall Amount: With respect to any
Distribution Date and, with respect to any Mortgage Pool comprised of two or
more Loan Groups, each Loan Group, the amount, if any, by which the amount of
Advances or Servicing Advances that were added to the Stated Principal Balance
of all Mortgage Loans (or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group) during the preceding
calendar month exceeds the amount of principal payments on the Mortgage Loans
included in the Available Distribution Amount (or, if the Mortgage Pool is
comprised of two or more Loan Groups, Available Distribution Amount for the
related Loan Group) for that Distribution Date.
Cash Liquidation: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with respect to
such Mortgage Loan.
Certificate Account Deposit Date: As to any Distribution Date, the
Business Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, and, in respect of any Insured
Certificates, the Certificate Insurer to the extent of Cumulative Insurance
6
Payments, except that neither a Disqualified Organization nor a Non-United
States Person shall be a holder of a Class R Certificate for purposes hereof
and, solely for the purpose of giving any consent or direction pursuant to this
Agreement, any Certificate, other than a Class R Certificate, registered in the
name of the Company, the Master Servicer or any Subservicer or any Affiliate
thereof shall be deemed not to be outstanding and the Percentage Interest or
Voting Rights evidenced thereby shall not be taken into account in determining
whether the requisite amount of Percentage Interests or Voting Rights necessary
to effect any such consent or direction has been obtained. All references herein
to "Holders" or "Certificateholders" shall reflect the rights of Certificate
Owners as they may indirectly exercise such rights through the Depository and
participating members thereof, except as otherwise specified herein; provided,
however, that the Trustee shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
Certificate Insurer: As defined in the Series Supplement.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent, if any, and otherwise on the books of a Depository Participant, if any,
and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02, plus
(iii) in the case of each Accrual Certificate, an amount equal to the
aggregate Accrued Certificate Interest added to the Certificate
Principal Balance thereof prior to such date of determination,
minus
(iv) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(a) and (y) the aggregate
of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously
allocated to such Certificate (or any predecessor Certificate)
pursuant to Section 4.05;
provided, that the Certificate Principal Balance of each Certificate of the
Class of Subordinate Certificates with the Lowest Priority at any given time
shall be further reduced by an amount equal to the Percentage Interest
represented by such Certificate multiplied by the excess, if any, of (A) the
then aggregate Certificate Principal Balance of all Classes of Certificates then
outstanding over (B) the then aggregate Stated Principal Balance of the Mortgage
Loans.
7
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates bearing the same
designation. The initial Class A-V Certificates and any Subclass thereof issued
pursuant to Section 5.01(c) shall be a single Class for purposes of this
Agreement.
Class A-P Certificate: Any one of the Certificates designated as a Class
A-P Certificate.
Class A-P Collection Shortfall: With respect to the Cash Liquidation or
REO Disposition of a Discount Mortgage Loan, any Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, the excess of the amount described in clause (C)(1) of the definition of
Class A-P Principal Distribution Amount (for the related Loan Group, if
applicable) over the amount described in clause (C)(2) of such definition.
Class A-P Principal Distribution Amount: With respect to any
Distribution Date and, with respect to any Mortgage Pool comprised of two or
more Loan Groups, each Loan Group, an amount equal to the aggregate of:
(A) the related Discount Fraction of the principal portion of
each Monthly Payment on each Discount Mortgage Loan (or, with respect to
any Mortgage Pool comprised of two or more Loan Groups, each Discount
Mortgage Loan in the related Loan Group) due during the related Due
Period, whether or not received on or prior to the related Determination
Date, minus the Discount Fraction of the principal portion of any
related Debt Service Reduction which together with other Bankruptcy
Losses exceeds the Bankruptcy Amount;
(B) the related Discount Fraction of the principal portion of all
unscheduled collections on each Discount Mortgage Loan (or, with respect
to any Mortgage Pool comprised of two or more Loan Groups, each Discount
Mortgage Loan in the related Loan Group) received during the preceding
calendar month or, in the case of Principal Prepayments in Full, during
the related Prepayment Period (other than amounts received in connection
with a Cash Liquidation or REO Disposition of a Discount Mortgage Loan
described in clause (C) below), including Principal Prepayments in Full,
Curtailments, Subsequent Recoveries and repurchases (including deemed
repurchases under Section 3.07(b)) of such 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);
(C) in connection with the Cash Liquidation or REO Disposition of
a Discount Mortgage Loan (or, with respect to any Mortgage Pool
comprised of two or more Loan Groups, each Discount Mortgage Loan in the
related Loan Group) that occurred during the preceding calendar month
(or was deemed to have occurred during such period in accordance with
Section 3.07(b)) 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;
8
(D) any amounts allocable to principal for any previous
Distribution Date (calculated pursuant to clauses (A) through (C) above)
that remain undistributed; and
(E) the amount of any Class A-P Collection Shortfalls for such
Distribution Date and the related Loan Group, if applicable, and the
amount of any Class A-P Collection Shortfalls (for the related Loan
Group, if applicable) remaining unpaid for all previous Distribution
Dates, but only to the extent of the Eligible Funds for such
Distribution Date; minus
(F) the related Discount Fraction of the portion of the
Capitalization Reimbursement Amount (for the related Loan Group, if
applicable) for such Distribution Date, if any, related to each Discount
Mortgage Loan (in the related Loan Group, if applicable).
Notwithstanding the foregoing, with respect to any Distribution Date on
and after the Credit Support Depletion Date, the Class A-P Principal
Distribution Amount (for a Loan Group, if applicable) shall equal the excess of
(i) the sum of (a) the related Discount Fraction of the principal portion of
each Monthly Payment on each Discount Mortgage Loan (in the related Loan Group,
if applicable) received or advanced prior to the related Determination Date and
not previously distributed minus the Discount Fraction of the principal portion
of any related Debt Service Reduction which together with other Bankruptcy
Losses exceeds the Bankruptcy Amount and (b) the related Discount Fraction of
the aggregate amount of unscheduled collections described in clauses (B) and (C)
above over (ii) the amount calculated pursuant to clause (F) above.
Class A-V Certificate: Any one of the Certificates designated as a Class
A-V Certificate, including any Subclass thereof.
Class B Certificate: Any one of the Certificates designated as a Class
B-1 Certificate, Class B-2 Certificate or Class B-3 Certificate.
Class M Certificate: Any one of the Certificates designated as a Class
M-1 Certificate, Class M-2 Certificate or Class M-3 Certificate.
Closing Date: As defined in the Series Supplement.
Code: The Internal Revenue Code of 1986, as amended.
Combined Collateral LLC: Combined Collateral LLC, a Delaware limited
liability company.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date, an amount
equal to Prepayment Interest Shortfalls resulting from Principal Prepayments in
9
Full during the related Prepayment Period and Curtailments during the prior
calendar month and included in the Available Distribution Amount for such
Distribution Date, but not more than the lesser of (a) one-twelfth of 0.125% of
the Stated Principal Balance of the Mortgage Loans immediately preceding such
Distribution Date and (b) the sum of the Servicing Fee and all income and gain
on amounts held in the Custodial Account and the Certificate Account and payable
to the Certificateholders with respect to such Distribution Date; provided that
for purposes of this definition the amount of the Servicing Fee will not be
reduced pursuant to Section 7.02(a) except as may be required pursuant to the
last sentence of such Section.
Compliance With Laws Representation: The following representation and
warranty (or any representation and warranty that is substantially similar) made
by Residential Funding in Section 4 of Assignment Agreement: "Each Mortgage Loan
at the time it was made complied in all material respects with applicable local,
state, and federal laws, including, but not limited to, all applicable
anti-predatory lending laws".
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment of the Cooperative Lease, (iv) financing statements and (v) a stock
power (or other similar instrument), and ancillary thereto, a recognition
agreement between the Cooperative and the originator of the Cooperative Loan,
each of which was transferred and assigned to the Trustee pursuant to Section
2.01 and are from time to time held as part of the Trust Fund.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Credit Repository: Equifax, Transunion and Experian, or their successors
in interest.
Credit Support Depletion Date: The first Distribution Date on which the
Certificate Principal Balances of the Subordinate Certificates have been reduced
to zero.
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Credit Support Pledge Agreement: The Credit Support Pledge Agreement,
dated as of November 24, 1998, among the Master Servicer, GMAC Mortgage
Corporation, Combined Collateral LLC and The First National Bank of Chicago (now
known as Bank One, National Association), as custodian.
Cumulative Insurance Payments: As defined in the Series Supplement.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.07 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
Custodial Agreement: An agreement that may be entered into among the
Company, the Master Servicer, the Trustee and a Custodian pursuant to which the
Custodian will hold certain documents relating to the Mortgage Loans on behalf
of the Trustee.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof at the Cut-off Date after giving effect to all
installments of principal due on or prior thereto (or due during the month of
the Cut-off Date), whether or not received.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificate: Any Certificate other than a Book-Entry
Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Delinquent: As used herein, a Mortgage Loan is considered to be: "30 to
59 days" or "30 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the next following monthly scheduled due date; "60 to 89
days" or "60 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the second following monthly scheduled due date; and so on.
11
The determination as to whether a Mortgage Loan falls into these categories is
made as of the close of business on the last business day of each month. For
example, a Mortgage Loan with a payment due on July 1 that remained unpaid as of
the close of business on July 31 would then be considered to be 30 to 59 days
delinquent. Delinquency information as of the Cut-off Date is determined and
prepared as of the close of business on the last business day immediately prior
to the Cut-off Date.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: As defined in the Series Supplement.
Discount Fraction: With respect to each Discount Mortgage Loan, the
fraction expressed as a percentage, the numerator of which is the Discount Net
Mortgage Rate minus the Net Mortgage Rate (or the initial Net Mortgage Rate with
respect to any Discount Mortgage Loans as to which the Mortgage Rate is modified
pursuant to 3.07(a)) for such Mortgage Loan and the denominator of which is the
Discount Net Mortgage Rate. The Discount Fraction with respect to each Discount
Mortgage Loan is set forth as an exhibit attached to the Series Supplement.
Discount Mortgage Loan: Any Mortgage Loan having a Net Mortgage Rate (or
the initial Net Mortgage Rate) of less than the Discount Net Mortgage Rate per
annum and any Mortgage Loan deemed to be a Discount Mortgage Loan pursuant to
the definition of Qualified Substitute Mortgage Loan.
Discount Net Mortgage Rate: As defined in the Series Supplement.
Disqualified Organization: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, and if not otherwise
included, any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for the
Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
12
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code, (v) any "electing large partnership," as defined in Section 775(a) of
the Code and (vi) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
Distribution Date: The 25th day of any month beginning in the month
immediately following the month of the initial issuance of the Certificates or,
if such 25th day is not a Business Day, the Business Day immediately following
such 25th day.
Due Date: With respect to any Distribution Date and any Mortgage Loan,
the day during the related Due Period on which the Monthly Payment is due.
Due Period: With respect to any Distribution Date, the one-month period
set forth in the Series Supplement.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Certificates have a
claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, or (iii) in the case of the Custodial Account, a trust account or
accounts maintained in the corporate trust department of Bank One, National
Association, or (iv) in the case of the Certificate Account, a trust account or
accounts maintained in the corporate trust division of the Trustee, or (v) an
account or accounts of a depository institution acceptable to each Rating Agency
(as evidenced in writing by each Rating Agency that use of any such account as
the Custodial Account or the Certificate Account will not reduce the rating
assigned to any Class of Certificates by such Rating Agency below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency).
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.
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Excess Special Hazard Loss: Any Special Hazard Loss, or portion thereof,
that exceeds the then applicable Special Hazard Amount.
Excess Subordinate Principal Amount: With respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the Lowest Priority is to be
reduced to zero and on which Realized Losses are to be allocated to such class
or classes, the excess, if any, of (i) the amount that would otherwise be
distributable in respect of principal on such class or classes of Certificates
on such Distribution Date over (ii) the excess, if any, of the aggregate
Certificate Principal Balance of such class or classes of Certificates
immediately prior to such Distribution Date over the aggregate amount of
Realized Losses to be allocated to such classes of Certificates on such
Distribution Date as reduced by any amount calculated pursuant to clause (E) of
the definition of Class A-P Principal Distribution Amount. With respect to any
Mortgage Pool that is comprised of two or more Loan Groups, the Excess
Subordinate Principal Amount will be allocated between each Loan Group on a pro
rata basis in accordance with the amount of Realized Losses attributable to each
Loan Group and allocated to the Certificates on such Distribution Date.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Extraordinary Events: Any of the following conditions with respect to a
Mortgaged Property (or, with respect to a Cooperative Loan, the Cooperative
Apartment) or Mortgage Loan causing or resulting in a loss which causes the
liquidation of such Mortgage Loan:
(a) losses that are of the type that would be covered by the fidelity bond
and the errors and omissions insurance policy required to be maintained
pursuant to Section 3.12(b) but are in excess of the coverage maintained
thereunder;
(b) nuclear reaction or nuclear radiation or radioactive contamination, all
whether controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused by,
contributed to or aggravated by a peril covered by the definition of the
term "Special Hazard Loss";
(c) hostile or warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto, or by any
authority maintaining or using military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or forces;
(d) any weapon of war employing atomic fission or radioactive force whether
in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped power or action
taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or
customs regulations, confiscation by order of any government or public
authority; or risks of contraband or illegal transportation or trade.
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Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by or
resulting from an Extraordinary Event.
Xxxxxx Xxx: Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
FASIT: A "financial asset securitization investment trust" within the
meaning of Section 860L of the Code.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
9.01, which Final Distribution Date shall in no event be later than the end of
the 90-day liquidation period described in Section 9.02.
Fitch: Fitch Ratings or its successor in interest.
Foreclosure Profits: As to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition occurred in the
related Prepayment Period over the sum of the unpaid principal balance of such
Mortgage Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
Form 10-K Certification: As defined in Section 4.03(e).
Fraud Losses: Realized Losses on Mortgage Loans as to which there was
fraud in the origination of such Mortgage Loan.
Xxxxxxx Mac: Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Highest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the earliest priority for payments pursuant to Section
4.02(a), in the following order: Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2 and Class B-3 Certificates.
Independent: When used with respect to any specified Person, means such
a Person who (i) is in fact independent of the Company, the Master Servicer and
the Trustee, or any Affiliate thereof, (ii) does not have any direct financial
interest or any material indirect financial interest in the Company, the Master
Servicer or the Trustee or in an Affiliate thereof, and (iii) is not connected
with the Company, the Master Servicer or the Trustee as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
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Initial Certificate Principal Balance: With respect to each Class of
Certificates, the Certificate Principal Balance of such Class of Certificates as
of the Cut-off Date, as set forth in the Series Supplement.
Initial Monthly Payment Fund: An amount representing scheduled principal
amortization and interest at the Net Mortgage Rate for the Due Date in the first
Due Period commencing subsequent to the Cut-off Date for those Mortgage Loans
for which the Trustee will not be entitled to receive such payment, and as more
specifically defined in the Series Supplement.
Initial Notional Amount: With respect to any Class or Subclass of
Interest Only Certificates, the amount initially used as the principal basis for
the calculation of any interest payment amount, as more specifically defined in
the Series Supplement.
Initial Subordinate Class Percentage: As defined in the Series
Supplement.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan (excluding any Certificate Policy (as defined in the
Series Supplement)), to the extent such proceeds are payable to the mortgagee
under the Mortgage, any Subservicer, the Master Servicer or the Trustee and are
not applied to the restoration of the related Mortgaged Property (or, with
respect to a Cooperative Loan, the related Cooperative Apartment) or released to
the Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing mortgage loans held for its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any
successor thereto or the named insurer in any replacement policy.
Interest Accrual Period: As defined in the Series Supplement.
Interest Only Certificates: A Class or Subclass of Certificates not
entitled to payments of principal, and designated as such in the Series
Supplement. The Interest Only Certificates will have no Certificate Principal
Balance.
Interim Certification: As defined in Section 2.02.
International Borrower: In connection with any Mortgage Loan, a borrower
who is (a) a United States citizen employed in a foreign country, (b) a
non-permanent resident alien employed in the United States or (c) a citizen of a
country other than the United States with income derived from sources outside
the United States.
Junior Certificateholder: The Holder of not less than 95% of the
Percentage Interests of the Junior Class of Certificates.
Junior Class of Certificates: The Class of Subordinate Certificates
outstanding as of the date of the repurchase of a Mortgage Loan pursuant to
Section 4.07 herein that has the Lowest Priority.
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Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received
by the Master Servicer in connection with the taking of an entire Mortgaged
Property by exercise of the power of eminent domain or condemnation or in
connection with the liquidation of a defaulted Mortgage Loan through trustee's
sale, foreclosure sale or otherwise, other than REO Proceeds.
Loan Group: Any group of Mortgage Loans designated as a separate loan
group in the Series Supplement. The Certificates relating to each Loan Group
will be designated in the Series Supplement.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of which
is the Appraised Value of the related Mortgaged Property.
Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of Subordinate Certificates then
outstanding with a later priority for payments pursuant to Section 4.02 (a).
Lowest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the latest priority for payments pursuant to Section
4.02(a), in the following order: Class B-3, Class B-2, Class B-1, Class M-3,
Class M-2 and Class M-1 Certificates.
Maturity Date: The latest possible maturity date, solely for purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates which have no Certificate Principal Balance) and each
Uncertificated REMIC Regular Interest would be reduced to zero, as designated in
the Series Supplement.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
MLCC: Xxxxxxx Xxxxx Credit Corporation, or its successor in interest.
17
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a
Servicing Modification.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the subject
of a Servicing Modification, the Net Mortgage Rate minus the rate per annum by
which the Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment, if any, for Curtailments and for Deficient Valuations occurring
prior to such Due Date but before any adjustment to such amortization schedule
by reason of any bankruptcy, other than a Deficient Valuation, or similar
proceeding or any moratorium or similar waiver or grace period and before any
Servicing Modification that constitutes a reduction of the interest rate on such
Mortgage Loan).
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note related to a Mortgage Loan
which is not a Cooperative Loan, the mortgage, deed of trust or other comparable
instrument creating a first lien on an estate in fee simple or leasehold
interest in real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as from time to time are held or deemed to
be held as a part of the Trust Fund, the Mortgage Loans originally so held being
identified in the initial Mortgage Loan Schedule, and Qualified Substitute
Mortgage Loans held or deemed held as part of the Trust Fund including, without
limitation, (i) with respect to each Cooperative Loan, the related Mortgage
Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock
Certificate, Cooperative Lease and Mortgage File and all rights appertaining
thereto, and (ii) with respect to each Mortgage Loan other than a Cooperative
Loan, each related Mortgage Note, Mortgage and Mortgage File and all rights
appertaining thereto.
Mortgage Loan Schedule: As defined in the Series Supplement.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with any modification thereto.
Mortgage Pool: The pool of mortgage loans, including all Loan Groups, if
any, consisting of the Mortgage Loans.
18
Mortgage Rate: As to any Mortgage Loan, the interest rate borne by the
related Mortgage Note, or any modification thereto other than a Servicing
Modification.
Mortgaged Property: The underlying real property securing a Mortgage
Loan or, with respect to a Cooperative Loan, the related Cooperative Lease and
Cooperative Stock.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, a per annum rate of
interest equal to the Adjusted Mortgage Rate less the per annum rate at which
the Servicing Fee is calculated.
Non-Discount Mortgage Loan: A Mortgage Loan that is not a Discount
Mortgage Loan.
Non-Primary Residence Loans: The Mortgage Loans designated as secured by
second or vacation residences, or by non-owner occupied residences, on the
Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be
made by the Master Servicer or Subservicer in respect of a Mortgage Loan (other
than a Deleted Mortgage Loan) which, in the good faith judgment of the Master
Servicer, will not, or, in the case of a proposed Advance, would not, be
ultimately recoverable by the Master Servicer from related Late Collections,
Insurance Proceeds, Liquidation Proceeds, REO Proceeds or amounts reimbursable
to the Master Servicer pursuant to Section 4.02(a) hereof. To the extent that
any Mortgagor is not obligated under the related Mortgage documents to pay or
reimburse any portion of any Servicing Advances that are outstanding with
respect to the related Mortgage Loan as a result of a modification of such
Mortgage Loan by the Master Servicer, which forgives amounts which the Master
Servicer or Subservicer had previously advanced, and the Master Servicer
determines that no other source of payment or reimbursement for such advances is
available to it, such Servicing Advances shall be deemed to be Nonrecoverable
Advances. The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate delivered
to the Company, the Trustee and any Certificate Insurer.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Notional Amount: With respect to any Class or Subclass of Interest Only
Certificates, an amount used as the principal basis for the calculation of any
interest payment amount, as more specifically defined in the Series Supplement.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the President or a Vice President or Assistant Vice President, or a
Director or Managing Director, and by the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Company or the Master
Servicer, as the case may be, and delivered to the Trustee, as required by this
Agreement.
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Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Master Servicer, who may be counsel for the Company or the
Master Servicer, provided that any opinion of counsel (i) referred to in the
definition of "Disqualified Organization" or (ii) relating to the qualification
of any REMIC formed under the Series Supplement or compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in Full, Cash Liquidation or REO Disposition and which was not purchased,
deleted or substituted for prior to such Due Date pursuant to Section 2.02,
2.03, 2.04 or 4.07.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As defined in the Series Supplement.
Paying Agent: The Trustee or any successor Paying Agent appointed by the
Trustee.
Percentage Interest: With respect to any Certificate (other than a Class
R Certificate), the undivided percentage ownership interest in the related Class
evidenced by such Certificate, which percentage ownership interest shall be
equal to the Initial Certificate Principal Balance thereof or Initial Notional
Amount (in the case of any Interest Only Certificate) thereof divided by the
aggregate Initial Certificate Principal Balance or the aggregate of the Initial
Notional Amounts, as applicable, of all the Certificates of the same Class. With
respect to a Class R Certificate, the interest in distributions to be made with
respect to such Class evidenced thereby, expressed as a percentage, as stated on
the face of each such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to timely payment of 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 short-term debt 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
short-term debt obligations of such depository institution or trust
company (or, if the only Rating Agency is Standard & Poor's, in the case
20
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
debt obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating
of such institution shall be A-1+ in the case of Standard & Poor's if
Standard & Poor's is the Rating Agency;
(iv) commercial paper and demand notes (having original maturities of not
more than 365 days) of any corporation incorporated under the laws of
the United States or any state thereof which on the date of acquisition
has been rated by each Rating Agency in its highest short-term rating
available; provided that such commercial paper shall have a remaining
maturity of not more than 30 days;
(v) any mutual fund, money market fund, common trust fund or other pooled
investment vehicle, the assets of which are limited to instruments that
otherwise would constitute Permitted Investments hereunder and have been
rated by each Rating Agency in its highest short-term rating available
(in the case of Standard & Poor's such rating shall be either AAAm or
AAAm-G), including any such fund that is managed by the Trustee or any
affiliate of the Trustee or for which the Trustee or any of its
affiliates acts as an adviser; 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
(without giving effect to any Certificate Policy (as defined in the
Series Supplement) in the case of Insured Certificates (as defined in
the Series Supplement) 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 rating category available 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 rating
category available obligations shall mean A-1 in the case of Standard & Poor's,
P-1 in the case of Moody's and either A-+ 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.
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Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pledged Amount: With respect to any Pledged Asset Loan, the amount of
money remitted to Combined Collateral LLC, at the direction of or for the
benefit of the related Mortgagor.
Pledged Asset Loan: Any Mortgage Loan supported by Pledged Assets or
such other collateral, other than the related Mortgaged Property, set forth in
the Series Supplement.
Pledged Assets: With respect to any Mortgage Loan, all money,
securities, security entitlements, accounts, general intangibles, payment
intangibles, instruments, documents, deposit accounts, certificates of deposit,
commodities contracts and other investment property and other property of
whatever kind or description pledged by Combined Collateral LLC as security in
respect of any Realized Losses in connection with such Mortgage Loan up to the
Pledged Amount for such Mortgage Loan, and any related collateral, or such other
collateral as may be set forth in the Series Supplement.
Pledged Asset Mortgage Servicing Agreement: The Pledged Asset Mortgage
Servicing Agreement, dated as of February 28, 1996 between MLCC and the Master
Servicer.
Pooling and Servicing Agreement or Agreement: With respect to any
Series, this Standard Terms together with the related Series Supplement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of each Mortgage Loan.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b)
the Discount Net Mortgage Rate (but not less than 0.00%) per annum.
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such Class
and each Class of Subordinate Certificates with a Lower Priority than such Class
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date is greater than or equal to the sum
of the related Initial Subordinate Class Percentages of such Classes of
Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the portion of the
related Prepayment Period that falls during the prior calendar month, an amount
equal to the excess of one month's interest at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
Stated Principal Balance of such Mortgage Loan over the amount of interest
(adjusted to the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of
22
a Modified Mortgage Loan)) paid by the Mortgagor for such month to the date of
such Principal Prepayment in Full or (b) a Curtailment during the prior calendar
month, an amount equal to one month's interest at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
amount of such Curtailment.
Prepayment Period: As to any Distribution Date and Principal Prepayment
in Full, the period commencing on the 16th day of the month prior to the month
in which that Distribution Date occurs and ending on the 15th day of the month
in which such Distribution Date occurs.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or any replacement policy therefor referred to in Section 2.03(b)(iv)
and (v).
Principal Only Certificates: A Class of Certificates not entitled to
payments of interest, and more specifically designated as such in the Series
Supplement.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is received in advance of its scheduled Due Date
and is not accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan that is made by the Mortgagor.
Program Guide: Collectively, the Client Guide and the Servicer Guide for
Residential Funding's Expanded Criteria Mortgage Program.
Purchase Price: With respect to any Mortgage Loan (or REO Property)
required to be or otherwise purchased on any date pursuant to Section 2.02,
2.03, 2.04 or 4.07, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof plus the principal portion of any related unreimbursed
Advances and (ii) unpaid accrued interest at the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate plus the rate per annum at which the Servicing Fee is
calculated in the case of a Modified Mortgage Loan) (or at the Net Mortgage Rate
(or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) in the
case of a purchase made by the Master Servicer) on the Stated Principal Balance
thereof to the Due Date in the Due Period related to the Distribution Date
occurring in the month following the month of purchase from the Due Date to
which interest was last paid by the Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
Residential Funding or the Company for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee, with a copy to the Custodian,
(i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall to be deposited by Residential
Funding in the Custodial Account in the month of substitution);
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(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than and
not more than 1% per annum higher than the Mortgage Rate and Net
Mortgage Rate, respectively, of the Deleted Mortgage Loan as of
the date of substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no higher
than that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a remaining term to stated maturity not greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan;
(v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment
Agreement; and
(vi) have a Pool Strip Rate equal to or greater than that of the
Deleted Mortgage Loan.
Notwithstanding any other provisions herein, (x) with respect to any Qualified
Substitute Mortgage Loan substituted for a Deleted Mortgage Loan which was a
Discount Mortgage Loan, such Qualified Substitute Mortgage Loan shall be deemed
to be a Discount Mortgage Loan and to have a Discount Fraction equal to the
Discount Fraction of the Deleted Mortgage Loan and (y) in the event that the
"Pool Strip Rate" of any Qualified Substitute Mortgage Loan as calculated
pursuant to the definition of "Pool Strip Rate" is greater than the Pool Strip
Rate of the related Deleted Mortgage Loan
(i) the Pool Strip Rate of such Qualified Substitute Mortgage Loan
shall be equal to the Pool Strip Rate of the related Deleted
Mortgage Loan for purposes of calculating the Pass-Through Rate
on the Class A-V Certificates and
(ii) the excess of the Pool Strip Rate on such Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of "Pool
Strip Rate" over the Pool Strip Rate on the related Deleted
Mortgage Loan shall be payable to the Class R Certificates
pursuant to Section 4.02 hereof.
Rating Agency: Each of the statistical credit rating agencies specified
in the Preliminary Statement of the Series Supplement. If any agency or a
successor is no longer in existence, "Rating Agency" shall be such statistical
credit rating agency, or other comparable Person, designated by the Company,
notice of which designation shall be given to the Trustee and the Master
Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property):
(a) as to which a Cash Liquidation or REO Disposition has occurred,
an amount (not less than zero) equal to (i) the Stated Principal
Balance of the Mortgage Loan (or REO Property) as of the date of
Cash Liquidation or REO Disposition, plus (ii) interest (and REO
Imputed Interest, if any) at the Net Mortgage Rate from the Due
Date as to which interest was last paid or advanced to
24
Certificateholders up to the Due Date in the Due Period related
to the Distribution Date on which such Realized Loss will be
allocated pursuant to Section 4.05 on the Stated Principal
Balance of such Mortgage Loan (or REO Property) outstanding
during each Due Period that such interest was not paid or
advanced, minus (iii) the proceeds, if any, received during the
month in which such Cash Liquidation (or REO Disposition)
occurred, to the extent applied as recoveries of interest at the
Net Mortgage Rate and to principal of the Mortgage Loan, net of
the portion thereof reimbursable to the Master Servicer or any
Subservicer with respect to related Advances, Servicing Advances
or other expenses as to which the Master Servicer or Subservicer
is entitled to reimbursement thereunder but which have not been
previously reimbursed,
(b) which is the subject of a Servicing Modification, (i) (1) the
amount by which the interest portion of a Monthly Payment or the
principal balance of such Mortgage Loan was reduced or (2) the
sum of any other amounts owing under the Mortgage Loan that were
forgiven and that constitute Servicing Advances that are
reimbursable to the Master Servicer or a Subservicer, and (ii)
any such amount with respect to a Monthly Payment that was or
would have been due in the month immediately following the month
in which a Principal Prepayment or the Purchase Price of such
Mortgage Loan is received or is deemed to have been received,
(c) which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the
Deficient Valuation, or
(d) which has become the object of a Debt Service Reduction, the
amount of such Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a Debt Service
Reduction shall be deemed a Realized Loss hereunder so long as the Master
Servicer has notified the Trustee in writing that the Master Servicer is
diligently pursuing any remedies that may exist in connection with the
representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by the Master Servicer or a
Subservicer, in either case without giving effect to any Debt Service Reduction.
To the extent the Master Servicer receives Subsequent Recoveries with respect to
any Mortgage Loan, the amount of the Realized Loss with respect to that Mortgage
Loan will be reduced to the extent such recoveries are applied to reduce the
Certificate Principal Balance of any Class of Certificates on any Distribution
Date.
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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.
Reimbursement Amounts: As defined in Section 3.22.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Administrator: Residential Funding Corporation. If Residential
Funding Corporation is found by a court of competent jurisdiction to no longer
be able to fulfill its obligations as REMIC Administrator under this Agreement
the Master Servicer or Trustee acting as Master Servicer shall appoint a
successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Acquisition: The acquisition by the Master Servicer on behalf of the
Trustee for the benefit of the Certificateholders of any REO Property pursuant
to Section 3.14.
REO Disposition: As to any REO Property, a determination by the Master
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds, REO
Proceeds and other payments and recoveries (including proceeds of a final sale)
which the Master Servicer expects to be finally recoverable from the sale or
other disposition of the REO Property.
REO Imputed Interest: As to any REO Property, for any period, an amount
equivalent to interest (at the Net Mortgage Rate that would have been applicable
to the related Mortgage Loan had it been outstanding) on the unpaid principal
balance of the Mortgage Loan as of the date of acquisition thereof for such
period.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO
Property (including, without limitation, proceeds from the rental of the related
Mortgaged Property or, with respect to a Cooperative Loan, the related
Cooperative Apartment) which proceeds are required to be deposited into the
Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed in lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Modified Mortgage Loan: Any Mortgage Loan that (i) has been
subject to an interest rate reduction, (ii) has been subject to a term extension
or (iii) has had amounts owing on such Mortgage Loan capitalized by adding such
amount to the Stated Principal Balance of such Mortgage Loan; provided, however,
26
that a Mortgage Loan modified in accordance with clause (i) above for a
temporary period shall not be a Reportable Modified Mortgage Loan if such
Mortgage Loan has not been delinquent in payments of principal and interest for
six months since the date of such modification if that interest rate reduction
is not made permanent thereafter.
Request for Release: A request for release, the forms of which are
attached as Exhibit F hereto, or an electronic request in a form acceptable to
the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement, the Program Guide or the related Subservicing Agreement in respect of
such Mortgage Loan.
Required Surety Payment: With respect to any Additional Collateral Loan
that becomes a Liquidated Mortgage Loan, the lesser of (i) the principal portion
of the Realized Loss with respect to such Mortgage Loan and (ii) the excess, if
any, of (a) the amount of Additional Collateral required at origination with
respect to such Mortgage Loan over (b) the net proceeds realized by the
Subservicer from the related Additional Collateral.
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Company and
any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Department of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer with particular
responsibility for this transaction, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers to whom, with respect to a particular matter, such matter is
referred.
Retail Certificates: A Senior Certificate, if any, offered in smaller
minimum denominations than other Senior Certificates, and designated as such in
the Series Supplement.
Schedule of Discount Fractions: The schedule setting forth the Discount
Fractions with respect to the Discount Mortgage Loans, attached as an exhibit to
the Series Supplement.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Seller: As to any Mortgage Loan, a Person, including any Subservicer,
that executed a Seller's Agreement applicable to such Mortgage Loan.
Seller's Agreement: An agreement for the origination and sale of
Mortgage Loans generally in the form of the Seller Contract referred to or
contained in the Program Guide, or in such other form as has been approved by
the Master Servicer and the Company, each containing representations and
warranties in respect of one or more Mortgage Loans consistent in all material
respects with those set forth in the Program Guide.
27
Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, any Loan
Group, 100%. With respect to any Distribution Date thereafter and any such Loan
Group, if applicable, as follows:
(i) for any Distribution Date after the 60th Distribution Date but on or
prior to the 72nd Distribution Date, the related Senior Percentage for
such Distribution Date plus 70% of the related Subordinate Percentage
for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but on or
prior to the 84th Distribution Date, the related Senior Percentage for
such Distribution Date plus 60% of the related Subordinate Percentage
for such Distribution Date;
(iii) for any Distribution Date after the 84th Distribution Date but on or
prior to the 96th Distribution Date, the related Senior Percentage for
such Distribution Date plus 40% of the related Subordinate Percentage
for such Distribution Date;
(iv) for any Distribution Date after the 96th Distribution Date but on or
prior to the 108th Distribution Date, the related Senior Percentage for
such Distribution Date plus 20% of the related Subordinate Percentage
for such Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for such
Distribution Date;
provided, however,
(i) that any scheduled reduction to the Senior Accelerated Distribution
Percentage described above shall not occur as of any Distribution Date unless
either
(a)(1)(X) the outstanding principal balance of the Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding Certificate Principal Balance of
the Subordinate Certificates, is less than 50% or (Y) the outstanding
principal balance of Mortgage Loans delinquent 60 days or more averaged
over the last six months, as a percentage of the aggregate outstanding
principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 2% and (2) Realized Losses on the Mortgage Loans
to date for such Distribution Date if occurring during the sixth,
seventh, eighth, ninth or tenth year (or any year thereafter) after the
Closing Date are less than 30%, 35%, 40%, 45% or 50%, respectively, of
the sum of the Initial Certificate Principal Balances of the Subordinate
Certificates or
(b)(1) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all
Mortgage Loans averaged over the last six months, does not exceed 4% and
(2) Realized Losses on the Mortgage Loans to date for such Distribution
Date, if occurring during the sixth, seventh, eighth, ninth or tenth
year (or any year thereafter) after the Closing Date are less than 10%,
15%, 20%, 25% or 30%, respectively, of the sum of the Initial
Certificate Principal Balances of the Subordinate Certificates, and
28
(ii) that for any Distribution Date on which the Senior Percentage is
greater than the Senior Percentage as of the Closing Date, the Senior
Accelerated Distribution Percentage for such Distribution Date shall be 100%,
or, if the Mortgage Pool is comprised of two or more Loan Groups, for any
Distribution Date on which the weighted average of the Senior Percentages for
each Loan Group, weighted on the basis of the Stated Principal Balances of the
Mortgage Loans in the related Loan Group (excluding the Discount Fraction of the
Discount Mortgage Loans in such Loan Group) exceeds the weighted average of the
initial Senior Percentages (calculated on such basis) for each Loan Group, each
of the Senior Accelerated Distribution Percentages for such Distribution Date
will equal 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the Class A-P
Certificates, if any) to zero, the related Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificate: As defined in the Series Supplement.
Senior Percentage: As defined in the Series Supplement.
Senior Support Certificate: A Senior Certificate that provides
additional credit enhancement to certain other classes of Senior Certificates
and designated as such in the Preliminary Statement of the Series Supplement.
Series: All of the Certificates issued pursuant to a Pooling and
Servicing Agreement and bearing the same series designation.
Series Supplement: The agreement into which this Standard Terms is
incorporated and pursuant to which, together with this Standard Terms, a Series
of Certificates is issued.
Servicing Accounts: The account or accounts created and maintained
pursuant to Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency or
other unanticipated event by the Master Servicer or a Subservicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged Property
or, with respect to a Cooperative Loan, the related Cooperative Apartment, (ii)
any enforcement or judicial proceedings, including foreclosures, including any
expenses incurred in relation to any such proceedings that result from the
Mortgage Loan being registered on the MERS System, (iii) the management and
liquidation of any REO Property, (iv) any mitigation procedures implemented in
accordance with Section 3.07, and (v) compliance with the obligations under
Sections 3.01, 3.08, 3.11, 3.12(a) and 3.14, including, if the Master Servicer
or any Affiliate of the Master Servicer provides services such as appraisals and
brokerage services that are customarily provided by Persons other than servicers
of mortgage loans, reasonable compensation for such services.
Servicing Advance Reimbursement Amounts: As defined in Section 3.22.
29
Servicing Fee: With respect to any Mortgage Loan and Distribution Date,
the fee payable monthly to the Master Servicer in respect of master servicing
compensation that accrues at an annual rate designated on the Mortgage Loan
Schedule as the "MSTR SERV FEE" for such Mortgage Loan, as may be adjusted with
respect to successor Master Servicers as provided in Section 7.02.
Servicing Modification: Any reduction of the interest rate on or the
outstanding principal balance of a Mortgage Loan, any extension of the final
maturity date of a Mortgage Loan, and any increase to the outstanding principal
balance of a Mortgage Loan by adding to the Stated Principal Balance unpaid
principal and interest and other amounts owing under the Mortgage Loan, in each
case pursuant to a modification of a Mortgage Loan that is in default, or for
which, in the judgment of the Master Servicer, default is reasonably foreseeable
in accordance with Section 3.07(a).
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may from time to time be
amended.
Special Hazard Loss: Any Realized Loss not in excess of the cost of the
lesser of repair or replacement of a Mortgaged Property (or, with respect to a
Cooperative Loan, the related Cooperative Apartment) suffered by such Mortgaged
Property (or Cooperative Apartment) on account of direct physical loss,
exclusive of (i) any loss of a type covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged Property
pursuant to Section 3.12(a), except to the extent of the portion of such loss
not covered as a result of any coinsurance provision and (ii) any Extraordinary
Loss.
Standard & Poor's: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, as of any Distribution Date, (i) the sum of (a) the Cut-off Date
Principal Balance of the Mortgage Loan plus (b) any amount by which the Stated
Principal Balance of the Mortgage Loan has been increased pursuant to a
Servicing Modification, minus (ii) the sum of (a) the principal portion of the
Monthly Payments due with respect to such Mortgage Loan or REO Property during
each Due Period ending with the Due Period related to the previous Distribution
Date which were received or with respect to which an Advance was made, and (b)
all Principal Prepayments with respect to such Mortgage Loan or REO Property,
and all Insurance Proceeds, Liquidation Proceeds and REO Proceeds, to the extent
applied by the Master Servicer as recoveries of principal in accordance with
Section 3.14 with respect to such Mortgage Loan or REO Property, in each case
which were distributed pursuant to Section 4.02 on any previous Distribution
Date, and (c) any Realized Loss allocated to Certificateholders with respect
thereto for any previous Distribution Date.
Subclass: With respect to the Class A-V Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent the
30
Uncertificated Class A-V REMIC Regular Interest or Interests specified by the
initial Holder of the Class A-V Certificates pursuant to Section 5.01(c).
Subordinate Certificate: Any one of the Class M Certificates or Class B
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed hereto as Exhibit B and Exhibit C,
respectively.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, a fraction, expressed as a percentage,
the numerator of which is the aggregate Certificate Principal Balance of such
Class of Subordinate Certificates immediately prior to such date and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of each Discount Mortgage Loan) immediately prior to such Distribution
Date.
Subordinate Percentage: As of any Distribution Date and, with respect to
any Mortgage Pool comprised of two or more Loan Groups, any Loan Group, 100%
minus the related Senior Percentage as of such Distribution Date.
Subsequent Recoveries: As of any Distribution Date, amounts received by
the Master Servicer (net of any related expenses permitted to be reimbursed
pursuant to Section 3.10) or surplus amounts held by the Master Servicer to
cover estimated expenses (including, but not limited to, recoveries in respect
of the representations and warranties made by the related Seller pursuant to the
applicable Seller's Agreement and assigned to the Trustee pursuant to Section
2.04) specifically related to a Mortgage Loan that was the subject of a Cash
Liquidation or an REO Disposition prior to the related Prepayment Period that
resulted in a Realized Loss.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is subject to a Subservicing Agreement.
Subservicer: Any Person with whom the Master Servicer has entered into a
Subservicing Agreement and who generally satisfied the requirements set forth in
the Program Guide in respect of the qualification of a Subservicer as of the
date of its approval as a Subservicer by the Master Servicer.
Subservicer Advance: Any delinquent installment of principal and
interest on a Mortgage Loan which is advanced by the related Subservicer (net of
its Subservicing Fee) pursuant to the Subservicing Agreement.
Subservicing Account: An account established by a Subservicer in
accordance with Section 3.08.
Subservicing Agreement: The written contract between the Master Servicer
and any Subservicer relating to servicing and administration of certain Mortgage
Loans as provided in Section 3.02, generally in the form of the servicer
contract referred to or contained in the Program Guide or in such other form as
has been approved by the Master Servicer and the Company. With respect to
Additional Collateral Loans subserviced by MLCC, the Subservicing Agreement
shall also include the Addendum and Assignment Agreement and the Pledged Asset
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Mortgage Servicing Agreement. With respect to any Pledged Asset Loan subserviced
by GMAC Mortgage Corporation, the Addendum and Assignment Agreement, dated as of
November 24, 1998, between the Master Servicer and GMAC Mortgage Corporation, as
such agreement may be amended from time to time.
Subservicing Fee: As to any Mortgage Loan, the fee payable monthly to
the related Subservicer (or, in the case of a Nonsubserviced Mortgage Loan, to
the Master Servicer) in respect of subservicing and other compensation that
accrues at an annual rate equal to the excess of the Mortgage Rate borne by the
related Mortgage Note over the rate per annum designated on the Mortgage Loan
Schedule as the "CURR NET" for such Mortgage Loan.
Successor Master Servicer: As defined in Section 3.22.
Surety: Ambac, or its successors in interest, or such other surety as
may be identified in the Series Supplement.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996 in respect to Mortgage Loans originated by MLCC, or the
Surety Bond (Policy No. AB0240BE), dated March 17, 1999 in respect to Mortgage
Loans originated by Novus Financial Corporation, in each case issued by Ambac
for the benefit of certain beneficiaries, including the Trustee for the benefit
of the Holders of the Certificates, but only to the extent that such Surety Bond
covers any Additional Collateral Loans, or such other Surety Bond as may be
identified in the Series Supplement.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of any REMIC formed under the Series Supplement and under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
Trust Fund: The segregated pool of assets related to a Series, with
respect to which one or more REMIC elections are to be made pursuant to this
Agreement, consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral
securing such Mortgage Loans,
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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, including the proceeds from the liquidation of Additional
Collateral for any Additional Collateral Loan or Pledged Assets for any
Pledged Asset Loan, but not including amounts on deposit in the Initial
Monthly Payment Fund,
(iii) property that secured a Mortgage Loan and that has been acquired for the
benefit of the Certificateholders by foreclosure or deed in lieu of
foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if any,
the Pledged Assets with respect to each Pledged Asset Loan, and the
interest in the Surety Bond transferred to the Trustee pursuant to
Section 2.01, and
(v) all proceeds of clauses (i) through (iv) above.
Uniform Single Attestation Program for Mortgage Bankers: The Uniform
Single Attestation Program for Mortgage Bankers, as published by the Mortgage
Bankers Association of America and effective with respect to fiscal periods
ending on or after December 15, 1995.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies.
United States Person or U.S. Person: (i) A citizen or resident of the
United States, (ii) a corporation, partnership or other entity treated as a
corporation or partnership for United States federal income tax purposes
organized in or under the laws of the United States or any state thereof or the
District of Columbia (unless, in the case of a partnership, Treasury regulations
provide otherwise), provided that, for purposes solely of the restrictions on
the transfer of residual interests, no partnership or other entity treated as a
partnership for United States federal income tax purposes shall be treated as a
United States Person or U.S. Person unless all persons that own an interest in
such partnership either directly or indirectly through any chain of entities no
one of which is a corporation for United States federal income tax purposes are
required by the applicable operating agreement to be United States Persons,
(iii) an estate the income of which is includible in gross income for United
States tax purposes, regardless of its source, or (iv) 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 persons have authority
to control all substantial decisions of the trust. Notwithstanding the preceding
sentence, to the extent provided in Treasury regulations, certain Trusts in
existence on August 20, 1996, and treated as United States persons prior to such
date, that elect to continue to be treated as United States persons will also be
a U.S. Person.
U.S.A. Patriot Act: Uniting and Strengthening America by Providing
Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001, as amended.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate, and more specifically
designated in Article XI of the Series Supplement.
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Section 1.02. Use of Words and Phrases.
"Herein," "hereby," "hereunder," `hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to the Pooling and Servicing Agreement as a
whole. All references herein to Articles, Sections or Subsections shall mean the
corresponding Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definitions set forth herein include both the singular and the
plural.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee for the benefit of the Certificateholders
without recourse all the right, title and interest of the Company in and
to the Mortgage Loans, including all interest and principal received on
or with respect to the Mortgage Loans after the Cut-off Date (other than
payments of principal and interest due on the Mortgage Loans in the
month of the Cut-off Date). In connection with such transfer and
assignment, the Company does hereby deliver to the Trustee the
Certificate Policy (as defined in the Series Supplement), if any for the
benefit of the Holders of the Insured Certificates (as defined in the
Series Supplement).
(b) In connection with such assignment, except as set forth in Section
2.01(c) and subject to Section 2.01(d) below, the Company does hereby
deliver to, and deposit with, the Trustee, or to and with one or more
Custodians, as the duly appointed agent or agents of the Trustee for
such purpose, the following documents or instruments (or copies thereof
as permitted by this Section) (I) with respect to each Mortgage Loan so
assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse in blank or to the
order of the Trustee, and showing an unbroken chain of endorsements from
the originator thereof to the Person endorsing it to the Trustee, or
with respect to any Destroyed Mortgage Note, an original lost note
affidavit from the related Seller or Residential Funding stating that
the original Mortgage Note was lost, misplaced or destroyed, together
with a copy of the related Mortgage Note;
(ii) The original Mortgage, noting the presence of the MIN of the Mortgage
Loan and language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan, with evidence of recording indicated
thereon or a copy of the Mortgage with evidence of recording indicated
thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, an
original Assignment of the Mortgage to the Trustee with evidence of
recording indicated thereon or a copy of such assignment with evidence
of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing
an unbroken chain of title from the originator thereof to the Person
assigning it to the Trustee (or to MERS, if the Mortgage Loan is
registered on the MERS(R) System and noting the presence of a MIN) with
evidence of recordation noted thereon or attached thereto, or a copy of
such assignment or assignments of the Mortgage with evidence of
recording indicated thereon; and
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(v) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Mortgage Loan or a copy of each
modification, assumption agreement or preferred loan agreement.
and (II) with respect to each Cooperative Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to the order of
the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to the Trustee, or with
respect to any Destroyed Mortgage Note, an original lost note affidavit
from the related Seller or Residential Funding stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of
the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary
Lease to the originator of the Cooperative Loan with intervening
assignments showing an unbroken chain of title from such originator to
the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related
Cooperative Stock pledged with respect to such Cooperative Loan,
together with an undated stock power (or other similar instrument)
executed in blank;
(iv) The original recognition agreement by the Cooperative of the interests
of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any continuation
statements, filed by the originator of such Cooperative Loan as secured
party, each with evidence of recording thereof, evidencing the interest
of the originator under the Security Agreement and the Assignment of
Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest
referenced in clause (vi) above showing an unbroken chain of title from
the originator to the Trustee, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement
and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the originator in the Security
Agreement, Assignment of Proprietary Lease and the recognition agreement
referenced in clause (iv) above, showing an unbroken chain of title from
the originator to the Trustee;
(ix) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Cooperative Loan; and
(x) A duly completed UCC-1 financing statement showing the Master Servicer
as debtor, the Company as secured party and the Trustee as assignee and
a duly completed UCC-1 financing statement showing the Company as debtor
and the Trustee as secured party, each in a form sufficient for filing,
evidencing the interest of such debtors in the Cooperative Loans.
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(c) The Company may, in lieu of delivering the original of the documents
set forth in Section 2.01(b)(I)(ii), (iii), (iv) and (v) and Section
(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by
Section 2.01(b)) to the Trustee or the Custodian or Custodians, deliver such
documents to the Master Servicer, and the Master Servicer shall hold such
documents in trust for the use and benefit of all present and future
Certificateholders until such time as is set forth in the next sentence. Within
thirty Business Days following the earlier of (i) the receipt of the original of
all of the documents or instruments set forth in Section 2.01(b)(I)(ii), (iii),
(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) (or copies
thereof as permitted by such Section) for any Mortgage Loan and (ii) a written
request by the Trustee to deliver those documents with respect to any or all of
the Mortgage Loans then being held by the Master Servicer, the Master Servicer
shall deliver a complete set of such documents to the Trustee or the Custodian
or Custodians that are the duly appointed agent or agents of the Trustee.
The parties hereto agree that it is not intended that any Mortgage Loan
be included in the Trust Fund that is either (i) a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii)
a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004.
(d) Notwithstanding the provisions of Section 2.01(c), in connection
with any Mortgage Loan, if the Company cannot deliver the original of the
Mortgage, any assignment, modification, assumption agreement or preferred loan
agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of
recording thereon concurrently with the execution and delivery of this Agreement
because of (i) a delay caused by the public recording office where such
Mortgage, assignment, modification, assumption agreement or preferred loan
agreement as the case may be, has been delivered for recordation, or (ii) a
delay in the receipt of certain information necessary to prepare the related
assignments, the Company shall deliver or cause to be delivered to the Trustee
or the respective Custodian a copy of such Mortgage, assignment, modification,
assumption agreement or preferred loan agreement.
The Company shall promptly cause to be recorded in the appropriate
public office for real property records the Assignment referred to in clause
(I)(iii) of Section 2.01(b), except (a) in states where, in the opinion of
counsel acceptable to the 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 or (b) if MERS is identified on
the Mortgage or on a properly recorded assignment of the Mortgage as the
mortgagee of record solely as nominee for the Seller and its successors and
assigns, and shall promptly cause to be filed the Form UCC-3 assignment and
UCC-1 financing statement referred to in clause (II)(vii) and (x), respectively,
of Section 2.01(b). If any Assignment, Form UCC-3 or Form UCC-1, as applicable,
is lost or returned unrecorded to the Company because of any defect therein, the
Company shall prepare a substitute Assignment, Form UCC-3 or Form UCC-1, as
applicable, or cure such defect, as the case may be, and cause such Assignment
to be recorded in accordance with this paragraph. The Company shall promptly
deliver or cause to be delivered to the Trustee or the respective Custodian such
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Mortgage or Assignment or Form UCC-3 or Form UCC-1, as applicable, (or copy
thereof as permitted by Section 2.01(b)) with evidence of recording indicated
thereon at the time specified in Section 2.01(c). In connection with its
servicing of Cooperative Loans, the Master Servicer will use its best efforts to
file timely continuation statements with regard to each financing statement and
assignment relating to Cooperative Loans as to which the related Cooperative
Apartment is located outside of the State of New York.
If the Company delivers to the Trustee or Custodian any Mortgage Note or
Assignment of Mortgage in blank, the Company shall, or shall cause the Custodian
to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage
in the name of the Trustee in conjunction with the Interim Certification issued
by the Custodian, as contemplated by Section 2.02.
Any of the items set forth in Sections 2.01(b)(I)(ii), (iii), (iv) and
(v) and (II)(vi) and (vii) and that may be delivered as a copy rather than the
original may be delivered to the Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, the Company further agrees that it will cause, at the Company's
own expense, within 30 Business Days after the Closing Date, the MERS(R) System
to indicate that such Mortgage Loans have been assigned by the Company to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the code
in the field "Pool Field" which identifies the series of the Certificates issued
in connection with such Mortgage Loans. The Company further agrees that it will
not, and will not permit the Master Servicer to, and the Master Servicer agrees
that it will not, alter the codes referenced in this paragraph with respect to
any Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) Residential Funding hereby assigns to the Trustee its security
interest in and to any Additional Collateral or Pledged Assets, its right to
receive amounts due or to become due in respect of any Additional Collateral or
Pledged Assets pursuant to the related Subservicing Agreement and its rights as
beneficiary under the Surety Bond in respect of any Additional Collateral Loans.
With respect to any Additional Collateral Loan or Pledged Asset Loan,
Residential Funding shall cause to be filed in the appropriate recording office
a UCC-3 statement giving notice of the assignment of the related security
interest to the Trust Fund and shall thereafter cause the timely filing of all
necessary continuation statements with regard to such financing statements.
(f) It is intended that the conveyance by the Company to the Trustee of
the Mortgage Loans as provided for in this Section 2.01 be and the
Uncertificated REMIC Regular Interests, if any (as provided for in Section
2.06), be construed as a sale by the Company to the Trustee of the Mortgage
Loans and any Uncertificated REMIC Regular Interests for the benefit of the
Certificateholders. Further, it is not intended that such conveyance be deemed
to be a pledge of the Mortgage Loans and any Uncertificated REMIC Regular
Interests by the Company to the Trustee to secure a debt or other obligation of
the Company. Nonetheless, (a) this Agreement is intended to be and hereby is a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in Section 2.01 shall be deemed to
38
be, and hereby is, (1) a grant by the Company to the Trustee of a security
interest in all of the Company's right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
any and all general intangibles, payment intangibles, accounts, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property and other property
of whatever kind or description now existing or hereafter acquired consisting
of, arising from or relating to any of the following: (A) the Mortgage Loans,
including (i) with respect to each Cooperative Loan, the related Mortgage Note,
Security Agreement, Assignment of Proprietary Lease, Cooperative Stock
Certificate and Cooperative Lease, (ii) with respect to each Mortgage Loan other
than a Cooperative Loan, the related Mortgage Note and Mortgage, and (iii) any
insurance policies and all other documents in the related Mortgage File, (B) all
amounts payable pursuant to the Mortgage Loans in accordance with the terms
thereof, (C) any Uncertificated REMIC Regular Interests and (D) all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, including without limitation all
amounts from time to time held or invested in the Certificate Account or the
Custodial Account, whether in the form of cash, instruments, securities or other
property and (2) an assignment by the Company to the Trustee of any security
interest in any and all of Residential Funding's right (including the power to
convey title thereto), title and interest, whether now owned or hereafter
acquired, in and to the property described in the foregoing clauses (1)(A), (B),
(C) and (D) granted by Residential Funding to the Company pursuant to the
Assignment Agreement; (c) the possession by the Trustee, the Custodian or any
other agent of the Trustee of Mortgage Notes or such other items of property as
constitute instruments, money, payment intangibles, negotiable documents, goods,
deposit accounts, letters of credit, advices of credit, investment property,
certificated securities or chattel paper shall be deemed to be "possession by
the secured party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to the
Minnesota Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction as in effect (including, without limitation, Sections
8-106, 9-313, 9-314 and 9-106 thereof); and (d) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or agents of,
or persons holding for (as applicable) the Trustee for the purpose of perfecting
such security interest under applicable law.
The Company and, at the Company's direction, Residential Funding and the
Trustee shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
determined to create a security interest in the Mortgage Loans, any
Uncertificated REMIC Regular Interests and the other property described above,
such security interest would be determined to be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of this Agreement. Without limiting the generality of the foregoing,
the Company shall prepare and deliver to the Trustee not less than 15 days prior
to any filing date and, the Trustee shall forward for filing, or shall cause to
be forwarded for filing, at the expense of the Company, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
39
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Mortgage Loans and any Uncertificated REMIC
Regular Interests, as evidenced by an Officers' Certificate of the Company,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of Residential
Funding, the Company or the Trustee (such preparation and filing shall be at the
expense of the Trustee, if occasioned by a change in the Trustee's name), (2)
any change of type or jurisdiction of organization of Residential Funding or the
Company, (3) any transfer of any interest of Residential Funding or the Company
in any Mortgage Loan or (4) any transfer of any interest of Residential Funding
or the Company in any Uncertificated REMIC Regular Interest.
(g) The Master Servicer hereby acknowledges the receipt by it of the
Initial Monthly Payment Fund. The Master Servicer shall hold such Initial
Monthly Payment Fund in the Custodial Account and shall include such Initial
Monthly Payment Fund in the Available Distribution Amount for the initial
Distribution Date. Notwithstanding anything herein to the contrary, the Initial
Monthly Payment Fund shall not be an asset of any REMIC. To the extent that the
Initial Monthly Payment Fund constitutes a reserve fund for federal income tax
purposes, (1) it shall be an outside reserve fund and not an asset of any REMIC,
(2) it shall be owned by the Seller and (3) amounts transferred by any REMIC to
the Initial Monthly Payment Fund shall be treated as transferred to the Seller
or any successor, all within the meaning of Section 1.860G-2(h) of the Treasury
Regulations.
(h) The Company agrees that the sale of each Pledged Asset Loan pursuant
to this Agreement will also constitute the assignment, sale, setting-over,
transfer and conveyance to the Trustee, without recourse (but subject to the
Company's covenants, representations and warranties specifically provided
herein), of all of the Company's obligations and all of the Company's right,
title and interest in, to and under, whether now existing or hereafter acquired
as owner of the Mortgage Loan with respect to any and all money, securities,
security entitlements, accounts, general intangibles, payment intangibles,
instruments, documents, deposit accounts, certificates of deposit, commodities
contracts, and other investment property and other property of whatever kind or
description consisting of, arising from or related to (i) the Assigned
Contracts, (ii) all rights, powers and remedies of the Company as owner of such
Mortgage Loan under or in connection with the Assigned Contracts, whether
arising under the terms of such Assigned Contracts, by statute, at law or in
equity, or otherwise arising out of any default by the Mortgagor under or in
connection with the Assigned Contracts, including all rights to exercise any
election or option or to make any decision or determination or to give or
receive any notice, consent, approval or waiver thereunder, (iii) the Pledged
Amounts and all money, securities, security entitlements, accounts, general
intangibles, payment intangibles, instruments, documents, deposit accounts,
certificates of deposit, commodities contracts, and other investment property
and other property of whatever kind or description and all cash and non-cash
proceeds of the sale, exchange, or redemption of, and all stock or conversion
rights, rights to subscribe, liquidation dividends or preferences, stock
dividends, rights to interest, dividends, earnings, income, rents, issues,
profits, interest payments or other distributions of cash or other property that
secures a Pledged Asset Loan, (iv) all documents, books and records concerning
the foregoing (including all computer programs, tapes, disks and related items
containing any such information) and (v) all insurance proceeds (including
proceeds from the Federal Deposit Insurance Corporation or the Securities
Investor Protection Corporation or any other insurance company) of any of the
foregoing or replacements thereof or substitutions therefor, proceeds of
40
proceeds and the conversion, voluntary or involuntary, of any thereof. The
foregoing transfer, sale, assignment and conveyance does not constitute and is
not intended to result in the creation, or an assumption by the Trustee, of any
obligation of the Company, or any other person in connection with the Pledged
Assets or under any agreement or instrument relating thereto, including any
obligation to the Mortgagor, other than as owner of the Mortgage Loan.
Section 2.02. Acceptance by Trustee.
The Trustee acknowledges receipt (or, with respect to Mortgage Loans
subject to a Custodial Agreement, and based solely upon a receipt or
certification executed by the Custodian, receipt by the respective Custodian as
the duly appointed agent of the Trustee) of the documents referred to in Section
2.01(b)(i) above (except that for purposes of such acknowledgement only, a
Mortgage Note may be endorsed in blank) and declares that it, or a Custodian as
its agent, holds and will hold such documents and the other documents
constituting a part of the Mortgage Files delivered to it, or a Custodian as its
agent, and the rights of Residential Funding with respect to any Pledged Assets,
Additional Collateral and the Surety Bond assigned to the Trustee pursuant to
Section 2.01, in trust for the use and benefit of all present and future
Certificateholders. The Trustee or Custodian (such Custodian being so obligated
under a Custodial Agreement) agrees, for the benefit of Certificateholders, to
review each Mortgage File delivered to it pursuant to Section 2.01(b) within 45
days after the Closing Date to ascertain that all required documents
(specifically as set forth in Section 2.01(b)), have been executed and received,
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, as supplemented, that have been conveyed to it, and to deliver to
the Trustee a certificate (the "Interim Certification") to the effect that all
documents required to be delivered pursuant to Section 2.01(b) above have been
executed and received and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule, except for any exceptions listed on
Schedule A attached to such Interim Certification. Upon delivery of the Mortgage
Files by the Company or the Master Servicer, the Trustee shall acknowledge
receipt (or, with respect to Mortgage Loans subject to a Custodial Agreement,
and based solely upon a receipt or certification executed by the Custodian,
receipt by the respective Custodian as the duly appointed agent of the Trustee)
of the documents referred to in Section 2.01(c) above.
If the Custodian, as the Trustee's agent, finds any document or
documents constituting a part of a Mortgage File to be missing or defective, the
Trustee shall promptly so notify the Master Servicer and the Company. Pursuant
to Section 2.3 of the Custodial Agreement, the Custodian will notify the Master
Servicer, the Company and the Trustee of any such omission or defect found by it
in respect of any Mortgage File held by it in respect of the items reviewed by
it pursuant to the Custodial Agreement. If such omission or defect materially
and adversely affects the interests of the Certificateholders, the Master
Servicer shall promptly notify the related Subservicer or Seller of such
omission or defect and request that such Subservicer or Seller correct or cure
such omission or defect within 60 days from the date the Master Servicer was
notified of such omission or defect and, if such Subservicer or Seller does not
correct or cure such omission or defect within such period, that such
Subservicer or Seller purchase such Mortgage Loan from the Trust Fund at its
Purchase Price, in either case within 90 days from the date the Master Servicer
was notified of such omission or defect; provided that if the omission or defect
would cause the Mortgage Loan to be other than a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code, any such cure or repurchase must occur within
90 days from the date such breach was discovered. The Purchase Price for any
such Mortgage Loan, whether purchased by the Seller or the Subservicer, shall be
deposited or caused to be deposited by the Master Servicer in the Custodial
Account maintained by it pursuant to Section 3.07 and, upon receipt by the
Trustee of written notification of such deposit signed by a Servicing Officer,
the Trustee or any Custodian, as the case may be, shall release to the Master
41
Servicer the related Mortgage File and the Trustee shall execute and deliver
such instruments of transfer or assignment prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Seller or its
designee or the Subservicer or its designee, as the case may be, any Mortgage
Loan released pursuant hereto and thereafter such Mortgage Loan shall not be
part of the Trust Fund. In furtherance of the foregoing, if the Subservicer or
Seller that repurchases the Mortgage Loan is not a member of MERS and the
Mortgage is registered on the MERS(R) System, the Master Servicer, at its own
expense and without any right of reimbursement, shall cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to such Subservicer or Seller and shall cause such Mortgage
to be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations. It is understood and agreed that the obligation of the
Seller or the Subservicer, as the case may be, to so cure or purchase any
Mortgage Loan as to which a material and adverse defect in or omission of a
constituent document exists shall constitute the sole remedy respecting such
defect or omission available to Certificateholders or the Trustee on behalf of
the Certificateholders.
Section 2.03. Representations, Warranties and Covenants
of the Master Servicer and the Company.
(a) The Master Servicer hereby represents and warrants to the Trustee for
the benefit of the Certificateholders that:
(i) The Master Servicer is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and is or will be in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan in accordance with the terms of
this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer and
its performance and compliance with the terms of this Agreement will not
violate the Master Servicer's Certificate of Incorporation or Bylaws or
constitute a material default (or an event which, with notice or lapse
of time, or both, would constitute a material default) under, or result
in the material breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or which may be
applicable to the Master Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and delivery by
the Trustee and the Company, constitutes a valid, legal and binding
obligation of the Master Servicer, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
42
(iv) The Master Servicer is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its
properties or might have consequences that would materially adversely
affect its performance hereunder;
(v) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit
its entering into this Agreement or performing its obligations under
this Agreement;
(vi) The Master Servicer will comply in all material respects in the
performance of this Agreement with all reasonable rules and requirements
of each insurer under each Required Insurance Policy;
(vii) No information, certificate of an officer, statement furnished in
writing or report delivered to the Company, any Affiliate of the Company
or the Trustee by the Master Servicer will, to the knowledge of the
Master Servicer, contain any untrue statement of a material fact or omit
a material fact necessary to make the information, certificate,
statement or report not misleading;
(viii) The Master Servicer has examined each existing, and will examine each
new, Subservicing Agreement and is or will be familiar with the terms
thereof. The terms of each existing Subservicing Agreement and each
designated Subservicer are acceptable to the Master Servicer and any new
Subservicing Agreements will comply with the provisions of Section 3.02;
and
(ix) The Master Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered
with MERS.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03(a) shall survive delivery of the respective Mortgage Files to
the Trustee or any Custodian.
Upon discovery by either the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any representation or warranty set forth in this
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties (any Custodian being so
obligated under a Custodial Agreement). Within 90 days of its discovery or its
receipt of notice of such breach, the Master Servicer shall either (i) cure such
breach in all material respects or (ii) to the extent that such breach is with
respect to a Mortgage Loan or a related document, purchase such Mortgage Loan
from the Trust Fund at the Purchase Price and in the manner set forth in Section
2.02; provided that if the omission or defect would cause the Mortgage Loan to
be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
43
Code, any such cure or repurchase must occur within 90 days from the date such
breach was discovered. The obligation of the Master Servicer to cure such breach
or to so purchase such Mortgage Loan shall constitute the sole remedy in respect
of a breach of a representation and warranty set forth in this Section 2.03(a)
available to the Certificateholders or the Trustee on behalf of the
Certificateholders.
(b) Representations and warranties relating to the Mortgage Loans are set forth
in Section 2.03(b) of the Series Supplement.
Section 2.04. Representations and Warranties of Sellers.
The Company, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of Certificateholders
all of its right, title and interest in respect of the Assignment Agreement and
each Seller's Agreement applicable to a Mortgage Loan. Insofar as the Assignment
Agreement or the Company's rights under such Seller's Agreement relate to the
representations and warranties made by Residential Funding or the related Seller
in respect of such Mortgage Loan and any remedies provided thereunder for any
breach of such representations and warranties, such right, title and interest
may be enforced by the Master Servicer on behalf of the Trustee and the
Certificateholders. Upon the discovery by the Company, the Master Servicer, the
Trustee or any Custodian of a breach of any of the representations and
warranties made in a Seller's Agreement that have been assigned to the Trustee
pursuant to this Section 2.04 or of a breach of any of the representations and
warranties made in the Assignment Agreement (which, for purposes hereof, will be
deemed to include any other cause giving rise to a repurchase obligation under
the Assignment Agreement) in respect of any Mortgage Loan which materially and
adversely affects the interests of the Certificateholders in such Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties (any Custodian being so obligated under a Custodial Agreement). The
Master Servicer shall promptly notify the related Seller or Residential Funding,
as the case may be, of such breach and request that such Seller or Residential
Funding, as the case may be, either (i) cure such breach in all material
respects within 90 days from the date the Master Servicer was notified of such
breach or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that in the case of
a breach under the Assignment Agreement Residential Funding shall have the
option to substitute a Qualified Substitute Mortgage Loan or Loans for such
Mortgage Loan if such substitution occurs within two years following the Closing
Date; provided that if the breach would cause the Mortgage Loan to be other than
a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
cure, repurchase or substitution must occur within 90 days from the date the
breach was discovered. If a breach of the Compliance With Laws Representation
has given rise to the obligation to repurchase or substitute a Mortgage Loan
pursuant to Section 4 of the Assignment Agreement, then the Master Servicer
shall request that Residential Funding pay to the Trust Fund, concurrently with
and in addition to the remedies provided in the preceding sentence, an amount
equal to any liability, penalty or expense that was actually incurred and paid
out of or on behalf of the Trust Fund, and that directly resulted from such
breach, or if incurred and paid by the Trust Fund thereafter, concurrently with
such payment. In the event that Residential Funding elects to substitute a
Qualified Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant
to this Section 2.04, Residential Funding shall deliver to the Trustee or the
Custodian for the benefit of the Certificateholders with respect to such
Qualified Substitute Mortgage Loan or Loans, the original Mortgage Note, the
Mortgage, an Assignment of the Mortgage in recordable form, if required pursuant
to Section 2.01, and such other documents and agreements as are required by
44
Section 2.01, with the Mortgage Note endorsed as required by Section 2.01. No
substitution will be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall not be part of the Trust Fund and will
be retained by the Master Servicer and remitted by the Master Servicer to
Residential Funding on the next succeeding Distribution Date. For the month of
substitution, distributions to the Certificateholders will include the Monthly
Payment due on a Deleted Mortgage Loan for such month and thereafter Residential
Funding shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Master Servicer shall amend or cause to be amended
the Mortgage Loan Schedule, and, if the Deleted Mortgage Loan was a Discount
Mortgage Loan, the Schedule of Discount Fractions, for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualified Substitute Mortgage Loan or Loans and the Master
Servicer shall deliver the amended Mortgage Loan Schedule, and, if the Deleted
Mortgage Loan was a Discount Mortgage Loan, the amended Schedule of Discount
Fractions, to the Trustee. Upon such substitution, the Qualified Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement and the
related Subservicing Agreement in all respects, the related Seller shall be
deemed to have made the representations and warranties with respect to the
Qualified Substitute Mortgage Loan contained in the related Seller's Agreement
as of the date of substitution, insofar as Residential Funding's rights in
respect of such representations and warranties are assigned to the Company
pursuant to the Assignment Agreement, and the Company and the Master Servicer
shall be deemed to have made with respect to any Qualified Substitute Mortgage
Loan or Loans, as of the date of substitution, the covenants, representations
and warranties set forth in this Section 2.04, in Section 2.03 hereof and in
Section 4 of the Assignment Agreement, and the Master Servicer shall be
obligated to repurchase or substitute for any Qualified Substitute Mortgage Loan
as to which a Repurchase Event (as defined in the Assignment Agreement) has
occurred pursuant to Section 4 of the Assignment Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to the
Certificateholders in the month of substitution). Residential Funding shall
deposit the amount of such shortfall into the Custodial Account on the day of
substitution, without any reimbursement therefor. Residential Funding shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall
and (subject to Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any portion of any
REMIC to fail to qualify as such at any time that any Certificate is
outstanding.
It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (or in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing and to make any additional
payments required under the Assignment Agreement in connection with a breach of
the Compliance With Laws Representation shall constitute the sole remedy
45
respecting such breach available to the Certificateholders or the Trustee on
behalf of Certificateholders. If the Master Servicer is Residential Funding,
then the Trustee shall also have the right to give the notification and require
the purchase or substitution provided for in the second preceding paragraph in
the event of such a breach of a representation or warranty made by Residential
Funding in the Assignment Agreement. In connection with the purchase of or
substitution for any such Mortgage Loan by Residential Funding, the Trustee
shall assign to Residential Funding all of the Trustee's right, title and
interest in respect of the Seller's Agreement and the Assignment Agreement
applicable to such Mortgage Loan.
Section 2.05. Execution and Authentication of Certificates/Issuance of
Certificates Evidencing Interests in REMIC I Certificates.
As provided in Section 2.05 of the Series Supplement.
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II Regular
Interests; Acceptance by the Trustee.
As provided in Section 2.06 of the Series Supplement.
Section 2.07. Issuance of Certificates Evidencing Interests in REMIC II.
As provided in Section 2.07 of the Series Supplement.
Section 2.08. Purposes and Powers of the Trust.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Certificates to the Company in exchange for the Mortgage Loans;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing
activities. Notwithstanding the provisions of Section 11.01, the trust shall not
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the terms of this Agreement while any Certificate
is outstanding, and this Section 2.08 may not be amended, without the consent of
the Certificateholders evidencing a majority of the aggregate Voting Rights of
the Certificates.
46
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans in
accordance with the terms of this Agreement and the respective Mortgage Loans
and shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do any and all things which it may deem necessary
or desirable in connection with such servicing and administration. Without
limiting the generality of the foregoing, the Master Servicer in its own name or
in the name of a Subservicer is hereby authorized and empowered by the Trustee
when the Master Servicer or the Subservicer, as the case may be, believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
consent to assumption or modification in connection with a proposed conveyance,
or of assignment of any Mortgage and Mortgage Note in connection with the
repurchase of a Mortgage Loan and all other comparable instruments, or with
respect to the modification or re-recording of a Mortgage for the purpose of
correcting the Mortgage, the subordination of the lien of the Mortgage in favor
of a public utility company or government agency or unit with powers of eminent
domain, the taking of a deed in lieu of foreclosure, the commencement,
prosecution or completion of judicial or non-judicial foreclosure, the
conveyance of a Mortgaged Property to the related Insurer, the acquisition of
any property acquired by foreclosure or deed in lieu of foreclosure, or the
management, marketing and conveyance of any property acquired by foreclosure or
deed in lieu of foreclosure with respect to the Mortgage Loans and with respect
to the Mortgaged Properties. The Master Servicer further is authorized and
empowered by the Trustee, on behalf of the Certificateholders and the Trustee,
in its own name or in the name of the Subservicer, when the Master Servicer or
the Subservicer, as the case may be, believes it appropriate in its best
judgment to register any Mortgage Loan on the MERS(R) System, or cause the
removal from the registration of any Mortgage Loan on the MERS(R) System, to
execute and deliver, on behalf of the Trustee and the Certificateholders or any
of them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Trustee and its successors and assigns. Any
expenses incurred in connection with the actions described in the preceding
sentence shall be borne by the Master Servicer in accordance with Section
3.16(c), with no right of reimbursement; provided, that if, as a result of MERS
discontinuing or becoming unable to continue operations in connection with the
MERS System, it becomes necessary to remove any Mortgage Loan from registration
on the MERS System and to arrange for the assignment of the related Mortgages to
the Trustee, then any related expenses shall be reimbursable to the Master
Servicer. Notwithstanding the foregoing, subject to Section 3.07(a), the Master
Servicer shall not permit any modification with respect to any Mortgage Loan
that would both constitute a sale or exchange of such Mortgage Loan within the
meaning of Section 1001 of the Code and any proposed, temporary or final
regulations promulgated thereunder (other than in connection with a proposed
conveyance or assumption of such Mortgage Loan that is treated as a Principal
47
Prepayment in Full pursuant to Section 3.13(d) hereof) and cause any REMIC
formed under the Series Supplement to fail to qualify as a REMIC under the Code.
The Trustee shall furnish the Master Servicer with any powers of attorney and
other documents necessary or appropriate to enable the Master Servicer to
service and administer the Mortgage Loans. The Trustee shall not be liable for
any action taken by the Master Servicer or any Subservicer pursuant to such
powers of attorney. In servicing and administering any Nonsubserviced Mortgage
Loan, the Master Servicer shall, to the extent not inconsistent with this
Agreement, comply with the Program Guide as if it were the originator of such
Mortgage Loan and had retained the servicing rights and obligations in respect
thereof. In connection with servicing and administering the Mortgage Loans, the
Master Servicer and any Affiliate of the Master Servicer (i) may perform
services such as appraisals and brokerage services that are not customarily
provided by servicers of mortgage loans, and shall be entitled to reasonable
compensation therefor in accordance with Section 3.10 and (ii) may, at its own
discretion and on behalf of the Trustee, obtain credit information in the form
of a "credit score" from a credit repository.
(b) All costs incurred by the Master Servicer or by Subservicers in effecting
the timely payment of taxes and assessments on the properties subject to the
Mortgage Loans shall not, for the purpose of calculating monthly distributions
to the Certificateholders, be added to the amount owing under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loan so permit,
and such costs shall be recoverable to the extent permitted by Section
3.10(a)(ii).
(c) The Master Servicer may enter into one or more agreements in connection with
the offering of pass-through certificates evidencing interests in one or more of
the Certificates providing for the payment by the Master Servicer of amounts
received by the Master Servicer as servicing compensation hereunder and required
to cover certain Prepayment Interest Shortfalls on the Mortgage Loans, which
payment obligation will thereafter be an obligation of the Master Servicer
hereunder.
Section 3.02. Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements entered
into by Residential Funding and Subservicers prior to the execution and delivery
of this Agreement, and may enter into new Subservicing Agreements with
Subservicers, for the servicing and administration of all or some of the
Mortgage Loans. Each Subservicer of a Mortgage Loan shall be entitled to receive
and retain, as provided in the related Subservicing Agreement and in Section
3.07, the related Subservicing Fee from payments of interest received on such
Mortgage Loan after payment of all amounts required to be remitted to the Master
Servicer in respect of such Mortgage Loan. For any Mortgage Loan that is a
Nonsubserviced Mortgage Loan, the Master Servicer shall be entitled to receive
and retain an amount equal to the Subservicing Fee from payments of interest.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Each Subservicing Agreement will be upon such terms and conditions as
are generally required or permitted by the Program Guide and are not
inconsistent with this Agreement and as the Master Servicer and the Subservicer
have agreed. A representative form of Subservicing Agreement is attached hereto
48
as Exhibit E. With the approval of the Master Servicer, a Subservicer may
delegate its servicing obligations to third-party servicers, but such
Subservicer will remain obligated under the related Subservicing Agreement. The
Master Servicer and a Subservicer may enter into amendments thereto or a
different form of Subservicing Agreement, and the form referred to or included
in the Program Guide is merely provided for information and shall not be deemed
to limit in any respect the discretion of the Master Servicer to modify or enter
into different Subservicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of either this Agreement or the Program Guide in a manner which would
materially and adversely affect the interests of the Certificateholders. The
Program Guide and any other Subservicing Agreement entered into between the
Master Servicer and any Subservicer shall require the Subservicer to accurately
and fully report its borrower credit files to each of the Credit Repositories in
a timely manner.
(b) As part of its servicing activities hereunder, the Master Servicer, for the
benefit of the Trustee and the Certificateholders, shall use its best reasonable
efforts to enforce the obligations of each Subservicer under the related
Subservicing Agreement and of each Seller under the related Seller's Agreement
insofar as the Company's rights with respect to Seller's obligation has been
assigned to the Trustee hereunder, to the extent that the non-performance of any
such Seller's obligation would have a material and adverse effect on a Mortgage
Loan, including, without limitation, the obligation to purchase a Mortgage Loan
on account of defective documentation, as described in Section 2.02, or on
account of a breach of a representation or warranty, as described in Section
2.04. Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Subservicing Agreements or Seller's Agreements, as
appropriate, and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Master Servicer
would employ in its good faith business judgment and which are normal and usual
in its general mortgage servicing activities. The Master Servicer shall pay the
costs of such enforcement at its own expense, and shall be reimbursed therefor
only (i) from a general recovery resulting from such enforcement to the extent,
if any, that such recovery exceeds all amounts due in respect of the related
Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys
fees against the party against whom such enforcement is directed. For purposes
of clarification only, the parties agree that the foregoing is not intended to,
and does not, limit the ability of the Master Servicer to be reimbursed for
expenses that are incurred in connection with the enforcement of a Seller's
obligations (insofar as the Company's rights with respect to such Seller's
obligations have been assigned to the Trustee hereunder) and are reimbursable
pursuant to Section 3.10(a)(viii).
Section 3.03. Successor Subservicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Servicer or any Affiliate of
Residential Funding acts as servicer, it will not assume liability for the
representations and warranties of the Subservicer which it replaces. If the
Master Servicer enters into a Subservicing Agreement with a successor
49
Subservicer, the Master Servicer shall use reasonable efforts to have the
successor Subservicer assume liability for the representations and warranties
made by the terminated Subservicer in respect of the related Mortgage Loans and,
in the event of any such assumption by the successor Subservicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Subservicer from liability for such representations and warranties.
Section 3.04. Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or reference to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to the Trustee
and the Certificateholders for the servicing and administering of the Mortgage
Loans in accordance with the provisions of Section 3.01 without diminution of
such obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer or the Company
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. The Master
Servicer shall be entitled to enter into any agreement with a Subservicer or
Seller for indemnification of the Master Servicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification.
Section 3.05. No Contractual Relationship Between Subservicer and
Trustee or Certificateholders.
Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Master Servicer alone and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer in
its capacity as such except as set forth in Section 3.06. The foregoing
provision shall not in any way limit a Subservicer's obligation to cure an
omission or defect or to repurchase a Mortgage Loan as referred to in Section
2.02 hereof.
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee.
(a) If the Master Servicer shall for any reason no longer be the master servicer
(including by reason of an Event of Default), the Trustee, its designee or its
successor shall thereupon assume all of the rights and obligations of the Master
Servicer under each Subservicing Agreement that may have been entered into. The
Trustee, its designee or the successor servicer for the Trustee shall be deemed
to have assumed all of the Master Servicer's interest therein and to have
replaced the Master Servicer as a party to the Subservicing Agreement to the
same extent as if the Subservicing Agreement had been assigned to the assuming
party except that the Master Servicer shall not thereby be relieved of any
liability or obligations under the Subservicing Agreement.
(b) The Master Servicer shall, upon request of the Trustee but at the expense of
the Master Servicer, deliver to the assuming party all documents and records
50
relating to each Subservicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of each
Subservicing Agreement to the assuming party.
Section 3.07. Collection of Certain Mortgage Loan Payments;
Deposits to Custodial Account.
(a) The Master Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage
Loans, and shall, to the extent such procedures shall be consistent with
this Agreement and the terms and provisions of any related Primary
Insurance Policy, follow such collection procedures as it would employ
in its good faith business judgment and which are normal and usual in
its general mortgage servicing activities. Consistent with the
foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the
Due Date for payments due on a Mortgage Loan in accordance with the
Program Guide; provided, however, that the Master Servicer shall first
determine that any such waiver or extension will not impair the coverage
of any related Primary Insurance Policy or materially adversely affect
the lien of the related Mortgage. Notwithstanding anything in this
Section to the contrary, the Master Servicer shall not enforce any
prepayment charge to the extent that such enforcement would violate any
applicable law. In the event of any such arrangement, the Master
Servicer shall make timely advances on the related Mortgage Loan during
the scheduled period in accordance with the amortization schedule of
such Mortgage Loan without modification thereof by reason of such
arrangements unless otherwise agreed to by the Holders of the Classes of
Certificates affected thereby; provided, however, that no such extension
shall be made if any such advance would be a Nonrecoverable Advance.
Consistent with the terms of this Agreement, the Master Servicer may
also waive, modify or vary any term of any Mortgage Loan or consent to
the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in the Master Servicer's
determination such waiver, modification, postponement or indulgence is
not materially adverse to the interests of the Certificateholders
(taking into account any estimated Realized Loss that might result
absent such action); provided, however, that the Master Servicer may not
modify materially or permit any Subservicer to modify any Mortgage Loan,
including without limitation any modification that would change the
Mortgage Rate, forgive the payment of any principal or interest (unless
in connection with the liquidation of the related Mortgage Loan or
except in connection with prepayments to the extent that such
reamortization is not inconsistent with the terms of the Mortgage Loan),
capitalize any amounts owing on the Mortgage Loan by adding such amount
to the outstanding principal balance of the Mortgage Loan, or extend the
final maturity date of such Mortgage Loan, unless such Mortgage Loan is
in default or, in the judgment of the Master Servicer, such default is
reasonably foreseeable; provided, further, that (1) no such modification
shall reduce the interest rate on a Mortgage Loan below one-half of the
Mortgage Rate as in effect on the Cut-off Date, but not less than the
sum of the rates at which the Servicing Fee and the Subservicing Fee
with respect to such Mortgage Loan accrues plus the rate at which the
premium paid to the Certificate Insurer, if any, accrues, (2) the final
maturity date for any Mortgage Loan shall not be extended beyond the
Maturity Date, (3) the Stated Principal Balance of all Reportable
Modified Mortgage Loans subject to Servicing Modifications (measured at
the time of the Servicing Modification and after giving effect to any
51
Servicing Modification) can be no more than five percent of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date, unless such limit is increased from time to time with the consent
of the Rating Agencies and the Certificate Insurer, if any. In addition,
any amounts owing on a Mortgage Loan added to the outstanding principal
balance of such Mortgage Loan must be fully amortized over the remaining
term of such Mortgage Loan, and such amounts may be added to the
outstanding principal balance of a Mortgage Loan only once during the
life of such Mortgage Loan. Also, the addition of such amounts described
in the preceding sentence shall be implemented in accordance with the
Program Guide and may be implemented only by Subservicers that have been
approved by the Master Servicer for such purpose. In connection with any
Curtailment of a Mortgage Loan, the Master Servicer, to the extent not
inconsistent with the terms of the Mortgage Note and local law and
practice, may permit the Mortgage Loan to be reamortized such that the
Monthly Payment is recalculated as an amount that will fully amortize
the remaining Stated Principal Balance thereof by the original Maturity
Date based on the original Mortgage Rate; provided, that such
re-amortization shall not be permitted if it would constitute a
reissuance of the Mortgage Loan for federal income tax purposes, except
if such reissuance is described in Treasury Regulation Section
1.860G-2(b)(3).
(b) The Master Servicer shall establish and maintain a Custodial Account in
which the Master Servicer shall deposit or cause to be deposited on a
daily basis, except as otherwise specifically provided herein, the
following payments and collections remitted by Subservicers or received
by it in respect of the Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date):
(i) All payments on account of principal, including Principal Prepayments
made by Mortgagors on the Mortgage Loans and the principal component of
any Subservicer Advance or of any REO Proceeds received in connection
with an REO Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate on the
Mortgage Loans, including Buydown Funds, if any, and the interest
component of any Subservicer Advance or of any REO Proceeds received in
connection with an REO Property for which an REO Disposition has
occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds (net
of any related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section 2.02,
2.03, 2.04 or 4.07 (including amounts received from Residential Funding
pursuant to the last paragraph of Section 4 of the Assignment Agreement
in respect of any liability, penalty or expense that resulted from a
breach of the Compliance With Laws Representation and all amounts
required to be deposited in connection with the substitution of a
Qualified Substitute Mortgage Loan pursuant to Section 2.03 or 2.04;
(v) Any amounts required to be deposited pursuant to Section 3.07(c) or
3.21;
(vi) All amounts transferred from the Certificate Account to the Custodial
Account in accordance with Section 4.02(a);
(vii) Any amounts realized by the Subservicer and received by the Master
Servicer in respect of any Additional Collateral; and
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(viii) Any amounts received by the Master Servicer in respect of Pledged
Assets.
The foregoing requirements for deposit in the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments on the Mortgage Loans which are not part of the Trust
Fund (consisting of payments in respect of principal and interest on the
Mortgage Loans due on or before the Cut-off Date) and payments or collections in
the nature of prepayment charges or late payment charges or assumption fees may
but need not be deposited by the Master Servicer in the Custodial Account. In
the event any amount not required to be deposited in the Custodial Account is so
deposited, the Master Servicer may at any time withdraw such amount from the
Custodial Account, any provision herein to the contrary notwithstanding. The
Custodial Account may contain funds that belong to one or more trust funds
created for mortgage pass-through certificates of other series and may contain
other funds respecting payments on mortgage loans belonging to the Master
Servicer or serviced or master serviced by it on behalf of others.
Notwithstanding such commingling of funds, the Master Servicer shall keep
records that accurately reflect the funds on deposit in the Custodial Account
that have been identified by it as being attributable to the Mortgage Loans.
With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds
and the proceeds of the purchase of any Mortgage Loan pursuant to Sections 2.02,
2.03, 2.04 and 4.07 received in any calendar month, the Master Servicer may
elect to treat such amounts as included in the Available Distribution Amount for
the Distribution Date in the month of receipt, but is not obligated to do so. If
the Master Servicer so elects, such amounts will be deemed to have been received
(and any related Realized Loss shall be deemed to have occurred) on the last day
of the month prior to the receipt thereof.
(c) The Master Servicer shall use its best efforts to cause the
institution maintaining the Custodial Account to invest the funds in the
Custodial Account attributable to the Mortgage Loans in Permitted Investments
which shall mature not later than the Certificate Account Deposit Date next
following the date of such investment (with the exception of the Amount Held for
Future Distribution) and which shall not be sold or disposed of prior to their
maturities. All income and gain realized from any such investment shall be for
the benefit of the Master Servicer as additional servicing compensation and
shall be subject to its withdrawal or order from time to time. The amount of any
losses incurred in respect of any such investments attributable to the
investment of amounts in respect of the Mortgage Loans shall be deposited in the
Custodial Account by the Master Servicer out of its own funds immediately as
realized without any right of reimbursement.
(d) The Master Servicer shall give notice to the Trustee and the Company
of any change in the location of the Custodial Account and the location of the
Certificate Account prior to the use thereof.
Section 3.08. Subservicing Accounts; Servicing Accounts.
(a) In those cases where a Subservicer is servicing a Mortgage Loan pursuant to
a Subservicing Agreement, the Master Servicer shall cause the Subservicer,
pursuant to the Subservicing Agreement, to establish and maintain one or more
Subservicing Accounts which shall be an Eligible Account or, if such account is
53
not an Eligible Account, shall generally satisfy the requirements of the Program
Guide and be otherwise acceptable to the Master Servicer and each Rating Agency.
The Subservicer will be required thereby to deposit into the Subservicing
Account on a daily basis all proceeds of Mortgage Loans received by the
Subservicer, less its Subservicing Fees and unreimbursed advances and expenses,
to the extent permitted by the Subservicing Agreement. If the Subservicing
Account is not an Eligible Account, the Master Servicer shall be deemed to have
received such monies upon receipt thereof by the Subservicer. The Subservicer
shall not be required to deposit in the Subservicing Account payments or
collections in the nature of prepayment charges or late charges or assumption
fees. On or before the date specified in the Program Guide, but in no event
later than the Determination Date, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to remit to the Master
Servicer for deposit in the Custodial Account all funds held in the Subservicing
Account with respect to each Mortgage Loan serviced by such Subservicer that are
required to be remitted to the Master Servicer. The Subservicer will also be
required, pursuant to the Subservicing Agreement, to advance on such scheduled
date of remittance amounts equal to any scheduled monthly installments of
principal and interest less its Subservicing Fees on any Mortgage Loans for
which payment was not received by the Subservicer. This obligation to advance
with respect to each Mortgage Loan will continue up to and including the first
of the month following the date on which the related Mortgaged Property is sold
at a foreclosure sale or is acquired by the Trust Fund by deed in lieu of
foreclosure or otherwise. All such advances received by the Master Servicer
shall be deposited promptly by it in the Custodial Account.
(b) The Subservicer may also be required, pursuant to the Subservicing
Agreement, to remit to the Master Servicer for deposit in the Custodial Account
interest at the Adjusted Mortgage Rate (or Modified Net Mortgage Rate plus the
rate per annum at which the Servicing Fee accrues in the case of a Modified
Mortgage Loan) on any Curtailment received by such Subservicer in respect of a
Mortgage Loan from the related Mortgagor during any month that is to be applied
by the Subservicer to reduce the unpaid principal balance of the related
Mortgage Loan as of the first day of such month, from the date of application of
such Curtailment to the first day of the following month. Any amounts paid by a
Subservicer pursuant to the preceding sentence shall be for the benefit of the
Master Servicer as additional servicing compensation and shall be subject to its
withdrawal or order from time to time pursuant to Sections 3.10(a)(iv) and (v).
(c) In addition to the Custodial Account and the Certificate Account,
the Master Servicer shall for any Nonsubserviced Mortgage Loan, and shall cause
the Subservicers for Subserviced Mortgage Loans to, establish and maintain one
or more Servicing Accounts and deposit and retain therein all collections from
the Mortgagors (or advances from Subservicers) for the payment of taxes,
assessments, hazard insurance premiums, Primary Insurance Policy premiums, if
applicable, or comparable items for the account of the Mortgagors. Each
Servicing Account shall satisfy the requirements for a Subservicing Account and,
to the extent permitted by the Program Guide or as is otherwise acceptable to
the Master Servicer, may also function as a Subservicing Account. Withdrawals of
amounts related to the Mortgage Loans from the Servicing Accounts may be made
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
54
Mortgagors any sums as may be determined to be overages, to pay interest, if
required, to Mortgagors on balances in the Servicing Account or to clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01 or in accordance with the Program Guide. As part of
its servicing duties, the Master Servicer shall, and the Subservicers will,
pursuant to the Subservicing Agreements, be required to pay to the Mortgagors
interest on funds in this account to the extent required by law.
(d) The Master Servicer shall advance the payments referred to in the
preceding subsection that are not timely paid by the Mortgagors or advanced by
the Subservicers on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of the
Master Servicer, will be recoverable by the Master Servicer out of Insurance
Proceeds, Liquidation Proceeds or otherwise.
Section 3.09. Access to Certain Documentation and
Information Regarding the Mortgage Loans.
If compliance with this Section 3.09 shall make any Class of
Certificates legal for investment by federally insured savings and loan
associations, the Master Servicer shall provide, or cause the Subservicers to
provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices designated by the Master
Servicer. The Master Servicer shall permit such representatives to photocopy any
such documentation and shall provide equipment for that purpose at a charge
reasonably approximating the cost of such photocopying to the Master Servicer.
Section 3.10. Permitted Withdrawals from the Custodial Account.
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein
pursuant to Section 3.07 that are attributable to the Mortgage Loans for
the following purposes:
(i) to make deposits into the Certificate Account in the amounts and in the
manner provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer for previously
unreimbursed Advances, Servicing Advances or other expenses made
pursuant to Sections 3.01, 3.07(a), 3.08, 3.11, 3.12(a), 3.14 and 4.04
or otherwise reimbursable pursuant to the terms of this Agreement, such
withdrawal right being limited to amounts received on the related
Mortgage Loans (including, for this purpose, REO Proceeds, Insurance
Proceeds, Liquidation Proceeds and proceeds from the purchase of a
Mortgage Loan pursuant to Section 2.02, 2.03, 2.04 or 4.07) which
represent (A) Late Collections of Monthly Payments for which any such
advance was made in the case of Subservicer Advances or Advances
pursuant to Section 4.04 and (B) recoveries of amounts in respect of
which such advances were made in the case of Servicing Advances;
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(iii) to pay to itself or the related Subservicer (if not previously retained
by such Subservicer) out of each payment received by the Master Servicer
on account of interest on a Mortgage Loan as contemplated by Sections
3.14 and 3.16, an amount equal to that remaining portion of any such
payment as to interest (but not in excess of the Servicing Fee and the
Subservicing Fee, if not previously retained) which, when deducted, will
result in the remaining amount of such interest being interest at the
Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a
Modified Mortgage Loan) on the amount specified in the amortization
schedule of the related Mortgage Loan as the principal balance thereof
at the beginning of the period respecting which such interest was paid
after giving effect to any previous Curtailments;
(iv) to pay to itself as additional servicing compensation any interest or
investment income earned on funds and other property deposited in or
credited to the Custodial Account that it is entitled to withdraw
pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any Foreclosure
Profits, any amounts remitted by Subservicers as interest in respect of
Curtailments pursuant to Section 3.08(b), and any amounts paid by a
Mortgagor in connection with a Principal Prepayment in Full in respect
of interest for any period during the calendar month in which such
Principal Prepayment in Full is to be distributed to the
Certificateholders;
(vi) to pay to itself, a Subservicer, a Seller, Residential Funding, the
Company or any other appropriate Person, as the case may be, with
respect to each Mortgage Loan or property acquired in respect thereof
that has been purchased or otherwise transferred pursuant to Section
2.02, 2.03, 2.04, 4.07 or 9.01, all amounts received thereon and not
required to be distributed to the Certificateholders as of the date on
which the related Stated Principal Balance or Purchase Price is
determined;
(vii) to reimburse itself or the related Subservicer for any Nonrecoverable
Advance or Advances in the manner and to the extent provided in
subsection (c) below, and any Advance or Servicing Advance made in
connection with a modified Mortgage Loan that is in default or, in the
judgment of the Master Servicer, default is reasonably foreseeable
pursuant to Section 3.07(a), to the extent the amount of the Advance or
Servicing Advance was added to the Stated Principal Balance of the
Mortgage Loan in a prior calendar month, or any Advance reimbursable to
the Master Servicer pursuant to Section 4.02(a);
(viii) to reimburse itself or the Company for expenses incurred by and
reimbursable to it or the Company pursuant to Sections 3.01(a), 3.11,
3.13, 3.14(c), 6.03, 10.01 or otherwise, or in connection with
enforcing, in accordance with this Agreement, any repurchase,
substitution or indemnification obligation of any Seller (other than an
Affiliate of the Company) pursuant to the related Seller's Agreement;
(ix) to reimburse itself for Servicing Advances expended by it (a) pursuant
to Section 3.14 in good faith in connection with the restoration of
property damaged by an Uninsured Cause, and (b) in connection with the
liquidation of a Mortgage Loan or disposition of an REO Property to the
extent not otherwise reimbursed pursuant to clause (ii) or (viii) above;
and
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(x) to withdraw any amount deposited in the Custodial Account that was not
required to be deposited therein pursuant to Section 3.07.
(b) Since, in connection with withdrawals pursuant to clauses (ii), (iii),
(v) and (vi), the Master Servicer's entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, the Master
Servicer shall keep and maintain separate accounting, on a Mortgage Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal
from the Custodial Account pursuant to such clauses.
(c) The Master Servicer shall be entitled to reimburse itself or the related
Subservicer for any advance made in respect of a Mortgage Loan that the
Master Servicer determines to be a Nonrecoverable Advance by withdrawal
from the Custodial Account of amounts on deposit therein attributable to
the Mortgage Loans on any Certificate Account Deposit Date succeeding
the date of such determination. Such right of reimbursement in respect
of a Nonrecoverable Advance relating to an Advance pursuant to Section
4.04 on any such Certificate Account Deposit Date shall be limited to an
amount not exceeding the portion of such Advance previously paid to
Certificateholders (and not theretofore reimbursed to the Master
Servicer or the related Subservicer).
Section 3.11. Maintenance of the Primary Insurance
Policies; Collections Thereunder.
(a) The Master Servicer shall not take, or permit any Subservicer to
take, any action which would result in non-coverage under any applicable Primary
Insurance Policy of any loss which, but for the actions of the Master Servicer
or Subservicer, would have been covered thereunder. To the extent coverage is
available, the Master Servicer shall keep or cause to be kept in full force and
effect each such Primary Insurance Policy until the principal balance of the
related Mortgage Loan secured by a Mortgaged Property is reduced to 80% or less
of the Appraised Value in the case of such a Mortgage Loan having a
Loan-to-Value Ratio at origination in excess of 80%, provided that such Primary
Insurance Policy was in place as of the Cut-off Date and the Company had
knowledge of such Primary Insurance Policy. The Master Servicer shall be
entitled to cancel or permit the discontinuation of any Primary Insurance Policy
as to any Mortgage Loan, if the Stated Principal Balance of the Mortgage Loan is
reduced below an amount equal to 80% of the appraised value of the related
Mortgaged Property as determined in any appraisal thereof after the Closing
Date, or if the Loan-to-Value Ratio is reduced below 80% as a result of
principal payments on the Mortgage Loan after the Closing Date. In the event
that the Company gains knowledge that as of the Closing Date, a Mortgage Loan
had a Loan-to-Value Ratio at origination in excess of 80% and is not the subject
of a Primary Insurance Policy (and was not included in any exception to the
representation in Section 2.03(b)(iv)) and that such Mortgage Loan has a current
Loan-to-Value Ratio in excess of 80% then the Master Servicer shall use its
reasonable efforts to obtain and maintain a Primary Insurance Policy to the
extent that such a policy is obtainable at a reasonable price. The Master
Servicer shall not cancel or refuse to renew any such Primary Insurance Policy
57
applicable to a Nonsubserviced Mortgage Loan, or consent to any Subservicer
canceling or refusing to renew any such Primary Insurance Policy applicable to a
Mortgage Loan subserviced by it, that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
unless the replacement Primary Insurance Policy for such canceled or non-renewed
policy is maintained with an insurer whose claims-paying ability is acceptable
to each Rating Agency for mortgage pass-through certificates having a rating
equal to or better than the lower of the then-current rating or the rating
assigned to the Certificates as of the Closing Date by such Rating Agency.
(b) In connection with its activities as administrator and servicer of
the Mortgage Loans, the Master Servicer agrees to present or to cause the
related Subservicer to present, on behalf of the Master Servicer, the
Subservicer, if any, the Trustee and Certificateholders, claims to the related
Insurer under any Primary Insurance Policies, in a timely manner in accordance
with such policies, and, in this regard, to take or cause to be taken such
reasonable action as shall be necessary to permit recovery under any Primary
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Section
3.07, any Insurance Proceeds collected by or remitted to the Master Servicer
under any Primary Insurance Policies shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.10.
Section 3.12. Maintenance of Fire Insurance and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each Mortgage
Loan (other than a Cooperative Loan) fire insurance with extended coverage in an
amount which is equal to the lesser of the principal balance owing on such
Mortgage Loan or 100 percent of the insurable value of the improvements;
provided, however, that such coverage may not be less than the minimum amount
required to fully compensate for any loss or damage on a replacement cost basis.
To the extent it may do so without breaching the related Subservicing Agreement,
the Master Servicer shall replace any Subservicer that does not cause such
insurance, to the extent it is available, to be maintained. The Master Servicer
shall also cause to be maintained on property acquired upon foreclosure, or deed
in lieu of foreclosure, of any Mortgage Loan (other than a Cooperative Loan),
fire insurance with extended coverage in an amount which is at least equal to
the amount necessary to avoid the application of any co-insurance clause
contained in the related hazard insurance policy. Pursuant to Section 3.07, any
amounts collected by the Master Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or property thus acquired or amounts released to the Mortgagor in
accordance with the Master Servicer's normal servicing procedures) shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
3.10. Any cost incurred by the Master Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the amount owing under the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs shall
be recoverable by the Master Servicer out of related late payments by the
Mortgagor or out of Insurance Proceeds and Liquidation Proceeds to the extent
permitted by Section 3.10. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage Loan other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. Whenever the improvements securing a Mortgage
Loan (other than a Cooperative Loan) are located at the time of origination of
such Mortgage Loan in a federally designated special flood hazard area, the
58
Master Servicer shall cause flood insurance (to the extent available) to be
maintained in respect thereof. Such flood insurance shall be in an amount equal
to the lesser of (i) the amount required to compensate for any loss or damage to
the Mortgaged Property on a replacement cost basis and (ii) the maximum amount
of such insurance available for the related Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
If the Master Servicer shall obtain and maintain a blanket fire
insurance policy with extended coverage insuring against hazard losses on all of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.12(a), it being
understood and agreed that such policy may contain a deductible clause, in which
case the Master Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with the first
sentence of this Section 3.12(a) and there shall have been a loss which would
have been covered by such policy, deposit in the Certificate Account the amount
not otherwise payable under the blanket policy because of such deductible
clause. Any such deposit by the Master Servicer shall be made on the Certificate
Account Deposit Date next preceding the Distribution Date which occurs in the
month following the month in which payments under any such policy would have
been deposited in the Custodial Account. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
present, on behalf of itself, the Trustee and the Certificateholders, claims
under any such blanket policy.
(b) The Master Servicer shall obtain and maintain at its own expense and
keep in full force and effect throughout the term of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy covering the Master
Servicer's officers and employees and other persons acting on behalf of the
Master Servicer in connection with its activities under this Agreement. The
amount of coverage shall be at least equal to the coverage that would be
required by Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater, with respect to the
Master Servicer if the Master Servicer were servicing and administering the
Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac. In the event that any such bond or
policy ceases to be in effect, the Master Servicer shall obtain a comparable
replacement bond or policy from an issuer or insurer, as the case may be,
meeting the requirements, if any, of the Program Guide and acceptable to the
Company. Coverage of the Master Servicer under a policy or bond obtained by an
Affiliate of the Master Servicer and providing the coverage required by this
Section 3.12(b) shall satisfy the requirements of this Section 3.12(b).
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Master
Servicer or Subservicer, to the extent it has knowledge of such
conveyance, shall enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law
and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any
Required Insurance Policy. Notwithstanding the foregoing:
59
(i) the Master Servicer shall not be deemed to be in default under this
Section 3.13(a) by reason of any transfer or assumption which the Master
Servicer is restricted by law from preventing; and
(ii) if the Master Servicer determines that it is reasonably likely that any
Mortgagor will bring, or if any Mortgagor does bring, legal action to
declare invalid or otherwise avoid enforcement of a due-on-sale clause
contained in any Mortgage Note or Mortgage, the Master Servicer shall
not be required to enforce the due-on-sale clause or to contest such
action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a
Mortgaged Property is to be conveyed to a Person by a Mortgagor, and
such Person is to enter into an assumption or modification agreement or
supplement to the Mortgage Note or Mortgage which requires the signature
of the Trustee, or if an instrument of release signed by the Trustee is
required releasing the Mortgagor from liability on the Mortgage Loan,
the Master Servicer is authorized, subject to the requirements of the
sentence next following, to execute and deliver, on behalf of the
Trustee, the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed and such modification agreement or supplement
to the Mortgage Note or Mortgage or other instruments as are reasonable
or necessary to carry out the terms of the Mortgage Note or Mortgage or
otherwise to comply with any applicable laws regarding assumptions or
the transfer of the Mortgaged Property to such Person; provided,
however, none of such terms and requirements shall either (i) both (A)
constitute a "significant modification" effecting an exchange or
reissuance of such Mortgage Loan under the REMIC Provisions and (B)
cause any portion of any REMIC formed under the Series Supplement to
fail to qualify as a REMIC under the Code or (subject to Section
10.01(f)), result in the imposition of any tax on "prohibited
transactions" or (ii) constitute "contributions" after the start-up date
under the REMIC Provisions. The Master Servicer shall execute and
deliver such documents only if it reasonably determines that (i) its
execution and delivery thereof will not conflict with or violate any
terms of this Agreement or cause the unpaid balance and interest on the
Mortgage Loan to be uncollectible in whole or in part, (ii) any required
consents of insurers under any Required Insurance Policies have been
obtained and (iii) subsequent to the closing of the transaction
involving the assumption or transfer (A) the Mortgage Loan will continue
to be secured by a first mortgage lien pursuant to the terms of the
Mortgage, (B) such transaction will not adversely affect the coverage
under any Required Insurance Policies, (C) the Mortgage Loan will fully
amortize over the remaining term thereof, (D) no material term of the
Mortgage Loan (including the interest rate on the Mortgage Loan) will be
altered nor will the term of the Mortgage Loan be changed and (E) if the
seller/transferor of the Mortgaged Property is to be released from
liability on the Mortgage Loan, such release will not (based on the
Master Servicer's or Subservicer's good faith determination) adversely
affect the collectability of the Mortgage Loan. Upon receipt of
appropriate instructions from the Master Servicer in accordance with the
foregoing, the Trustee shall execute any necessary instruments for such
assumption or substitution of liability as directed in writing by the
Master Servicer. Upon the closing of the transactions contemplated by
such documents, the Master Servicer shall cause the originals or true
and correct copies of the assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Note or Mortgage to be
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delivered to the Trustee or the Custodian and deposited with the
Mortgage File for such Mortgage Loan. Any fee collected by the Master
Servicer or such related Subservicer for entering into an assumption or
substitution of liability agreement will be retained by the Master
Servicer or such Subservicer as additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for a partial
release of the related Mortgaged Property, the granting of an easement
thereon in favor of another Person, any alteration or demolition of the
related Mortgaged Property (or, with respect to a Cooperative Loan, the
related Cooperative Apartment) without any right of reimbursement or
other similar matters if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of
the related Mortgage Loan, that the security for, and the timely and
full collectability of, such Mortgage Loan would not be adversely
affected thereby and that any portion of any REMIC formed under the
Series Supplement would not fail to continue to qualify as a REMIC under
the Code as a result thereof and (subject to Section 10.01(f)) that no
tax on "prohibited transactions" or "contributions" after the startup
day would be imposed on any such REMIC as a result thereof. Any fee
collected by the Master Servicer or the related Subservicer for
processing such a request will be retained by the Master Servicer or
such Subservicer as additional servicing compensation.
(d) Subject to any other applicable terms and conditions of this Agreement,
the Trustee and Master Servicer shall be entitled to approve an
assignment in lieu of satisfaction with respect to any Mortgage Loan,
provided the obligee with respect to such Mortgage Loan following such
proposed assignment provides the Trustee and Master Servicer with a
"Lender Certification for Assignment of Mortgage Loan" in the form
attached hereto as Exhibit M, in form and substance satisfactory to the
Trustee and Master Servicer, providing the following: (i) that the
substance of the assignment is, and is intended to be, a refinancing of
such Mortgage; (ii) that the Mortgage Loan following the proposed
assignment will have a rate of interest at least 0.25 percent below or
above the rate of interest on such Mortgage Loan prior to such proposed
assignment; and (iii) that such assignment is at the request of the
borrower under the related Mortgage Loan. Upon approval of an assignment
in lieu of satisfaction with respect to any Mortgage Loan, the Master
Servicer shall receive cash in an amount equal to the unpaid principal
balance of and accrued interest on such Mortgage Loan and the Master
Servicer shall treat such amount as a Principal Prepayment in Full with
respect to such Mortgage Loan for all purposes hereof.
Section 3.14. Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall foreclose upon or otherwise comparably
convert (which may include an REO Acquisition) the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. Alternatively, the Master Servicer may take
other actions in respect of a defaulted Mortgage Loan, which may include (i)
accepting a short sale (a payoff of the Mortgage Loan for an amount less than
the total amount contractually owed in order to facilitate a sale of the
Mortgaged Property by the Mortgagor) or permitting a short refinancing (a payoff
of the Mortgage Loan for an amount less than the total amount contractually owed
in order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (ii) arranging for a repayment plan or (iii)
agreeing to a modification in accordance with Section 3.07. In connection with
such foreclosure or other conversion, the Master Servicer shall, consistent with
Section 3.11, follow such practices and procedures as it shall deem necessary or
advisable, as shall be normal and usual in its general mortgage servicing
activities and as shall be required or permitted by the Program Guide; provided
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that the Master Servicer shall not be liable in any respect hereunder if the
Master Servicer is acting in connection with any such foreclosure or other
conversion in a manner that is consistent with the provisions of this Agreement.
The Master Servicer, however, shall not be required to expend its own funds or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to Holders of
Certificates of one or more Classes after reimbursement to itself for such
expenses or charges and (ii) that such expenses or charges will be recoverable
to it through Liquidation Proceeds, Insurance Proceeds, or REO Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 3.10, whether or not such expenses and
charges are actually recoverable from related Liquidation Proceeds, Insurance
Proceeds or REO Proceeds). In the event of such a determination by the Master
Servicer pursuant to this Section 3.14(a), the Master Servicer shall be entitled
to reimbursement of such amounts pursuant to Section 3.10.
In addition to the foregoing, the Master Servicer shall use its
best reasonable efforts to realize upon any Additional Collateral for such of
the Additional Collateral Loans as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07; provided that the Master Servicer shall not,
on behalf of the Trustee, obtain title to any such Additional Collateral as a
result of or in lieu of the disposition thereof or otherwise; and provided
further that (i) the Master Servicer shall not proceed with respect to such
Additional Collateral in any manner that would impair the ability to recover
against the related Mortgaged Property, and (ii) the Master Servicer shall
proceed with any REO Acquisition in a manner that preserves the ability to apply
the proceeds of such Additional Collateral against amounts owed under the
defaulted Mortgage Loan. Any proceeds realized from such Additional Collateral
(other than amounts to be released to the Mortgagor or the related guarantor in
accordance with procedures that the Master Servicer would follow in servicing
loans held for its own account, subject to the terms and conditions of the
related Mortgage and Mortgage Note and to the terms and conditions of any
security agreement, guarantee agreement, mortgage or other agreement governing
the disposition of the proceeds of such Additional Collateral) shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
3.10. Any other payment received by the Master Servicer in respect of such
Additional Collateral shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 3.10.
For so long as the Master Servicer is the Master Servicer under
the Credit Support Pledge Agreement, the Master Servicer shall perform its
obligations under the Credit Support Pledge Agreement in accordance with such
Agreement and in a manner that is in the best interests of the
Certificateholders. Further, the Master Servicer shall use its best reasonable
efforts to realize upon any Pledged Assets for such of the Pledged Asset Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07; provided that the Master Servicer shall not, on behalf of the
Trustee, obtain title to any such Pledged Assets as a result of or in lieu of
the disposition thereof or otherwise; and provided further that (i) the Master
Servicer shall not proceed with respect to such Pledged Assets in any manner
that would impair the ability to recover against the related Mortgaged Property,
and (ii) the Master Servicer shall proceed with any REO Acquisition in a manner
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that preserves the ability to apply the proceeds of such Pledged Assets against
amounts owed under the defaulted Mortgage Loan. Any proceeds realized from such
Pledged Assets (other than amounts to be released to the Mortgagor or the
related guarantor in accordance with procedures that the Master Servicer would
follow in servicing loans held for its own account, subject to the terms and
conditions of the related Mortgage and Mortgage Note and to the terms and
conditions of any security agreement, guarantee agreement, mortgage or other
agreement governing the disposition of the proceeds of such Pledged Assets)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 3.10. Any other payment received by the Master Servicer in respect of
such Pledged Assets shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 3.10.
Concurrently with the foregoing, the Master Servicer may pursue
any remedies that may be available in connection with a breach of a
representation and warranty with respect to any such Mortgage Loan in accordance
with Sections 2.03 and 2.04. However, the Master Servicer is not required to
continue to pursue both foreclosure (or similar remedies) with respect to the
Mortgage Loans and remedies in connection with a breach of a representation and
warranty if the Master Servicer determines in its reasonable discretion that one
such remedy is more likely to result in a greater recovery as to the Mortgage
Loan. Upon the occurrence of a Cash Liquidation or REO Disposition, following
the deposit in the Custodial Account of all Insurance Proceeds, Liquidation
Proceeds and other payments and recoveries referred to in the definition of
"Cash Liquidation" or "REO Disposition," as applicable, upon receipt by the
Trustee of written notification of such deposit signed by a Servicing Officer,
the Trustee or any Custodian, as the case may be, shall release to the Master
Servicer the related Mortgage File and the Trustee shall execute and deliver
such instruments of transfer or assignment prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Master Servicer
or its designee, as the case may be, the related Mortgage Loan, and thereafter
such Mortgage Loan shall not be part of the Trust Fund. Notwithstanding the
foregoing or any other provision of this Agreement, in the Master Servicer's
sole discretion with respect to any defaulted Mortgage Loan or REO Property as
to either of the following provisions, (i) a Cash Liquidation or REO Disposition
may be deemed to have occurred if substantially all amounts expected by the
Master Servicer to be received in connection with the related defaulted Mortgage
Loan or REO Property have been received, and (ii) for purposes of determining
the amount of any Liquidation Proceeds, Insurance Proceeds, REO Proceeds or any
other unscheduled collections or the amount of any Realized Loss, the Master
Servicer may take into account minimal amounts of additional receipts expected
to be received or any estimated additional liquidation expenses expected to be
incurred in connection with the related defaulted Mortgage Loan or REO Property.
(b) If title to any Mortgaged Property is acquired by the Trust Fund as
an REO Property by foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee or to its nominee on behalf
of Certificateholders. Notwithstanding any such acquisition of title and
cancellation of the related Mortgage Loan, such REO Property shall (except as
otherwise expressly provided herein) be considered to be an Outstanding Mortgage
Loan held in the Trust Fund until such time as the REO Property shall be sold.
Consistent with the foregoing for purposes of all calculations hereunder so long
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as such REO Property shall be considered to be an Outstanding Mortgage Loan it
shall be assumed that, notwithstanding that the indebtedness evidenced by the
related Mortgage Note shall have been discharged, such Mortgage Note and the
related amortization schedule in effect at the time of any such acquisition of
title (after giving effect to any previous Curtailments and before any
adjustment thereto by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period) remain in effect.
(c) If the Trust Fund acquires any REO Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the Master Servicer on behalf of the Trust Fund shall dispose of such REO
Property as soon as practicable, giving due consideration to the interests of
the Certificateholders, but in all cases within three full years after the
taxable year of its acquisition by the Trust Fund for purposes of Section
860G(a)(8) of the Code (or such shorter period as may be necessary under
applicable state (including any state in which such property is located) law to
maintain the status of any portion of any REMIC formed under the Series
Supplement as a REMIC under applicable state law and avoid taxes resulting from
such property failing to be foreclosure property under applicable state law) or,
at the expense of the Trust Fund, request, more than 60 days before the day on
which such grace period would otherwise expire, an extension of such grace
period unless the Master Servicer (subject to Section 10.01(f)) obtains for the
Trustee an Opinion of Counsel, addressed to the Trustee and the Master Servicer,
to the effect that the holding by the Trust Fund of such REO Property subsequent
to such period will not result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code or cause any REMIC formed
under the Series Supplement to fail to qualify as a REMIC (for federal (or any
applicable State or local) income tax purposes) at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to hold
such REO Property (subject to any conditions contained in such Opinion of
Counsel). The Master Servicer shall be entitled to be reimbursed from the
Custodial Account for any costs incurred in obtaining such Opinion of Counsel,
as provided in Section 3.10. Notwithstanding any other provision of this
Agreement, no REO Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) subject the Trust Fund to the imposition
of any federal income taxes on the income earned from such REO Property,
including any taxes imposed by reason of Section 860G(c) of the Code, unless the
Master Servicer has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
(d) The proceeds of any Cash Liquidation, REO Disposition or purchase or
repurchase of any Mortgage Loan pursuant to the terms of this Agreement, as well
as any recovery resulting from a collection of Liquidation Proceeds, Insurance
Proceeds or REO Proceeds, will be applied in the following order of priority:
first, to reimburse the Master Servicer or the related Subservicer in accordance
with Section 3.10(a)(ii); second, to the Certificateholders to the extent of
accrued and unpaid interest on the Mortgage Loan, and any related REO Imputed
Interest, at the Net Mortgage Rate (or the Modified Net Mortgage Rate in the
case of a Modified Mortgage Loan) to the Due Date prior to the Distribution Date
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on which such amounts are to be distributed; third, to the Certificateholders as
a recovery of principal on the Mortgage Loan (or REO Property); fourth, to all
Servicing Fees and Subservicing Fees payable therefrom (and the Master Servicer
and the Subservicer shall have no claims for any deficiencies with respect to
such fees which result from the foregoing allocation); and fifth, to Foreclosure
Profits.
(e) In the event of a default on a Mortgage Loan one or more of whose
obligors is not a United States Person, in connection with any foreclosure or
acquisition of a deed in lieu of foreclosure (together, "foreclosure") in
respect of such Mortgage Loan, the Master Servicer will cause compliance with
the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any successor
thereto) necessary to assure that no withholding tax obligation arises with
respect to the proceeds of such foreclosure except to the extent, if any, that
proceeds of such foreclosure are required to be remitted to the obligors on such
Mortgage Loan.
Section 3.15. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
upon the receipt by the Master Servicer of a notification that payment in full
will be escrowed in a manner customary for such purposes, the Master Servicer
will immediately notify the Trustee (if it holds the related Mortgage File) or
the Custodian by a certification of a Servicing Officer (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Custodial Account pursuant to Section 3.07 have been or will be so
deposited), substantially in one of the forms attached hereto as Exhibit F, or,
in the case of the Custodian, an electronic request in a form acceptable to the
Custodian, requesting delivery to it of the Mortgage File. Within two Business
Days of receipt of such certification and request, the Trustee shall release, or
cause the Custodian to release, the related Mortgage File to the Master
Servicer. The Master Servicer is authorized to execute and deliver to the
Mortgagor the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage,
together with the Mortgage Note with, as appropriate, written evidence of
cancellation thereon and to cause the removal from the registration on the
MERS(R) System of such Mortgage and to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation or of partial or full release. No expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Custodial Account or the Certificate Account.
(b) From time to time as is appropriate for the servicing or foreclosure
of any Mortgage Loan, the Master Servicer shall deliver to the Custodian, with a
copy to the Trustee, a certificate of a Servicing Officer substantially in one
of the forms attached as Exhibit F hereto, or, in the case of the Custodian, an
electronic request in a form acceptable to the Custodian, requesting that
possession of all, or any document constituting part of, the Mortgage File be
released to the Master Servicer and certifying as to the reason for such release
and that such release will not invalidate any insurance coverage provided in
respect of the Mortgage Loan under any Required Insurance Policy. Upon receipt
of the foregoing, the Trustee shall deliver, or cause the Custodian to deliver,
the Mortgage File or any document therein to the Master Servicer. The Master
Servicer shall cause each Mortgage File or any document therein so released to
be returned to the Trustee, or the Custodian as agent for the Trustee when the
need therefor by the Master Servicer no longer exists, unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
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Loan have been deposited in the Custodial Account or (ii) the Mortgage File or
such document has been delivered directly or through a Subservicer to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
the Master Servicer has delivered directly or through a Subservicer to the
Trustee a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. In the event of the liquidation of
a Mortgage Loan, the Trustee shall deliver the Request for Release with respect
thereto to the Master Servicer upon deposit of the related Liquidation Proceeds
in the Custodial Account.
(c) The Trustee or the Master Servicer on the Trustee's behalf shall
execute and deliver to the Master Servicer, if necessary, any court pleadings,
requests for trustee's sale or other documents necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity. Together with such documents or pleadings (if signed by the Trustee),
the Master Servicer shall deliver to the Trustee a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will not invalidate any
insurance coverage under any Required Insurance Policy or invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.16. Servicing and Other Compensation; Compensating Interest.
(a) The Master Servicer, as compensation for its activities hereunder,
shall be entitled to receive on each Distribution Date the amounts provided for
by clauses (iii), (iv), (v) and (vi) of Section 3.10(a), subject to clause (e)
below. The amount of servicing compensation provided for in such clauses shall
be accounted for on a Mortgage Loan-by-Mortgage Loan basis. In the event that
Liquidation Proceeds, Insurance Proceeds and REO Proceeds (net of amounts
reimbursable therefrom pursuant to Section 3.10(a)(ii)) in respect of a Cash
Liquidation or REO Disposition exceed the unpaid principal balance of such
Mortgage Loan plus unpaid interest accrued thereon (including REO Imputed
Interest) at a per annum rate equal to the related Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), the Master
Servicer shall be entitled to retain therefrom and to pay to itself and/or the
related Subservicer, any Foreclosure Profits and any Servicing Fee or
Subservicing Fee considered to be accrued but unpaid.
(b) Additional servicing compensation in the form of prepayment charges,
assumption fees, late payment charges, investment income on amounts in the
Custodial Account or the Certificate Account or otherwise shall be retained by
the Master Servicer or the Subservicer to the extent provided herein, subject to
clause (e) below.
(c) The Master Servicer shall be required to pay, or cause to be paid,
all expenses incurred by it in connection with its servicing activities
hereunder
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(including payment of premiums for the Primary Insurance Policies, if any, to
the extent such premiums are not required to be paid by the related Mortgagors,
and the fees and expenses of the Trustee and any co-trustee (as provided in
Section 8.05) and the fees and expense of any Custodian) and shall not be
entitled to reimbursement therefor except as specifically provided in Sections
3.10 and 3.14.
(d) The Master Servicer's right to receive servicing compensation may
not be transferred in whole or in part except in connection with the transfer of
all of its responsibilities and obligations of the Master Servicer under this
Agreement.
(e) Notwithstanding any other provision herein, the amount of servicing
compensation that the Master Servicer shall be entitled to receive for its
activities hereunder for the period ending on each Distribution Date shall be
reduced (but not below zero) by an amount equal to Compensating Interest (if
any) for such Distribution Date. Such reduction shall be applied during such
period as follows: first, to any Servicing Fee or Subservicing Fee to which the
Master Servicer is entitled pursuant to Section 3.10(a)(iii), and second, to any
income or gain realized from any investment of funds held in the Custodial
Account or the Certificate Account to which the Master Servicer is entitled
pursuant to Sections 3.07(c) or 4.01(b), respectively. In making such reduction,
the Master Servicer (i) will not withdraw from the Custodial Account any such
amount representing all or a portion of the Servicing Fee to which it is
entitled pursuant to Section 3.10(a)(iii), and (ii) will not withdraw from the
Custodial Account or Certificate Account any such amount to which it is entitled
pursuant to Section 3.07(c) or 4.01(b).
Section 3.17. Reports to the Trustee and the Company.
Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee and the Company a statement, certified by
a Servicing Officer, setting forth the status of the Custodial Account as of the
close of business on such Distribution Date as it relates to the Mortgage Loans
and showing, for the period covered by such statement, the aggregate of deposits
in or withdrawals from the Custodial Account in respect of the Mortgage Loans
for each category of deposit specified in Section 3.07 and each category of
withdrawal specified in Section 3.10.
Section 3.18. Annual Statement as to Compliance.
The Master Servicer will deliver to the Company and the Trustee on or
before the earlier of (a) March 31 of each year, beginning with the first March
31 that occurs at least six months after the Cut-off Date or (b) with respect to
any calendar year during which the Company's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, the date on which the annual report on Form 10-K
is required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, an Officers' Certificate stating, as to each
signer thereof, that (i) a review of the activities of the Master Servicer
during the preceding calendar year related to its servicing of mortgage loans
and its performance under pooling and servicing agreements, including this
Agreement, has been made under such officers' supervision, (ii) to the best of
such officers' knowledge, based on such review, the Master Servicer has complied
in all material respects with the minimum servicing standards set forth in the
Uniform Single Attestation Program for Mortgage Bankers and has fulfilled all of
its material obligations relating to this Agreement in all material respects
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throughout such year, or, if there has been material noncompliance with such
servicing standards or a default in the fulfillment in all material respects of
any such obligation relating to this Agreement, such statement shall include a
description of such noncompliance or specify each such default, as the case may
be, known to such officer and the nature and status thereof and (iii) to the
best of such officers' knowledge, each Subservicer has complied in all material
respects with the minimum servicing standards set forth in the Uniform Single
Attestation Program for Mortgage Bankers and has fulfilled all of its material
obligations under its Subservicing Agreement in all material respects throughout
such year, or, if there has been material noncompliance with such servicing
standards or a material default in the fulfillment of such obligations relating
to this Agreement, such statement shall include a description of such
noncompliance or specify each such default, as the case may be, known to such
officer and the nature and status thereof.
Section 3.19. Annual Independent Public Accountants' Servicing Report.
On or before the earlier of (a) March 31 of each year, beginning with
the first March 31 that occurs at least six months after the Cut-off Date, or
(b) with respect to any calendar year during which the Company's annual report
on Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, the date on which the annual report is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, the Master Servicer at its expense shall cause a
firm of independent public accountants, which shall be members of the American
Institute of Certified Public Accountants, to furnish a report to the Company
and the Trustee stating its opinion that, on the basis of an examination
conducted by such firm substantially in accordance with standards established by
the American Institute of Certified Public Accountants, the assertions made
pursuant to Section 3.18 regarding compliance with the minimum servicing
standards set forth in the Uniform Single Attestation Program for Mortgage
Bankers during the preceding calendar year are fairly stated in all material
respects, subject to such exceptions and other qualifications that, in the
opinion of such firm, such accounting standards require it to report. In
rendering such statement, such firm may rely, as to matters relating to the
direct servicing of mortgage loans by Subservicers, upon comparable statements
for examinations conducted by independent public accountants substantially in
accordance with standards established by the American Institute of Certified
Public Accountants (rendered within one year of such statement) with respect to
such Subservicers.
Section 3.20. Rights of the Company in Respect of the Master Servicer.
The Master Servicer shall afford the Company, upon reasonable notice,
during normal business hours access to all records maintained by the Master
Servicer in respect of its rights and obligations hereunder and access to
officers of the Master Servicer responsible for such obligations. Upon request,
the Master Servicer shall furnish the Company with its most recent financial
statements and such other information as the Master Servicer possesses regarding
its business, affairs, property and condition, financial or otherwise. The
Master Servicer shall also cooperate with all reasonable requests for
information including, but not limited to, notices, tapes and copies of files,
regarding itself, the Mortgage Loans or the Certificates from any Person or
Persons identified by the Company or Residential Funding. The Company may, but
is not obligated to, enforce the obligations of the Master Servicer hereunder
and may, but is not obligated to, perform, or cause a designee to perform, any
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defaulted obligation of the Master Servicer hereunder or exercise the rights of
the Master Servicer hereunder; provided that the Master Servicer shall not be
relieved of any of its obligations hereunder by virtue of such performance by
the Company or its designee. The Company shall not have any responsibility or
liability for any action or failure to act by the Master Servicer and is not
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
Section 3.21. Administration of Buydown Funds
(a) With respect to any Buydown Mortgage Loan, the Subservicer has
deposited Buydown Funds in an account that satisfies the requirements for a
Subservicing Account (the "Buydown Account"). The Master Servicer shall cause
the Subservicing Agreement to require that upon receipt from the Mortgagor of
the amount due on a Due Date for each Buydown Mortgage Loan, the Subservicer
will withdraw from the Buydown Account the predetermined amount that, when added
to the amount due on such date from the Mortgagor, equals the full Monthly
Payment and transmit that amount in accordance with the terms of the
Subservicing Agreement to the Master Servicer together with the related payment
made by the Mortgagor or advanced by the Subservicer.
(b) If the Mortgagor on a Buydown Mortgage Loan prepays such loan in its
entirety during the period (the "Buydown Period") when Buydown Funds are
required to be applied to such Buydown Mortgage Loan, the Subservicer shall be
required to withdraw from the Buydown Account and remit any Buydown Funds
remaining in the Buydown Account in accordance with the related buydown
agreement. The amount of Buydown Funds which may be remitted in accordance with
the related buydown agreement may reduce the amount required to be paid by the
Mortgagor to fully prepay the related Mortgage Loan. If the Mortgagor on a
Buydown Mortgage Loan defaults on such Mortgage Loan during the Buydown Period
and the property securing such Buydown Mortgage Loan is sold in the liquidation
thereof (either by the Master Servicer or the insurer under any related Primary
Insurance Policy), the Subservicer shall be required to withdraw from the
Buydown Account the Buydown Funds for such Buydown Mortgage Loan still held in
the Buydown Account and remit the same to the Master Servicer in accordance with
the terms of the Subservicing Agreement for deposit in the Custodial Account or,
if instructed by the Master Servicer, pay to the insurer under any related
Primary Insurance Policy if the Mortgaged Property is transferred to such
insurer and such insurer pays all of the loss incurred in respect of such
default. Any amount so remitted pursuant to the preceding sentence will be
deemed to reduce the amount owed on the Mortgage Loan.
Section 3.22. Advance Facility
(a) The Master Servicer is hereby authorized to enter into a financing
or other facility (any such arrangement, an "Advance Facility") under which (1)
the Master Servicer sells, assigns or pledges to another Person (an "Advancing
Person") the Master Servicer's rights under this Agreement to be reimbursed for
any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund
some or all Advances and/or Servicing Advances required to be made by the Master
Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee,
the Certificateholders or any other party shall be required before the Master
Servicer may enter into an Advance Facility. Notwithstanding the existence of
any Advance Facility under which an Advancing Person agrees to fund Advances
and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer
shall remain obligated pursuant to this Agreement to make Advances and Servicing
Advances pursuant to and as required by this Agreement. If the Master Servicer
enters into an Advance Facility, and for so long as an Advancing Person remains
entitled to receive reimbursement for any Advances including Nonrecoverable
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Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including
Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together
with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to
the extent such type of Reimbursement Amount is included in the Advance
Facility), as applicable, pursuant to this Agreement, then the Master Servicer
shall identify such Reimbursement Amounts consistent with the reimbursement
rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement
Amounts in accordance with this Section 3.22 or otherwise in accordance with the
documentation establishing the Advance Facility to such Advancing Person or to a
trustee, agent or custodian (an "Advance Facility Trustee") designated by such
Advancing Person in an Advance Facility Notice described below in Section
3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of
the Advance Facility, the Master Servicer may direct, and if so directed in
writing the Trustee is hereby authorized to and shall pay to the Advance
Facility Trustee the Reimbursement Amounts identified pursuant to the preceding
sentence. An Advancing Person whose obligations hereunder are limited to the
funding of Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a)
or 6.02(c) hereof and shall not be deemed to be a Subservicer under this
Agreement. Notwithstanding anything to the contrary herein, in no event shall
Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be
included in the Available Distribution Amount or distributed to
Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes the
election set forth in Section 3.22(a), the Master Servicer and the related
Advancing Person shall deliver to the Certificate Insurer and the Trustee a
written notice and payment instruction (an "Advance Facility Notice"), providing
the Trustee with written payment instructions as to where to remit Advance
Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to
the extent such type of Reimbursement Amount is included within the Advance
Facility) on subsequent Distribution Dates. The payment instruction shall
require the applicable Reimbursement Amounts to be distributed to the Advancing
Person or to an Advance Facility Trustee designated in the Advance Facility
Notice. An Advance Facility Notice may only be terminated by the joint written
direction of the Master Servicer and the related Advancing Person (and any
related Advance Facility Trustee). The Master Servicer shall provide the
Certificate Insurer, if any, with notice of any termination of any Advance
Facility pursuant to this Section 3.22(b).
(c) Reimbursement Amounts shall consist solely of amounts in respect of
Advances and/or Servicing Advances made with respect to the Mortgage Loans for
which the Master Servicer would be permitted to reimburse itself in accordance
with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the
Advancing Person had made the related Advance(s) and/or Servicing Advance(s).
Notwithstanding the foregoing, except with respect to reimbursement of
Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no
Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this
Agreement. Neither the Depositor nor the Trustee shall have any duty or
liability with respect to the calculation of any Reimbursement Amount, nor shall
the Depositor or the Trustee have any responsibility to track or monitor the
administration of the Advance Facility or have any responsibility to track,
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Person or Advance Facility Trustee; provided, however, the Trustee shall
maintain records with respect to the payment of such Reimbursement Amounts as it
does with respect to other distributions made pursuant to this Agreement. The
Master Servicer shall maintain and provide to any Successor Master Servicer a
detailed accounting on a loan-by-loan basis as to amounts advanced by, sold,
pledged or assigned to, and reimbursed to any Advancing Person. The Successor
Master Servicer shall be entitled to rely on any such information provided by
the Master Servicer and the Successor Master Servicer shall not be liable for
any errors in such information.
(d) Upon the direction of and at the expense of the Master Servicer, the
Trustee agrees to execute such acknowledgments reasonably satisfactory to the
Trustee provided by the Master Servicer recognizing the interests of any
Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as
the Master Servicer may cause to be made subject to Advance Facilities pursuant
to this Section 3.22.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be
allocated to outstanding unreimbursed Advances or Servicing Advances (as the
case may be) made with respect to that Mortgage Loan on a "first-in, first out"
("FIFO") basis, subject to the qualifications set forth below:
(i) Any successor Master Servicer to Residential Funding (a
"Successor Master Servicer") and the Advancing Person or Advance
Facility Trustee shall be required to apply all amounts available in
accordance with this Section 3.22(e) to the reimbursement of Advances
and Servicing Advances in the manner provided for herein; provided,
however, that after the succession of a Successor Master Servicer, (A)
to the extent that any Advances or Servicing Advances with respect to
any particular Mortgage Loan are reimbursed from payments or recoveries,
if any, from the related Mortgagor, and Liquidation Proceeds or
Insurance Proceeds, if any, with respect to that Mortgage Loan,
reimbursement shall be made, first, to the Advancing Person or Advance
Facility Trustee in respect of Advances and/or Servicing Advances
related to that Mortgage Loan to the extent of the interest of the
Advancing Person or Advance Facility Trustee in such Advances and/or
Servicing Advances, second to the Master Servicer in respect of Advances
and/or Servicing Advances related to that Mortgage Loan in excess of
those in which the Advancing Person or Advance Facility Trustee Person
has an interest, and third, to the Successor Master Servicer in respect
of any other Advances and/or Servicing Advances related to that Mortgage
Loan, from such sources as and when collected, and (B) reimbursements of
Advances and Servicing Advances that are Nonrecoverable Advances shall
be made pro rata to the Advancing Person or Advance Facility Trustee, on
the one hand, and any such Successor Master Servicer, on the other hand,
on the basis of the respective aggregate outstanding unreimbursed
Advances and Servicing Advances that are Nonrecoverable Advances owed to
the Advancing Person, Advance Facility Trustee or Master Servicer
pursuant to this Agreement, on the one hand, and any such Successor
Master Servicer, on the other hand, and without regard to the date on
which any such Advances or Servicing Advances shall have been made. In
the event that, as a result of the FIFO allocation made pursuant to this
Section 3.22(e), some or all of a Reimbursement Amount paid to the
Advancing Person or Advance Facility Trustee relates to Advances or
Servicing Advances that were made by a Person other than Residential
Funding or the Advancing Person or Advance Facility Trustee, then the
Advancing Person or Advance Facility Trustee shall be required to remit
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any portion of such Reimbursement Amount to the Person entitled to such
portion of such Reimbursement Amount. Without limiting the generality of
the foregoing, Residential Funding shall remain entitled to be
reimbursed by the Advancing Person or Advance Facility Trustee for all
Advances and Servicing Advances funded by Residential Funding to the
extent the related Reimbursement Amount(s) have not been assigned or
pledged to an Advancing Person or Advance Facility Trustee. The
documentation establishing any Advance Facility shall require
Residential Funding to provide to the related Advancing Person or
Advance Facility Trustee loan by loan information with respect to each
Reimbursement Amount distributed to such Advancing Person or Advance
Facility Trustee on each date of remittance thereof to such Advancing
Person or Advance Facility Trustee, to enable the Advancing Person or
Advance Facility Trustee to make the FIFO allocation of each
Reimbursement Amount with respect to each Mortgage Loan.
(ii) By way of illustration, and not by way of limiting the
generality of the foregoing, if the Master Servicer resigns or is
terminated at a time when the Master Servicer is a party to an Advance
Facility, and is replaced by a Successor Master Servicer, and the
Successor Master Servicer directly funds Advances or Servicing Advances
with respect to a Mortgage Loan and does not assign or pledge the
related Reimbursement Amounts to the related Advancing Person or Advance
Facility Trustee, then all payments and recoveries received from the
related Mortgagor or received in the form of Liquidation Proceeds with
respect to such Mortgage Loan (including Insurance Proceeds collected in
connection with a liquidation of such Mortgage Loan) will be allocated
first to the Advancing Person or Advance Facility Trustee until the
related Reimbursement Amounts attributable to such Mortgage Loan that
are owed to the Master Servicer and the Advancing Person, which were
made prior to any Advances or Servicing Advances made by the Successor
Master Servicer, have been reimbursed in full, at which point the
Successor Master Servicer shall be entitled to retain all related
Reimbursement Amounts subsequently collected with respect to that
Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent
that the Advances or Servicing Advances are Nonrecoverable Advances to
be reimbursed on an aggregate basis pursuant to Section 3.10 of this
Agreement, the reimbursement paid in this manner will be made pro rata
to the Advancing Person or Advance Facility Trustee, on the one hand,
and the Successor Master Servicer, on the other hand, as described in
clause (i)(B) above.
(f) The Master Servicer shall remain entitled to be reimbursed for all
Advances and Servicing Advances funded by the Master Servicer to the extent the
related rights to be reimbursed therefor have not been sold, assigned or pledged
to an Advancing Person.
(g) Any amendment to this Section 3.22 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an Advance
Facility as described generally in this Section 3.22, including amendments to
add provisions relating to a successor master servicer, may be entered into by
the Trustee, the Certificate Insurer, Depositor and the Master Servicer without
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the consent of any Certificateholder, with written confirmation from each Rating
Agency that the amendment will not result in the reduction of the ratings on any
class of the Certificates below the lesser of the then current or original
ratings on such Certificates, notwithstanding anything to the contrary in
Section 11.01 of or elsewhere in this Agreement.
(h) Any rights of set-off that the Trust Fund, the Trustee, the
Depositor, any Successor Master Servicer or any other Person might otherwise
have against the Master Servicer under this Agreement shall not attach to any
rights to be reimbursed for Advances or Servicing Advances that have been sold,
transferred, pledged, conveyed or assigned to any Advancing Person.
(i) At any time when an Advancing Person shall have ceased funding
Advances and/or Servicing Advances (as the case may be) and the Advancing Person
or related Advance Facility Trustee shall have received Reimbursement Amounts
sufficient in the aggregate to reimburse all Advances and/or Servicing Advances
(as the case may be) the right to reimbursement for which were assigned to the
Advancing Person, then upon the delivery of a written notice signed by the
Advancing Person and the Master Servicer or its successor or assign) to the
Trustee terminating the Advance Facility Notice (the "Notice of Facility
Termination"), the Master Servicer or its Successor Master Servicer shall again
be entitled to withdraw and retain the related Reimbursement Amounts from the
Custodial Account pursuant to Section 3.10.
(j) After delivery of any Advance Facility Notice, and until any such
Advance Facility Notice has been terminated by a Notice of Facility Termination,
this Section 3.22 may not be amended or otherwise modified without the prior
written consent of the related Advancing Person.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account.
(a) The Master Servicer on behalf of the Trustee shall establish and
maintain a Certificate Account in which the Master Servicer shall cause to be
deposited on behalf of the Trustee on or before 2:00 P.M. New York time on each
Certificate Account Deposit Date by wire transfer of immediately available funds
an amount equal to the sum of (i) any Advance for the immediately succeeding
Distribution Date, (ii) any amount required to be deposited in the Certificate
Account pursuant to Section 3.12(a), (iii) any amount required to be deposited
in the Certificate Account pursuant to Section 3.16(e) or Section 4.07, (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.
(b) The Trustee shall, upon written request from the Master Servicer,
invest or cause the institution maintaining the Certificate Account to invest
the funds in the Certificate Account in Permitted Investments designated in the
name of the Trustee for the benefit of the Certificateholders, which shall
mature or be payable on demand not later than the Business Day next preceding
the Distribution Date next following the date of such investment (except that
(i) any investment in the institution with which the Certificate Account is
maintained may mature or be payable on demand on such Distribution Date and (ii)
any other investment may mature or be payable on demand on such Distribution
Date if the Trustee shall advance funds on such Distribution Date to the
Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
distributions on the Certificates) and shall not be sold or disposed of prior to
maturity. Subject to Section 3.16(e), all income and gain realized from any such
investment shall be for the benefit of the Master Servicer and shall be subject
to its withdrawal or order from time to time. The amount of any losses incurred
in respect of any such investments shall be deposited in the Certificate Account
by the Master Servicer out of its own funds immediately as realized without any
right of reimbursement. The Trustee or its Affiliates are permitted to receive
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser (with respect to investments made through
its Affiliates), administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments.
Section 4.02. Distributions.
As provided in Section 4.02 of the Series Supplement.
Section 4.03. Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting.
(a) Concurrently with each distribution charged to the
Certificate Account and with respect to each Distribution Date the Master
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Servicer shall forward to the Trustee and the Trustee shall either forward by
mail or make available to each Holder and the Company, via the Trustee's
internet website, a statement (and at its option, any additional files
containing the same information in an alternative format) setting forth
information as to each Class of Certificates, the Mortgage Pool and, if the
Mortgage Pool is comprised of two or more Loan Groups, each Loan Group, to the
extent applicable. This statement will include the information set forth in an
exhibit to the Series Supplement. Such exhibit shall set forth the Trustee's
internet website address together with a phone number. The Trustee shall mail to
each Holder that requests a paper copy by telephone a paper copy via first class
mail. The Trustee may modify the distribution procedures set forth in this
Section provided that such procedures are no less convenient for the
Certificateholders. The Trustee shall provide prior notification to the Company,
the Master Servicer and the Certificateholders regarding any such modification.
In addition, the Master Servicer shall provide to any manager of a trust fund
consisting of some or all of the Certificates, upon reasonable request, such
additional information as is reasonably obtainable by the Master Servicer at no
additional expense to the Master Servicer. Also, at the request of a Rating
Agency, the Master Servicer shall provide the information relating to the
Reportable Modified Mortgage Loans substantially in the form attached hereto as
Exhibit Q to such Rating Agency within a reasonable period of time; provided,
however, that the Master Servicer shall not be required to provide such
information more than four times in a calendar year to any Rating Agency.
(b) Within a reasonable period of time after the end of each
calendar year, the Master Servicer shall prepare, or cause to be prepared, and
shall forward, or cause to be forwarded, to each Person who at any time during
the calendar year was the Holder of a Certificate, other than a Class R
Certificate, a statement containing the information set forth in clauses (i) and
(ii) of the exhibit to the Series Supplement referred to in subsection (a) above
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Master Servicer
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Master Servicer pursuant to any
requirements of the Code.
(c) Within a reasonable period of time after the end of each
calendar year, the Master Servicer shall prepare, or cause to be prepared, and
shall forward, or cause to be forwarded, to each Person who at any time during
the calendar year was the Holder of a Class R Certificate, a statement
containing the applicable distribution information provided pursuant to this
Section 4.03 aggregated for such calendar year or applicable portion thereof
during which such Person was the Holder of a Class R Certificate. Such
obligation of the Master Servicer shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Master
Servicer pursuant to any requirements of the Code.
(d) Upon the written request of any Certificateholder, the Master
Servicer, as soon as reasonably practicable, shall provide the requesting
Certificateholder with such information as is necessary and appropriate, in the
Master Servicer's sole discretion, for purposes of satisfying applicable
reporting requirements under Rule 144A.
(e) The Master Servicer shall, on behalf of the Depositor and in
respect of the Trust Fund, sign and cause to be filed with the Commission any
periodic reports required to be filed under the provisions of the Exchange Act,
and the rules and regulations of the Commission thereunder. In connection with
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the preparation and filing of such periodic reports, the Trustee shall timely
provide to the Master Servicer (I) a list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year, (II) copies of all
pleadings, other legal process and any other documents relating to any claims,
charges or complaints involving the Trustee, as trustee hereunder, or the Trust
Fund that are received by the Trustee, (III) notice of all matters that, to the
actual knowledge of a Responsible Officer of the Trustee, have been submitted to
a vote of the Certificateholders, other than those matters that have been
submitted to a vote of the Certificateholders at the request of the Depositor or
the Master Servicer, and (IV) notice of any failure of the Trustee to make any
distribution to the Certificateholders as required pursuant to the Series
Supplement. Neither the Master Servicer nor the Trustee shall have any liability
with respect to the Master Servicer's failure to properly prepare or file such
periodic reports resulting from or relating to the Master Servicer's inability
or failure to obtain any information not resulting from the Master Servicer's
own negligence or willful misconduct. Any Form 10-K filed with the Commission in
connection with this Section 4.03(e) shall include a certification, signed by
the senior officer in charge of the servicing functions of the Master Servicer,
in the form attached as Exhibit O hereto or such other form as may be required
or permitted by the Commission (the "Form 10-K Certification"), in compliance
with Rules 13a-14 and 15d-14 under the Exchange Act and any additional
directives of the Commission. In connection with the Form 10-K Certification,
the Trustee shall provide the Master Servicer with a back-up certification
substantially in the form attached hereto as Exhibit P. This Section 4.03(e) may
be amended in accordance with this Agreement without the consent of the
Certificateholders.
Section 4.04. Distribution of Reports to the Trustee and the
Company; Advances by the Master Servicer.
(a) Prior to the close of business on the Determination Date, the Master
Servicer shall furnish a written statement to the Trustee, any Certificate
Insurer, any Paying Agent and the Company (the information in such statement to
be made available to Certificateholders by the Master Servicer on request)
setting forth (i) the Available Distribution Amount and (ii) the amounts
required to be withdrawn from the Custodial Account and deposited into the
Certificate Account on the immediately succeeding Certificate Account Deposit
Date pursuant to clause (iii) of Section 4.01(a). The determination by the
Master Servicer of such amounts shall, in the absence of obvious error, be
presumptively deemed to be correct for all purposes hereunder and the Trustee
shall be protected in relying upon the same without any independent check or
verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account
Deposit Date, the Master Servicer shall either (i) deposit in the Certificate
Account from its own funds, or funds received therefor from the Subservicers, an
amount equal to the Advances to be made by the Master Servicer in respect of the
related Distribution Date, which shall be in an aggregate amount equal to the
aggregate amount of Monthly Payments (with each interest portion thereof
adjusted to the Net Mortgage Rate), less the amount of any related Servicing
Modifications, Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Servicemembers Civil Relief Act,
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 not received as of the close of business as of the related Determination
Date; provided that no Advance shall be made if it would be a Nonrecoverable
Advance, (ii) withdraw from amounts on deposit in the Custodial Account and
deposit in the Certificate Account all or a portion of the Amount Held for
Future Distribution in discharge of any such Advance, or (iii) make advances in
the form of any combination of (i) and (ii) aggregating the amount of such
Advance. Any portion of the Amount Held for Future Distribution so used shall be
replaced by the Master Servicer by deposit in the Certificate Account on or
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before 11:00 A.M. New York time on any future Certificate Account Deposit Date
to the extent that funds attributable to the Mortgage Loans that are available
in the Custodial Account for deposit in the Certificate Account on such
Certificate Account Deposit Date shall be less than payments to
Certificateholders required to be made on the following Distribution Date. The
Master Servicer shall be entitled to use any Advance made by a Subservicer as
described in Section 3.07(b) that has been deposited in the Custodial Account on
or before such Distribution Date as part of the Advance made by the Master
Servicer pursuant to this Section 4.04. The amount of any reimbursement pursuant
to Section 4.02(a) in respect of outstanding Advances on any Distribution Date
shall be allocated to specific Monthly Payments due but delinquent for previous
Due Periods, which allocation shall be made, to the extent practicable, to
Monthly Payments which have been delinquent for the longest period of time. Such
allocations shall be conclusive for purposes of reimbursement to the Master
Servicer from recoveries on related Mortgage Loans pursuant to Section 3.10.
The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate of the
Master Servicer delivered to the Company and the Trustee.
If the Master Servicer determines as of the Business Day preceding any
Certificate Account Deposit Date that it will be unable to deposit in the
Certificate Account an amount equal to the Advance required to be made for the
immediately succeeding Distribution Date, it shall give notice to the Trustee of
its inability to advance (such notice may be given by telecopy), not later than
3:00 P.M., New York time, on such Business Day, specifying the portion of such
amount that it will be unable to deposit. Not later than 3:00 P.M., New York
time, on the Certificate Account Deposit Date the Trustee shall, unless by 12:00
Noon, New York time, on such day the Trustee shall have been notified in writing
(by telecopy) that the Master Servicer shall have directly or indirectly
deposited in the Certificate Account such portion of the amount of the Advance
as to which the Master Servicer shall have given notice pursuant to the
preceding sentence, pursuant to Section 7.01, (a) terminate all of the rights
and obligations of the Master Servicer under this Agreement in accordance with
Section 7.01 and (b) assume the rights and obligations of the Master Servicer
hereunder, including the obligation to deposit in the Certificate Account an
amount equal to the Advance for the immediately succeeding Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this Section
4.04 into the Certificate Account.
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Section 4.05. Allocation of Realized Losses.
As provided in Section 4.05 of the Series Supplement.
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.
The Master Servicer or the Subservicers shall file information returns
with respect to the receipt of mortgage interests received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P,
respectively, of the Code, and deliver to the Trustee an Officers' Certificate
on or before March 31 of each year stating that such reports have been filed.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.
As to any Mortgage Loan which is delinquent in payment by 90 days or
more, the Master Servicer may, at its option, purchase such Mortgage Loan from
the Trustee at the Purchase Price therefor. If at any time the Master Servicer
makes a payment to the Certificate Account covering the amount of the Purchase
Price for such a Mortgage Loan, and the Master Servicer provides to the Trustee
a certification signed by a Servicing Officer stating that the amount of such
payment has been deposited in the Certificate Account, then the Trustee shall
execute the assignment of such Mortgage Loan at the request of the Master
Servicer without recourse to the Master Servicer, which shall succeed to all the
Trustee's right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an assignment
outright and not for security. The Master Servicer will thereupon own such
Mortgage, and all such security and documents, free of any further obligation to
the Trustee or the Certificateholders with respect thereto.
If, however, the Master Servicer shall have exercised its right to
repurchase a Mortgage Loan pursuant to this Section 4.07 upon the written
request of and with funds provided by the Junior Certificateholder and thereupon
transferred such Mortgage Loan to the Junior Certificateholder, the Master
Servicer shall so notify the Trustee in writing.
Section 4.08. Surety Bond.
(a) If a Required Surety Payment is payable pursuant to the Surety Bond
with respect to any Additional Collateral Loan, the Master Servicer shall so
notify the Trustee as soon as reasonably practicable and the Trustee shall
promptly complete the notice in the form of Attachment 1 to the Surety Bond and
shall promptly submit such notice to the Surety as a claim for a Required
Surety. The Master Servicer shall upon request assist the Trustee in completing
such notice and shall provide any information requested by the Trustee in
connection therewith.
(b) Upon receipt of a Required Surety Payment from the Surety on behalf
of the Holders of Certificates, the Trustee shall deposit such Required Surety
Payment in the Certificate Account and shall distribute such Required Surety
Payment, or the proceeds thereof, in accordance with the provisions of Section
4.02.
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(c) The Trustee shall (i) receive as attorney-in-fact of each Holder of
a Certificate any Required Surety Payment from the Surety and (ii) disburse the
same to the Holders of such Certificates as set forth in Section 4.02.
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ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Senior, Class M, Class B and Class R Certificates shall be
substantially in the forms set forth in Exhibits A, B, C and D, respectively,
and shall, on original issue, be executed and delivered by the Trustee to the
Certificate Registrar for authentication and delivery to or upon the order of
the Company upon receipt by the Trustee or one or more Custodians of the
documents specified in Section 2.01. The Certificates shall be issuable in the
minimum denominations designated in the Preliminary Statement to the Series
Supplement.
The Certificates shall be executed by manual or facsimile signature on
behalf of an authorized officer of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Trustee shall bind the Trustee, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Certificate Registrar by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) Except as provided below, registration of Book-Entry Certificates
may not be transferred by the Trustee except to another Depository that agrees
to hold such Certificates for the respective Certificate Owners with Ownership
Interests therein. The Holders of the Book-Entry Certificates shall hold their
respective Ownership Interests in and to each of such Certificates through the
book-entry facilities of the Depository and, except as provided below, shall not
be entitled to Definitive Certificates in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall transfer the Ownership
Interests only in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular matter shall not be
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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. In addition, if an Event of Default has occurred and is
continuing, each Certificate Owner materially adversely affected thereby may at
its option request a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in the related Class of Certificates. In order to make such
a request, such Certificate Owner shall, subject to the rules and procedures of
the Depository, provide the Depository or the related Depository Participant
with directions for the Certificate Registrar to exchange or cause the exchange
of the Certificate Owner's interest in such Class of Certificates for an
equivalent Percentage Interest in fully registered definitive form. Upon receipt
by the Certificate Registrar of instructions from the Depository directing the
Certificate Registrar to effect such exchange (such instructions shall contain
information regarding the Class of Certificates and the Certificate Principal
Balance being exchanged, the Depository Participant account to be debited with
the decrease, the registered holder of and delivery instructions for the
Definitive Certificate, and any other information reasonably required by the
Certificate Registrar), (i) the Certificate Registrar shall instruct the
Depository to reduce the related Depository Participant's account by the
aggregate Certificate Principal Balance of the Definitive Certificate, (ii) the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in accordance with the registration and delivery instructions provided
by the Depository, a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in such Class of Certificates and (iii) the Trustee shall
execute and the Certificate Registrar shall authenticate a new Book-Entry
Certificate reflecting the reduction in the aggregate Certificate Principal
Balance of such Class of Certificates by the Certificate Principal Balance of
the Definitive Certificate.
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 any instructions required under Section
5.01 and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Trustee and the
Master Servicer shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(c) If the Class A-V Certificates are Definitive Certificates, from time
to time Residential Funding, as the initial Holder of the Class A-V
Certificates, may exchange such Holder's Class A-V Certificates for Subclasses
of Class A-V Certificates to be issued under this Agreement by delivering a
"Request for Exchange" substantially in the form attached to this Agreement as
Exhibit N executed by an authorized officer, which Subclasses, in the aggregate,
will
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represent the Uncertificated Class A-V REMIC Regular Interests corresponding to
the Class A-V Certificates so surrendered for exchange. Any Subclass so issued
shall bear a numerical designation commencing with Class A-V-1 and continuing
sequentially thereafter, and will evidence ownership of the Uncertificated REMIC
Regular Interest or Interests specified in writing by such initial Holder to the
Trustee. The Trustee may conclusively, without any independent verification,
rely on, and shall be protected in relying on, Residential Funding's
determinations of the Uncertificated Class A-V REMIC Regular Interests
corresponding to any Subclass, the Initial Notional Amount and the initial
Pass-Through Rate on a Subclass as set forth in such Request for Exchange and
the Trustee shall have no duty to determine if any Uncertificated Class A-V
REMIC Regular Interest designated on a Request for Exchange corresponds to a
Subclass which has previously been issued. Each Subclass so issued shall be
substantially in the form set forth in Exhibit A and shall, on original issue,
be executed and delivered by the Trustee to the Certificate Registrar for
authentication and delivery in accordance with Section 5.01(a). Every
Certificate presented or surrendered for exchange by the initial Holder shall
(if so required by the Trustee or the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer attached to such
Certificate and shall be completed to the satisfaction of the Trustee and the
Certificate Registrar duly executed by, the initial Holder thereof or his
attorney duly authorized in writing. The Certificates of any Subclass of Class
A-V Certificates may be transferred in whole, but not in part, in accordance
with the provisions of Section 5.02.
Section 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the
provisions of Section 8.12 a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The
Trustee is initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges
of Certificates as herein provided. The Certificate Registrar, or
the Trustee, shall provide the Master Servicer with a certified
list of Certificateholders as of each Record Date prior to the
related Determination Date.
(b) Upon surrender for registration of transfer of any Certificate at
any office or agency of the Trustee maintained for such purpose
pursuant to Section 8.12 and, in the case of any Class M, Class B
or Class R Certificate, upon satisfaction of the conditions set
forth below, the Trustee shall execute and the Certificate
Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new
Certificates of a like Class (or Subclass) and aggregate
Percentage Interest.
(c) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a
like Class (or Subclass) and aggregate Percentage Interest, upon
surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for
exchange the Trustee shall execute and the Certificate Registrar
shall authenticate and deliver the Certificates of such Class
which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer
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or exchange shall (if so required by the Trustee or the
Certificate Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
(d) No transfer, sale, pledge or other disposition of a Class B
Certificate shall be made unless such transfer, sale, pledge or
other disposition is exempt from the registration requirements of
the Securities Act of 1933, as amended, and any applicable state
securities laws or is made in accordance with said Act and laws.
In the event that a transfer of a Class B Certificate is to be
made either (i)(A) the Trustee shall require a written Opinion of
Counsel acceptable to and in form and substance satisfactory to
the Trustee and the Company that such transfer may be made
pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not
be an expense of the Trustee, the Company or the Master Servicer
(except that, if such transfer is made by the Company or the
Master Servicer or any Affiliate thereof, the Company or the
Master Servicer shall provide such Opinion of Counsel at their
own expense); provided that such Opinion of Counsel will not be
required in connection with the initial transfer of any such
Certificate by the Company or any Affiliate thereof to the
Company or an Affiliate of the Company and (B) the Trustee shall
require the transferee to execute a representation letter,
substantially in the form of Exhibit H hereto, and the Trustee
shall require the transferor to execute a representation letter,
substantially in the form of Exhibit I hereto, each acceptable to
and in form and substance satisfactory to the Company and the
Trustee certifying to the Company and the Trustee the facts
surrounding such transfer, which representation letters shall not
be an expense of the Trustee, the Company or the Master Servicer;
provided, however, that such representation letters will not be
required in connection with any transfer of any such Certificate
by the Company or any Affiliate thereof to the Company or an
Affiliate of the Company, and the Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request
of the Trustee, shall be a written representation) from the
Company, of the status of such transferee as an Affiliate of the
Company or (ii) the prospective transferee of such a Certificate
shall be required to provide the Trustee, the Company and the
Master Servicer with an investment letter substantially in the
form of Exhibit J attached hereto (or such other form as the
Company in its sole discretion deems acceptable), which
investment letter shall not be an expense of the Trustee, the
Company or the Master Servicer, and which investment letter
states that, among other things, such transferee (A) is a
"qualified institutional buyer" as defined under Rule 144A,
acting for its own account or the accounts of other "qualified
institutional buyers" as defined under Rule 144A, and (B) is
aware that the proposed transferor intends to rely on the
exemption from registration requirements under the Securities Act
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.
(e) (i) In the case of any Class B or Class R Certificate presented for
registration in the name of any Person, either (A) the Trustee shall
require an Opinion of Counsel acceptable to and in form and substance
satisfactory to the Trustee, the Company and the Master Servicer to
the effect that the purchase or holding of such Class B or Class R
Certificate is permissible under applicable law, will not constitute
or result in any non-exempt prohibited transaction under Section 406
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of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Code (or comparable provisions of
any subsequent enactments), and will not subject the Trustee, the
Company or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of
the Code) in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of the Trustee, the Company
or the Master Servicer or (B) the prospective Transferee shall be
required to provide the Trustee, the Company and the Master Servicer
with a certification to the effect set forth in paragraph six of
Exhibit H (with respect to any Class B Certificate) or paragraph
fifteen of Exhibit G-1 (with respect to any Class R Certificate),
which the Trustee may rely upon without further inquiry or
investigation, or such other certifications as the Trustee may deem
desirable or necessary in order to establish that such Transferee or
the Person in whose name such registration is requested either (a) is
not an employee benefit plan or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code, or any
Person (including an investment manager, a named fiduciary or a
trustee of any such plan) who is using "plan assets" of any such plan
to effect such acquisition (each, a "Plan Investor") or (b) in the
case of any Class B Certificate, the following conditions are
satisfied: (i) such Transferee is an insurance company, (ii) the
source of funds used to purchase or hold such Certificate (or interest
therein) is an "insurance company general account" (as defined in U.S.
Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60, and (iii) the conditions set forth in Sections I and III of
PTCE 95-60 have been satisfied (each entity that satisfies this clause
(b), a "Complying Insurance Company").
(ii) Any Transferee of a Class M Certificate will be deemed to
have represented by virtue of its purchase or holding of such
Certificate (or interest therein) that either (a) such Transferee
is not a Plan Investor, (b) it has acquired and is holding such
Certificate in reliance on Prohibited Transaction Exemption
("PTE") 94-29, 59 Fed. Reg. 14674 (March 29, 1994), as amended by
PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58, 65
Fed. Reg. 67765 (November 13, 2000), and PTE 2002-41, 67 Fed.
Reg. 54487 (August 22, 2002) (the "RFC Exemption"), and that it
understands that there are certain conditions to the availability
of the RFC Exemption including that such Certificate must be
rated, at the time of purchase, not lower than "BBB-" (or its
equivalent) by Standard & Poor's, Fitch or Moody's or (c) such
Transferee is a Complying Insurance Company.
(iii) (A) If any Class M Certificate (or any interest therein) is
acquired or held by any Person that does not satisfy the
conditions described in paragraph (ii) above, then the last
preceding Transferee that either (i) is not a Plan Investor, (ii)
acquired such Certificate in compliance with the RFC Exemption,
or (iii) is a Complying Insurance Company shall be restored, to
the extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such
Transfer of such Class M Certificate. The Trustee shall be under
no liability to any Person for making any payments due on such
Certificate to such preceding Transferee.
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(B) Any purported Certificate Owner whose acquisition or
holding of any Class M Certificate (or interest therein) was
effected in violation of the restrictions in this Section 5.02(e)
shall indemnify and hold harmless the Company, the Trustee, the
Master Servicer, any Subservicer, the Underwriters and the Trust
Fund from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition
or holding.
(f) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Trustee shall require delivery to it, and
shall not register the Transfer of any Class R Certificate until its
receipt of, (I) an affidavit and agreement (a "Transfer Affidavit and
Agreement," in the form attached hereto as Exhibit G-1) from the proposed
Transferee, in form and substance satisfactory to the Master Servicer,
representing and warranting, among other things, that it is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the Class R
Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person who is not a Permitted Transferee, that for
so long as it retains its Ownership Interest in a Class R Certificate, it
will endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(f) and agrees to be bound by them, and
(II) a certificate, in the form attached hereto as Exhibit G-2, from the
Holder wishing to transfer the Class R Certificate, in form and substance
satisfactory to the Master Servicer, representing and warranting, among
other things, that no purpose of the proposed Transfer is to impede the
assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if a Responsible Officer
of the Trustee who is assigned to this Agreement has actual knowledge that
the proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its
Ownership Interest in a Class R Certificate and (y) not to transfer its
Ownership Interest unless it provides a certificate to the Trustee in the
form attached hereto as Exhibit G-2.
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(E) Each Person holding or acquiring an Ownership Interest in a Class
R Certificate, by purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is a "pass-through
interest holder" within the meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Class R Certificate, if it is, or is holding an Ownership
Interest in a Class R Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee shall register the Transfer of any Class R Certificate
only if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Holder requesting such transfer in the form attached hereto
as Exhibit G-2 and all of such other documents as shall have been reasonably
required by the Trustee as a condition to such registration. Transfers of the
Class R Certificates to Non-United States Persons and Disqualified Organizations
(as defined in Section 860E(e)(5) of the Code) are prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a Class
R Certificate, then the last preceding Permitted Transferee shall be restored,
to the extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. If a Non-United States Person shall become a holder of a Class R
Certificate, then the last preceding United States Person shall be restored, to
the extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. If a transfer of a Class R Certificate is disregarded pursuant to
the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof retroactive to
the date of registration of such Transfer of such Class R Certificate. The
Trustee shall be under no liability to any Person for any registration of
Transfer of a Class R Certificate that is in fact not permitted by this Section
5.02(f) or for making any payments due on such Certificate to the holder thereof
or for taking any other action with respect to such holder under the provisions
of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this Section 5.02(f) and to
the extent that the retroactive restoration of the rights of the Holder of
such Class R Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Master Servicer shall have the
right, without notice to the holder or any prior holder of such Class R
Certificate, to sell such Class R Certificate to a purchaser selected by
the Master Servicer on such terms as the Master Servicer may choose. Such
purported Transferee shall promptly endorse and deliver each Class R
Certificate in accordance with the instructions of the Master Servicer.
86
Such purchaser may be the Master Servicer itself or any Affiliate of the
Master Servicer. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Master Servicer or its Affiliates),
expenses and taxes due, if any, shall be remitted by the Master Servicer to
such purported Transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of the Master
Servicer, and the Master Servicer shall not be liable to any Person having
an Ownership Interest in a Class R Certificate as a result of its exercise
of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make available,
upon written request from the Trustee, all information necessary to compute any
tax imposed (A) as a result of the Transfer of an Ownership Interest in a Class
R Certificate to any Person who is a Disqualified Organization, including the
information regarding "excess inclusions" of such Class R Certificates required
to be provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a
result of any regulated investment company, real estate investment trust, common
trust fund, partnership, trust, estate or organization described in Section 1381
of the Code that holds an Ownership Interest in a Class R Certificate having as
among its record holders at any time any Person who is a Disqualified
Organization. Reasonable compensation for providing such information may be
required by the Master Servicer from such Person.
(v) The provisions of this Section 5.02(f) set forth prior to this clause
(v) may be modified, added to or eliminated, provided that there shall have been
delivered to the Trustee the following:
(A) written notification from each Rating Agency to the effect that
the modification, addition to or elimination of such provisions will not
cause such Rating Agency to downgrade its then-current ratings, if any, of
any Class of the Senior (in the case of the Insured Certificates (as
defined in the Series Supplement), such determination shall be made without
giving effect to the Certificate Policy (as defined in the Series
Supplement)), Class M or Class B Certificates below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency; and
(B) subject to Section 10.01(f), an Officers' Certificate of the
Master Servicer stating that the Master Servicer has received an Opinion of
Counsel, in form and substance satisfactory to the Master Servicer, to the
effect that such modification, addition to or absence of such provisions
will not cause any portion of any REMIC formed under the Series Supplement
to cease to qualify as a REMIC and will not cause (x) any portion of any
REMIC formed under the Series Supplement to be subject to an entity-level
tax caused by the Transfer of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder or another Person to
be subject to a REMIC-related tax caused by the Transfer of a Class R
Certificate to a Person that is not a Permitted Transferee.
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(g) No service charge shall be made for any transfer or exchange of
Certificates of any Class, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.04. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Company, the Master Servicer, the Trustee, any Certificate Insurer, the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee, any Certificate Insurer or the Certificate Registrar may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.02
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder," and neither the Company, the Master
Servicer, the Trustee, any Certificate Insurer, the Certificate Registrar nor
any agent of the Company, the Master Servicer, the Trustee, any Certificate
Insurer or the Certificate Registrar shall be affected by notice to the contrary
except as provided in Section 5.02(f).
Section 5.05. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to the Certificateholders pursuant to Section 4.02. In the event
of any such appointment, on or prior to each Distribution Date the Master
Servicer on behalf of the Trustee shall deposit or cause to be deposited with
the Paying Agent a sum sufficient to make the payments to the Certificateholders
in the amounts and in the manner provided for in Section 4.02, such sum to be
held in trust for the benefit of the Certificateholders.
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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 shall 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 distributed to such Certificateholders. Any
sums so held by such Paying Agent shall be held only in Eligible Accounts to the
extent such sums are not distributed to the Certificateholders on the date of
receipt by such Paying Agent.
Section 5.06. U.S.A. Patriot Act Compliance.
In order for it to comply with its duties under the U.S.A. Patriot Act,
the Trustee shall obtain and verify certain information from the other parties
hereto, including but not limited to such parties' name, address and other
identifying information.
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ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Company and the Master Servicer.
The Company and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Company and the Master Servicer herein. By
way of illustration and not limitation, the Company is not liable for the
servicing and administration of the Mortgage Loans, nor is it obligated by
Section 7.01 or Section 10.01 to assume any obligations of the Master Servicer
or to appoint a designee to assume such obligations, nor is it liable for any
other obligation hereunder that it may, but is not obligated to, assume unless
it elects to assume such obligation in accordance herewith.
Section 6.02. Merger or Consolidation of the Company or the Master
Servicer; Assignment of Rights and Delegation of Duties by Master
Servicer.
(a) The Company and the Master Servicer shall each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and shall each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Any Person into which the Company or the Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Company or the Master Servicer shall be a party, or
any Person succeeding to the business of the Company or the Master Servicer,
shall be the successor of the Company or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Xxx or Xxxxxxx Mac; and provided further that each Rating Agency's
ratings, if any, of the Senior (in the case of the Insured Certificates (as
defined in the Series Supplement), such determination shall be made without
giving effect to the Certificate Policy (as defined in the Series Supplement)),
Class M or Class B Certificates in effect immediately prior to such merger or
consolidation will not be qualified, reduced or withdrawn as a result thereof
(as evidenced by a letter to such effect from each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04
to the contrary, the Master Servicer may assign its rights and delegate its
duties and obligations under this Agreement; provided that the Person accepting
such assignment or delegation shall be a Person which is qualified to service
mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac, is reasonably
satisfactory to the Trustee and the Company, is willing to service the Mortgage
Loans and executes and delivers to the Company and the Trustee an agreement, in
form and substance reasonably satisfactory to the Company and the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Master Servicer under this Agreement; provided further that each Rating Agency's
rating of the Classes of Certificates (in the case of the Insured Certificates
(as defined in the Series Supplement), such determination shall be made without
giving effect to the Certificate Policy (as defined in the Series Supplement))
90
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 6.03. Limitation on Liability of the Company,
the Master Servicer and Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Company, the Master Servicer or any such Person
against any breach of warranties or representations 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
91
of amounts attributable to the Mortgage Loans on deposit in the Custodial
Account as provided by Section 3.10 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated
in reduction of the Accrued Certificate Interest on each Class entitled thereto
in the same manner as if such expenses and costs constituted a Prepayment
Interest Shortfall.
Section 6.04. Company and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Company nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities and
obligations in accordance with Section 7.02.
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ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to deposit or cause to be deposited
into the Certificate Account any amounts required to be so deposited
therein at the time required pursuant to Section 4.01 or otherwise or 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 each case, such failure shall continue unremedied for a period of 5 days
after the date upon which written notice of such failure, requiring such
failure to be remedied, shall have been given to the Master Servicer by the
Trustee or the Company or to the Master Servicer, the Company and the
Trustee by the Holders of Certificates of such Class evidencing Percentage
Interests aggregating not less than 25%; or
(ii) the Master Servicer shall fail to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer contained in the Certificates of any Class or in this
Agreement and such failure shall continue unremedied for a period of 30
days (except that such number of days shall be 15 in the case of a failure
to pay the premium for any Required Insurance Policy) after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Trustee or the Company,
or to the Master Servicer, the Company and the Trustee by the Holders of
Certificates of any Class evidencing, in the case of any such Class,
Percentage Interests aggregating not less than 25%; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings of, or
relating to, the Master Servicer or of, or relating to, all or
substantially all of the property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
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(vi) the Master Servicer shall notify the Trustee pursuant to Section
4.04(b) that it is unable to deposit in the Certificate Account an amount
equal to the Advance.
If an Event of Default described in clauses (i)-(v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, either the Company or the Trustee may, and
at the direction of Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, by notice in writing to the Master Servicer
(and to the Company if given by the Trustee or to the Trustee if given by the
Company), terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder. If an Event of Default
described in clause (vi) hereof shall occur, the Trustee shall, by notice to the
Master Servicer and the Company, immediately terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder as provided in Section 4.04(b). On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder thereof) or the Mortgage Loans or
otherwise, shall subject to Section 7.02 pass to and be vested in the Trustee or
the Trustee's designee appointed pursuant to Section 7.02; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its designee for administration by it of all cash
amounts which shall at the time be credited to the Custodial Account or the
Certificate Account or thereafter be received with respect to the Mortgage
Loans. No such termination shall release the Master Servicer for any liability
that it would otherwise have hereunder for any act or omission prior to the
effective time of such termination.
Notwithstanding any termination of the activities of Residential Funding
in its capacity as Master Servicer hereunder, Residential Funding shall be
entitled to receive, out of any late collection of a Monthly Payment on a
Mortgage Loan which was due prior to the notice terminating Residential
Funding's rights and obligations as Master Servicer hereunder and received after
such notice, that portion to which Residential Funding would have been entitled
pursuant to Sections 3.10(a)(ii), (vi) and (vii) as well as its Servicing Fee in
respect thereof, and any other amounts payable to Residential Funding hereunder
the entitlement to which arose prior to the termination of its activities
hereunder. Upon the termination of Residential Funding as Master Servicer
hereunder the Company shall deliver to the Trustee a copy of the Program Guide.
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Section 7.02. Trustee or Company to Act; Appointment of Successor.
(a) On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 or resigns in accordance with Section 6.04,
the Trustee or, upon notice to the Company and with the Company's consent (which
shall not be unreasonably withheld) a designee (which meets the standards set
forth below) of the Trustee, shall be the successor in all respects to the
Master Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer (except for the responsibilities, duties and liabilities contained in
Sections 2.02 and 2.03(a), excluding the duty to notify related Subservicers or
Sellers as set forth in such Sections, and its obligations to deposit amounts in
respect of losses incurred prior to such notice or termination on the investment
of funds in the Custodial Account or the Certificate Account pursuant to
Sections 3.07(c) and 4.01(b) by the terms and provisions hereof); provided,
however, that any failure to perform such duties or responsibilities caused by
the preceding Master Servicer's failure to provide information required by
Section 4.04 shall not be considered a default by the Trustee hereunder. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to charge
to the Custodial Account or the Certificate Account if the Master Servicer had
continued to act hereunder and, in addition, shall be entitled to the income
from any Permitted Investments made with amounts attributable to the Mortgage
Loans held in the Custodial Account or the Certificate Account. If the Trustee
has become the successor to the Master Servicer in accordance with Section 6.04
or Section 7.01, then notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution, which is also a Xxxxxx Xxx- or Xxxxxxx Mac-approved
mortgage servicing institution, having a net worth of not less than $10,000,000
as the successor to the Master Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee shall become successor to the Master Servicer and shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the initial Master Servicer hereunder. The 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.
(b) In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, in which case the predecessor Master Servicer shall cooperate with the
successor Master Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor Master Servicer as necessary under MERS'
rules and regulations, or (ii) the predecessor Master Servicer shall cooperate
with the successor Master Servicer in causing MERS to execute and deliver an
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assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
successor Master Servicer. The predecessor Master Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Master Servicer shall bear any and all fees of MERS, costs of
preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this subsection (b). The
successor Master Servicer shall cause such assignment to be delivered to the
Trustee or the Custodian promptly upon receipt of the original with evidence of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Section 7.03. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights affected by a
default or Event of Default hereunder may waive such default or Event of
Default; provided, however, that (a) a default or Event of Default under clause
(i) of Section 7.01 may be waived only by all of the Holders of Certificates
affected by such default or Event of Default and (b) no waiver pursuant to this
Section 7.04 shall affect the Holders of Certificates in the manner set forth in
Section 11.01(b)(i) or (ii). Upon any such waiver of a default or Event of
Default by the Holders representing the requisite percentage of Voting Rights
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 4.03, 4.06, 7.03 and 10.01. The Trustee shall furnish in a
timely fashion to the Master Servicer such information as the Master Servicer
may reasonably request from time to time for the Master Servicer to fulfill its
duties as set forth in this Agreement. The Trustee covenants and agrees that it
shall perform its obligations hereunder in a manner so as to maintain the status
of any portion of any REMIC formed under the Series Supplement as a REMIC under
the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition
of any federal, state or local income, prohibited transaction, contribution or
other tax on the Trust Fund to the extent that maintaining such status and
avoiding such taxes are reasonably within the control of the Trustee and are
reasonably within the scope of its duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or
waiver of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and, in the absence of bad
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faith on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee by the Company or the Master Servicer and which on their face,
do not contradict the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement;
(iv) The Trustee shall not be charged with knowledge of any default (other
than a default in payment to the Trustee) specified in clauses (i) and
(ii) of Section 7.01 or an Event of Default under clauses (iii), (iv)
and (v) of Section 7.01 unless a Responsible Officer of the Trustee
assigned to and working in the Corporate Trust Office obtains actual
knowledge of such failure or event or the Trustee receives written
notice of such failure or event at its Corporate Trust Office from the
Master Servicer, the Company or any Certificateholder; and
(v) Except to the extent provided in Section 7.02, no provision in this
Agreement shall require the Trustee to expend or risk its own funds
(including, without limitation, the making of any Advance) or otherwise
incur any personal financial liability in the performance of any of its
duties as Trustee hereunder, or in the exercise of any of its rights or
powers, if the Trustee shall have reasonable grounds for believing that
repayment of funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) The Trustee shall timely pay, from its own funds, the amount of any and
all federal, state and local taxes imposed on the Trust Fund or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if,
when and as the same shall be due and payable, (B) any tax on
contributions to a REMIC after the Closing Date imposed by Section
860G(d) of the Code and (C) any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, but only if such
taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the
Trustee.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, Officers' Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(ii) The Trustee may consult with counsel and any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee of
the obligation, upon the occurrence of an Event of Default (which has
not been cured or waived), to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent investor would exercise or use
under the circumstances in the conduct of such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by Holders
of Certificates of any Class evidencing, as to such Class, Percentage
Interests, aggregating not less than 50%; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Master Servicer,
if an Event of Default shall have occurred and is continuing, and
otherwise by the Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or
attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated
thereunder, each Holder of a Class R Certificate hereby irrevocably
appoints and authorizes the Trustee to be its attorney-in-fact for
purposes of signing any Tax Returns required to be filed on behalf of
the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and
deliver to the Master Servicer in a timely manner any Tax Returns
prepared by or on behalf of the Master Servicer that the Trustee is
required to sign as determined by the Master Servicer pursuant to
applicable federal, state or local tax laws, provided that the Master
Servicer shall indemnify the Trustee for signing any such Tax Returns
that contain errors or omissions.
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(b) Following the issuance of the Certificates, the Trustee shall not accept
any contribution of assets to the Trust Fund unless (subject to Section
10.01(f)) it shall have obtained or been furnished with an Opinion of
Counsel to the effect that such contribution will not (i) cause any
portion of any REMIC formed under the Series Supplement to fail to
qualify as a REMIC at any time that any Certificates are outstanding or
(ii) cause the Trust Fund to be subject to any federal tax as a result
of such contribution (including the imposition of any federal tax on
"prohibited transactions" imposed under Section 860F(a) of the Code).
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Mortgage Loans) shall be taken as the statements of the Company or the Master
Servicer as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (except that the
Certificates shall be duly and validly executed and authenticated by it as
Certificate Registrar) or of any Mortgage Loan or related document, or of MERS
or the MERS(R) System. Except as otherwise provided herein, the Trustee shall
not be accountable for the use or application by the Company or the Master
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Company or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account or the Certificate Account by the Company or the Master
Servicer.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights it would have if it were not
Trustee.
Section 8.05. Master Servicer to Pay Trustee's Fees
and Expenses; Indemnification.
(a) The Master Servicer covenants and agrees to pay to the Trustee and any
co-trustee from time to time, and the Trustee and any co-trustee shall
be entitled to, reasonable compensation (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by each of them in the
execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee and
any co-trustee, and the Master Servicer will pay or reimburse the
Trustee and any co-trustee upon request for all reasonable expenses,
disbursements and advances 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.
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(b) The Master Servicer agrees to indemnify the Trustee for, and to hold the
Trustee harmless against, any loss, liability or expense incurred
without negligence or willful misconduct on the Trustee's part, arising
out of, or in connection with, the acceptance and administration of the
Trust Fund, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against any claim in connection
with the exercise or performance of any of its powers or duties under
this Agreement and the Custodial Agreement, including, without
limitation, all costs, liabilities and expenses (including reasonable
legal fees and expenses) of investigating and defending itself against
any claim, action or proceeding, pending or threatened, relating to the
provisions of this paragraph, provided that:
(i) with respect to any such claim, the Trustee shall have given the Master
Servicer written notice thereof promptly after the Trustee shall have
actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Master Servicer in preparing such
defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for settlement of any claim by the Trustee
entered into without the prior consent of the Master Servicer which
consent shall not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created by this
Section 8.05(b) of the Master Servicer to indemnify the Trustee under the
conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 8.05(b) shall not pertain to any loss, liability
or expense of the Trustee, including the costs and expenses of defending itself
against any claim, incurred in connection with any actions taken by the Trustee
at the direction of the Certificateholders pursuant to the terms of this
Agreement.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a national
banking association having its principal office in a state and city acceptable
to the Company and organized and doing business under the laws of such state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
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Section 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Company. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Company, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Company may
remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee. In addition, in the event that
the Company determines that the Trustee has failed (i) to distribute or cause to
be distributed to the Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee or its Paying Agent (other than
the Master Servicer or the Company) for distribution or (ii) to otherwise
observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period
of 5 days (in respect of clause (i) above) or 30 days (in respect of clause (ii)
above) after the date on which written notice of such failure, requiring that
the same be remedied, shall have been given to the Trustee by the Company, then
the Company may remove the Trustee and appoint a successor trustee by written
instrument delivered as provided in the preceding sentence. In connection with
the appointment of a successor trustee pursuant to the preceding sentence, the
Company shall, on or before the date on which any such appointment becomes
effective, obtain from each Rating Agency written confirmation that the
appointment of any such successor trustee will not result in the reduction of
the ratings on any class of the Certificates below the lesser of the then
current or original ratings on such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Company, one complete set to the Trustee so removed
and one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers,
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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.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Company fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall mail notice of any such merger or
consolidation to the Certificateholders at their address as shown in the
Certificate Register.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
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of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee, and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Appointment of 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 11.01. The
Trustee shall notify the Certificateholders of the appointment of any Custodian
(other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11.
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Section 8.12. Appointment of Office or Agency.
The Trustee will maintain an office or agency in the City of New York at
the address designated in Section 11.05 of the Series Supplement where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee will maintain an office at the address stated in Section 11.05 of the
Series Supplement where notices and demands to or upon the Trustee in respect of
this Agreement may be served.
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ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
Section 9.01. Optional Purchase by the Master Servicer of All Certificates;
Termination Upon Purchase by the Master Servicer or Liquidation of All
Mortgage Loans
(a) Subject to Section 9.02, the respective obligations and responsibilities
of the Company, the Master Servicer and the Trustee created hereby in
respect of the Certificates (other than the obligation of the Trustee to
make certain payments after the Final Distribution Date to
Certificateholders and the obligation of the Company to send certain
notices as hereinafter set forth) shall terminate upon the last action
required to be taken by the Trustee on the Final Distribution Date
pursuant to this Article IX following the earlier of:
(i) the later of the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund
or the disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan, or
(ii) the purchase by the Master Servicer of all Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust
Fund at a price equal to 100% of the unpaid principal balance of each
Mortgage Loan or, if less than such unpaid principal balance, the fair
market value of the related underlying property of such Mortgage Loan
with respect to Mortgage Loans as to which title has been acquired if
such fair market value is less than such unpaid principal balance (net
of any unreimbursed Advances attributable to principal) on the day of
repurchase plus accrued interest thereon at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of any Modified Mortgage Loan)
to, but not including, the first day of the month in which such
repurchase price is distributed, provided, however, that in no event
shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx
X. Xxxxxxx, the late ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof and provided further that the purchase
price set forth above shall be increased as is necessary, as determined
by the Master Servicer, to avoid disqualification of any portion of any
REMIC formed under the Series Supplement as a REMIC. The purchase price
paid by the Master Servicer shall also include any amounts owed by
Residential Funding pursuant to the last paragraph of Section 4 of the
Assignment Agreement in respect of any liability, penalty or expense
that resulted from a breach of the Compliance With Laws Representation,
that remain unpaid on the date of such purchase.
The right of the Master Servicer to purchase all the assets of the Trust
Fund pursuant to clause (ii) above is conditioned upon the Pool Stated Principal
Balance as of the Final Distribution Date, prior to giving effect to
distributions to be made on such Distribution Date, being less than ten percent
of the Cut-off Date Principal Balance of the Mortgage Loans.
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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 shall provide to the Trustee the certification required by
Section 3.15 and the Trustee and any Custodian shall, promptly following payment
of the purchase price, release to the Master Servicer the Mortgage Files
pertaining to the Mortgage Loans being purchased.
In addition to the foregoing, on any Distribution Date on which the Pool
Stated Principal Balance, prior to giving effect to distributions to be made on
such Distribution Date, is less than ten percent of the Cut-off Date Principal
Balance of the Mortgage Loans, the Master Servicer shall have the right, at its
option, to purchase the Certificates in whole, but not in part, at a price equal
to the outstanding Certificate Principal Balance of such Certificates plus the
sum of Accrued Certificate Interest thereon for the related Interest Accrual
Period and any previously unpaid Accrued Certificate Interest. If the Master
Servicer exercises this right to purchase the outstanding Certificates, the
Master Servicer will promptly terminate the respective obligations and
responsibilities created hereby in respect of the Certificates pursuant to this
Article IX.
(b) The Master Servicer shall give the Trustee not less than 60
days' prior notice of the Distribution Date on which the Master Servicer
anticipates that the final distribution will be made to
Certificateholders (whether as a result of the exercise by the Master
Servicer of its right to purchase the assets of the Trust Fund or
otherwise) or on which the Master Servicer anticipates that the
Certificates will be purchased (as a result of the exercise by the
Master Servicer to purchase the outstanding Certificates). Notice of any
termination specifying the anticipated Final Distribution Date (which
shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Trustee
(if so required by the terms hereof) for payment of the final
distribution and cancellation or notice of any purchase of the
outstanding Certificates, specifying the Distribution Date upon which
the Holders may surrender their Certificates to the Trustee for payment,
shall be given promptly by the Master Servicer (if it is exercising its
right to purchase the assets of the Trust Fund or to purchase the
outstanding Certificates), or by the Trustee (in any other case) by
letter. Such notice shall be prepared by the Master Servicer (if it is
exercising its right to purchase the assets of the Trust Fund or to
purchase the outstanding Certificates), or by the Trustee (in any other
case) and mailed by the Trustee to the Certificateholders not earlier
than the 15th day and not later than the 25th day of the month next
preceding the month of such final distribution specifying:
(iii) the anticipated Final Distribution Date upon which final payment of the
Certificates is anticipated to be made upon presentation and surrender
of Certificates at the office or agency of the Trustee therein
designated where required pursuant to this Agreement or, in the case of
the purchase by the Master Servicer of the outstanding Certificates, the
Distribution Date on which such purchase is to be made,
(iv) the amount of any such final payment, or in the case of the purchase of
the outstanding Certificates, the purchase price, in either case, if
known, and
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(v) that the Record Date otherwise applicable to such Distribution Date is
not applicable, and in the case of the Senior Certificates, or in the
case of all of the Certificates in connection with the exercise by the
Master Servicer of its right to purchase the 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 Master Servicer is obligated to give notice to Certificateholders
as aforesaid, it shall give such notice to the Certificate Registrar at the time
such notice is given to Certificateholders and, if the Master Servicer is
exercising its rights to purchase the outstanding Certificates, it shall give
such notice to each Rating Agency at the time such notice is given to
Certificateholders. As a result of the exercise by the Master Servicer of its
right to purchase the assets of the Trust Fund, the Master Servicer shall
deposit in the Certificate Account, before the Final Distribution Date in
immediately available funds an amount equal to the purchase price for the assets
of the Trust Fund, computed as provided above. As a result of the exercise by
the Master Servicer of its right to purchase the outstanding Certificates, the
Master Servicer shall deposit in an Eligible Account, established by the Master
Servicer on behalf of the Trustee and separate from the Certificate Account in
the name of the Trustee in trust for the registered holders of the Certificates,
before the Distribution Date on which such purchase is to occur in immediately
available funds an amount equal to the purchase price for the Certificates,
computed as above provided, and provide notice of such deposit to the Trustee.
The Trustee will withdraw from such account the amount specified in subsection
(c) below.
(b) In the case of the Senior Certificates, upon presentation and
surrender of the Certificates by the Certificateholders thereof, and in the case
of the Class M and Class B Certificates, upon presentation and surrender of the
Certificates by the Certificateholders thereof in connection with the exercise
by the Master Servicer of its right to purchase the Certificates, and otherwise
in accordance with Section 4.01(a), 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 election to repurchase the
assets of the Trust Fund or the outstanding Certificates, or (ii) if the Master
Servicer elected to so repurchase the assets of the Trust Fund or the
outstanding Certificates, an amount determined as follows: (A) with respect to
each Certificate the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest for the related Interest Accrual Period thereon and
any previously unpaid Accrued Certificate Interest, subject to the priority set
forth in Section 4.02(a), 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). Notwithstanding
the reduction of the Certificate Principal Balance of any Class of Subordinate
Certificates to zero, such Class will be outstanding hereunder until the
termination of the respective obligations and responsibilities of the Company,
the Master Servicer and the Trustee hereunder in accordance with Article IX.
(c) If any Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before the Final Distribution Date (if so
required by the terms hereof), the Trustee shall on such date cause all funds in
the Certificate Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for the
benefit of such Certificateholders, and the Master Servicer (if 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
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surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice any
Certificate shall not have been surrendered for cancellation, the Trustee shall
take appropriate steps as directed by the Master Servicer to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining the escrow account and of contacting
Certificateholders shall be paid out of the assets which remain in the escrow
account. If within nine months after the second notice any Certificates shall
not have been surrendered for cancellation, the Trustee shall pay to the Master
Servicer all amounts distributable to the holders thereof and the Master
Servicer shall thereafter hold such amounts until distributed to such Holders.
No interest shall accrue or be payable to any Certificateholder on any amount
held in the escrow account or by the Master Servicer as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
(d) If any Certificateholders do not surrender their Certificates on or
before the Distribution Date on which a purchase of the outstanding Certificates
is to be made, the Trustee shall on such date cause all funds in the Certificate
Account deposited therein by the Master Servicer pursuant to Section 9.01(b) to
be withdrawn therefrom and deposited in a separate escrow account for the
benefit of such Certificateholders, and the Master Servicer shall give a second
written notice to such Certificateholders to surrender their Certificates for
payment of the purchase price therefor. If within six months after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee shall take appropriate steps as directed by the Master Servicer to
contact the Holders of such Certificates concerning surrender of their
Certificates. The costs and expenses of maintaining the escrow account and of
contacting Certificateholders shall be paid out of the assets which remain in
the escrow account. If within nine months after the second notice any
Certificates shall not have been surrendered for cancellation in accordance with
this Section 9.01, the Trustee shall pay to the Master Servicer all amounts
distributable to the Holders thereof and the Master Servicer shall thereafter
hold such amounts until distributed to such Holders. No interest shall accrue or
be payable to any Certificateholder on any amount held in the escrow account or
by the Master Servicer as a result of such Certificateholder's failure to
surrender its Certificate(s) for payment in accordance with this Section 9.01.
Any Certificate that is not surrendered on the Distribution Date on which a
purchase pursuant to this Section 9.01 occurs as provided above will be deemed
to have been purchased and the Holder as of such date will have no rights with
respect thereto except to receive the purchase price therefor minus any costs
and expenses associated with such escrow account and notices allocated thereto.
Any Certificates so purchased or deemed to have been purchased on such
Distribution Date shall remain outstanding hereunder until the Master Servicer
has terminated the respective obligations and responsibilities created hereby in
respect of the Certificates pursuant to this Article IX. The Master Servicer
shall be for all purposes the Holder thereof as of such date.
Section 9.02. Additional Termination Requirements.
(a) Each REMIC that comprises the Trust Fund shall be terminated in
accordance with the following additional requirements, unless (subject
to Section 10.01(f)) the Trustee and the Master Servicer have received
an Opinion of Counsel (which Opinion of Counsel shall not be an expense
of the Trustee) to the effect that the failure of each such REMIC to
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comply with the requirements of this Section 9.02 will not (i) result in
the imposition on the Trust Fund of taxes on "prohibited transactions,"
as described in Section 860F of the Code, or (ii) cause any such REMIC
to fail to qualify as a REMIC at any time that any Certificate is
outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period for each
such REMIC and specify the first day of such period in a statement
attached to the Trust Fund's final Tax Return pursuant to Treasury
regulations Section 1.860F-1. The Master Servicer also shall satisfy all
of the requirements of a qualified liquidation for a REMIC under Section
860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the commencement of such
90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell or otherwise
dispose of all of the remaining assets of the Trust Fund in accordance
with the terms hereof; and
(iii) 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 of the Trust Fund for cash.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably approves
and appoints the Master Servicer as its attorney-in-fact to adopt a plan
of complete liquidation for each REMIC at the expense of the Trust Fund
in accordance with the terms and conditions of this Agreement.
Section 9.03. Termination of Multiple REMICs.
If the REMIC Administrator makes two or more separate REMIC elections,
the applicable REMIC shall be terminated on the earlier of the Final
Distribution Date and the date on which it is deemed to receive the last deemed
distributions on the related Uncertificated REMIC Regular Interests and the last
distribution due on the Certificates is made.
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ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The REMIC Administrator shall make an election to treat the Trust
Fund as one or more REMICs under the Code and, if necessary, under applicable
state law. The assets of each such REMIC will be set forth in the Series
Supplement. Such election will be made on Form 1066 or other appropriate federal
tax or information return (including Form 8811) or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of each REMIC election in respect of
the Trust Fund, Certificates and interests to be designated as the "regular
interests" and the sole class of "residual interests" in the REMIC will be set
forth in Section 10.03 of the Series Supplement. The REMIC Administrator and the
Trustee shall not permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in any REMIC elected in respect of the Trust Fund
other than the "regular interests" and "residual interests" so designated.
(b) The Closing Date is hereby designated as the "startup day" of the
Trust Fund within the meaning of Section 860G(a)(9) of the Code.
(c) The REMIC Administrator shall hold a Class R Certificate
representing a 0.01% Percentage Interest each Class of the Class R Certificates
and shall be designated as "the tax matters person" with respect to each REMIC
in the manner provided under Treasury regulations section 1.860F-4(d) and
Treasury regulations section 301.6231(a)(7)-1. The REMIC Administrator, as tax
matters person, shall (i) act on behalf of each REMIC in relation to any tax
matter or controversy involving the Trust Fund and (ii) represent the Trust Fund
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the REMIC Administrator shall be entitled to reimbursement
therefor out of amounts attributable to the Mortgage Loans on deposit in the
Custodial Account as provided by Section 3.10 unless such legal expenses and
costs are incurred by reason of the REMIC Administrator's willful misfeasance,
bad faith or gross negligence. If the REMIC Administrator is no longer the
Master Servicer hereunder, at its option the REMIC Administrator may continue
its duties as REMIC Administrator and shall be paid reasonable compensation not
to exceed $3,000 per year by any successor Master Servicer hereunder for so
acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all of
the Tax Returns that it determines are required with respect to each REMIC
created hereunder and deliver such Tax Returns in a timely manner to the Trustee
and the Trustee shall sign and file such Tax Returns in a timely manner. The
expenses of preparing such returns shall be borne by the REMIC Administrator
without any right of reimbursement therefor. The REMIC Administrator agrees to
indemnify and hold harmless the Trustee with respect to any tax or liability
arising from the Trustee's signing of Tax Returns that contain errors or
omissions. The Trustee and Master Servicer shall promptly provide the REMIC
Administrator with such information as the REMIC Administrator may from time to
time request for the purpose of enabling the REMIC Administrator to prepare Tax
Returns.
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(e) The REMIC Administrator shall provide (i) to any Transferor of a
Class R Certificate such information as is necessary for the application of any
tax relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee, and the Trustee shall forward to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each REMIC.
(f) The Master Servicer and the REMIC Administrator shall take such
actions and shall cause each REMIC created hereunder to take such actions as are
reasonably within the Master Servicer's or the REMIC Administrator's control and
the scope of its duties more specifically set forth herein as shall be necessary
or desirable to maintain the status of each REMIC as a REMIC under the REMIC
Provisions (and the Trustee shall assist the Master Servicer and the REMIC
Administrator, to the extent reasonably requested by the Master Servicer and the
REMIC Administrator to do so). The Master Servicer and the REMIC Administrator
shall not knowingly or intentionally take any action, cause the Trust Fund to
take any action or fail to take (or fail to cause to be taken) any action
reasonably within their respective control that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
portion of any REMIC formed under the Series Supplement as a REMIC or (ii)
result in the imposition of a tax upon any such REMIC (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless
the Master Servicer or the REMIC Administrator, as applicable, has received an
Opinion of Counsel (at the expense of the party seeking to take such action or,
if such party fails to pay such expense, and the Master Servicer or the REMIC
Administrator, as applicable, determines that taking such action is in the best
interest of the Trust Fund and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Master Servicer, the REMIC
Administrator or the Trustee) to the effect that the contemplated action will
not, with respect to each REMIC created hereunder, endanger such status or,
unless the Master Servicer, the REMIC Administrator or both, as applicable,
determine in its or their sole discretion to indemnify the Trust Fund against
the imposition of such a tax, result in the imposition of such a tax. Wherever
in this Agreement a contemplated action may not be taken because the timing of
such action might result in the imposition of a tax on the Trust Fund, or may
only be taken pursuant to an Opinion of Counsel that such action would not
impose a tax on the Trust Fund, such action may nonetheless be taken provided
that the indemnity given in the preceding sentence with respect to any taxes
that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
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addition, prior to taking any action with respect to any REMIC created hereunder
or any related assets thereof, or causing any such REMIC to take any action,
which is not expressly permitted under the terms of this Agreement, the Trustee
will consult with the Master Servicer or the REMIC Administrator, as applicable,
or its designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any such REMIC, and the Trustee
shall not take any such action or cause any such REMIC to take any such action
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that an Adverse REMIC Event could occur. The Master
Servicer or the REMIC Administrator, as applicable, may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the expense of the Master Servicer or the REMIC Administrator. At all
times as may be required by the Code, the Master Servicer will to the extent
within its control and the scope of its duties more specifically set forth
herein, maintain substantially all of the assets of each REMIC created hereunder
as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of
any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of any such REMIC as defined in Section
860G(c) of the Code, on any contributions to any such REMIC after the Startup
Day therefor pursuant to Section 860G(d) of the Code, or any other tax is
imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Master Servicer, if such tax arises out of
or results from a breach by the Master Servicer of any of its obligations under
this Agreement or the Master Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax, (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article X, or (iii) otherwise against amounts on deposit in the
Custodial Account as provided by Section 3.10 and on the Distribution Date(s)
following such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Accrued Certificate Interest on each Class entitled thereto in
the same manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Master Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
(i) Following the Startup Day, neither the Master Servicer nor the
Trustee shall accept any contributions of assets to any REMIC created hereunder
unless (subject to Section 10.01(f)) the Master Servicer and the Trustee shall
have received an Opinion of Counsel (at the expense of the party seeking to make
such contribution) to the effect that the inclusion of such assets in such REMIC
will not cause the REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(j) Neither the Master Servicer nor the Trustee shall (subject to
Section 10.01(f)) enter into any arrangement by which any REMIC created
hereunder will receive a fee or other compensation for services nor permit any
such REMIC to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code.
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(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates) representing a regular interest in the applicable
REMIC and the Uncertificated Principal Balance of each Uncertificated REMIC
Regular Interest (other than each Uncertificated REMIC Regular Interest
represented by a Class A-V Certificate, if any) and the rights to the Interest
Only Certificates and Uncertificated REMIC Regular Interest represented by a
Class A-V Certificate would be reduced to zero is the Maturity Date for each
such Certificate and Interest.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for each REMIC created hereunder.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of
or substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of any REMIC created hereunder, (iii)
the termination of any such REMIC pursuant to Article IX of this Agreement or
(iv) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) nor acquire any assets for any such REMIC, nor sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain nor
accept any contributions to any such REMIC after the Closing Date unless it has
received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not (a) affect adversely the status of such REMIC as a REMIC or
(b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause such REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company, the
REMIC Administrator and the Master Servicer for any taxes and costs including,
without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Company or the Master Servicer, as a result of a breach of the
Trustee's covenants set forth in Article VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the
Company, the Master Servicer and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the Master Servicer or the Trustee, as a result of
a breach of the REMIC Administrator's covenants set forth in this Article X with
respect to compliance with the REMIC Provisions, including without limitation,
any penalties arising from the Trustee's execution of Tax Returns prepared by
the REMIC Administrator that contain errors or omissions; provided, however,
that such liability will not be imposed to the extent such breach is a result of
an error or omission in information provided to the REMIC Administrator by the
Master Servicer in which case Section 10.02(c) will apply.
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(c) The Master Servicer agrees to indemnify the Trust Fund, the Company,
the REMIC Administrator and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the REMIC Administrator or the Trustee, as a result
of a breach of the Master Servicer's covenants set forth in this Article X or in
Article III with respect to compliance with the REMIC Provisions, including
without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the Master Servicer that contain errors or omissions.
Section 10.03. Designation of REMIC(s).
As provided in Section 10.03 of the Series Supplement.
Section 10.04. Distributions on the Uncertificated REMIC I and REMIC II Regular
Interests.
As provided in Section 10.04 of the Series Supplement.
Section 10.05. Compliance with Withholding Requirements.
As provided in Section 10.05 of the Series Supplement.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to
time by the Company, the Master Servicer and the Trustee, without the
consent of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be
inconsistent with any other provisions herein or therein or to correct
any error,
(iii) to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or desirable to maintain the qualification of the
Trust Fund as a REMIC at all times that any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim against the Trust
Fund, provided that the Trustee has received an Opinion of Counsel to
the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of
any such tax and (B) such action will not adversely affect in any
material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Custodial
Account or the Certificate Account or to change the name in which the
Custodial Account is maintained, provided that (A) the Certificate
Account Deposit Date shall in no event be later than the related
Distribution Date, (B) such change shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of
any Certificateholder and (C) such change shall not result in a
reduction of the rating assigned to any Class of Certificates below the
lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date (in the case of the Insured
Certificates (as defined in the Series Supplement), such determination
shall be made without giving effect to the Certificate Policy (as
defined in the Series Supplement)), as evidenced by a letter from each
Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(f) or any
other provision hereof restricting transfer of the Class R Certificates,
by virtue of their being the "residual interests" in a REMIC, provided
that (A) such change shall not result in reduction of the rating
assigned to any such Class of Certificates below the lower of the
then-current rating or the rating assigned to such Certificates as of
the Closing Date (in the case of the Insured Certificates (as defined in
the Series Supplement), such determination shall be made without giving
effect to the Certificate Policy (as defined in the Series Supplement)),
as evidenced by a letter from each Rating Agency to such effect, and (B)
such change shall not (subject to Section 10.01(f)), as evidenced by an
Opinion of Counsel (at the expense of the party seeking so to modify,
eliminate or add such provisions), cause any REMIC created hereunder or
any of the Certificateholders (other than the transferor) to be subject
to a federal tax caused by a transfer to a Person that is not a
Permitted Transferee,
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(vi) to make any other provisions with respect to matters or questions
arising under this Agreement or such Custodial Agreement which shall not
be materially inconsistent with the provisions of this Agreement,
provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or
(vii) to amend any provision herein or therein that is not material to any of
the Certificateholders.
(b) This Agreement or any Custodial Agreement may also be amended from time
to time by the Company, the Master Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not
less than 66% of the Percentage Interests of each Class of Certificates
with a Certificate Principal Balance greater than zero affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or such Custodial
Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment
shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate,
(ii) reduce the aforesaid percentage of Certificates of any Class the Holders
of which are required to consent to any such amendment, in any such case
without the consent of the Holders of all Certificates of such Class
then outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel (subject to Section 10.01(f)
and at the expense of the party seeking such amendment) to the effect
that such amendment or the exercise of any power granted to the Master
Servicer, the Company or the Trustee in accordance with such amendment
will not result in the imposition of a federal tax on the Trust Fund or
cause any REMIC created under the Series Supplement to fail to qualify
as a REMIC at any time that any Certificate is outstanding.
(d) Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to the
Custodian and each Certificateholder. It shall not be necessary for the
consent of Certificateholders under this Section 11.01 to approve the
particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable regulations as the Trustee may prescribe.
(e) The Company shall have the option, in its sole discretion, to obtain and
deliver to the Trustee any corporate guaranty, payment obligation,
irrevocable letter of credit, surety bond, insurance policy or similar
instrument or a reserve fund, or any combination of the foregoing, for
the purpose of protecting the Holders of the Class B Certificates
against any or all Realized Losses or other shortfalls. Any such
117
instrument or fund shall be held by the Trustee for the benefit of the
Class B Certificateholders, but shall not be and shall not be deemed to
be under any circumstances included in the Trust Fund. To the extent
that any such instrument or fund constitutes a reserve fund for federal
income tax purposes, (i) any reserve fund so established shall be an
outside reserve fund and not an asset of the Trust Fund, (ii) any such
reserve fund shall be owned by the Company, and (iii) amounts
transferred by the Trust Fund to any such reserve fund shall be treated
as amounts distributed by the Trust Fund to the Company or any
successor, all within the meaning of Treasury Regulations Section
1.860G-2(h) as it reads as of the Cut-off Date. In connection with the
provision of any such instrument or fund, this Agreement and any
provision hereof may be modified, added to, deleted or otherwise amended
in any manner that is related or incidental to such instrument or fund
or the establishment or administration thereof, such amendment to be
made by written instrument executed or consented to by the Company but
without the consent of any Certificateholder and without the consent of
the Master Servicer or the Trustee being required unless any such
amendment would impose any additional obligation on, or otherwise
adversely affect the interests of the Senior Certificateholders, the
Class M Certificateholders, the Master Servicer or the Trustee, as
applicable; provided that the Company obtains (subject to Section
10.01(f)) an Opinion of Counsel (which need not be an opinion of
Independent counsel) to the effect that any such amendment will not
cause (a) any federal tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions"
under Section 860F(a)(1) of the Code or on "contributions after the
startup date" under Section 860G(d)(1) of the Code and (b) any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificate is outstanding. In the event that the Company elects to
provide such coverage in the form of a limited guaranty provided by
General Motors Acceptance Corporation, the Company may elect that the
text of such amendment to this Agreement shall be substantially in the
form attached hereto as Exhibit K (in which case Residential Funding's
Subordinate Certificate Loss Obligation as described in such exhibit
shall be established by Residential Funding's consent to such amendment)
and that the limited guaranty shall be executed in the form attached
hereto as Exhibit L, with such changes as the Company shall deem to be
appropriate; it being understood that the Trustee has reviewed and
approved the content of such forms and that the Trustee's consent or
approval to the use thereof is not required.
Section 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer and at its expense on direction by the Trustee (pursuant to the
request of Holders of Certificates entitled to at least 25% of the Voting
Rights), but only upon direction accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
118
Section 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of any
of the parties hereto.
(b) No Certificateholder shall have any right to vote (except as
expressly provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of Certificates of any Class evidencing in the aggregate not less than 25% of
the related Percentage Interests of such Class, shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
of any Class shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates of such Class or any other Class, or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the common benefit of Certificateholders of such Class
or all Classes, as the case may be. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04. Governing Law.
This agreement and the Certificates shall be governed by and construed
in accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
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Section 11.05. Notices.
As provided in Section 11.05 of the Series Supplement.
Section 11.06. Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, (i)
shall notify each Rating Agency at such time as it is otherwise required
pursuant to this Agreement to give notice of the occurrence of, any of the
events described in clause (a), (b), (c), (d), (g), (h), (i) or (j) below, (ii)
shall notify the Subservicer at such time as it is otherwise required pursuant
to this Agreement to give notice of the occurrence of, any of the events
described in clause (a), (b), (c)(1), (g)(1), or (i) below, or (iii) provide a
copy to each Rating Agency at such time as otherwise required to be delivered
pursuant to this Agreement of any of the statements described in clauses (e) and
(f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) (1) the termination or appointment of a successor Master Servicer or (2)
the termination or appointment of a successor Trustee or a change in the
majority ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket fidelity
bond and the errors and omissions insurance policy required by Section
3.12 or the cancellation or modification of coverage under any such
instrument,
(e) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18 and
3.19,
(g) (1) a change in the location of the Custodial Account or (2) a change in
the location of the Certificate Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of any
Class of Certificates resulting from the failure by the Master Servicer
to make an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer, if applicable,
of any such event known to the Master Servicer.
120
Section 11.07. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.08. Supplemental Provisions for Resecuritization.
This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Certificates issued hereunder, under the following
circumstances. With respect to any Class or Classes of Certificates issued
hereunder, or any portion of any such Class, as to which the Company or any of
its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Company may deposit such Resecuritized
Certificates into a new REMIC, grantor trust, FASIT or custodial arrangement (a
"Restructuring Vehicle") to be held by the Trustee pursuant to a Supplemental
Article. The instrument adopting such Supplemental Article shall be executed by
the Company, the Master Servicer and the Trustee; provided, that neither the
Master Servicer nor the Trustee shall withhold their consent thereto if their
respective interests would not be materially adversely affected thereby. To the
extent that the terms of the Supplemental Article do not in any way affect any
provisions of this Agreement as to any of the Certificates initially issued
hereunder, the adoption of the Supplemental Article shall not constitute an
"amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions
relating to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions to be made
thereon, and any other provisions necessary for the purposes thereof. In
connection with each Supplemental Article, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that (i) the Restructuring Vehicle
will qualify as a REMIC, grantor trust, FASIT or other entity not subject to
taxation for federal income tax purposes and (ii) the adoption of the
Supplemental Article will not endanger the status of the Trust Fund as a REMIC
or (subject to Section 10.01(f)) result in the imposition of a tax upon the
Trust Fund (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC as set forth in Section 860G(d) of the Code).
Section 11.09. Allocation of Voting Rights.
As provided in Section 11.09 of the Series Supplement.
Section 11.10. No Petition.
As provided in Section 11.10 of the Series Supplement.
121
EXHIBIT A
FORM OF CLASS A CERTIFICATE, [PRINCIPAL ONLY/CLASS A-P] CERTIFICATE AND
[INTEREST ONLY/CLASS A-V] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[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 ___________ __, ____.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT [___]% OF THE PREPAYMENT SPEED
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] [$100,000] OF [INITIAL
CERTIFICATE PRINCIPAL BALANCE] [NOTIONAL AMOUNT], THE YIELD TO MATURITY IS [ ]%
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$[ ] PER [$1,000] [$100,000] OF [INITIAL CERTIFICATE PRINCIPAL BALANCE]
[NOTIONAL AMOUNT], COMPUTED USING THE APPROXIMATE METHOD. NO REPRESENTATION IS
MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT SPEED
ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH
RATE.]
Certificate No. [ %][Variable] Pass-Through Rate
[based on a Notional Amount]
Class A- Senior
Date of Pooling and Servicing [Percentage Interest: %]
Agreement and Cut-off Date:
___________ 1, ____ Aggregate Initial [Certificate Principal
Balance] [[Interest Only/Class
A-V] Notional
First Distribution Date: Amount] [Subclass Notional Amount] of the
_________ 25, ____ Class A- Certificates:
Master Servicer: [Initial] [Certificate Principal
Residential Funding Balance] [Interest Only/Class A-V] [Subclass]
Corporation Notional Amount] of this Certificate:
$ ]
Assumed Final
Distribution Date: CUSIP 76110F-
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES ____-___
evidencing a percentage interest in the distributions allocable
to the Class A- Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans formed and
sold by RESIDENTIAL ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Accredit
Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC Mortgage
Group, Inc. or any of their affiliates. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed or insured by any governmental agency
or instrumentality or by Residential Accredit Loans, Inc., the Master Servicer,
the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates. None of the
Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of their
affiliates will have any obligation with respect to any certificate or other
obligation secured by or payable from payments on the Certificates.
This certifies that ____________ is the registered owner of the
Percentage Interest evidenced by this Certificate [(obtained by dividing the
[Initial Certificate Principal Balance] [Initial [Interest Only/Class A-V]
Notional Amount] of this Certificate by the aggregate [Initial Certificate
Principal Balance of all Class A- Certificates] [Initial [Interest Only/Class
A-V] Notional Amounts of all [Interest Only/Class A-V] Certificates], both as
specified above)] in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of conventional one- to
four-family fixed interest rate first mortgage loans (the "Mortgage Loans"),
formed and sold by Residential Accredit Loans, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
A-2
to below). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as specified above (the "Agreement") among the Company, the
Master Servicer and __________________, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
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. [The [Interest Only/Class A-V] Notional
Amount of the [Interest Only/Class A-V] Certificates as of any date of
determination is equal to the aggregate Stated Principal Balance of the Mortgage
Loans corresponding to the Uncertificated REMIC Regular Interests represented by
such [Interest Only/Class A-V] Certificates.] [The Subclass Notional Amount of
the [Interest Only/Class A-V]- Certificates as of any date of determination is
equal to the aggregate Stated Principal Balance of the Mortgage Loans
corresponding to the Uncertificated REMIC Regular Interests represented by such
[Interest Only/Class A-V]- Certificates immediately prior to such date.] [The
[Interest Only/Class A-V][- ] Certificates have no Certificate Principal
Balance.]
Distributions on this Certificate will be made either by the
Master Servicer acting on behalf of the Trustee or by a Paying Agent appointed
by the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The [Initial Certificate Principal Balance] [Initial [Interest Only/Class
A-V] Notional Amount] [initial Subclass Notional Amount] of this Certificate is
set forth above.] [The Certificate Principal Balance hereof will be reduced to
the extent of distributions allocable to principal and any Realized Losses
allocable hereto.]
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
A-3
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.
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
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Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
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.
A-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [_________________________],
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A- Certificates referred to in the
within-mentioned Agreement.
[___________________________],
as Certificate Registrar
By:
Authorized Signatory
A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:_____________________________
______________________________________
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.
A-7
EXHIBIT B
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES [CLASS M-1 CERTIFICATES] [AND CLASS M-2 CERTIFICATES] AS DESCRIBED
IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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 ___________ __, ____.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT [___]% OF THE PREPAYMENT SPEED
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 PREPAYMENT SPEED ASSUMPTION OR AT ANY OTHER RATE.
B-1
Any Transferee of this Certificate will be deemed to have represented by
virtue of its purchase or holding of this Certificate (or interest herein) that
EITHER (a) such Transferee is not an investment manager, a named fiduciary or a
trustee of any Plan, OR ANY OTHER PERSON, acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any Plan (a "plan
investor"), (B) it has acquired and is holding such Certificate in reliance on
Prohibited Transaction Exemption ("PTE") 94-29, 59 Fed. Reg. 14674 (March 29,
1994), as amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58,
65 Fed. Reg. 67765 (November 13, 2000), AND PTE 2002-41, 67 Fed. Reg. 54487
(August 22, 2002) (the "RFC Exemption"), and that it understands that there are
certain conditions to the availability of the RFC Exemption including that such
Certificate must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by Standard & Poor's, Fitch or Xxxxx'x or (C) (I) the transferee
is an insurance company, (II) the source of funds to be used by it to purchase
the Certificate is an "insurance company general account" (within the meaning of
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60),
and (iii) the CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (C), A "cOMPLYING INSURANCE
COMPANY).
If this Certificate (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD BY ANY
PERSON THAT DOES NOT SATISFY THE CONDITIONS DESCRIBED IN THE PRECEDING
PARAGRAPH, THEN THE LAST preceding Transferee that either (i) is not a Plan
Investor, (II) ACQUIRED SUCH CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION,
or (iiI) is a Complying Insurance Company shall be restored, to the extent
permitted by law, to all rights and obligations as Certificate Owner thereof
retroactive to the date of such Transfer of this Certificate. The Trustee shall
be under no liability to any Person for making any payments due on this
Certificate to such preceding Transferee.
Any purported Certificate Owner whose acquisition or holding of this
Certificate (or interest herein) was effected in violation of the restrictions
in Section 5.02(e) of the Pooling and Servicing Agreement shall indemnify and
hold harmless the Company, the Trustee, the Master Servicer, any Subservicer,
and the Trust Fund from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition or holding.
B-2
Certificate No. [ ]% Pass-Through Rate
Class M- Subordinate Aggregate Certificate
Principal Balance
Date of Pooling and Servicing of the Class M Certificates:
Agreement and Cut-off Date: $
___________ 1, ____
Initial Certificate Principal
First Distribution Date: Balance of this Certificate:
_________ 25, ____ $
Master Servicer: CUSIP: 76110F-
Residential Funding Corporation
Assumed Final Distribution Date:
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE,
SERIES ____-___
evidencing a percentage interest in any distributions allocable to the
Class M- Certificates with respect to the Trust Fund consisting
primarily of a pool of conventional one- to four-family fixed interest
rate first mortgage loans formed and sold by RESIDENTIAL ACCREDIT LOANS,
INC.
This Certificate is payable solely from the assets of the Trust
Fund, and does not represent an obligation of or interest in Residential
Accredit Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC
Mortgage Group, Inc. or any of their affiliates. Neither this Certificate nor
the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Accredit Loans, Inc., the Master
Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates.
None of the Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Certificate
Principal Balance of this Certificate by the aggregate Certificate Principal
Balance of all Class M- Certificates, both as specified above) in certain
distributions with respect to a Trust Fund consisting primarily of a pool of
conventional one- to four-family fixed interest rate first mortgage loans (the
"Mortgage Loans"), formed and sold by Residential Accredit Loans, Inc.
(hereinafter called the "Company," which term includes any successor entity
under the Agreement referred to below). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as specified above (the "Agreement") among
the Company, the Master Servicer and __________________, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
B-3
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.
As described above, no transfer of this Class M Certificate will
be made unless (i) the Trustee has received either an opinion of counsel or a
representation letter, each as described in the Agreement, relating to the
permissibility of such transfer under ERISA and Section 4975 of the Code, or
(ii) this Certificate is held by a Depository, in which case the Transferee will
be deemed to have made representations relating to the permissibility of such
transfer under ERISA and Section 4975 of the Code, as described in Section
5.02(e) of the Agreement. In addition, any purported Certificate Owner whose
acquisition or holding of this Certificate (or interest herein) was effected in
violation of the restrictions in Section 5.02(e) of the Agreement shall
indemnify and hold harmless the Company, the Trustee, the Master Servicer, any
Subservicer, and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
B-4
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.
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
B-5
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
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.
B-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [____________________________],
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M- Certificates referred to in the
within-mentioned Agreement.
[_________________________],
as Certificate Registrar
By:
Authorized Signatory
B-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:_____________________________
______________________________________
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.
B-7
EXHIBIT C
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND CLASS M CERTIFICATES [AND CLASS B-1] [CLASS B-2 CERTIFICATES] DESCRIBED IN
THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE COMPANY AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN 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 ___________ __, ____. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT 100% OF THE PREPAYMENT SPEED 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 PREPAYMENT SPEED
ASSUMPTION OR AT ANY OTHER RATE.
Certificate No. [ ]% Pass-Through Rate
Class B- Subordinate Aggregate Certificate
Principal Balance
Date of Pooling and Servicing of the Class B-
Agreement and Cut-off Date: Certificates as of
___________ 1, ____ the Cut-off Date:
$
First Distribution Date:
_________ 25, ____ Initial Certificate Principal
Balance of this Certificate:
Master Servicer: $
Residential Funding Corporation
Assumed Final Distribution Date:
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE,
SERIES ____-___
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 ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust
Fund, and does not represent an obligation of or interest in Residential
Accredit Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC
Mortgage Group, Inc. or any of their affiliates. Neither this Certificate nor
the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Accredit Loans, Inc., the Master
Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates.
None of the Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that Residential Accredit Loans, Inc. is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the Certificate Principal Balance of this Certificate by
the aggregate Certificate Principal Balance of all Class 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 Accredit Loans, Inc. (hereinafter called the "Company," which term
includes any successor entity under the Agreement referred to below). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as
specified above (the "Agreement") among the Company, the Master Servicer and
__________________, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
C-2
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing 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 such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Company that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described by the Agreement. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Company, the Master Servicer and the Certificate Registrar acting on behalf of
the Trustee against any liability that may result if the transfer is not so
exempt or is not made in accordance with such Federal and state laws. In
connection with any such transfer, the Trustee will also require 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 will not constitute or result in a non-exempt prohibited transaction
C-3
under Section 406 of ERISA or Section 4975 of the Code or (ii) a representation
letter, in the form as described by Section 5.02(e) of the Agreement, either
stating that the transferee is not an employee benefit or other plan subject to
the prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of or
purchasing any Certificate with "plan assets" of any Plan, or stating that the
transferee is an insurance company, the source of funds to be used by it to
purchase the Certificate is an "insurance company general account" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60), and the purchase is being made in reliance upon the availability of the
exemptive relief afforded under Sections I and III of PTCE 95-60.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
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
C-4
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
to (i) purchase at a price determined as provided in the Agreement all remaining
Mortgage Loans and all property acquired in respect of any Mortgage Loan or (ii)
purchase in whole, but not in part, all of the Certificates from the Holders
thereof; provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans as of the Distribution Date upon which
the proceeds of any such purchase are distributed is less than ten percent of
the Cut-off Date Principal Balance of the Mortgage Loans.
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.
C-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [_____________________________],
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M- Certificates referred to in the
within-mentioned Agreement.
[___________________________],
as Certificate Registrar
By:
Authorized Signatory
C-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:_____________________________
______________________________________
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.
C-7
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE COMPANY AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER
AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE
OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Certificate No. [ ]% Pass-Through Rate
Class R Senior Aggregate Initial Certificate
Principal Balance of the
Date of Pooling and Servicing Class R Certificates:
Agreement and Cut-off Date: $100.00
___________ 1, ____
Initial Certificate Principal
First Distribution Date: Balance of this Certificate:
_________ 25, ____ $
Master Servicer: Percentage Interest:
Residential Funding Corporation %
Assumed Final Distribution Date: CUSIP 76110F-
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE,
SERIES ____-___
evidencing a percentage interest in any distributions allocable to the
Class R 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 ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust
Fund, and does not represent an obligation of or interest in Residential
Accredit Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC
Mortgage Group, Inc. or any of their affiliates. Neither this Certificate nor
the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Accredit Loans, Inc., the Master
Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates.
None of the Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Initial
Certificate Principal Balance of this Certificate by the aggregate Initial
Certificate Principal Balance of all Class R Certificates, both as specified
above) in certain distributions with respect to the Trust Fund consisting
primarily of a pool of conventional one- to four-family fixed interest rate
first mortgage loans (the "Mortgage Loans"), formed and sold by Residential
Accredit Loans, Inc. (hereinafter called the "Company," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
D-2
created pursuant to a Pooling and Servicing Agreement dated as specified above
(the "Agreement") among the Company, the Master Servicer and __________________,
as trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
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.
D-3
No transfer of this Class R Certificate will be made unless the
Trustee has received 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 R Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or (ii) a representation letter, in the form as
described by the Agreement, stating that the transferee is not an employee
benefit or other plan subject to the prohibited transaction provisions of ERISA
or Section 4975 of the Code (a "Plan"), or any other person (including an
investment manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
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.
D-4
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee 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.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
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.
D-5
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.
D-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [____________________________],
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
[____________________________],
as Certificate Registrar
By:
Authorized Signatory
D-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) a Percentage Interest evidenced by the within Mortgage Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:_____________________________
______________________________________
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.
D-8
EXHIBIT E
FORM OF SELLER/SERVICER CONTRACT
This Seller/Servicer Contract (as may be amended, supplemented or
otherwise modified from time to time, this "Contract") is made this day of , 20
, by and between Residential Funding 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.
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.
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.
E-2
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.
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.
E-3
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.
E-4
IN WITNESS WHEREOF, the duly authorized officers of the Seller/Servicer
and Residential Funding have executed this Seller/Servicer Contract as of the
date first above written.
ATTEST: SELLER/SERVICER
[Corporate Seal]
(Name of Seller/Servicer)
By: By:
(Signature) (Signature)
By: By:
(Typed Name) (Typed Name)
Title: Title:
======================================= =======================================
ATTEST: RESIDENTIAL FUNDING CORPORATION
[Corporate Seal]
By: By:
(Signature) (Signature)
By: By:
(Typed Name) (Typed Name)
Title: Title:
E-5
EXHIBIT F
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one)
Mortgage Loan Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
_______________________________
Residential Funding Corporation
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name: _______________________
Title:
Date:
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or beneficial owner
of the Mortgage Asset-Backed Pass-Through Certificates, Series ____-___, Class R
(the "Owner")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on behalf of
which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified organization" or an
electing large partnership as of [date of transfer] within the meaning of
Sections 860E(e)(5) and 775, respectively, of the Internal Revenue Code of 1986,
as amended (the "Code") or an electing large partnership under Section 775(a) of
the Code, (ii) will endeavor to remain other than a disqualified organization
for so long as it retains its ownership interest in the Class R Certificates,
and (iii) is acquiring the Class R Certificates for its own account or for the
account of another Owner from which it has received an affidavit and agreement
in substantially the same form as this affidavit and agreement. (For this
purpose, a "disqualified organization" means an electing large partnership under
Section 775 of the Code, the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity) or any foreign
government, international organization or any agency or instrumentality of such
foreign government or organization, any rural electric or telephone cooperative,
or any organization (other than certain farmers' cooperatives) that is generally
exempt from federal income tax unless such organization is subject to the tax on
unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on transfers of
Class R Certificates to disqualified organizations or electing large
partnerships, under the Code, that applies to all transfers of Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
(or, with respect to transfers to electing large partnerships, on each such
partnership), or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a disqualified organization, on the agent;
(iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for
the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Class R Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that the
G-1-1
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through entity" holding
Class R Certificates if either the pass-through entity is an electing large
partnership under Section 775 of the Code or if at any time during the taxable
year of the pass-through entity a disqualified organization is the record holder
of an interest in such entity. (For this purpose, a "pass through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity treated as a corporation or a
partnership for U.S. federal income tax purposes and created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States person
under any applicable Treasury regulations), (iii) an estate that is described in
Section 7701(a)(30)(D) of the Code, or (iv) a trust that is described in Section
7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the Class R
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of the Owner or
another United States taxpayer.
7. That the Owner is aware that the Trustee will not register the transfer of
any Class R Certificates unless the transferee, or the transferee's agent,
delivers to it an affidavit and agreement, among other things, in substantially
the same form as this affidavit and agreement. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
8. That the Owner has reviewed the restrictions set forth on the face of the
Class R Certificates and the provisions of Section 5.02(f) of the Pooling and
Servicing Agreement under which the Class R Certificates were issued (in
particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which authorize the
Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event the Owner holds such Certificates in
violation of Section 5.02(f)). The Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
9. That the Owner consents to any additional restrictions or arrangements that
shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R Certificates will only be owned, directly
or indirectly, by an Owner that is not a disqualified organization.
10. The Owner's Taxpayer Identification Number is .
11. This affidavit and agreement relates only to the Class R Certificates held
by the Owner and not to any other holder of the Class R Certificates. The Owner
understands that the liabilities described herein relate only to the Class R
Certificates.
G-2-1
12. That no purpose of the Owner relating to the transfer of any of the Class R
Certificates by the Owner is or will be to impede the assessment or collection
of any tax; in making this representation, the Owner warrants that the Owner is
familiar with (i) Treasury Regulation Section 1.860E-1(c) and recent amendments
thereto, effective as of July 19, 2002, and (ii) the preamble describing the
adoption of the amendments to such regulation, which is attached hereto as
Exhibit 1.
13. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the person from whom it acquired the Class R Certificate
that the Owner intends to pay taxes associated with holding such Class R
Certificate as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class R Certificate.
14. That the Owner has no present knowledge or expectation that it will become
insolvent or subject to a bankruptcy proceeding for so long as any of the Class
R Certificates remain outstanding.
15. The Purchaser is not an employee benefit plan or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Code, or an investment
manager, named fiduciary or a trustee of any such plan, or any other Person
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any such plan.
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IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this day of , 200 .
[NAME OF OWNER]
By:
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Owner, and acknowledged to me
that he executed the same as his free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ___ day of ___, 200__ .
NOTARY PUBLIC
COUNTY OF ____________________
STATE OF _____________________
My Commission expires the ____ day of ____,
20__.
G-4-1
EXHIBIT 1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-
(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
G-5-1
The collection of information in this final rule has been reviewed and,
pending receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number
1545-1675.
The collection of information in this regulation is in Sec. 1.860E-
1(c)(5)(ii). This information is required to enable the IRS to verify that a
taxpayer is complying with the conditions of this regulation. The collection of
information is mandatory and is required. Otherwise, the taxpayer will not
receive the benefit of safe harbor treatment as provided in the regulation. The
likely respondents are businesses and other for-profit institutions.
Comments on the collection of information should be sent to the Office of
Management and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX, 00000, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the collection of information
should be received by September 17, 2002. Comments are specifically requested
concerning:
Whether the collection of information is necessary for the proper
performance of the functions of the Internal Revenue Service, including whether
the information will have practical utility;
The accuracy of the estimated burden associated with the collection of
information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the collection of information may be
minimized, including through the application of automated collection techniques
or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance,
and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid control
number assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an
estimated number of respondents of 470 and an estimated average annual burden
hours per respondent of one hour.
Books or records relating to a collection of information must be retained as
long as their contents may become material in the administration of any internal
revenue law. Generally, tax returns and tax return information are confidential,
as required by 26 U.S.C. 6103.
G-6-1
Background
This document contains final regulations regarding the proposed amendments
to 26 CFR part 1 under section 860E of the Internal Revenue Code (Code). The
regulations provide the circumstances under which a transferor of a noneconomic
REMIC residual interest meeting the investigation and representation
requirements may avail itself of the safe harbor by satisfying either the
formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules governing
the transfer of noneconomic REMIC residual interests. In general, a transfer of
a noneconomic residual interest is disregarded for all tax purposes if a
significant purpose of the transfer is to
[[Page 47452]]
enable the transferor to impede the assessment or collection of tax. A purpose
to impede the assessment or collection of tax (a wrongful purpose) exists if the
transferor, at the time of the transfer, either knew or should have known that
the transferee would be unwilling or unable to pay taxes due on its share of the
REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual interest
is presumed not to have a wrongful purpose if two requirements are satisfied:
(1) the transferor conducts a reasonable investigation of the transferee's
financial condition (the investigation requirement); and (2) the transferor
secures a representation from the transferee to the effect that the transferee
understands the tax obligations associated with holding a residual interest and
intends to pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of
noneconomic residual interests claim they satisfy the safe harbor even in
situations where the economics of the transfer clearly indicate the transferee
is unwilling or unable to pay the tax associated with holding the interest. For
this reason, on February 7, 2000, the IRS published in the Federal Register (65
FR 5807) a notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed
to clarify the safe harbor by adding the "formula test," an economic test. The
proposed regulation provides that the safe harbor is unavailable unless the
present value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (1) The present value of any
consideration given to the transferee to acquire the interest; (2) the present
value of the expected future distributions on the interest; and (3) the present
value of the anticipated tax savings associated with holding the interest as the
REMIC generates losses.
G-7-1
The notice of proposed rulemaking also contained rules for FASITs. Section
1.860H-6(g) of the proposed regulations provides requirements for transfers of
FASIT ownership interests and adopts a safe harbor by reference to the safe
harbor provisions of the REMIC regulations.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to
set forth an alternative safe harbor that taxpayers could use while the IRS and
the Treasury considered comments on the proposed regulations. Under the
alternative safe harbor, if a transferor meets the investigation requirement and
the representation requirement but the transfer fails to meet the formula test,
the transferor may invoke the safe harbor if the transferee meets a two- prong
test (the asset test). A transferee generally meets the first prong of this test
if, at the time of the transfer, and in each of the two years preceding the year
of transfer, the transferee's gross assets exceed $100 million and its net
assets exceed $10 million. A transferee generally meets the second prong of this
test if it is a domestic, taxable corporation and agrees in writing not to
transfer the interest to any person other than another domestic, taxable
corporation that also satisfies the requirements of the asset test. A transferor
cannot rely on the asset test if the transferor knows, or has reason to know,
that the transferee will not comply with its written agreement to limit the
restrictions on subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied in the
case of a transfer or assignment of a noneconomic residual interest to a foreign
branch of an otherwise eligible transferee. If such a transfer or assignment
were permitted, a corporate taxpayer might seek to claim that the provisions of
an applicable income tax treaty would resource excess inclusion income as
G-8-1
foreign source income, and that, as a consequence, any U.S. tax liability
attributable to the excess inclusion income could be offset by foreign tax
credits. Such a claim would impede the assessment or collection of U.S. tax on
excess inclusion income, contrary to the congressional purpose of assuring that
such income will be taxable in all events. See, e.g., sections 860E(a)(1), (b),
(e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers transferring
noneconomic residual interests to foreign branches have attempted to rely on the
formula test to obtain safe harbor treatment in an effort to impede the
assessment or collection of U.S. tax on excess inclusion income. Accordingly,
the final regulations provide that if a noneconomic residual interest is
transferred to a foreign permanent establishment or fixed base of a U.S.
taxpayer, the transfer is not eligible for safe harbor treatment under either
the asset test or the formula test. The final regulations also require a
transferee to represent that it will not cause income from the noneconomic
residual interest to be attributable to a foreign permanent establishment or
fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer may use
to qualify for safe harbor status under the formula test. Section
1.860E-1(c)(8)(i) provides that the transferee is presumed to pay tax at a rate
equal to the highest rate of tax specified in section 11(b). Some commentators
were concerned that this presumed rate of taxation was too high because it does
not take into consideration taxpayers subject to the alternative minimum tax
rate. In light of the comments received, this provision has been amended in the
final regulations to allow certain transferees that compute their taxable income
using the alternative minimum tax rate to use the alternative minimum tax rate
applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present values in
the formula test are to be computed using a discount rate equal to the
applicable Federal short-term rate prescribed by section 1274(d). This is a
change from the proposed regulation and Rev. Proc. 2001-12. In those
publications the provision stated that "present values are computed using a
discount rate equal to the applicable Federal rate prescribed in section 1274(d)
compounded semiannually" and that "[a] lower discount rate may be used if the
transferee can demonstrate that it regularly borrows, in the course of its trade
G-9-1
or business, substantial funds at such lower rate from an unrelated third
party." The IRS and the Treasury Department have learned that, based on this
provision, certain taxpayers have been attempting to use unrealistically low or
zero interest rates to satisfy the formula test, frustrating the intent of the
test. Furthermore, the Treasury Department and the IRS believe that a rule
allowing for a rate other than a rate based on an objective index would add
unnecessary complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if the
transferee can demonstrate that it regularly borrows substantial funds at such
lower rate, is not included in the final regulations; and the Federal short-term
rate has been substituted for the applicable Federal rate. To simplify
taxpayers' computations, the final regulations allow use of any of the published
short-term rates, provided that the present values are computed with a
corresponding period of compounding. With the exception of the provisions
relating to transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may choose to
apply the interest rate formula set forth in the proposed regulation and Rev.
Proc. 2001-12 for transfers occurring before August 19, 2002.
It is anticipated that when final regulations are adopted with respect to
[[Page 47453]]
FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
G-10-1
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a significant
economic impact on a substantial number of small entities. This certification is
based on the fact that it is unlikely that a substantial number of small
entities will hold REMIC residual interests. Therefore, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that sections
553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do
not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However,
other personnel from the IRS and Treasury Department participated in their
development.
List of Subjects
G-11-1
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
G-12-1
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
________ , 20__
Residential Accredit Loans, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
__________________
__________________
__________________
Attention: Residential Funding Corporation Series ____-___
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by (the "Seller") to (the "Purchaser") of $ Initial Certificate Principal
Balance of Mortgage Asset-Backed Pass-Through Certificates, Series ____-___,
Class R (the "Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
___________ 1, ____ among Residential Accredit Loans, Inc., as seller (the
"Company"), Residential Funding Corporation, as master servicer (the "Master
Servicer"), and __________________, as trustee (the "Trustee"). All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Seller hereby certifies, represents and
warrants to, and covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate by the
Seller to the Purchaser is or will be to impede the assessment or collection of
any tax.
2. The Seller understands that the Purchaser has delivered to the Trustee and
the Master Servicer a transfer affidavit and agreement in the form attached to
the Pooling and Servicing Agreement as Exhibit G-1. The Seller does not know or
believe that any representation contained therein is false.
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
G-2-1
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: __________________________
Title:
G-2-2
EXHIBIT H
FORM OF INVESTOR REPRESENTATION LETTER
_____________ , 20___
Residential Accredit Loans, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
__________________
__________________
__________________
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Corporation Series ____-___
RE: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___, [Class B-]
Ladies and Gentlemen:
_________________(the "Purchaser") intends to purchase from
________________ (the "Seller") $______________ Initial Certificate Principal
Balance of Mortgage Asset-Backed Pass-Through Certificates, Series ____-___,
Class (the "Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of ___________ 1,
____ among Residential Accredit Loans, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer (the "Master Servicer"), and
__________________, as trustee (the "Trustee"). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Company, the Trustee and the Master Servicer that:
1. The Purchaser understands that (a) the Certificates have not been and
will not be registered or qualified under the Securities Act of 1933, as
amended (the "Act") or any state securities law, (b) the Company is not
required to so register or qualify the Certificates, (c) the
Certificates may be resold only if registered and qualified pursuant to
the provisions of the Act or any state securities law, or if an
exemption from such registration and qualification is available, (d) the
Pooling and Servicing Agreement contains restrictions regarding the
transfer of the Certificates and (e) the Certificates will bear a legend
to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with
any distribution thereof in any manner that would violate the Act or any
applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters,
and, in particular, in such matters related to securities similar to the
Certificates, such that it is capable of evaluating the merits and risks
of investment in the Certificates, (b) able to bear the economic risks
of such an investment and (c) an "accredited investor" within the
meaning of Rule 501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity to
review (a) [a copy of the Private Placement Memorandum, dated _______,
20__, relating to the Certificates (b)] a copy of the Pooling and
Servicing Agreement and [b] [c] such other information concerning the
Certificates, the Mortgage Loans and the Company as has been requested
by the Purchaser from the Company or the Seller and is relevant to the
Purchaser's decision to purchase the Certificates. The Purchaser has had
any questions arising from such review answered by the Company or the
Seller to the satisfaction of the Purchaser. [If the Purchaser did not
purchase the Certificates from the Seller in connection with the initial
distribution of the Certificates and was provided with a copy of the
Private Placement Memorandum (the "Memorandum") relating to the original
sale (the "Original Sale") of the Certificates by the Company, the
Purchaser acknowledges that such Memorandum was provided to it by the
Seller, that the Memorandum was prepared by the Company solely for use
in connection with the Original Sale and the Company did not participate
in or facilitate in any way the purchase of the Certificates by the
Purchaser from the Seller, and the Purchaser agrees that it will look
solely to the Seller and not to the Company with respect to any damage,
liability, claim or expense arising out of, resulting from or in
connection with (a) error or omission, or alleged error or omission,
contained in the Memorandum, or (b) any information, development or
event arising after the date of the Memorandum.]
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicit any offer to
buy or to accept a pledge, disposition of other transfer of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) otherwise approach or
negotiate with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any manner,
H-2
(d) make any general solicitation by means of general advertising or in
any other manner or (e) take any other action, that (as to any of (a)
through (e) above) would constitute a distribution of any Certificate
under the Act, that would render the disposition of any Certificate a
violation of Section 5 of the Act or any state securities law, or that
would require registration or qualification pursuant thereto. The
Purchaser will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing
Agreement.
6. The Purchaser
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (a "Plan"), or any other person (including an investment manager, a
named fiduciary or a trustee of any Plan) acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any Plan within
the meaning of the Department of Labor ("DOL") regulation at 29 C.F.R.
ss.2510.3-101; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account" (within the
meaning of DOL Prohibited Transaction Class Exemption ("PTCE") 95-60), and the
purchase is being made in reliance upon the availability of the exemptive relief
afforded under Sections I and III of PTCE 95-60.
In addition, the Purchaser hereby certifies, represents and warrants to,
and covenants with, the Company, the Trustee and the Master Servicer that the
Purchaser will not transfer such Certificates to any Plan or person unless such
Plan or person meets the requirements set forth in either 6(a) or (b) above.
Very truly yours,
By:____________________
Name:
Title:
H-3
EXHIBIT I
FORM OF TRANSFEROR REPRESENTATION LETTER
_______ , 20__
Residential Accredit Loans, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
__________________
__________________
__________________
Attention: Residential Funding Corporation Series ____-___
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___, [Class B-]
Ladies and Gentlemen:
In connection with the sale by (the "Seller") to (the
"Purchaser") of $ Initial Certificate Principal Balance of Mortgage Asset-Backed
Pass-Through Certificates, Series ____-___, Class (the "Certificates"), issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of ___________ 1, ____ among Residential Accredit Loans,
Inc., as seller (the "Company"), Residential Funding Corporation, as master
servicer, and __________________, as trustee (the "Trustee"). The Seller hereby
certifies, represents and warrants to, and covenants with, the Company and the
Trustee that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933 (the "Act"), that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law, or
that would require registration or qualification pursuant thereto. The Seller
will not act, in any manner set forth in the foregoing sentence with respect to
any Certificate. The Seller has not and will not sell or otherwise transfer any
of the Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
Very truly yours,
__________________________
(Seller)
By: ________________________
Name:
Title:
EXHIBIT J
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_______________________________________________________
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone
acting on its behalf has offered, transferred, pledged, sold or
otherwise disposed of the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security to, or solicited any offer
to buy or accept a transfer, pledge or other disposition of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with
respect to the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security with, any person in any manner,
or made any general solicitation by means of general advertising or in
any other manner, or taken any other action, that would constitute a
distribution of the Rule 144A Securities under the Securities Act of
1933, as amended (the "1933 Act"), or that would render the disposition
of the Rule 144A Securities a violation of Section 5 of the 1933 Act or
require registration pursuant thereto, and that the Seller has not
offered the Rule 144A Securities to any person other than the Buyer or
another "qualified institutional buyer" as defined in Rule 144A under
the 0000 Xxx.
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 ___________ 1, ____
among Residential Funding Corporation as Master Servicer, Residential
Accredit Loans, Inc. as depositor pursuant to Section 5.02 of the
Agreement and __________________, as trustee, as follows:
(a) The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
(b) The Buyer considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of
investment in the Rule 144A Securities.
(c) The Buyer has been furnished with all information regarding the Rule
144A Securities that it has requested from the Seller, the Trustee or
the Servicer.
(d) Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A
Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Rule
144A Securities under the 1933 Act or that would render the disposition
of the Rule 144A Securities a violation of Section 5 of the 1933 Act or
require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that term is defined
in Rule 144A under the 1933 Act and has completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. The
Buyer is aware that the sale to it is being made in reliance on Rule
144A. The Buyer is acquiring the Rule 144A Securities for its own
account or the accounts of other qualified institutional buyers,
understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A,
or (ii) pursuant to another exemption from registration under the 1933
Act.
[3. The Buyer
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (a "Plan"), or any other person (including an
investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. ss. 2510.3-101; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account"
(within the meaning of DOL Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III
of PTCE 95-60.]
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:
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is attached:
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.
-- 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.
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.
J-2
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:
J-3
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is attached:
8. As indicated below, the undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
9. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
-- The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
-- The Buyer is part of a Family of Investment Companies which owned
in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
10. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
11. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
12. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
13. The undersigned will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Buyer
By:
Name:
IF AN ADVISER:
Print Name of Buyer
Date:
EXHIBIT K
[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 Sub-Servicer will be
entitled to any reimbursement pursuant to Section 4.02(a) on such Distribution
Date for Advances or Sub-Servicer Advances previously made, (which will not be
Advances or Sub-Servicer Advances that were made with respect to delinquencies
which were subsequently determined to be Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses) and, if so, the
Master Servicer shall demand payment from Residential Funding of an amount equal
to the amount of any Advances or Sub-Servicer Advances reimbursed pursuant to
Section 4.02(a), to the extent such Advances or Sub-Servicer Advances have not
been included in the amount of the Realized Loss in the related Mortgage Loan,
and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a).
(b) Subject to subsection (c) below, prior to the later of the
third Business Day prior to each Distribution Date or the related Determination
Date, the Master Servicer shall determine whether any Realized Losses (other
than Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
and Extraordinary Losses) will be allocated to the Class B Certificates on such
Distribution Date pursuant to Section 4.05, and, if so, the Master Servicer
shall demand payment from Residential Funding of the amount of such Realized
Loss and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a);
provided, however, that the amount of such demand in respect of any Distribution
Date shall in no event be greater than the sum of (i) the additional amount of
Accrued Certificate Interest that would have been paid for the Class B
Certificateholders on such Distribution Date had such Realized Loss or Losses
not occurred plus (ii) the amount of the reduction in the Certificate Principal
Balances of the Class B Certificates on such Distribution Date due to such
Realized Loss or Losses. Notwithstanding such payment, such Realized Losses
shall be deemed to have been borne by the Certificateholders for purposes of
Section 4.05. Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses and Extraordinary Losses allocated to the Class B Certificates
will not be covered by the Subordinate Certificate Loss Obligation.
(c) Demands for payments pursuant to this Section shall be made
prior to the later of the third Business Day prior to each Distribution Date or
the related Determination Date by the Master Servicer with written notice
thereof to the Trustee. The maximum amount that Residential Funding shall be
required to pay pursuant to this Section on any Distribution Date (the "Amount
Available") shall be equal to the lesser of (X) minus the sum of (i) all
previous payments made under subsections (a) and (b) hereof and (ii) all draws
under the Limited Guaranty made in lieu of such payments as described below in
subsection (d) and (Y) the then outstanding Certificate Principal Balances of
the Class B Certificates, or such lower amount as may be established pursuant to
Section 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 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 supercession (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 supercession 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.
EXHIBIT L
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL ACCREDIT LOANS, INC.
Mortgage Asset-Backed Pass-Through Certificates
Series ____-___
____________ , 200_
__________________
__________________
__________________
Attention: Residential Funding Corporation Series ____-___
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 ___________ 1, ____ (the "Servicing Agreement"), among
Residential Accredit Loans, Inc. (the "Company"), Residential Funding and
__________________ (the "Trustee") as amended by Amendment No. thereto, dated as
of , with respect to the Mortgage Asset-Backed Pass-Through Certificates, Series
____-___ (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:
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.
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.
L-2
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be
executed and delivered by its respective officers thereunto duly authorized as
of the day and year first above written.
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:________________________
Name:
Title:
Acknowledged by:
__________________,
as Trustee
By:
Name:
Title:
RESIDENTIAL ACCREDIT LOANS, INC.
By:
Name:
Title:
L-3
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
_________ , 20___
Residential Accredit Loans, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
__________________
__________________
__________________
Attention: Residential Funding Corporation Series ____-___
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___ Assignment of Mortgage Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the assignment
by (the "Trustee") to (the "Lender") of (the "Mortgage Loan") pursuant to
Section 3.13(d) of the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of ___________ 1, ____ among Residential
Accredit Loans, 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;
(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:
EXHIBIT N
FORM OF REQUEST FOR EXCHANGE
[DATE]
__________________
__________________
__________________
Re: Residential Accredit Loans, Inc.,
Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___
Residential Funding Corporation, as the Holder of a % Percentage
Interest of the [Interest Only/Class A-V][-1] Certificates, hereby requests the
Trustee to exchange the above-referenced Certificates for the Subclasses
referred to below:
1. [Interest Only/Class A-V]- Certificates, corresponding to
the following Uncertificated REMIC Regular Interests:
[List numbers corresponding to the related loans and Pool
Strip Rates from the Mortgage Loan Schedule]. The initial
Subclass Notional Amount and the Initial Pass-Through Rate
on the [Interest Only/Class A-V]- Certificates will be $
and %, respectively.
2. [Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate
all of the Uncertificated REMIC Regular Interests represented by the [Interest
Only/Class A-V][-1] Certificates surrendered for exchange.
All capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement, dated as of
___________ 1, ____, among Residential Accredit Loans, Inc., Residential Funding
Corporation and __________________, as trustee.
RESIDENTIAL FUNDING CORPORATION
By: ___________________________
Name:
Title:
EXHIBIT O
Form of Form 10-K Certification
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[____], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of the trust (the "Trust") created pursuant to the Series Supplement dated
___________________ to the Standard Terms of Pooling and Servicing Agreement
dated ____________________ (together, the "P&S Agreement") among Residential
Accredit Loans, Inc. (the "Company"), Residential Funding Corporation (the
"Master Servicer") and [Name of Trustee] (the "Trustee");
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer under the P&S Agreement for
inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the P&S Agreement and based upon my knowledge and the annual
compliance review required under the P&S Agreement, and, except as disclosed in
the reports, the Master Servicer has fulfilled its obligations under the P&S
Agreement; and
5. The reports disclose all significant deficiencies relating to the
Master Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
as set forth in the P&S Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the Trustee].
Date:_______________________
____________________________*
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions
of the Master Servicer
EXHIBIT P
[FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE]
The undersigned, a Responsible Officer of [_________] (the "Trustee")
certifies that:
(a) The Trustee has performed all of the duties specifically required to
be performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated as of [_________], 20[__] (the "Agreement") by and among
[__________], as depositor, Residential Funding Corporation, as master servicer,
and the Trustee in accordance with the standards set forth therein.
(b) Based on my knowledge, the list of Certificateholders as shown on
the Certificate Register as of the end of each calendar year that is provided by
the Trustee pursuant to the Agreement is accurate as of the last day of the
20[__] calendar year.
Capitalized terms used and not defined herein shall have the meanings given such
terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of
_________, 20__.]
Name:_____________________
Title:
EXHIBIT Q
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING AGENCIES
RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Term (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
