RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.,
Company,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
SERIES SUPPLEMENT,
DATED AS OF AUGUST 1, 2006
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 1, 2006
Mortgage Pass-Through Certificates
Series 2006-S7
ARTICLE I DEFINITIONS................................................................................4
Section 1.01 Definitions.......................................................................4
Section 1.02 Use of Words and Phrases.........................................................17
Section 1.03 Determination of LIBOR...........................................................18
ARTICLE II ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES................20
Section 2.01 Conveyance of Mortgage Loans.....................................................20
Section 2.02 Acceptance by Trustee............................................................24
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the
Company..........................................................................25
Section 2.04 Representations and Warranties of Residential Funding. (See Section 2.04
of the Standard Terms)...........................................................28
Section 2.05 Execution and Authentication of Class R-I Certificates...........................28
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II Regular Interests;
Acceptance by the Trustee........................................................28
Section 2.07 Issuance of Certificates Evidencing Interest in REMIC II.........................28
Section 2.08 Purposes and Powers of the Trust. (See Section 2.08 of the Standard
Terms)...........................................................................29
Section 2.09 Agreement Regarding Ability to Disclose..........................................29
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............................................30
Section 3.01 Master Servicer to Act as Servicer. (See Section 3.01 of the Standard
Terms)...........................................................................30
Section 3.02 Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations............................30
Section 3.03 Successor Subservicers. (See Section 3.03 of the Standard Terms)................31
Section 3.04 Liability of the Master Servicer. (See Section 3.04 of the Standard
Terms)...........................................................................31
Section 3.05 No Contractual Relationship Between Subservicer and Trustee or
Certificateholders. (See Section 3.05 of the Standard Terms)....................31
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee. (See
Section 3.06 of the Standard Terms)..............................................31
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to Custodial
Account. (See Section 3.07 of the Standard Terms)...............................31
Section 3.08 Subservicing Accounts; Servicing Accounts. (See Section 3.08 of the
Standard Terms)..................................................................31
Section 3.09 Access to Certain Documentation and Information Regarding the Mortgage
Loans. (See Section 3.09 of the Standard Terms).................................31
Section 3.10 Permitted Withdrawals from the Custodial Account. (See Section 3.10 of
the Standard Terms)..............................................................31
Section 3.11 Maintenance of the Primary Insurance Policies; Collections Thereunder.
(See Section 3.11 of the Standard Terms).........................................31
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity Coverage. (See
Section 3.12 of the Standard Terms)..............................................31
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments. (See Section 3.13 of the Standard Terms).......31
Section 3.14 Realization Upon Defaulted Mortgage Loans. (See Section 3.14 of the
Standard Terms)..................................................................31
Section 3.15 Trustee to Cooperate; Release of Custodial Files.................................31
Section 3.16 Servicing and Other Compensation; Compensating Interest. (See Section
3.16 of the Standard Terms)......................................................33
Section 3.17 Reports to the Trustee and the Company. (See Section 3.17 of the
Standard Terms)..................................................................33
Section 3.18 Annual Statement as to Compliance. (See Section 3.18 of the Standard
Terms)...........................................................................33
Section 3.19 Annual Independent Public Accountants' Servicing Report. (See Section
3.19 of the Standard Terms)......................................................33
Section 3.20 Rights of the Company in Respect of the Master Servicer. (See Section
3.20 of the Standard Terms)......................................................33
Section 3.21 Administration of Buydown Funds. (See Section 3.21 of the Standard Terms).......33
Section 3.22 Advance Facility. (See Section 3.22 of the Standard Terms)......................33
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS............................................................34
Section 4.01 Certificate Account. (See Section 4.01 of the Standard Terms)...................34
Section 4.02 Distributions....................................................................34
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies; Exchange
Act Reporting. (See Section 4.03 of the Standard Terms) and Exhibit
Three hereto)....................................................................43
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).......................43
Section 4.05 Allocation of Realized Losses....................................................43
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property. (See
Section 4.06 of the Standard Terms)..............................................45
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See Section 4.07 of the
Standard Terms)..................................................................45
Section 4.08 Surety Bond. (See Section 4.08 of the Standard Terms)...........................45
Section 4.09 The Yield Maintenance Agreement..................................................45
Section 4.10 Reserve Fund.....................................................................46
ARTICLE V THE CERTIFICATES (SEE ARTICLE V OF THE STANDARD TERMS)....................................47
ARTICLE VI THE COMPANY AND THE MASTER SERVICER.......................................................48
Section 6.01 Respective Liabilities of the Company and Master Servicer. (See Section
6.01 of the Standard Terms.).....................................................48
Section 6.02 Merger or Consolidation of the Company or Master Servicer; Assignment of
Rights and Delegation of Duties by Master Servicer...............................48
Section 6.03 Limitation on Liability of the Company, Master Servicer and Others. (See
Section 6.03 of the Standard Terms.).............................................48
Section 6.04 Company and Master Servicer Not to Resign. (See Section 6.04 of the
Standard Terms.).................................................................48
ARTICLE VII DEFAULT (SEE ARTICLE VII OF THE STANDARD TERMS)...........................................49
ARTICLE VIII CONCERNING THE TRUSTEE....................................................................50
Section 8.01 Duties of Trustee. (See Section 8.01 of the Standard Terms).....................50
Section 8.02 Certain Matters Affecting the Trustee. (See Section 8.02 of the Standard
Terms)...........................................................................50
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans. (See Section 8.03
of the Standard Terms)...........................................................50
Section 8.04 Trustee May Own Certificates. (See Section 8.04 of the Standard Terms)..........50
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses; Indemnification.
(See Section 8.05 of the Standard Terms).........................................50
Section 8.06 Eligibility Requirements for Trustee. (See Section 8.06 of the Standard
Terms)...........................................................................50
Section 8.07 Resignation and Removal of Trustee. (See Section 8.07 of the Standard
Terms)...........................................................................50
Section 8.08 Successor Trustee................................................................50
Section 8.09 Merger or Consolidation of Trustee. (See Section 8.09 of the Standard
Terms)...........................................................................51
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (See Section 8.10 of the
Standard Terms)..................................................................51
Section 8.11 Appointment of Custodian.........................................................51
Section 8.12 Appointment of Office or Agency. (See Section 8.12 of the Standard
Terms)...........................................................................51
ARTICLE IX TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES......................................52
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........52
Section 9.02 Additional Termination Requirements. (See Section 9.02 of the Standard
Terms)...........................................................................53
Section 9.03 Termination of Multiple REMICs. (See Section 9.03 of the Standard Terms)........53
ARTICLE X REMIC PROVISIONS..........................................................................54
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard Terms).................54
Section 10.02 Master Servicer; REMIC Administrator and Trustee Indemnification. (See
Section 10.02 of the Standard Terms).............................................54
Section 10.03 Designation of REMIC(s)..........................................................54
Section 10.04 Distributions on the Uncertificated REMIC I Regular Interests Z..................54
Section 10.05 Compliance with Withholding Requirements.........................................56
ARTICLE XI MISCELLANEOUS PROVISIONS..................................................................57
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)............................57
Section 11.02 Recordation of Agreement, Counterparts. (See Section 11.02 of the
Standard Terms)..................................................................57
Section 11.03 Limitation on Rights of Certificateholders. (See Section 11.03 of the
Standard Terms)..................................................................57
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms).......................57
Section 11.05 Notices..........................................................................57
Section 11.06 Required Notices to Rating Agency and Subservicer. (See Section 11.06 of
the Standard Terms)..............................................................58
Section 11.07 Severability of Provisions. (See Section 11.07 of the Standard Terms)...........58
Section 11.08 Supplemental Provisions for Resecuritization. (See Section 11.08 of the
Standard Terms)..................................................................58
Section 11.09 Allocation of Voting Rights......................................................58
Section 11.10 No Petition. (See Section 11.10 of the Standard Terms)..........................58
ARTICLE XII COMPLIANCE WITH REGULATION AB (SEE ARTICLE XII OF THE STANDARD TERMS).....................59
EXHIBITS
Exhibit One: Mortgage Loan Schedule (Available from the Company upon request.)
Exhibit Two: Schedule of Discount Fractions (Available from the Company upon request.)
Exhibit Three: Information to be Included in Monthly Distribution Date Statement
Exhibit Four: Standard Terms of Pooling and Servicing Agreement dated as of June 1, 2006
This is a Series Supplement, dated as of August 1, 2006 (the "Series Supplement"), to the Standard Terms
of Pooling and Servicing Agreement, dated as of June 1, 2006 and attached as Exhibit Four hereto (the "Standard
Terms" and, together with this Series Supplement, the "Pooling and Servicing Agreement" or "Agreement"), among
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC., as the company (together with its permitted successors and
assigns, the "Company"), RESIDENTIAL FUNDING CORPORATION, as master servicer (together with its permitted
successors and assigns, the "Master Servicer"), and U.S. BANK NATIONAL ASSOCIATION, as Trustee (together with its
permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT
The Company intends to sell Mortgage Pass-Through Certificates (collectively, the "Certificates"), to be
issued hereunder in multiple classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund. As provided herein, the REMIC Administrator will make an election to treat the
entire segregated pool of assets described in the definition of Trust Fund, and subject to this Agreement
(including the Mortgage Loans but excluding the Initial Monthly Payment Fund, the Yield Maintenance Agreement and
any payments thereunder and the Reserve Fund and any payments therefrom), as a real estate mortgage investment
conduit (the "REMIC") for federal income tax purposes and such segregated pool of assets will be designated as
"REMIC I." The Uncertificated REMIC Regular I 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). A segregated pool of assets consisting of the Uncertificated REMIC I Regular Interests will be
designated as "REMIC II," and the REMIC Administrator will make a separate REMIC election with respect thereto.
The Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-5
Certificates, Class A-6 Certificates, Class A-7 Certificates, Class A-8 Certificates, Class A-9 Certificates,
Class A-10 Certificates, Class A-P Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class B-1 Certificates, Class B-2 Certificates, Class B-3 Certificates and the Uncertificated REMIC
II Regular Interests Z 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. The Class A-V Certificates will
represent the entire beneficial ownership interest in the Uncertificated REMIC I Regular Interests Z.
The terms and provisions of the Standard Terms are hereby incorporated by reference herein as though set
forth in full herein. If any term or provision contained herein shall conflict with or be inconsistent with any
provision contained in the Standard Terms, the terms and provisions of this Series Supplement shall govern. Any
cross-reference to a section of the Pooling and Servicing Agreement, to the extent the terms of the Standard
Terms and Series Supplement conflict with respect to that section, shall be a cross-reference to the related
section of the Series Supplement. All capitalized terms not otherwise defined herein shall have the meanings set
forth in the Standard Terms. The Pooling and Servicing Agreement shall be dated as of the date of the Series
Supplement.
The following table 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
DESIGNATION RATE BALANCE FEATURES(1) DATE XXXXX'X/S&P/FITC DENOMINATIONS(2)
Class A-1(3) Variable $50,000,000 Senior/Floater/Adjustable Rate August 2036 Aaa/AAA/AAA $100,000.00
Rate
Class A-2(3) Variable Senior/Inverse Floater/
Rate Notional Interest Only/Adjustable Rate August 2036 Aaa/AAA/AAA $1,000,000.00
Class A-3 6.25% $277,250,000 Senior/Fixed Rate August 2036 Aaa/AAA/AAA $100,000.00
Class A-4 6.25% $38,786,000 Super Senior/Lockout/Fixed Rate August 2036 Aaa/AAA/AAA $100,000.00
Class A-5 6.25% $1,512,000 Senior Support/Lockout/Fixed Rate August 2036 Aa1/AAA/AAA $100,000.00
Class A-6 6.25% $10,420,000 Senior/Retail/Fixed Rate August 2036 Aaa/AAA/AAA $1,000.00
Class A-7 6.25% $10,000,000 Super Senior/Lockout/Fixed Rate August 2036 Aaa/AAA/AAA $100,000.00
Class A-8 6.00% $30,000,000 Super Senior/Fixed Rate August 2036 Aaa/AAA/AAA $100,000.00
Class A-9 6.50% $30,000,000 Super Senior/Retail/Fixed Rate August 2036 Aaa/AAA/AAA $1,000.00
Class A-10 6.25% $2,500,000 Senior Support/Lockout/Fixed Rate August 2036 Aa1/AAA/AAA $100,000.00
Class A-P 0.00% $1,570,946 Senior/Principal Only August 2036 Aaa/AAA/AAA $100,000.00
Class A-V Variable Notional Senior/Interest Only/Variable Rate August 2036 Aaa/AAA/AAA $2,000,000.00
Rate
Class R-I 6.25% $100.00 Senior/Residual/Fixed Rate August 2036 Aaa/AAA/AAA (4)
Class R-II 6.25% $100.00 Senior/Residual/Fixed Rate August 2036 Aaa/AAA/AAA (4)
Class M-1 6.25% $10,097,600 Mezzanine/Fixed Rate August 2036 NA/NA/AA $100,000.00
Class M-2 6.25% $2,817,900 Mezzanine/Fixed Rate August 2036 NA/NA/A $250,000.00
Class M-3 6.25% $1,878,600 Mezzanine/Fixed Rate August 2036 NA/NA/BBB $250,000.00
Class B-1 6.25% $939,300 Subordinate/Fixed Rate August 2036 NA/NA/BB $250,000.00
Class B-2 6.25% $939,300 Subordinate/Fixed Rate August 2036 NA/NA/B $250,000.00
Class B-3 6.25% $939,339 Subordinate/Fixed Rate August 2036 NA/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 A-6, Class A-9, 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)
----------------------------------------------------------------------------------------------
Initial
Adjustable Pass-Through Formula Maximum Minimum
Rates: Rate
Class A-1 6.25% LIBOR + 0.60% Subject to the Available 0.60%
Funds Cap
Class A-2 0.00% 5.65% - LIBOR 5.65% 0.00%
The Class A-1 Certificates will represent ownership of a regular interest in
REMIC II, together with certain rights to payments to be made from amounts
received under the Yield Maintenance Agreement or on deposit in the Reserve Fund
which will be deemed made for federal income tax purposes outside of REMIC II.
(4) 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 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%
The Mortgage Loans have an aggregate principal balance as of the Cut-off
Date of $469,651,185.15.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires,
shall have the meanings specified in this Article.
Adjustable Rate Certificates: Any one of the Class A-1 and Class A-2 Certificates.
Available Funds Cap: With respect to any Distribution Date on or before the Distribution Date in July
2018 and the Class A-1 Certificates, 6.25% per annum plus amounts, if any, paid pursuant to the Yield Maintenance
Agreement (which shall not be part of any REMIC hereunder) and on deposit in the Reserve Fund (which shall not be
part of any REMIC hereunder) up to an amount equal to the Yield Supplement Amount for such Distribution Date,
expressed as a per annum rate. With respect to any Distribution Dates after July 2018, 6.25% 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) $129,492 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) 0.0006 times the aggregate principal balance of all the
Mortgage Loans in the Mortgage Pool as of the Relevant Anniversary (other than Additional
Collateral Loans, if any) having a Loan-to-Value Ratio at origination which exceeds 75% and
(ii) $129,492; and
(B) the greater of (i) the product of (x) an amount equal to the largest
difference in the related Monthly Payment for any Non-Primary Residence Loan remaining in the
Mortgage Pool (other than Additional Collateral Loans, if any) which had an original
Loan-to-Value Ratio of 80% or greater that would result if the Net Mortgage Rate thereof was
equal to the weighted average (based on the principal balance of the Mortgage Loans 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) $129,492,
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.
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, the State of Illinois or the City of
St. Xxxx, Minnesota (and such other state or states in which the Custodial Account or the Certificate Account are
at the time located) are required or authorized by law or executive order to be closed.
Capitalization Reimbursement Amount: As to any Distribution Date, the amount of Advances or Servicing
Advances that were added to the Stated Principal Balance of the related Mortgage Loans during the prior calendar
month and reimbursed to the Master Servicer or Subservicer on or prior to such Distribution Date pursuant to
Section 3.10(a)(vii), plus the Capitalization Reimbursement Shortfall Amount remaining unreimbursed from any
prior Distribution Date and reimbursed to the Master Servicer or Subservicer on or prior to such Distribution
Date, provided, however, that the Capitalization Reimbursement Amount shall at no time exceed five percent of the
aggregate Cut-Off Date Principal Balance of the Mortgage Loans, unless such limit is increased from time to time
with the consent of the Rating Agencies.
Certificate: Any Class A, Class M, Class B or Class R Certificate.
Certificate Account: The separate account or accounts created and maintained pursuant to Section 4.01
of the Standard Terms, which shall be entitled "U.S. Bank National Association, as trustee, in trust for the
registered holders of Residential Funding Mortgage Securities I, Inc., Mortgage Pass-Through Certificates, Series
2006-S7" and which must be an Eligible Account.
Class A Certificate: Any one of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8, Class A-9, Class A-10, Class A-P or Class A-V 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-4/A-5 Lockout Amount: With respect to any Distribution Date, an amount equal to the sum of the
following:
(a) the product of (i) the Class A-4/A-5 Lockout Percentage for such Distribution Date, and (ii) the
aggregate collections described in clauses (A), (B) and (E), to the extent clause (E) relates to clause (A) or
(B), of Section 4.02(a)(ii)(Y) without applying the Senior Percentage and the Senior Accelerated Distribution
Percentage on such Distribution Date, plus
(b) the product of (i) the Class A-4/A-5 Lockout Percentage for such Distribution Date, (ii) the Lockout
Prepayment Percentage for such Distribution Date, and (iii) the aggregate collections described in clauses (C)
and (E), to the extent clause (E) relates to clause (C), of Section 4.02(a)(ii)(Y) without applying the Senior
Accelerated Distribution Percentage on such Distribution Date.
Class A-4/A-5 Lockout Percentage: With respect to any Distribution Date prior to the Distribution Date
in September 2011, zero, and with respect to such Distribution Date and any Distribution Date thereafter, a
fraction, expressed as a percentage, (i) the numerator of which is the aggregate Certificate Principal Balances
of the Class A-4 and Class A-5 Certificates and (ii) the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans other than the Discount Fraction of each Discount Mortgage Loan.
Class A-7/A-10 Lockout Amount: With respect to any Distribution Date, an amount equal to the sum of the
following:
(a) the product of (i) the Class A-7/A-10 Lockout Percentage for such Distribution Date, and (ii) the
aggregate collections described in clauses (A), (B) and (E), to the extent clause (E) relates to clause (A) or
(B), of Section 4.02(a)(ii)(Y) without applying the Senior Percentage and the Senior Accelerated Distribution
Percentage on such Distribution Date, plus
(b) the product of (i) the Class A-7/A-10 Lockout Percentage for such Distribution Date, (ii) the
Lockout Prepayment Percentage for such Distribution Date, and (iii) the aggregate collections described in
clauses (C) and (E), to the extent clause (E) relates to clause (C), of Section 4.02(a)(ii)(Y) without applying
the Senior Accelerated Distribution Percentage on such Distribution Date.
Class A-7/A-10 Lockout Percentage: With respect to any Distribution Date prior to the Distribution Date
in September 2011, zero, and with respect to such Distribution Date and any Distribution Date thereafter, a
fraction, expressed as a percentage, (i) the numerator of which is the aggregate Certificate Principal Balances
of the Class A-7 and Class A-10 Certificates and (ii) the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans other than the Discount Fraction of each Discount Mortgage Loan.
Class A-P Principal Distribution Amount: As defined in Section 4.02(b)(i).
Class R Certificate: Any one of the Class R-I or 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 the related REMIC for purposes of the REMIC
Provisions.
Closing Date: August 30, 2006.
Corporate Trust Office: The principal office of the Trustee at which at any particular time its
corporate trust business with respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at U.S. Bank National Association, EP-MN-WS3D, 00 Xxxxxxxxxx Xxxxxx, Xx.
Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance/RFMSI 2006-S7.
Custodial File: Any mortgage loan document in the Mortgage File that is required to be delivered to the
Trustee or the Custodian pursuant to Section 2.01(b) of this Agreement.
Cut-off Date: August 1, 2006.
Determination Date: With respect to any Distribution Date, the second Business Day prior to such
Distribution Date.
Discount Net Mortgage Rate: 6.25% per annum.
Due Period: With respect to each Distribution Date and any Mortgage Loan, the calendar month of such
Distribution Date.
Eligible Funds: On any Distribution Date, the portion, if any, of the Available Distribution Amount
remaining after reduction by the sum of (i) the aggregate amount of Accrued Certificate Interest on the Senior
Certificates, (ii) the Senior Principal Distribution Amount (determined without regard to Section
4.02(a)(ii)(Y)(D) of this Series Supplement), (iii) the Class A-P Principal Distribution Amount (determined
without regard to Section 4.02(b)(i)(E) of this Series Supplement) and (iv) the aggregate amount of Accrued
Certificate Interest on the Class M, Class B-1 and Class B-2 Certificates.
First Super Senior Optimal Percentage: As to any Distribution Date on or after the Credit Support
Depletion Date, a fraction expressed as a percentage, the numerator of which is the aggregate Certificate
Principal Balance of the Class A-7, Class A-8 and Class A-9 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 that Distribution Date.
First Super Senior Optimal Principal Distribution Amount: As to any Distribution Date on or after the
Credit Support Depletion Date, an amount equal to the product of (a) the then applicable First Super Senior
Optimal Percentage and (b) the amounts described in clause (b) of the definition of Senior Principal Distribution
Amount.
Floater Certificates: The Class A-1 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 3.00% 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) prior to the second 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 and (Z) from the third to the fifth anniversary of the Cut-off Date, an amount equal
to (1) the lesser of (a) the Fraud Loss Amount as of the most recent anniversary of the Cut-off Date and (b)
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 of this Series Supplement 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.
Initial Monthly Payment Fund: $25,307 representing scheduled principal amortization and interest at the
Net Mortgage Rate during the month of August 2006, for those Mortgage Loans for which the Trustee will not be
entitled to receive such payment in accordance with the definition of "Trust Fund". The Initial Monthly Payment
Fund will not be part of any REMIC.
Initial Notional Amount: With respect to any Class A-V Certificates or Subclass thereof issued pursuant
to Section 5.01(c), the aggregate Cut-off Date Principal Balance of the Mortgage Loans relating to the
Uncertificated REMIC I Regular Interests Z, and correspondingly, the Uncertificated REMIC II Regular Interests Z,
corresponding to such Class or Subclass on such date.
Interest Accrual Period: With respect to any Certificates (other than the Adjustable Rate Certificates)
and any Distribution Date, the calendar month preceding the month in which such Distribution Date occurs. With
respect to the Adjustable Rate Certificates 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-V and Class A-2 Certificates. The Interest Only
Certificates will have no Certificate Principal Balance.
Inverse Floater Certificates: The Class A-2 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.
LIBOR Business Day: Any day other than (i) a Saturday or Sunday or (ii) a day on which banking
institutions in London, England are required or authorized by law to be closed.
LIBOR Rate Adjustment Date: With respect to each Distribution Date and the Adjustable Rate
Certificates, the second LIBOR Business Day immediately preceding the commencement of the related Interest
Accrual Period on which banks are open for dealing in foreign currency and exchange in London, England.
Lockout Prepayment Percentage: For any Distribution Date occurring prior to the Distribution Date in
September 2011, 0%. For any Distribution Date occurring after the first five years following the Closing Date, a
percentage determined as follows: (i) for any Distribution Date during the sixth year after the Closing Date,
30%; (ii) for any Distribution Date during the seventh year after the Closing Date, 40%; (iii) for any
Distribution Date during the eighth year after the Closing Date, 60%; (iv) for any Distribution Date during the
ninth year after the Closing Date, 80%; and (v) for any Distribution Date thereafter, 100%.
Maturity Date: With respect to each Class of Certificates, the Distribution Date in August 2036, which
is the Distribution Date in the month immediately following the latest scheduled maturity date of any Mortgage
Loan.
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:
(a) the Mortgage Loan identifying number ("RFC LOAN #");
(b) the maturity of the Mortgage Note ("MATURITY DATE");
(c) the Mortgage Rate ("ORIG RATE");
(d) the Subservicer pass-through rate ("CURR NET");
(e) the Net Mortgage Rate ("NET MTG RT");
(f) the Pool Strip Rate ("STRIP");
(g) the initial scheduled monthly payment of principal, if any, and interest ("ORIGINAL P & I");
(h) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(i) the Loan-to-Value Ratio at origination ("LTV");
(j) the rate at which the Subservicing Fee accrues ("SUBSERV FEE") and at which the Servicing Fee
accrues ("MSTR SERV FEE");
(k) a code "T," "BT" or "CT" under the column "LN FEATURE," indicating that the Mortgage Loan is
secured by a second or vacation residence; and
(l) 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.
Non-Discount Mortgage Loan: The mortgage loans other than the Discount Mortgage Loans.
Notional Amount: As of any Distribution Date, with respect to the Class A-2 Certificates, an amount
equal to the Certificate Principal Balance of the Class A-1 Certificates immediately prior to such date,
provided, however, for federal income tax purposes, as of any Distribution Date, with respect to the Class A-2
Certificates, the equivalent of the foregoing, expressed as the Uncertificated Principal Balance of
Uncertificated REMIC I Regular Interest T immediately prior to that date. As of any Distribution Date with
respect to any Class A-V Certificates, an amount equal to the aggregate Stated Principal Balance of the 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). For federal income tax purposes, as of any Distribution
Date, with respect to any Class A-V Certificates or Subclass thereof issued pursuant to Section 5.01(c), the
aggregate Stated Principal Balance of the Mortgage Loans corresponding to the Uncertificated REMIC I Regular
Interests Z corresponding to such Class or Subclass as of the day immediately preceding such Distribution Date
(or, with respect to the initial Distribution Date, at the close of business on the Cut-off Date).
Pass-Through Rate: With respect to the Class A Certificates (other than the Class A-V Certificates, the
Adjustable Rate Certificates and the Principal Only Certificates), Class M Certificates, Class B Certificates and
Class R Certificates and any Distribution Date, the per annum rates set forth in the Preliminary Statement
hereto.
o With respect to the Class A-1 Certificates and the initial Interest Accrual Period, 5.98% per annum, and
as to any Interest Accrual Period thereafter, a per annum rate equal to LIBOR plus 0.60%,
subject to a maximum rate of the related Available Funds Cap and a minimum rate of 0.60% per
annum.
o With respect to the Class A-2 Certificates and the initial Interest Accrual Period, 0.27% per annum,
and as to any Interest Accrual Period thereafter, will be a per annum rate equal to 5.65% minus
LIBOR, with a maximum rate of 5.65% per annum and a minimum rate of 0.00% per annum.
With respect to the Class A-V Certificates (other than any Subclass thereof) and any Distribution Date other than
the initial 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.
With respect to the Class A-V Certificates and the initial Distribution Date, the Pass-Through Rate is equal to
0.2249% 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 Class A-V REMIC Regular Interests 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.
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 Assumption: A prepayment assumption of 300% of the prepayment speed assumption, used for
determining the accrual of original issue discount and market discount and premium on the Certificates for
federal income tax purposes. The prepayment speed assumption assumes a constant rate of prepayment of Mortgage
Loans of 0.2% per annum of the then outstanding principal balance of such Mortgage Loans in the first month of
the life of the Mortgage Loans, increasing by an additional 0.2% per annum in each succeeding month until the
thirtieth month, and a constant 6% per annum rate of prepayment thereafter for the life of the Mortgage Loans.
Prepayment Distribution Percentage: With respect to any Distribution Date and each Class of Subordinate
Certificates, under the applicable circumstances set forth below, the respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date in September 2011 (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 for which clause (i) above does not apply, and on which any Class of
Subordinate Certificates is outstanding with a Certificate Principal Balance greater than zero:
(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 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 next preceding the month in which the related Distribution Date
occurs. With respect to each Distribution Date and the Adjustable Rate Certificates (so long as they are
Book-Entry Certificates), the close of business on the Business Day prior to such Distribution Date.
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 with respect to which a REMIC election is to be made, consisting
of:
(i) the Mortgage Loans and the related Mortgage Files and collateral securing such
Mortgage Loans,
(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 and any payments received under
the Yield Maintenance Agreement and on deposit in the Reserve Fund) as shall be on deposit in the
Custodial Account or in the Certificate Account and identified as belonging to the Trust Fund,
(iii) property which secured a Mortgage Loan and which has been acquired for the benefit of
the Certificateholders by foreclosure or deed in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if any, 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.
Second Super Senior Optimal Percentage: As to any Distribution Date on or after the Credit Support
Depletion Date, a fraction expressed as a percentage, the numerator of which is the aggregate Certificate
Principal Balance of the Class A-4 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 that Distribution Date.
Second Super Senior Optimal Principal Distribution Amount: As to any Distribution Date on or after the
Credit Support Depletion Date, an amount equal to the product of (a) the then applicable Second Super Senior
Optimal Percentage and (b) the amounts described in clause (b) of the definition of Senior Principal Distribution
Amount.
Senior Certificate: Any one of the Class A Certificates or Class R Certificates, executed by the
Trustee and authenticated by the Certificate Registrar substantially in the form annexed to the Standard Terms as
Exhibit A and Exhibit D, respectively.
Senior Percentage: 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: As to any Distribution Date, the lesser of (a) the balance of the
Available Distribution Amount remaining after the distribution of all amounts required to be distributed pursuant
to Section 4.02(a)(i) and Section 4.02(a)(ii)(X) (excluding any amount distributable pursuant to Section
4.02(b)(i)(E)) (or, on or after the Credit Support Depletion Date, the amount required to be distributed to the
Class A-P Certificateholders pursuant to Section 4.02(c)) and (b) the sum of the amounts required to be
distributed to the Senior Certificateholders on such Distribution Date pursuant to Section 4.02(a)(ii)(Y).
Special Hazard Amount: As of any Distribution Date, an amount equal to $4,697,059 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 greatest of (i)
twice the outstanding principal balance of the Mortgage Loan in the Trust Fund which has the largest outstanding
principal balance on the Distribution Date immediately preceding such anniversary, (ii) the product of 1.00%
multiplied by the outstanding principal balance of all Mortgage Loans on the Distribution Date immediately
preceding such anniversary and (iii) the aggregate outstanding principal balance (as of the immediately preceding
Distribution Date) of the Mortgage Loans in any single five-digit California zip code area with the largest
amount of Mortgage Loans by aggregate principal balance as of such anniversary and (B) the greater of (i) the
product of 0.50% multiplied by the outstanding principal balance of all Mortgage Loans on the Distribution Date
immediately preceding such anniversary multiplied by a fraction, the numerator of which is equal to the aggregate
outstanding principal balance (as of the immediately preceding Distribution Date) of all of the Mortgage Loans
secured by Mortgaged Properties located in the State of California divided by the aggregate outstanding principal
balance (as of the immediately preceding Distribution Date) of all of the Mortgage Loans, expressed as a
percentage, and the denominator of which is equal to 31.3% (which percentage is equal to the percentage of
Mortgage Loans initially secured by Mortgaged Properties located in the State of California) and (ii) the
aggregate outstanding principal balance (as of the immediately preceding Distribution Date) of the largest
Mortgage Loan secured by a Mortgaged Property located in the State of California.
The Special Hazard Amount may be further reduced by the Master Servicer (including accelerating the
manner in which coverage is reduced) provided that prior to any such reduction, the Master Servicer shall (i)
obtain written confirmation from each Rating Agency that such reduction shall not reduce the rating assigned to
any Class of Certificates by such Rating Agency below the lower of the then-current rating or the rating assigned
to such Certificates as of the Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
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 for such Distribution Date under clauses (1), (2) and (3)
of Section 4.02(a)(ii)(Y)(A) of this Series Supplement (without giving effect to the Senior Percentage) to the
extent not payable to the Senior Certificates; (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) of this Series Supplement (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; 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.
Trust Fund: The segregated pool of assets consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral securing such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans due after the Cut-off Date
(other than Monthly Payments due in the month of the Cut-off Date, any payments received under
the Yield Maintenance Agreement and amounts on deposit in the Reserve Fund) as shall be on
deposit in the Custodial Account or in the Certificate Account and identified as belonging to
the Trust Fund but not including amounts on deposit in the Initial Monthly Payment Fund,
(iii) property that secured a 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,
(v) the Initial Monthly Payment Fund,
(vi) with respect to the Class A-1 Certificates, the Yield Maintenance Agreement; and
(vii) all proceeds of clauses (i) through (vi) above.
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, and
(ii) as to each Uncertificated REMIC I Regular Interest Z and each Uncertificated REMIC II Regular Interest Z, an
amount equal to their respective Uncertificated Pass-Through Rates reduced by such Certificate's pro-rata share
of any prepayment interest shortfalls or other reductions of interest allocable to the Class A-V Certificates,
pursuant to Section 4.02.
Uncertificated Pass-Through Rate: With respect to each of the Uncertificated REMIC I Regular Interest,
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, the
Pool Strip Rate for the related Mortgage Loan, and with respect to each Uncertificated REMIC II Regular Interest
Z, 100% of the Uncertificated Pass-Through Rate on the related identically numbered Uncertificated REMIC I
Regular Interest Z.
Uncertificated Principal Balance: With respect to each Uncertificated REMIC I Regular Interest, other
than the Uncertificated REMIC I Regular Interests Z, 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).
------------------------------- ----------------------------- --------------------------- ----------------------------
UNCERTIFICATED REMIC I RELATED CLASSES OF
REGULAR INTEREST CERTIFICATES PASS-THROUGH RATE INITIAL PRINCIPAL BALANCE
------------------------------ ----------------------------- --------------------------- ----------------------------
T Class A-1, Class A-2 6.25% $50,000,000
------------------------------- ----------------------------- --------------------------- ----------------------------
U Class A-8, Class A-9 6.25% $60,000,000
------------------------------- ----------------------------- --------------------------- ----------------------------
W Class A-P 0.00% $1,570,946
------------------------------- ----------------------------- --------------------------- ----------------------------
Class A-3, Class A-4, Class 6.25% $358,080,139
Y A-5, Class A-6, Class A-7,
Class A-10, 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: The 776 uncertificated partial undivided beneficial
ownership interests in the Trust Fund, numbered sequentially from 1 to 776, each relating to the particular
Non-Discount Mortgage Loan identified by 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 776 uncertificated partial undivided beneficial
ownership interests in REMIC II relating to a particular Uncertificated REMIC I Regular Interest Z, each having
no principal balance and bearing interest at a rate equal to 100% of the Uncertificated Pass-Through Rate on the
related Uncertificated REMIC I Regular Interest Z, comprising such Uncertificated REMIC II Regular Interest 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 II Regular Interests Z for such Distribution Date pursuant to Section 10.04(a).
Yield Maintenance Agreement: The novation and confirmation (which is Exhibit A to the novation), dated
as of the Closing Date, between the Trustee and the Yield Maintenance Agreement Provider, relating to the Class
A-1 Certificates, or any replacement, substitute, collateral or other arrangement in lieu thereof or related
thereto.
Yield Maintenance Agreement Provider: The 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 Agreement Termination Payment: Upon the designation of an "Early Termination Date" as
defined in the related Yield Maintenance Agreement, the payment to be made by the Yield Maintenance Agreement
Provider to the Trustee for payment to the Trust Fund pursuant to the terms of the Yield Maintenance Agreement.
Yield Maintenance Payment: For any Distribution Date, the payment, if any, to be paid under the Yield
Maintenance Agreement in respect of such Distribution Date. With respect to any Distribution Date and the Class
A-1 Certificates, the Yield Maintenance Payment shall be the amount equal to the product of (I) the positive
excess, if any, of (a) the lesser of (x) LIBOR or (y) 8.90%, over (b) 5.65% per annum, and (II) the amount set
forth for that Distribution Date in Schedule I of the Yield Maintenance Agreement, and (III) a fraction, the
numerator of which is 30 and the denominator of which is 360.
Yield Supplement Amount: With respect to any Distribution Date and the Class A-1 Certificates, an amount
equal to the product of (I) the positive excess, if any, of (a) the lesser of (x) LIBOR or (y) 8.90%, over (b)
5.65% per annum, and (II) the Certificate Principal Balance of the Class A-1 Certificates immediately prior to
the related Distribution Date, and (III) a fraction, the numerator of which is 30 and denominator of which is 360.
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.
References in the Pooling and Servicing Agreement to "interest" on and "principal" of the Mortgage Loans
shall mean, with respect to the Sharia Mortgage Loans, amounts in respect profit payments and acquisition
payments, respectively.
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:
With respect to 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 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, 5.38% 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 located at xxxx://xxx.xxxxxx.xxx/xxx or which may be obtained by telephoning
the Trustee at (000) 000-0000.
ARTICLE II
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) 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:
(I) with respect to each Mortgage Loan so assigned (other than a Cooperative Loan or a Sharia
Mortgage Loan) (1) in the case of all such Mortgage Loans, deliver to and deposit with the Master
Servicer (or an Affiliate of the Master Servicer) each of the documents or instruments described in
clause (ii) below (and the Master Servicer shall hold (or cause such Affiliate to hold) such documents
or instruments in trust for the use and benefit of all present and future Certificateholders), (2) with
respect to each MOM Loan, 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 documents or
instruments described in clauses (i) and (v) below, (3) with respect to each Mortgage Loan that is not a
MOM Loan but is registered on the MERS(R)System, 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
documents or instruments described in clauses (i), (iv) and (v) below and (4) with respect to each
Mortgage Loan that is not a MOM Loan and is not registered on the MERS(R)System, 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 documents or instruments described in clauses (i), (iii), (iv) and (v)
below:
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing an
unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee, or
with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller or
Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed, together
with a copy of the related Mortgage Note.
(ii) The original Mortgage, noting the presence of the MIN of the Mortgage Loan and language indicating that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording indicated
thereon or a copy of the Mortgage with evidence of recording indicated thereon.
(iii) The 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.
(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.
(II) with respect to each Cooperative Loan so assigned:
The original Mortgage Note, endorsed without recourse to the order of the Trustee and showing
an unbroken chain of endorsements from the originator thereof to the Person endorsing it to the Trustee,
or with respect to any Destroyed Mortgage Note, an original lost note affidavit from the related Seller
or Residential Funding stating that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note.
(vi) 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.
(vii) 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.
(viii) The original recognition agreement by the Cooperative of the interests of the mortgagee with respect to
the related Cooperative Loan.
(ix) The Security Agreement.
(x) 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.
(xi) 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.
(xii) 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.
(xiii) The original of each modification, assumption agreement or preferred loan agreement, if any, relating to
such Cooperative Loan.
(xiv) 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.
and (III) with respect to each Sharia Mortgage Loan so assigned:
The original Obligation to Pay, 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 Obligation to Pay, an original affidavit
from the related Seller or Residential Funding stating that the original Obligation to Pay was lost,
misplaced or destroyed, together with a copy of the related Obligation to Pay.
(xv) The original Sharia Mortgage Loan Security Instrument, with evidence of recording indicated thereon or a
copy of the Sharia Mortgage Loan Security Instrument with evidence of recording indicated thereon.
(xvi) An original Assignment and Amendment of Security Instrument, assigned to the Trustee with evidence of
recording indicated thereon or a copy of such Assignment and Amendment of Security Instrument with
evidence of recording indicated thereon.
(xvii) The original recorded assignment or assignments of the Sharia Mortgage Loan Security Instrument showing
an unbroken chain of title from the originator thereof to the Person assigning it to the Trustee with
evidence of recordation noted thereon or attached thereto, or a copy of such assignment or assignments
of the Sharia Mortgage Loan Security Instrument with evidence of recording indicated thereon.
(xviii) The original Sharia Mortgage Loan Co-Ownership Agreement with respect to the related Sharia Mortgage
Loan.
(xix) The original of each modification or assumption agreement, if any, relating to such Sharia Mortgage Loan
or a copy of each modification or assumption agreement.
(c) The Company may, in lieu of delivering the original of the documents set forth in Sections 2.01(b)(I)
(iii), (iv) and (v), Section (b)(II)(ii), (iv), (vii), (ix) and (x) and Sections 2.01(b)(III)(ii), (iii), (iv),
(v) and (vi) (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 Sections 2.01(b)(I)(iii), (iv) and (v), Sections (b)(II)(ii), (iv), (vii),
(ix) and (x) and Sections 2.01(b)(III)(ii), (iii), (iv), (v) and (vi) (or copies thereof) for any Mortgage Loan
and (ii) a written request by the Trustee to deliver those documents with respect to any or all of the Mortgage
Loans then being held by the Master Servicer, the Master Servicer shall deliver a complete set of such documents
to the Trustee or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(d) Notwithstanding the provisions of Section 2.01(c), in connection with any Mortgage Loan, if the Company
cannot deliver the original of the Mortgage, any assignment, modification, assumption agreement or preferred loan
agreement (or copy thereof as permitted by Section 2.01(b)) with evidence of recording thereon concurrently with
the execution and delivery of this Agreement because of (i) a delay caused by the public recording office where
such Mortgage, assignment, modification, assumption agreement or preferred loan agreement as the case may be, has
been delivered for recordation, or (ii) a delay in the receipt of certain information necessary to prepare the
related assignments, the Company shall deliver or cause to be delivered to the Trustee or the respective
Custodian a copy of such Mortgage, assignment, modification, assumption agreement or preferred loan agreement.
The Company (i) shall promptly cause to be recorded in the appropriate public office for real property
records the Assignment referred to in clause (I)(iii) of Section 2.01(b), except (a) in states where, in the
opinion of counsel acceptable to the Master Servicer, such recording is not required to 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, (ii) shall promptly cause to be filed the Form UCC-3 assignment and UCC-1 financing
statement referred to in clauses (II)(vii) and (x), respectively, of Section 2.01(b) and (iii) shall promptly
cause to be recorded in the appropriate public recording office for real property records the Assignment
Agreement and Amendment of Security Instrument referred to in clause (III)(iii) of Section 2.01(b). If any
Assignment, Assignment Agreement and Amendment of Security Instrument, 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, Assignment Agreement and Amendment of Security Instrument, Form UCC-3 or Form UCC-1, as
applicable, or cure such defect, as the case may be, and cause such Assignment or Assignment Agreement and
Amendment of Security Instrument to be recorded in accordance with this paragraph. The Company shall promptly
deliver or cause to be delivered to the applicable Person described in Section 2.01(b) such Assignment or
substitute Assignment or Assignment Agreement and Amendment of Security Instrument or Form UCC-3 or Form UCC-1,
as applicable, (or copy thereof) recorded in connection with this paragraph, 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, Obligation to Pay, Assignment
Agreement and Amendment of Security Instrument or Assignment of Mortgage in blank, the Company shall, or shall
cause the Custodian to, complete the endorsement of the Mortgage Note, Obligation to Pay, Assignment Agreement
and Amendment of Security Instrument and the Assignment of Mortgage in the name of the Trustee in conjunction
with the Interim Certification issued by the Custodian, as contemplated by Section 2.02.
Any of the items set forth in Sections 2.01(b)(II)(vi) and (vii) and Sections 2.01(b)(III)(ii), (iii),
and (iv) that may be delivered as a copy rather than the original may be delivered to the Trustee or the
Custodian.
In connection with the assignment of any Mortgage Loan registered on the MERS(R)System, the Company
further agrees that it will cause, at the Company's own expense, within 30 Business Days after the Closing Date,
the MERS(R)System to indicate that such Mortgage Loans have been assigned by the Company to the Trustee in
accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case
of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in
the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the
series of the Certificates issued in connection with such Mortgage Loans. The Company further agrees that it
will not, and will not permit the Master Servicer to, and the Master Xxxxxxxx agrees that it will not, alter the
codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and
until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) (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 such Yield Maintenance Agreement has been paid and
the Trustee and the Trust Fund shall have no further payment obligation thereunder).
Section 2.02 Acceptance by Trustee.
The Trustee acknowledges receipt (or, with respect to Mortgage Loans subject to a Custodial Agreement,
and based solely upon a receipt or certification executed by the Custodian, receipt by the respective Custodian
as the duly appointed agent of the Trustee) of the documents referred to in Section 2.01(b)(I)(i) and
Section 2.01(b)(II)(i), (iii), (v), (vi) and (viii) above (except that for purposes of such acknowledgment only, a
Mortgage Note may be endorsed in blank) and declares that it, or a Custodian as its agent, holds and will hold
such documents and the other documents constituting a part of the Custodial Files delivered to it, or a Custodian
as its agent. The Trustee or Custodian (such Custodian being so obligated under a Custodial Agreement) agrees,
for the benefit of Certificateholders, to review each Custodial File delivered to it pursuant to
Section 2.01(b) within 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 Custodial 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
Custodial 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 Custodial 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
Residential Funding of such omission or defect and request that Residential Funding 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
Residential Funding does not correct or cure such omission or defect within such period, the Master Servicer
shall require Residential Funding to purchase such Mortgage Loan from the Trust Fund at its Purchase Price within
90 days from the date the Master Servicer was notified of such omission or defect; provided that if the omission
or defect would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in
Section 860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days from the date such breach
was discovered. The Purchase Price for any such Mortgage Loan shall be deposited 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 Master Servicer, the Trustee or any Custodian, as
the case may be, shall release the contents of any related Mortgage File in its possession to the owner of such
Mortgage Loan (or such owner's designee) 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
Residential Funding or its designee any Mortgage Loan released pursuant hereto and thereafter such Mortgage Loan
shall not be part of the Trust Fund. It is understood and agreed that the obligation of Residential Funding 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) 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, if a Mortgage Loan is secured by a Mortgaged Property with a
Loan-to-Value Ratio at origination in excess of 80%, such Mortgage Loan is the subject of a Primary
Insurance Policy that insures that (a) at least 30% of the Stated Principal Balance of the Mortgage Loan
at origination if the Loan-to-Value Ratio is between 95.00% and 90.01%, (b) at least 25% of such balance
if the Loan-to-Value Ratio is between 90.00% and 85.01%, and (c) at least 12% of such balance if the
Loan-to-Value Ratio is between 85.00% and 80.01%. 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 1.1% of the Mortgage Loans by aggregate Cut-off Date Principal Balance are secured by
Mortgaged Properties located in any one zip code area in the State of Virginia and no more than 0.6% of
the Mortgage Loans by aggregate Cut-off Date Principal Balance are secured by Mortgaged Properties
located in any one zip code area outside the State of Virginia;
(vii) The improvements upon the Mortgaged Properties are insured against loss by fire and other hazards as
required by the Program Guide, including flood insurance if required under the National Flood Insurance
Act of 1968, as amended. The Mortgage requires the Mortgagor to maintain such casualty insurance at the
Mortgagor's expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at the Mortgagor's expense and to seek reimbursement therefor from
the Mortgagor;
(viii) Immediately prior to the assignment of the Mortgage Loans to the Trustee, the Company had good title to,
and was the sole owner of, each Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest (other than rights to servicing and related compensation) and such assignment validly
transfers ownership of the Mortgage Loans to the Trustee free and clear of any pledge, lien, encumbrance
or security interest;
(ix) No more than 32.65% of the Mortgage Loans by aggregate Cut-off Date Principal Balance were underwritten
under a reduced loan documentation program;
(x) Each Mortgagor represented in its loan application with respect to the related Mortgage Loan that the
Mortgaged Property would be owner-occupied and therefore would not be an investor property as of the
date of origination of such Mortgage Loan. No Mortgagor is a corporation or a partnership;
(xi) None of the Mortgage Loans are Buydown Mortgage Loans;
(xii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury
Regulations Section 1.860G-2(a)(1);
(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) Except with respect to 3 Mortgage Loans, none of the Mortgage Loans are Cooperative Loans;
(xv) Except with respect to twenty-two Mortgage Loans, none of the Mortgage Loans were originated under a
"streamlined" Mortgage Loan program (through which no new or updated appraisals of Mortgaged Properties
are obtained in connection with the refinancing thereof), the related Seller has represented that either
(a) the value of the related Mortgaged Property as of the date the Mortgage Loan was originated was not
less than the appraised value of such property at the time of origination of the refinanced Mortgage
Loan or (b) the Loan-to-Value Ratio of the Mortgage Loan as of the date of origination of the Mortgage
Loan generally meets the Company's underwriting guidelines;
(xvi) Interest on each Mortgage Loan is calculated on the basis of a 360-day year consisting of twelve 30-day
months;
(xvii) None of the Mortgage Loans contains in the related Mortgage File a Destroyed Mortgage Note; and
(xviii) None of the Mortgage Loans are Pledged Asset Loans or Additional Collateral Loans.
It is understood and agreed that the representations and warranties set forth in this Section 2.03(b) shall
survive delivery of the respective Custodial Files to the Trustee or the Custodian.
Upon discovery by any of the Company, the Master Servicer, the Trustee, or the Custodian of a breach of
any of the representations and warranties set forth in this Section 2.03(b) 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.
Section 2.04 Representations and Warranties of Residential Funding. (See Section 2.04 of the Standard Terms)
Section 2.05 Execution and Authentication of Class R-I Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery of the Custodial
Files to it, or any Custodian on its behalf, subject to any exceptions noted, together with the assignment to it
of all other assets included in the Trust Fund, receipt of which is hereby acknowledged. Concurrently with such
delivery and in exchange therefor, the Trustee, pursuant to the written request of the Company executed by an
officer of the Company has executed and caused to be authenticated and delivered to or upon the order of the
Company the 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).
Section 2.09 Agreement Regarding Ability to Disclose.
The Company, the Master Servicer and the Trustee hereby agree, notwithstanding any other express or
implied agreement to the contrary, that any and all Persons, and any of their respective employees,
representatives, and other agents may disclose, immediately upon commencement of discussions, to any and all
Persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials
of any kind (including opinions or other tax analyses) that are provided to any of them relating to such tax
treatment and tax structure. For purposes of this paragraph, the terms "tax treatment" and "tax structure" are
defined under Treasury Regulationss.1.6011-4(c).
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Servicer. (See Section 3.01 of the Standard Terms)
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 shall be either (i) an institution the accounts of which are insured by the FDIC or (ii) another
entity that engages in the business of originating or servicing mortgage loans, and in either case shall be
authorized to transact business in the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the Subservicer to perform its
obligations hereunder and under the Subservicing Agreement, and in either case shall be a Freddie Mac, Xxxxxx Xxx
or HUD approved mortgage servicer. In addition, any Subservicer of a Mortgage Loan insured by the FHA must be an
FHA-approved servicer, and any Subservicer of a Mortgage Loan guaranteed by the VA must be a VA-approved
servicer. Each Subservicer of a Mortgage Loan shall be entitled to receive and retain, as provided in the
related Subservicing Agreement and in Section 3.07, the related Subservicing Fee from payments of interest
received on such Mortgage Loan after payment of all amounts required to be remitted to the Master Servicer in
respect of such Mortgage Loan. For any Mortgage Loan that is a Nonsubserviced Mortgage Loan, the Master Servicer
shall be entitled to receive and retain an amount equal to the Subservicing Fee from payments of interest.
Unless the context otherwise requires, references in this Agreement to actions taken or to be taken by the Master
Servicer in servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the
Master Servicer. Each Subservicing Agreement will be upon such terms and conditions as are generally required
by, permitted by or consistent with the Program Guide and are not inconsistent with this Agreement and as the
Master Servicer and the Subservicer have agreed; provided that, the Subservicing Agreement between the Master
Servicer and Xxxxx Fargo, if any, will be upon such terms and conditions as are consistent with this Agreement
and as the Master Servicer and the Subservicer have agreed, which may not be consistent with the Program Guide.
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) (See Section 3.02(b) of the Standard Terms)
Section 3.03 Successor Subservicers. (See Section 3.03 of the Standard Terms)
Section 3.04 Liability of the Master Servicer. (See Section 3.04 of the Standard Terms)
Section 3.05 No Contractual Relationship Between Subservicer and Trustee or Certificateholders. (See
Section 3.05 of the Standard Terms)
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee. (See Section 3.06 of the
Standard Terms)
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to Custodial Account. (See Section 3.07
of the Standard Terms)
Section 3.08 Subservicing Accounts; Servicing Accounts. (See Section 3.08 of the Standard Terms)
Section 3.09 Access to Certain Documentation and Information Regarding the Mortgage Loans. (See Section
3.09 of the Standard Terms)
Section 3.10 Permitted Withdrawals from the Custodial Account. (See Section 3.10 of the Standard Terms)
Section 3.11 Maintenance of the Primary Insurance Policies; Collections Thereunder. (See Section 3.11 of
the Standard Terms)
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity Coverage. (See Section 3.12 of the
Standard Terms)
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and Modification Agreements; Certain
Assignments. (See Section 3.13 of the Standard Terms)
Section 3.14 Realization Upon Defaulted Mortgage Loans. (See Section 3.14 of the Standard Terms)
Section 3.15 Trustee to Cooperate; Release of Custodial Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or upon the receipt by the Master
Servicer of a notification that payment in full will be escrowed in a manner customary for such purposes, the
Master Servicer will immediately notify the Trustee (if it holds the related Custodial File) or the Custodian by
a certification of a Servicing Officer (which certification shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are required to be deposited in the
Custodial Account pursuant to Section 3.07 have been or will be so deposited), substantially in the form attached
hereto as Exhibit 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 Custodial
File to the Master Servicer. The Master Servicer is authorized to execute and deliver to the Mortgagor the
request for reconveyance, deed of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage, together with the Mortgage Note with, as appropriate, written evidence of
cancellation thereon and to cause the removal from the registration on the MERS(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 the form 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 Custodial File be released to the Master Servicer and certifying as to the reason for such release and that
such release will not invalidate any insurance coverage provided in respect of the Mortgage Loan under any
Required Insurance Policy. Upon receipt of the foregoing, the Trustee shall deliver, or cause the Custodian to
deliver, the Custodial File or any document therein to the Master Servicer. The Master Servicer shall cause each
Custodial File or any document therein so released to be returned to the Trustee, or the Custodian as agent for
the Trustee when the need therefor by the Master Servicer no longer exists, unless (i) the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been deposited in the Custodial
Account or (ii) the Custodial File or such document has been delivered directly or through a Subservicer to an
attorney, or to a public trustee or other public official as required by law, for purposes of initiating or
pursuing legal action or other proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Master Servicer has delivered directly or through a Subservicer to the Trustee a
certificate of a Servicing Officer certifying as to the name and address of the Person to which such Custodial
File or such document was delivered and the purpose or purposes of such delivery. In the event of the
liquidation of a Mortgage Loan, the Trustee shall deliver the Request for Release with respect thereto to the
Master Servicer upon 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. (See Section 3.16 of the Standard
Terms)
Section 3.17 Reports to the Trustee and the Company. (See Section 3.17 of the Standard Terms)
Section 3.18 Annual Statement as to Compliance. (See Section 3.18 of the Standard Terms)
Section 3.19 Annual Independent Public Accountants' Servicing Report. (See Section 3.19 of the Standard
Terms)
Section 3.20 Rights of the Company in Respect of the Master Servicer. (See Section 3.20 of the Standard
Terms)
Section 3.21 Administration of Buydown Funds. (See Section 3.21 of the Standard Terms)
Section 3.22 Advance Facility. (See Section 3.22 of the Standard Terms)
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, (x) the Master Servicer on behalf of the Trustee or (y) the Paying Agent
appointed by the Trustee, shall distribute (I) to the Master Servicer or a sub-servicer, in the case of a
distribution pursuant to Section 4.02(a)(iii) below, the amount required to be distributed to the Master Servicer
or a sub-servicer pursuant to Section 4.02(a)(iii) below, and (II) to each Certificateholder of record on the
next preceding Record Date (other than as provided in Section 9.01 respecting the final distribution), either (1)
in immediately available funds (by wire transfer or otherwise) to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such Certificateholder has so notified the Master
Servicer or the Paying Agent, as the case may be, or (2) if such Certificateholder has not so notified the Master
Servicer or the Paying Agent by the Record Date, by check mailed to such Certificateholder at the address of such
Holder appearing in the Certificate Register, such Certificateholder's share (which share (A) with respect to
each Class of Certificates (other than any Subclass of the Class A-V Certificates), shall be based on the
aggregate of the Percentage Interests represented by Certificates of the applicable Class held by such Holder or
(B) with respect to any Subclass of the Class A-V Certificates, shall be equal to the amount (if any) distributed
pursuant to Section 4.02(a)(i) below to each Holder of a Subclass thereof) of the following amounts, in the
following order of priority (subject to the provisions of Section 4.02(b) below), in each case to the extent of
the Available Distribution Amount:
(i) to the Senior Certificates (other than the Principal Only Certificates) on a pro rata basis based on the
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 for the Class A-1 Certificates shall be 6.25%), 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);
(ii) (X) to the Class A-P Certificates, the Class A-P Principal Distribution Amount (as defined
in Section 4.02(b)(i) herein), until the Certificate Principal Balance of the Class A-P Certificates has
been reduced to zero; and
(Y) to the Senior Certificates (other than the Class A-P Certificates), in the
priorities and amounts set forth in Sections 4.02(b)(ii) through 4.02(d), 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:
(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 Sections 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)(2)(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 Section 4.02(b)(i)(C) of this Series
Supplement);
(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;
(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;
(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) of this Series Supplement 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) of this Series Supplement 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) of this Series Supplement 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) of this Series Supplement are insufficient therefor, applied in reduction of the Certificate
Principal Balance of the Class B-2 Certificates;
(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) of this Series
Supplement 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, in the priority set forth in Section 4.02(b) of this Series Supplement, 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.
(b) Distributions of principal on the Senior Certificates on each Distribution Date occurring prior to the
Credit Support Depletion Date will be made as follows:
(i) to the Class A-P Certificates, until the Certificate Principal Balance thereof is reduced to zero, an
amount (the "Class A-P Principal Distribution Amount") equal to the aggregate of:
(A) the related Discount Fraction of the principal portion of each Monthly Payment on each Discount Mortgage
Loan 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 received during the preceding calendar month or, in the case of Principal
Prepayments in Full, during the related Prepayment Period (other than amounts received in
connection with a Cash Liquidation or REO Disposition of a Discount Mortgage Loan described in
clause (C) below), including Principal Prepayments in Full, Curtailments, Subsequent Recoveries
and repurchases (including deemed repurchases under Section 3.07(b) of the Standard Terms) of
Discount Mortgage Loans (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 that did not
result in any Excess Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses, an amount equal to the lesser of (1) the applicable Discount Fraction of
the Stated Principal Balance of such Discount Mortgage Loan immediately prior to such
Distribution Date and (2) the aggregate amount of the collections on such Discount Mortgage
Loan to the extent applied as recoveries of principal;
(D) any amounts allocable to principal for 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 amount of any Class
A-P Collection Shortfalls 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 such
Distribution Date, if any, related to each Discount Mortgage Loan; and
(ii) the Senior Principal Distribution Amount shall be distributed concurrently as follows:
(A) 13.8744532910% of the amount described in Section 4.02(b)(ii) will be distributed in
the following manner and priority:
(1) first, first, to the Class A-7 and Class A-10 Certificates, pro rata,
in accordance with their respective Certificate Principal Balances, an amount up to
the Class A-7/A-10 Lockout Amount for that Distribution Date, until the Certificate
Principal Balances thereof have been reduced to zero;
(2) second, to the Class A-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(3) third, to the Class A-7 and Class A-10 Certificates, pro rata, in
accordance with their respective Certificate Principal Balances and without regard to
the Class A-7/A-10 Lockout Amount for that Distribution Date, until the Certificate
Principal Balances thereof have been reduced to zero; and
(B) 86.1255467090% of the amount described in Section 4.02(b)(ii) will be distributed in
the following manner and priority:
(1) first, to the Class R-I and Class R-II Certificates, pro rata, in
accordance with their respective Certificate Principal Balances, until the Certificate
Principal Balances thereof have been reduced to zero;
(2) second, to the Class A-4 and Class A-5 Certificates, pro rata, in
accordance with their respective Certificate Principal Balances, an amount up to the
Class A-4/A-5 Lockout Amount for that Distribution Date, until the Certificate
Principal Balances thereof have been reduced to zero;
(3) third, to the Class A-3 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(4) fourth, to the Class A-6 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(5) fifth, to the Class A-8 and Class A-9 Certificates, pro rata, in
accordance with their respective Certificate Principal Balances, until the Certificate
Principal Balances thereof have been reduced to zero; and
(6) sixth, tto the Class A-4 and Class A-5 Certificates, pro rata, in
accordance with their respective Certificate Principal Balances and without regard to
the Class A-4/A-5 Lockout Amount for that Distribution Date, until the Certificate
Principal Balances thereof have been reduced to zero.
(c) On or after the occurrence of the Credit Support Depletion Date, all priorities relating to
distributions as described in Section 4.02(b) of this Series Supplement in respect of principal among the Senior
Certificates (other than the Class A-P Certificates) will be disregarded, and (i) an amount equal to the Discount
Fraction of the principal portion of scheduled payments and unscheduled collections received or advanced in
respect of the Discount Mortgage Loans minus the Discount Fraction of the portion of the Capitalization
Reimbursement Amount for such Distribution Date will be distributed to the Class A-P Certificates, (ii) the
Senior Principal Distribution Amount will be distributed to the remaining Senior Certificates (other than the
Class A-P Certificates) pro rata in accordance with their respective outstanding Certificate Principal Balances
and (iii) the amount set forth in Section 4.02(a)(i) herein will be distributed as set forth therein provided,
however, that (x) until reduction of the Certificate Principal Balances of the Class A-10 Certificates to zero,
the aggregate amount distributable to the Class A-7, Class A-8, Class A-9 and Class A-10 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 those certificates in the following priority:
first, to the Class A-7, Class A-8 and Class A-9 Certificates, pro rata, based on the amount of Accrued
Certificate Interest thereon, up to an amount equal to the Accrued Certificate Interest on the Class A-7, Class
A-8 and Class A-9 Certificates; second, to the Class A-7, Class A-8 and Class A-9 Certificates, pro rata, in
accordance with their respective Certificate Principal Balances, up to an amount equal to the First Super Senior
Optimal Principal Distribution Amount, in reduction of the Certificate Principal Balances thereof, until the
Certificate Principal Balances thereof have been reduced to zero; third, to the Class A-10 Certificates, up to an
amount equal to the Accrued Certificate Interest thereon; and fourth, to the Class A-10 Certificates, the
remainder, until the Certificate Principal Balance thereof has been reduced to zero, and (y) until reduction of
the Certificate Principal Balances of the Class A-5 Certificates to zero, the aggregate amount distributable to
the Class A-4 and Class A-5 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
those certificates in the following priority: first, to the Class A-4 Certificates, up to an amount equal to the
Accrued Certificate Interest on the Class A-4 Certificates; second, to the Class A-4 Certificates, up to an
amount equal to the Second 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 Class A-5 Certificates, up to an amount equal to the Accrued Certificate Interest thereon; and fourth, to the
Class A-5 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 paid solely to the holders of the Class A-P Certificates, Class A-V
Certificates, Class M Certificates and Class B 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). 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 the Highest Priority to which Realized Losses, other than Excess Bankruptcy Losses, Excess Fraud Losses,
Excess Special Hazard Losses and Extraordinary Losses, have been allocated, but not by more than the amount of
Realized Losses previously allocated to that Class of Certificates pursuant to Section 4.05. The amount of any
remaining Subsequent Recoveries will be applied to increase the Certificate Principal Balance of the Class of
Certificates with the next Lower Priority, up to the amount of such Realized Losses previously allocated to that
Class of Certificates pursuant to Section 4.05. Any remaining Subsequent Recoveries will in turn be applied to
increase the Certificate Principal Balance of the Class of Certificates with the next Lower Priority up to the
amount of such Realized Losses previously allocated to that Class of Certificates pursuant to Section 4.05, and
so on. Holders of such Certificates will not be entitled to any payment in respect of Accrued Certificate
Interest on the amount of such increases for any Interest Accrual Period preceding the Distribution Date on which
such increase occurs. Any such increases shall be applied to the Certificate Principal Balance of each
Certificate of such Class in accordance with its respective Percentage Interest.
(f) On each Distribution Date, the Trustee will first transfer to the Certificate Account and then
distribute to the Class A-1 Certificates any amounts on deposit in the Reserve Fund in an amount up to the Yield
Supplement Amount for such Distribution Date.
(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" or "indirect participating firm") for which it acts as
agent. Each brokerage firm shall be responsible for disbursing funds to the Certificate Owners that it
represents. None of the Trustee, the Certificate Registrar, the Company or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Series Supplement or applicable law.
(h) Except as otherwise provided in Section 9.01, if the Master Servicer anticipates that a final
distribution with respect to any Class of Certificates will be made on a future Distribution Date, the Master
Servicer shall, no later than 40 days prior to such final distribution, notify the Trustee and the Trustee shall,
not earlier than the 15th day and not later than the 25th day of the month next preceding the month of such final
distribution, distribute, or cause to be distributed to each Holder of such Class of Certificates a notice to the
effect that: (i) the Trustee anticipates that the final distribution with respect to such Class of Certificates
will be made on such Distribution Date but only upon presentation and surrender of such Certificates at the
office of the Trustee or as otherwise specified therein, and (ii) no interest shall accrue on such Certificates
from and after the end of the related Interest Accrual Period. In the event that Certificateholders required to
surrender their Certificates pursuant to Section 9.01(c) do not surrender their Certificates for final
cancellation, the Trustee shall cause funds distributable with respect to such Certificates to be withdrawn from
the Certificate Account and credited to a separate escrow account for the benefit of such Certificateholders as
provided in Section 9.01(d).
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies; Exchange Act Reporting. (See
Section 4.03 of the Standard Terms) and Exhibit Three hereto)
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 Losses are on a Discount Mortgage Loan, to the Class A-P Certificates
in an amount equal to the Discount Fraction of the principal portion thereof, and the remainder of such Realized
Losses on the Discount Mortgage Loans and the entire amount of such Realized Losses on Non-Discount Mortgage
Loans will be allocated among all the Senior Certificates (other than the Class A-V Certificates and Class A-P
Certificates) in the case of the principal portion of such loss on a pro rata basis and among all of the Senior
Certificates (other than the Class A-P Certificates) in the case of the interest portion of such loss on a pro
rata basis, as described below; provided, however, that (x) such losses otherwise allocable to the Class A-7,
Class A-8 and Class A-9 Certificates, up to (i) in the case of losses allocated to the Class A-7 Certificates,
an amount equal to the lesser of (x) 10.00% of the Certificate Principal Balance of the Class A-10 Certificates
immediately prior to that Distribution Date and (y) $250,000 less any portion of the Class A-7 Certificates'
share of Realized Losses allocated to the Class A-10 Certificates on prior Distribution Dates, (ii) in the case
of losses allocated to the Class A-8 Certificates, an amount equal to the lesser of (x) 45.00% of the Certificate
Principal Balance of the Class A-10 Certificates immediately prior to that Distribution Date and (y) $1,125,000
less any portion of the Class A-8 Certificates' share of Realized Losses allocated to the Class A-10 Certificates
on prior Distribution Dates, and (iii) in the case of losses allocated to the Class A-9 Certificates, an amount
equal to the lesser of (x) 45.00% of the Certificate Principal Balance of the Class A-10 Certificates immediately
prior to that Distribution Date and (y) $1,125,000 less any portion of the Class A-9 Certificates' share of
Realized Losses allocated to the Class A-10 Certificates on prior Distribution Dates, will be allocated to the
Class A-10 Certificates until the Certificate Principal Balance of the Class A-10 Certificates has been reduced
to zero; and (y) such losses otherwise allocable to the Class A-4 Certificates will be allocated to the Class A-5
Certificates until the Certificate Principal Balance of the Class A-5 Certificates has been reduced to zero.
On any Distribution Date, Realized Losses will be allocated as set forth herein after distributions of
principal on the Certificates as set forth herein.
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 other
losses allocated to a Class of Certificates hereunder will be allocated among the Certificates of such Class in
proportion to the Percentage Interests evidenced thereby; provided that if any Subclasses of the Class A-V
Certificates have been issued pursuant to Section 5.01(c), such Realized Losses and other losses allocated to the
Class A-V Certificates shall be allocated among such Subclasses in proportion to the respective amounts of
Accrued Certificate Interest payable on such Distribution Date that would have resulted absent such reductions.
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 The Yield Maintenance Agreement.
(a) On the Closing Date, the Trustee is hereby directed to enter into, on behalf of the Trust Fund, the
Yield Maintenance Agreement for the benefit of the Class A-1 Certificates with the Yield Maintenance Agreement
Provider.
(b) The Trustee shall deposit or cause to be deposited any amount received under the Yield Maintenance
Agreement into the Reserve Fund on the date such amount is received from the Yield Maintenance Agreement Provider
under the Yield Maintenance Agreement (including Yield Maintenance Agreement Termination Payments, if any). All
Yield Maintenance Payments received under any Yield Maintenance Agreement and amounts on deposit in the Reserve
Fund shall be distributed to the Certificate Account and then to the Class A-1 Certificates in an amount up to
the Yield Supplement Amount for such Distribution Date pursuant to Section 4.02(f) hereof, whereas, all Yield
Maintenance Agreement Termination Payments received under any of the Yield Maintenance Agreements shall be used
as set forth in Section 4.09(c) hereof. Any amounts remaining in the Reserve Fund on any Distribution Date
following the distribution described in Section 4.02(f) shall remain on deposit in the Reserve Fund and will be
available on any future Distribution Date to cover any shortfall between the Yield Supplement Amount and Yield
Maintenance Payment, if any, for such Distribution Date. None of the Yield Maintenance Agreement, Yield
Maintenance Payments (including any Yield Maintenance Termination Payments) nor the Reserve Fund constitute a
part of any REMIC created hereunder.
(c) Any amounts on deposit in the Reserve Fund on the Distribution Date immediately following the earlier of
(i) the Distribution Date in July 2018 and (ii) the date on which the Certificate Principal Balance of the Class
A-1 Certificates is reduced to zero, will be distributed to Greenwich Capital Markets, Inc. and will not be
available for payment to any holder of the Class A-1 Certificates.
(d) In the event that the Yield Maintenance Agreement, or any replacement thereof, terminates prior to the
Distribution Date in July 2018, the Master Servicer, but at no expense to the Master Servicer, on behalf of the
Trustee, to the extent that the termination value under such Yield Maintenance Agreement is sufficient therefor
and only to the extent of the Yield Maintenance Agreement Termination Payment received from the Yield Maintenance
Agreement Provider, shall (i) cause a new yield maintenance provider to assume the obligations of such terminated
yield maintenance agreement provider or (ii) cause a new yield maintenance agreement provider to enter into a new
interest rate yield maintenance agreement with the Trust Fund having substantially similar terms as those set
forth in such terminated Yield Maintenance Agreement. Any Yield Maintenance Agreement Termination Payment having
a termination value which is not sufficient to comply with clauses (i) and (ii) of this Section 4.09(c) shall be
deposited into the Reserve Fund and may be distributed pursuant to Section 4.02(f) and Section 4.09(c) herein.
Section 4.10 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-1 Certificates. The Reserve Fund must be an Eligible Account. The Reserve Fund shall be entitled
"Reserve Fund, U.S. Bank National Association, as Trustee for the benefit of holders of Residential Funding
Mortgage Securities I, Inc., Mortgage Pass-Through Certificates, Series 2006-S7". The Trustee shall demand
payment of all money payable by the Yield Maintenance Agreement Provider under any of the Yield Maintenance
Agreements. The Trustee shall deposit in the Reserve Fund all payments received by it from the Yield Maintenance
Agreement Provider pursuant to any 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-1
Certificates, as applicable, 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 Regulationss.1.860G-2(h) and
shall be an asset of the Trust Fund but not an asset of any REMIC. The Trustee on behalf of the Trust shall be
the nominal owner of the Reserve Fund. Greenwich Capital Markets, Inc. shall be the beneficial owner of the
Reserve Fund, subject to the power of the Trustee to distribute amounts under Sections 4.02(f) and 4.09. 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.
ARTICLE V
THE CERTIFICATES
(SEE ARTICLE V OF THE STANDARD TERMS)
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Company and Master Servicer. (See Section 6.01 of the Standard
Terms.)
Section 6.02 Merger or Consolidation of the Company or Master Servicer; Assignment of Rights and Delegation
of Duties by Master Servicer.
(a) (See Section 6.02(a) of the Standard Terms).
(b) (See Section 6.02(b) of the Standard Terms).
(c) (See Section 6.02(c) of the Standard Terms).
(d) The conversion of Residential Funding Corporation's or Residential Funding Mortgage Securities I, Inc.'s
organizational structure from a Delaware corporation to a limited liability company shall not require the consent
of any party or notice to any party and shall not in any way affect the rights or obligations of Residential
Funding Corporation or Residential Funding Mortgage Securities I, Inc. hereunder.
(e) The Master Servicer shall notify the Trustee and the Rating Agencies in writing of any merger,
conversion or consolidation of the Master Servicer with or into any Person.
Section 6.03 Limitation on Liability of the Company, Master Servicer and Others. (See Section 6.03 of the
Standard Terms.)
Section 6.04 Company and Master Servicer Not to Resign. (See Section 6.04 of the Standard Terms.)
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee. (See Section 8.01 of the Standard Terms)
Section 8.02 Certain Matters Affecting the Trustee. (See Section 8.02 of the Standard Terms)
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans. (See Section 8.03 of the Standard Terms)
Section 8.04 Trustee May Own Certificates. (See Section 8.04 of the Standard Terms)
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses; Indemnification. (See Section 8.05 of the
Standard Terms)
Section 8.06 Eligibility Requirements for Trustee. (See Section 8.06 of the Standard Terms)
Section 8.07 Resignation and Removal of Trustee. (See Section 8.07 of the Standard Terms)
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and such successor trustee shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The predecessor trustee shall deliver to the successor trustee all Custodial
Files and related documents and statements held by it hereunder (other than any Custodial Files at the time held
by a Custodian, which shall become the agent of any successor trustee hereunder), and the 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. (See Section 8.09 of the Standard Terms)
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (See Section 8.10 of the Standard Terms)
Section 8.11 Appointment of Custodian.
The Trustee may, with the consent of the Master Servicer and the Company, or shall, at the direction of
the Company and the Master Servicer, appoint one or more Custodians who are not Affiliates of the Company, the
Master Servicer or any Seller to hold all or a portion of the Custodial Files as agent for the Trustee, by
entering into a Custodial Agreement. The Trustee is hereby directed to enter into a Custodial Agreement with
Xxxxx Fargo Bank, N.A. Subject to Article VIII, the Trustee agrees to comply with the terms of each Custodial
Agreement with respect to the Custodial Files and to enforce the terms and provisions thereof against the related
custodian for the benefit of the Certificateholders. 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 Custodial File. Each Custodial
Agreement, with respect to the Custodial Files, may be amended only as provided in Section 11.01. The Trustee
shall notify the Certificateholders of the appointment of any custodian (other than the Custodian appointed as of
the Closing Date) pursuant to this Section 8.11.
Section 8.12 Appointment of Office or Agency. (See Section 8.12 of the Standard Terms).
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 on the day of repurchase
plus accrued interest thereon at the Mortgage Rate (or Modified Mortgage Rate in the case of any
Modified Mortgage Loan) from the Due Date to which interest was last paid by the Mortgagor to, but not
including, the first day of the month in which such repurchase price is distributed, provided, however,
that in no event shall the trust created hereby continue beyond (i) the Maturity Date or (ii) 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 the Master Servicer pursuant to Section 4 of the Assignment Agreement in respect of any
liability, penalty or expense that resulted from a breach of the representation and warranty set forth
in clause (xii) or (xxxviii) of such Section 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. If such right is exercised by the Master Servicer, the
Master Servicer shall be entitled to reimbursement for the full amount of any unreimbursed Advances theretofore
made by it with respect to the Mortgage Loans pursuant to Section 3.10. In addition, the Master Servicer shall
provide to the Trustee the certification required by Section 3.15 and the Trustee and any Custodian shall,
promptly following payment of the purchase price, release to the Master Servicer the Custodial 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.
(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) (See Section 9.01(f) of the Standard Terms)
(g) 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-1 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 Greenwich Capital Markets, 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).
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard Terms)
Section 10.02 Master Servicer; REMIC Administrator and Trustee Indemnification. (See Section 10.02 of the
Standard Terms)
Section 10.03 Designation of REMIC(s).
The REMIC Administrator will make an election to treat the entire segregated pool of assets (including
the Mortgage Loans but excluding the Initial Monthly Payment Fund, the Yield Maintenance Agreement and the
Reserve Fund) described in the definition of Trust Fund, and subject to this Agreement, 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"), in each case, 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 under
the federal income tax law.
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, 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 I Regular Interests Z, the rights in and to which will be represented by the Class A-V
Certificates, will be "regular interests" in the 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 in the Standard Terms) under
federal income tax law. On and after the date of issuance of any Subclass of Class A-V Certificates pursuant to
Section 5.01(c) of the Standard Terms, any such Subclass will represent the Uncertificated REMIC I 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 Regular Interests Z.
(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), (c) and (d).
(b) The amount described in Section 10.04(a)(ii) shall be deemed distributed to (i) Uncertificated REMIC I
Regular Interest T, (ii) Uncertificated REMIC I Regular Interest U, (iii) Uncertificated REMIC I Regular Interest
W and (iv) 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), (c) and (d) 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 REMIC II Certificates relative to that assigned to the REMIC I Certificates under Section 4.02(b), (c) and
(d).
(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-1 and Class A-2 Certificates under Section 4.05 shall be deemed
allocated to Uncertificated REMIC I Regular Interest T;
(iii) Realized Losses allocated to the Class A-8 and, Class A-9 Certificates under Section 4.05 shall be
deemed allocated to Uncertificated REMIC I Regular Interest U;
(iv) Realized Losses allocated to the Class A-P Certificates under Section 4.05 shall be deemed allocated to
Uncertificated REMIC I Regular Interest W;
(v) Realized Losses allocated to the Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-10,
Class R-II, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 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.
(f) Notwithstanding the deemed distributions on the Uncertificated REMIC I Regular Interests and
Uncertificated REMIC II Regular Interests Z 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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)
Section 11.02 Recordation of Agreement, Counterparts. (See Section 11.02 of the Standard Terms)
Section 11.03 Limitation on Rights of Certificateholders. (See Section 11.03 of the Standard Terms)
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms)
Section 11.05 Notices. All demands and notices hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been duly
given only when received), to the appropriate address for each recipient listed in the
table below or, in each case, such other address as may hereafter be furnished in
writing to the Master Servicer, the Trustee and the Company, as applicable:
Recipient Address
Company 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: President
Master Servicer 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Managing Director/Master Servicing
Trustee U.S. Bank National Association
Mail Code: EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/RFMSI 2006-S7
Yield Maintenance Agreement Provider The address set forth in the Yield Maintenance Agreement
Fitch Ratings Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc. 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any notice required or permitted to be mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
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.
97.0% of all Voting Rights shall be allocated among Holders of Certificates, other than the Interest
Only Certificates and the Class R Certificates, in proportion to the outstanding Certificate Principal Balances
of their respective Certificates, 1.0% of all Voting Rights shall be allocated among the Holders of the Class A-V
Certificates in accordance with their respective Percentage Interests, 1.0% of all Voting Rights shall be
allocated among the Holders of the Class A-2 Certificates in accordance with their respective Percentage
Interests, and 0.50% and 0.50% of all Voting Rights shall be allocated among the Holders of the Class R-I and
Class R-II Certificates, respectively, in accordance with their respective Percentage Interests.
Section 11.10 No Petition. (See Section 11.10 of the Standard Terms).
COMPLIANCE WITH REGULATION AB
(SEE ARTICLE XII OF THE STANDARD TERMS)
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee have caused their names to be
signed hereto by their respective officers thereunto duly authorized and their respective seals, duly attested,
to be hereunto affixed, all as of the day and year first above written.
[Seal] RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
Attest: /s/Xxxxxxx Xxxxxxxx By: /s/Xxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxx
Title: Vice President Title: Vice President
[Seal] RESIDENTIAL FUNDING CORPORATION
Attest: /s/Xxxxxx Xxxxxx By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Associate Title: Associate
[Seal] U.S. BANK NATIONAL ASSOCIATION
as Trustee
Attest: /s/Xxxxxxxx Xxxxxxx By: /s/Xxxxxx Xxxxxxx-Xxxx
Name: Xxxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx-Xxxx
Title: Vice President Title: Vice President
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ___ day of August, 2006 before me, a notary public in and for said State, personally
appeared Xxxxxx Xxxxxx, known to me to be a Vice President of Residential Funding Mortgage Securities I, Inc.,
one of the corporations that executed the within instrument, and also known to me to be the person who executed
it on behalf of said corporation, and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
Notary Public
____________________________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of August, 2006 before me, a notary public in and for said State, personally
appeared Xxxxxxx Xxxxxxxx, known to me to be an Associate of Residential Funding Corporation, one of the
corporations that executed the within instrument, and also known to me to be the person who executed it on behalf
of said corporation, and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
Notary Public
______________________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF XXXXXX )
On the ___ day of August, 2006 before me, a notary public in and for said State, personally
appeared Xxxxxx Xxxxxxx-Xxxx, known to me to be an Vice President of U.S. Bank National Association, a national
banking association that executed the within instrument, and also known to me to be the person who executed it on
behalf of said national banking association and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
Notary Public
_____________________________
[Notarial Seal]
EXHIBIT ONE
MORTGAGE LOAN SCHEDULE
[ON FILE WITH RFC]
EXHIBIT TWO
SCHEDULE OF DISCOUNT FRACTIONS
(AVAILABLE FROM THE COMPANY UPON REQUEST)
Schedule of Discount Fractions
Loan Number Current Balance Net Mortgage Rate Discount Fraction PO Balance
10405320 $756,000.00 6.220% .4800% $3,628.80
10537848 $461,250.00 6.220% .4800% $2,214.00
10571374 $659,403.35 6.220% .4800% $3,165.14
10573938 $979,114.06 6.220% .4800% $4,699.75
10575632 $326,025.12 5.720% 8.4800% $27,646.93
10576384 $804,000.00 6.220% .4800% $3,859.20
10581296 $550,000.00 6.095% 2.4800% $13,640.00
10582516 $323,707.10 6.220% .4800% $1,553.79
10582518 $825,000.00 6.220% .4800% $3,960.00
10590272 $544,000.00 5.845% 6.4800% $35,251.20
10595246 $351,200.00 5.845% 6.4800% $22,757.76
10614641 $600,000.00 6.220% .4800% $2,880.00
10615971 $556,478.47 6.220% .4800% $2,671.10
10627321 $742,000.00 6.220% .4800% $3,561.60
10627347 $478,700.00 6.220% .4800% $2,297.76
10627421 $584,905.74 6.220% .4800% $2,807.55
10627433 $528,000.00 6.095% 2.4800% $13,094.40
10657161 $486,537.08 6.095% 2.4800% $12,066.12
10702793 $599,457.59 6.220% .4800% $2,877.40
10705187 $622,222.91 5.345% 14.4800% $90,097.88
10713493 $466,723.87 6.220% .4800% $2,240.27
10724613 $509,500.00 6.095% 2.4800% $12,635.60
10726015 $469,175.48 6.220% .4800% $2,252.04
10764245 $539,746.71 5.970% 4.4800% $24,180.65
10768969 $242,000.00 6.220% .4800% $1,161.60
10769291 $356,477.45 6.220% .4800% $1,711.09
10769393 $534,516.36 6.220% .4800% $2,565.68
10775317 $286,500.00 6.220% .4800% $1,375.20
10778903 $590,400.00 6.220% .4800% $2,833.92
10779125 $115,000.00 6.220% .4800% $552.00
10780015 $439,342.70 6.095% 2.4800% $10,895.70
10780033 $473,400.00 6.095% 2.4800% $11,740.32
10780085 $499,525.58 5.970% 4.4800% $22,378.75
10780115 $510,000.00 5.595% 10.4800% $53,448.00
10780167 $499,150.00 6.220% .4800% $2,395.92
10780257 $599,444.28 6.095% 2.4800% $14,866.22
10781791 $804,000.00 6.220% .4800% $3,859.20
10781795 $429,220.45 6.220% .4800% $2,060.26
10781803 $699,367.19 6.220% .4800% $3,356.96
10781813 $660,972.25 5.970% 4.4800% $29,611.56
10781815 $507,940.40 6.220% .4800% $2,438.11
10781821 $543,508.22 6.220% .4800% $2,608.84
10781825 $699,367.19 6.220% .4800% $3,356.96
10781827 $500,000.00 6.095% 2.4800% $12,400.00
10781835 $629,430.47 6.220% .4800% $3,021.27
10782011 $234,787.56 6.220% .4800% $1,126.98
10783175 $558,682.07 6.095% 2.4800% $13,855.32
10783419 $384,651.96 6.220% .4800% $1,846.33
10784111 $1,000,000.00 6.220% .4800% $4,800.00
10784603 $300,000.00 5.970% 4.4800% $13,440.00
10786253 $479,566.07 6.220% .4800% $2,301.92
10788389 $474,570.59 6.220% .4800% $2,277.94
10793141 $530,000.00 6.220% .4800% $2,544.00
10794967 $477,942.18 6.095% 2.4800% $11,852.97
10794979 $504,638.02 5.970% 4.4800% $22,607.78
10794993 $667,396.11 6.220% .4800% $3,203.50
10794999 $818,179.62 6.220% .4800% $3,927.26
10795003 $738,522.96 5.720% 8.4800% $62,626.75
10795005 $829,249.66 6.220% .4800% $3,980.40
10795011 $1,000,000.00 6.220% .4800% $4,800.00
10795021 $701,765.02 6.220% .4800% $3,368.47
10795027 $605,892.33 6.220% .4800% $2,908.28
10795035 $463,156.98 6.220% .4800% $2,223.15
10795037 $527,522.68 6.220% .4800% $2,532.11
10795039 $491,086.20 6.095% 2.4800% $12,178.94
10795065 $644,766.31 6.095% 2.4800% $15,990.20
10795069 $479,108.48 6.095% 2.4800% $11,881.89
10795073 $438,403.76 6.220% .4800% $2,104.34
10795077 $733,667.50 6.220% .4800% $3,521.60
10796353 $350,000.00 6.095% 2.4800% $8,680.00
10799135 $290,000.00 6.220% .4800% $1,392.00
10800045 $475,000.00 5.970% 4.4800% $21,280.00
10800321 $997,950.98 5.970% 4.4800% $44,708.20
10800325 $773,478.21 6.220% .4800% $3,712.70
10800351 $498,159.62 6.220% .4800% $2,391.17
10800357 $748,640.29 6.220% .4800% $3,593.47
10800389 $479,129.79 6.220% .4800% $2,299.82
10800391 $974,118.58 6.220% .4800% $4,675.77
10800395 $599,457.59 6.220% .4800% $2,877.40
10800429 $649,412.38 6.220% .4800% $3,117.18
10800435 $539,000.00 6.095% 2.4800% $13,367.20
10800443 $1,000,000.00 6.095% 2.4800% $24,800.00
10800473 $423,516.79 6.220% .4800% $2,032.88
10803469 $555,000.00 6.220% .4800% $2,664.00
10803613 $395,000.00 5.845% 6.4800% $25,596.00
10807813 $195,000.00 6.095% 2.4800% $4,836.00
10809651 $467,566.53 6.095% 2.4800% $11,595.65
10809655 $487,548.01 6.095% 2.4800% $12,091.19
10809669 $652,170.45 6.095% 2.4800% $16,173.83
10809677 $528,991.60 5.970% 4.4800% $23,698.82
10809685 $639,421.43 6.220% .4800% $3,069.22
10809691 $464,805.80 6.220% .4800% $2,231.07
10809695 $632,199.57 5.970% 4.4800% $28,322.54
10809719 $531,035.51 6.220% .4800% $2,548.97
10809721 $443,099.06 6.220% .4800% $2,126.88
10809723 $889,335.53 6.095% 2.4800% $22,055.52
10809725 $999,999.00 6.095% 2.4800% $24,799.98
10809733 $649,412.38 6.220% .4800% $3,117.18
10809755 $456,000.00 6.220% .4800% $2,188.80
10809757 $600,000.00 6.220% .4800% $2,880.00
10809767 $527,522.68 6.220% .4800% $2,532.11
10809793 $488,557.93 6.220% .4800% $2,345.08
10809799 $999,051.15 5.970% 4.4800% $44,757.49
10809807 $666,267.22 5.970% 4.4800% $29,848.77
10809813 $532,000.00 6.220% .4800% $2,553.60
10809841 $613,600.00 6.220% .4800% $2,945.28
10809851 $912,000.00 6.095% 2.4800% $22,617.60
10809871 $513,035.79 6.220% .4800% $2,462.57
10809881 $546,421.05 5.970% 4.4800% $24,479.66
10809885 $584,444.92 5.970% 4.4800% $26,183.13
10809887 $514,722.82 6.095% 2.4800% $12,765.13
10809895 $612,166.09 6.220% .4800% $2,938.40
10809903 $549,002.88 6.220% .4800% $2,635.21
10809935 $478,956.94 6.220% .4800% $2,298.99
10809951 $547,401.79 6.220% .4800% $2,627.53
10809961 $569,999.02 5.970% 4.4800% $25,535.96
10809969 $497,162.09 6.220% .4800% $2,386.38
10809979 $469,575.11 6.220% .4800% $2,253.96
10809991 $623,866.92 6.220% .4800% $2,994.56
10810045 $450,000.00 6.095% 2.4800% $11,160.00
10810059 $449,430.94 6.220% .4800% $2,157.27
10810075 $648,184.32 6.095% 2.4800% $16,074.97
10810111 $494,080.62 6.095% 2.4800% $12,253.20
10810145 $549,464.58 5.970% 4.4800% $24,616.01
10810147 $467,467.78 6.095% 2.4800% $11,593.20
10810157 $599,373.56 5.470% 12.4800% $74,801.82
10810181 $449,519.54 6.095% 2.4800% $11,148.08
10810195 $738,500.00 6.095% 2.4800% $18,314.80
10816155 $650,000.00 6.095% 2.4800% $16,120.00
10816507 $172,500.00 5.970% 4.4800% $7,728.00
10816813 $485,000.00 6.220% .4800% $2,328.00
10817193 $700,000.00 6.220% .4800% $3,360.00
10817705 $223,700.00 6.095% 2.4800% $5,547.76
10819097 $474,000.00 6.220% .4800% $2,275.20
10819143 $258,000.00 6.220% .4800% $1,238.40
10819507 $452,000.00 6.220% .4800% $2,169.60
10828149 $174,200.00 6.095% 2.4800% $4,320.16
10829765 $500,000.00 6.095% 2.4800% $12,400.00
10829929 $770,000.00 6.220% .4800% $3,696.00
10833873 $590,000.00 5.970% 4.4800% $26,432.00
10833947 $458,000.00 6.220% .4800% $2,198.40
10839055 $450,000.00 6.220% .4800% $2,160.00
10841789 $432,000.00 6.220% .4800% $2,073.60
10842087 $535,200.00 5.970% 4.4800% $23,976.96
10842267 $515,000.00 6.095% 2.4800% $12,772.00
10850623 $417,100.00 6.220% .4800% $2,002.08
10862989 $539,000.00 6.095% 2.4800% $13,367.20
EXHIBIT THREE
INFORMATION TO BE INCLUDED IN
MONTHLY DISTRIBUTION DATE STATEMENT
(i) the applicable Record Date, Determination Date and Distribution Date;
(ii) the aggregate amount of payments received with respect to the Mortgage Loans, including
prepayment amounts;
(iii) the Servicing Fee and Subservicing Fee payable to the Master Servicer and the Subservicer;
(iv) the amount of any other fees or expenses paid;
(v) (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;
(vi) the amount of such distribution to Holders of such Class of Certificates allocable to interest;
(vii) 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;
(viii) the aggregate Certificate Principal Balance of each Class of Certificates and the Senior
Percentage, before and after giving effect to the amounts distributed on such Distribution Date, separately
identifying any reduction thereof due to Realized Losses other than pursuant to an actual distribution of
principal;
(ix) the weighted average remaining term to maturity of the Mortgage Loans after giving effect to
the amounts distributed on such Distribution Date;
(x) the weighted average Mortgage Rates of the Mortgage Loans after giving effect to the amounts
distributed on such Distribution Date;
(xi) if applicable, the Special Hazard Amount, Fraud Loss Amount and Bankruptcy Amount as of the
close of business on the applicable Distribution Date;
(xii) the number and Stated Principal Balance of the Mortgage Loans after giving effect to the
distribution of principal on such Distribution Date and the number of Mortgage Loans at the beginning and end of
the preceding Due Period;
(xiii) on the basis of the most recent reports furnished to it by Sub-Servicers, the number and Stated
Principal Balances of Mortgage Loans that are Delinquent (A) 30-59 days, (B) 60-89 days and (C) 90 or more days
and the number and Stated Principal Balance of Mortgage Loans that are in foreclosure;
(xiv) the aggregate amount of Realized Losses for such Distribution Date;
(xv) the amount, terms and general purpose of any Advance by the Master Servicer pursuant to Section
4.04;
(xvi) any material modifications, extensions or waivers to the terms of the Mortgage Loans during the
Due Period or that have cumulatively become material over time;
(xvii) any material breaches of Mortgage Loan representations or warranties or covenants in the
Agreement.
(xviii) the related Subordinate Principal Distribution Amount;
(xix) the number, Stated Principal Balance and actual principal balance of REO Properties;
(xx) 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;
(xxi) the Pass-Through Rate with respect to the Class A-V Certificates;
(xxii) the Notional Amount with respect to each class of Interest Only Certificates;
(xxiii) the Pass-Through Rates on the Floater Certificates and Inverse Floater Certificates for such
Distribution Date, separately identifying LIBOR for such Distribution Date;
(xxiv) the occurrence of the Credit Support Depletion Date;
(xxv) the Senior Accelerated Distribution Percentage for applicable to such distribution;
(xxvi) the Senior Percentage for such Distribution Date;
(xxvii) the aggregate amount of any recoveries on previously foreclosed loans from Sellers; and
(xxviii) with respect to the Class A-1 Certificate (a) the amount, if any, of Yield Maintenance Payment
for such Distribution Date and (b) the Yield Supplement Amount for such Distribution Date.
In the case of information furnished pursuant to clauses (v) and (vi) above, the amounts shall be expressed as a
dollar amount per Certificate with a $1,000 denomination.
The Trustee's internet website will initially be located at xxxx://xxx.xxxxxx.xxx/xxx. To receive this statement
via first class mail, telephone the Trustee at 0 (000) 000-0000.
EXHIBIT FOUR
==============================================================================================
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates
==============================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................................1
Section 1.01. Definitions.......................................................1
Section 1.02. Use of Words and Phrases.........................................31
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES............32
Section 2.01. Conveyance of Mortgage Loans.....................................32
Section 2.02. Acceptance by Trustee............................................38
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Company.........................................39
Section 2.04. Representations and Warranties of Residential Funding............41
Section 2.05. Execution and Authentication of Certificates/Issuance of
Certificates Evidencing Interests in REMIC I.....................43
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II Regular
Interests; Acceptance by the Trustee.............................43
Section 2.07. Issuance of Certificates Evidencing Interests in REMIC II........43
Section 2.08. Purposes and Powers of the Trust.................................43
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..............................43
Section 3.01. Master Servicer to Act as Servicer...............................43
Section 3.02. Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations......................................................45
Section 3.03. Successor Subservicers...........................................46
Section 3.04. Liability of the Master Servicer.................................47
Section 3.05. No Contractual Relationship Between Subservicer and Trustee
or Certificateholders............................................47
Section 3.06. Assumption or Termination of Subservicing Agreements by
Trustee..........................................................47
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account................................................48
Section 3.08. Subservicing Accounts; Servicing Accounts........................50
Section 3.09. Access to Certain Documentation and Information Regarding
the Mortgage Loans...............................................52
Section 3.10. Permitted Withdrawals from the Custodial Account.................52
Section 3.11. Maintenance of the Primary Insurance Policies; Collections
Thereunder.......................................................54
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity
Coverage.........................................................55
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.....................56
Section 3.14. Realization Upon Defaulted Mortgage Loans........................58
Section 3.15. Trustee to Cooperate; Release of Mortgage Files..................62
Section 3.16. Servicing and Other Compensation; Compensating Interest..........63
Section 3.17. Reports to the Trustee and the Company...........................64
Section 3.18. Annual Statement as to Compliance................................64
Section 3.19. Annual Independent Public Accountants' Servicing Report..........65
Section 3.20. Rights of the Company in Respect of the Master Servicer..........65
Section 3.21. Administration of Buydown Funds..................................66
Section 3.22. Advance Facility.................................................66
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS..............................................70
Section 4.01. Certificate Account..............................................70
Section 4.02. Distributions....................................................71
Section 4.03. Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting.................................71
Section 4.04. Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer..................................73
Section 4.05. Allocation of Realized Losses....................................74
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property....75
Section 4.07. Optional Purchase of Defaulted Mortgage Loans....................75
Section 4.08. Surety Bond......................................................75
ARTICLE V THE CERTIFICATES............................................................76
Section 5.01. The Certificates.................................................76
Section 5.02. Registration of Transfer and Exchange of Certificates............78
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates................84
Section 5.04. Persons Deemed Owners............................................84
Section 5.05. Appointment of Paying Agent......................................85
ARTICLE VI THE COMPANY AND THE MASTER SERVICER.........................................85
Section 6.01. Respective Liabilities of the Company and the Master Servicer....85
Section 6.02. Merger or Consolidation of the Company or the Master
Servicer; Assignment of Rights and Delegation of Duties by
Master Servicer..................................................85
Section 6.03. Limitation on Liability of the Company, the Master Servicer
and Others.......................................................86
Section 6.04. Company and Master Servicer Not to Resign........................87
ARTICLE VII DEFAULT........................................................................87
Section 7.01. Events of Default................................................87
Section 7.02. Trustee or Company to Act; Appointment of Successor..............89
Section 7.03. Notification to Certificateholders...............................90
Section 7.04. Waiver of Events of Default......................................91
ARTICLE VIII CONCERNING THE TRUSTEE........................................................91
Section 8.01. Duties of Trustee................................................91
Section 8.02. Certain Matters Affecting the Trustee............................93
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans............94
Section 8.04. Trustee May Own Certificates.....................................95
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification..................................................95
Section 8.06. Eligibility Requirements for Trustee.............................96
Section 8.07. Resignation and Removal of the Trustee...........................96
Section 8.08. Successor Trustee................................................97
Section 8.09. Merger or Consolidation of Trustee...............................98
Section 8.10. Appointment of Co-Trustee or Separate Trustee....................98
Section 8.11. Appointment of Custodians........................................99
Section 8.12. Appointment of Office or Agency..................................99
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
Section 9.02. Additional Termination Requirements.............................103
Section 9.03. Termination of Multiple REMICs..................................104
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...................................................108
Section 11.01. Amendment.......................................................108
Section 11.02. Recordation of Agreement; Counterparts..........................111
Section 11.03. Limitation on Rights of Certificateholders......................111
Section 11.04. Governing Law...................................................112
Section 11.05. Notices.........................................................112
Section 11.06. Required Notices to Rating Agency and Subservicer...............112
Section 11.07. Severability of Provisions......................................113
Section 11.08. Supplemental Provisions for Resecuritization....................113
Section 11.09. Allocation of Voting Rights.....................................114
ARTICLE XII COMPLIANCE WITH REGULATION AB..............................................114
Section 12.01. Intent of Parties; Reasonableness...............................114
Section 12.02. Additional Representations and Warranties of the Trustee........114
Section 12.03. Information to be Provided by the Trustee.......................115
Section 12.04. Report on Assessment of Compliance and Attestation..............116
Section 12.05. Indemnification; Remedies.......................................116
TABLE OF CONTENTS
(continued)
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
Exhibit R: Servicing Criteria
This is the Standard Terms of Pooling and Servicing Agreement, dated as of June 1,
2006 (the "Standard Terms", and as incorporated by reference into a Series Supplement dated
as of the Cut-off Date, the "Pooling and Servicing Agreement" or "Agreement"), among
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC., as the company (together with its permitted
successors and assigns, the "Company"), RESIDENTIAL FUNDING CORPORATION, as master servicer
(together with its permitted successors and assigns, the "Master Servicer"), and the trustee
named in the applicable Series Supplement (together with its permitted successors and
assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell certain mortgage pass-through certificates (collectively,
the "Certificates"), to be issued under each Agreement in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Mortgage Loans.
In consideration of the mutual agreements herein contained, the Company, the Master
Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01...Definitions.
Whenever used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this Article.
Accretion Termination Date: As defined in the Series Supplement.
Accrual Certificates: As defined in the Series Supplement.
Accrued Certificate Interest: With respect to each Distribution Date, as to any
Class or Subclass of Certificates (other than any Principal Only Certificates), interest
accrued during the related Interest Accrual Period at the related Pass-Through Rate on the
Certificate Principal Balance or Notional Amount thereof immediately prior to such
Distribution Date. Accrued Certificate Interest will be calculated on the basis of a 360-day
year, consisting of twelve 30-day months. In each case Accrued Certificate Interest on any
Class or Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on all Mortgage Loans or, if the Mortgage Pool
is comprised of two or more Loan Groups, on the Mortgage Loans in the related
Loan Group (to the extent not offset by the Master Servicer with a payment of
Compensating Interest as provided in Section 4.01),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the Modified Net
Mortgage Rate in the case of a Modified Mortgage Loan)) of Realized Losses on
all Mortgage Loans or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group (including Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses and
Extraordinary Losses) not allocated solely to one or more specific Classes of
Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made with respect to
a Mortgage Loan or REO Property on all Mortgage Loans or, if the Mortgage Pool
is comprised of two or more Loan Groups, on the Mortgage Loans in the related
Loan Group, which remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property or (B) made with respect to
delinquencies that were ultimately determined to be Excess Special Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses,
and
(iv) any other interest shortfalls not covered by the subordination provided by the
Class M Certificates and Class B Certificates, including interest that is not
collectible from the Mortgagor pursuant to the Relief Act,
with all such reductions allocated (A) among all of the Certificates in proportion to their
respective amounts of Accrued Certificate Interest payable on such Distribution Date absent
such reductions or (B) if the Mortgage Pool is comprised of two or more Loan Groups, the
related Senior Percentage of such reductions among the related Senior Certificates in
proportion to the amounts of Accrued Certificate Interest payable from the related Loan
Group on such Distribution Date absent such reductions, with the remainder of such
reductions allocated among the holders of the Class M Certificates and Class B Certificates
in proportion to their respective amounts of Accrued Certificate Interest payable on such
Distribution Date absent such reductions. In addition to that portion of the reductions
described in the preceding sentence that are allocated to any Class of Class B Certificates
or any Class of Class M Certificates, Accrued Certificate Interest on such Class of Class B
Certificates or such Class of Class M Certificates will be reduced by the interest portion
(adjusted to the Net Mortgage Rate) of Realized Losses that are allocated solely to such
Class of Class B Certificates or such Class of Class M Certificates pursuant to Section 4.05.
Addendum and Assignment Agreement: The Addendum and Assignment Agreement, dated as
of January 31, 1995, between MLCC and the Master Servicer.
Additional Collateral: Any of the following held, in addition to the related
Mortgaged Property, as security for a Mortgage Loan: (i) all money, securities, security
entitlements, accounts, general intangibles, payment rights, instruments, documents, deposit
accounts, certificates of deposit, commodities contracts and other investment property and
other property of whatever kind or description now existing or hereafter acquired which is
pledged as security for the repayment of such Mortgage Loan, (ii) third-party guarantees,
and (A) all money, securities, security entitlements, accounts, general intangibles, payment
rights, instruments, documents, deposit accounts, certificates of deposit, commodities
contracts and other investment property and other property of whatever kind or description
now existing or hereafter acquired which is pledged as collateral for such guarantee or
(B) any mortgaged property securing the performance of such guarantee, or (iii) such other
collateral as may be set forth in the Series Supplement.
Additional Collateral Loan: Each Mortgage Loan that is supported by Additional
Collateral.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date of
determination, the Mortgage Rate borne by the related Mortgage Note, less the rate at which
the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master Servicer, pursuant
to Section 4.04.
Affiliate: With respect to any Person, any other Person controlling, controlled by
or under common control with such first Person. For the purposes of this definition,
"control" means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
Ambac: Ambac Assurance Corporation (formerly known as AMBAC Indemnity Corporation).
Amount Held for Future Distribution: As to any Distribution Date and, with respect
to any Mortgage Pool that is comprised of two or more Loan Groups, each Loan Group, the
total of the amounts held in the Custodial Account at the close of business on the preceding
Determination Date on account of (i) Liquidation Proceeds, Subsequent Recoveries, Insurance
Proceeds, Curtailments, Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04 or
4.07 and Mortgage Loan substitutions made pursuant to Section 2.03 or 2.04 received or made
in the month of such Distribution Date (other than such Liquidation Proceeds, Insurance
Proceeds and purchases of Mortgage Loans that the Master Servicer has deemed to have been
received in the preceding month in accordance with Section 3.07(b)), and Principal
Prepayments in Full made after the related Prepayment Period, and (ii) payments which
represent early receipt of scheduled payments of principal and interest due on a date or
dates subsequent to the related Due Date.
Appraised Value: As to any Mortgaged Property, the lesser of (i) the appraised value
of such Mortgaged Property based upon the appraisal made at the time of the origination of
the related Mortgage Loan, and (ii) the sales price of the Mortgaged Property at such time
of origination, except in the case of a Mortgaged Property securing a refinanced or modified
Mortgage Loan as to which it is either the appraised value determined above or the appraised
value determined in an appraisal at the time of refinancing or modification, as the case may
be.
Assigned Contracts: With respect to any Pledged Asset Loan: the Credit Support
Pledge Agreement; the Funding and Pledge Agreement, among GMAC Mortgage Corporation,
National Financial Services Corporation and the Mortgagor or other person pledging the
related Pledged Assets; the Additional Collateral Agreement, between GMAC Mortgage
Corporation and the Mortgagor or other person pledging the related Pledged Assets; or such
other contracts as may be set forth in the Series Supplement.
Assignment: An assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect of record the sale of the Mortgage Loan to
the Trustee for the benefit of Certificateholders, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if permitted by law
and accompanied by an Opinion of Counsel to that effect.
Assignment Agreement: The Assignment and Assumption Agreement, dated the Closing
Date, between Residential Funding and the Company relating to the transfer and assignment of
the Mortgage Loans.
Assignment Agreement and Amendment of Security Instrument: With respect to a Sharia
Mortgage Loan, the agreement between the consumer and the co-owner pursuant to which all of
the co-owner's interest as a beneficiary under the related Sharia Mortgage Loan Security
Instrument and the co-owner's interest in the related Mortgaged Property is conveyed to a
subsequent owner, which may take the form of an "Assignment Agreement" and an "Amendment of
Security Instrument" or an "Assignment Agreement and Amendment of Security Instrument", as
applicable.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, the assignment
of the related Cooperative Lease from the Mortgagor to the originator of the Cooperative
Loan.
Available Distribution Amount: As to any Distribution Date and, with respect to any
Mortgage Pool comprised of two or more Loan Groups, each Loan Group, an amount equal to
(a) the sum of (i) the amount relating to the Mortgage Loans on deposit in the Custodial
Account as of the close of business on the immediately preceding Determination Date,
including any Subsequent Recoveries, and amounts deposited in the Custodial Account in
connection with the substitution of Qualified Substitute Mortgage Loans, (ii) the amount of
any Advance made on the immediately preceding Certificate Account Deposit Date, (iii) any
amount deposited in the Certificate Account on the related Certificate Account Deposit Date
pursuant to the second paragraph of Section 3.12(a), (iv) any amount deposited in the
Certificate Account pursuant to Section 4.07 and any amounts deposited in the Custodial
Account pursuant to Section 9.01, (v) any amount that the Master Servicer is not permitted
to withdraw from the Custodial Account or the Certificate Account pursuant to
Section 3.16(e), (vi) any amount received by the Trustee pursuant to the Surety Bond in
respect of such Distribution Date and (vii) the proceeds of any Pledged Assets received by
the Master Servicer, reduced by (b) the sum as of the close of business on the immediately
preceding Determination Date of (x) the Amount Held for Future Distribution, and (y) amounts
permitted to be withdrawn by the Master Servicer from the Custodial Account in respect of
the Mortgage Loans pursuant to clauses (ii)-(x), inclusive, of Section 3.10(a). Such amount
shall be determined separately for each Loan Group. Additionally, with respect to any
Mortgage Pool that is comprised of two or more Loan Groups, if on any Distribution Date
Compensating Interest provided pursuant to Section 3.16(e) is less than Prepayment Interest
Shortfalls incurred on the Mortgage Loans in connection with Principal Prepayments in Full
received during the related Prepayment Period and Curtailments made in the prior calendar
month, such Compensating Interest shall be allocated on such Distribution Date to the
Available Distribution Amount for each Loan Group on a pro rata basis in accordance with the
respective amounts of such Prepayment Interest Shortfalls incurred on the Mortgage Loans in
such Loan Group in respect of such Distribution Date.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation or Debt
Service Reduction; provided, however, that neither a Deficient Valuation nor a Debt Service
Reduction shall be deemed a Bankruptcy Loss hereunder so long as the Master Servicer has
notified the Trustee in writing that the Master Servicer is diligently pursuing any remedies
that may exist in connection with the representations and warranties made regarding the
related Mortgage Loan and either (A) the related Mortgage Loan is not in default with regard
to payments due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard insurance policy and
any related escrow payments in respect of such Mortgage Loan are being advanced on a current
basis by the Master Servicer or a Subservicer, in either case without giving effect to any
Debt Service Reduction.
Book-Entry Certificate: Any Certificate registered in the name of the Depository or
its nominee, and designated as such in the Preliminary Statement to the Series Supplement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day on which
banking institutions in the State of New York, the State of Michigan, the State of
California , the State of Illinois or the City of St. Xxxx, Minnesota (and such other state
or states in which the Custodial Account or the Certificate Account are at the time
located) are required or authorized by law or executive order to be closed.
Buydown Funds: Any amount contributed by the seller of a Mortgaged Property, the
Company or other source in order to enable the Mortgagor to reduce the payments required to
be made from the Mortgagor's funds in the early years of a Mortgage Loan. Buydown Funds are
not part of the Trust Fund prior to deposit into the Custodial or Certificate Account.
Buydown Mortgage Loan: Any Mortgage Loan as to which a specified amount of interest
is paid out of related Buydown Funds in accordance with a related buydown agreement.
Capitalization Reimbursement Amount: As to any Distribution Date, the amount of
Advances or Servicing Advances that were added to the Stated Principal Balance of the
related Mortgage Loans during the prior calendar month and reimbursed to the Master Servicer
or Subservicer on or prior to such Distribution Date pursuant to Section 3.10(a)(vii), plus
the Capitalization Reimbursement Shortfall Amount remaining unreimbursed from any prior
Distribution Date and reimbursed to the Master Servicer or Subservicer on or prior to such
Distribution Date.
Capitalization Reimbursement Shortfall Amount: As to any Distribution Date, the
amount, if any, by which the amount of Advances or Servicing Advances that were added to the
Stated Principal Balance of the Mortgage Loans during the preceding calendar month exceeds
the amount of principal payments on the Mortgage Loans included in the Available
Distribution Amount for that Distribution Date.
Call Rights: As defined in Section 9.01(f).
Cash Liquidation: As to any defaulted Mortgage Loan other than a Mortgage Loan as to
which an REO Acquisition occurred, a determination by the Master Servicer that it has
received all Insurance Proceeds, Liquidation Proceeds and other payments or cash recoveries
which the Master Servicer reasonably and in good faith expects to be finally recoverable
with respect to such Mortgage Loan.
Certificate Account Deposit Date: As to any Distribution Date, the Business Day
prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is registered in
the Certificate Register, and, in respect of any Insured Certificates, the Certificate
Insurer to the extent of Cumulative Insurance Payments, except that neither a Disqualified
Organization nor a Non-United States Person shall be a holder of a Class R Certificate for
purposes hereof and, solely for the purpose of giving any consent or direction pursuant to
this Agreement, any Certificate, other than a Class R Certificate, registered in the name of
the Company, the Master Servicer or any Subservicer or any Affiliate thereof shall be deemed
not to be outstanding and the Percentage Interest or Voting Rights evidenced thereby shall
not be taken into account in determining whether the requisite amount of Percentage
Interests or Voting Rights necessary to effect any such consent or direction has been
obtained. All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through the
Depository and participating members thereof, except as otherwise specified herein;
provided, however, that the Trustee shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in the
Certificate Register.
Certificate Insurer: As defined in the Series Supplement.
Certificate Owner: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Certificate, as reflected on the books of an indirect participating
brokerage firm for which a Depository Participant acts as agent, if any, and otherwise on
the books of a Depository Participant, if any, and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Certificate (other than any
Interest Only Certificate), on any date of determination, an amount equal to:
(i) the Initial Certificate Principal Balance of such Certificate as specified on
the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.02, plus
(iii) in the case of each Accrual Certificate, an amount equal to the aggregate
Accrued Certificate Interest added to the Certificate Principal Balance
thereof prior to such date of determination, minus
(iv) the sum of (x) the aggregate of all amounts previously distributed with
respect to such Certificate (or any predecessor Certificate) and applied to
reduce the Certificate Principal Balance thereof pursuant to
Section 4.02(a) and (y) the aggregate of all reductions in Certificate
Principal Balance deemed to have occurred in connection with Realized Losses
which were previously allocated to such Certificate (or any predecessor
Certificate) pursuant to Section 4.05;
provided, that the Certificate Principal Balance of the Class of Subordinate Certificates
with the Lowest Priority at any given time shall be further reduced by an amount equal to
the Percentage Interest evidenced by such Certificate multiplied by the excess, if any, of
(A) the then aggregate Certificate Principal Balance of all Classes of Certificates then
outstanding over (B) the then aggregate Stated Principal Balance of the Mortgage Loans.
Certificate Register and Certificate Registrar: The register maintained and the
registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates bearing the same designation. The
initial Class A-V Certificates and any Subclass thereof issued pursuant to
Section 5.01(c) shall be a single Class for purposes of this Agreement.
Class A-P Certificate: Any one of the Certificates designated as a Class A-P
Certificate.
Class A-P Collection Shortfall: With respect to the Cash Liquidation or REO
Disposition of a Discount Mortgage Loan and any Distribution Date, the excess of the amount
described in Section 4.02(b)(i)(C)(1) over the amount described in Section 4.02(b)(i)(C)(2).
Class A-P Principal Distribution Amount: As defined in Section 4.02.
Class A-V Certificate: Any one of the Certificates designated as a Class A-V
Certificate, including any Subclass thereof.
Class B Certificate: Any one of the Certificates designated as a Class B-1
Certificate, Class B-2 Certificate or Class B-3 Certificate.
Class M Certificate: Any one of the Certificates designated as a Class M-1
Certificate, Class M-2 Certificate or Class M-3 Certificate.
Closing Date: As defined in the Series Supplement.
Code: The Internal Revenue Code of 1986.
Combined Collateral LLC: Combined Collateral LLC, a placeStateDelaware limited
liability company.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date, an amount equal to
Prepayment Interest Shortfalls resulting from Principal Prepayments in Full during the
related Prepayment Period and Curtailments during the prior calendar month and included in
the Available Distribution Amount for such Distribution Date, but not more than the lesser
of (a) one-twelfth of 0.125% of the Stated Principal Balance of the Mortgage Loans
immediately preceding such Distribution Date and (b) the sum of the Servicing Fee and all
income and gain on amounts held in the Custodial Account and the Certificate Account and
payable to the Certificateholders with respect to such Distribution Date; provided that for
purposes of this definition the amount of the Servicing Fee will not be reduced pursuant to
Section 7.02(a) except as may be required pursuant to the last sentence of such paragraph.
Cooperative: A private, cooperative housing corporation which owns or leases land
and all or part of a building or buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors authorizes, among other
things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building owned or leased
by a Cooperative, which unit the Mortgagor has an exclusive right to occupy pursuant to the
terms of a proprietary lease or occupancy agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary lease or
occupancy agreement with respect to the Cooperative Apartment occupied by the Mortgagor and
relating to the related Cooperative Stock, which lease or agreement confers an exclusive
right to the holder of such Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a Cooperative
Apartment, evidenced by a Mortgage Note and secured by (i) a Security Agreement, (ii) the
related Cooperative Stock Certificate, (iii) an assignment of the Cooperative Lease,
(iv) financing statements and (v) a stock power (or other similar instrument), and ancillary
thereto, a recognition agreement between the Cooperative and the originator of the
Cooperative Loan, each of which was transferred and assigned to the Trustee pursuant to
Section 2.01 and are from time to time held as part of the Trust Fund.
Cooperative Stock: With respect to a Cooperative Loan, the single outstanding class
of stock, partnership interest or other ownership instrument in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the stock
certificate or other instrument evidencing the related Cooperative Stock.
Credit Repository: Equifax, Transunion and Experian, or their successors in interest.
Credit Support Depletion Date: The first Distribution Date on which the Certificate
Principal Balances of the Subordinate Certificates have been reduced to zero.
Credit Support Pledge Agreement: The Credit Support Pledge Agreement, dated as of
November 24, 1998, among the Master Servicer, GMAC Mortgage Corporation, Combined Collateral
LLC and The First National Bank of Chicago (now known as JPMorgan Chase Bank, N.A.), 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. 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.
Destroyed Obligaton to Pay: An Obligation to Pay 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 Freddie Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization (other than certain
farmers' cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone cooperatives described
in Section 1381(a)(2)(C) of the Code, (v) any "electing large partnership," as defined in
Section 775(a) of the Code and (vi) any other Person so designated by the Trustee based upon
an Opinion of Counsel that the holding of an Ownership Interest in a Class R Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest in any Class
of Certificates (other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R Certificate to such Person. The terms "placecountry-regionUnited
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 the
Trustee, or (iv) in the case of the Certificate Account, a trust account or accounts
maintained in the corporate trust department 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.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion thereof, that
exceeds the then applicable Special Hazard Amount.
Excess Subordinate Principal Amount: With respect to any Distribution Date on which
the aggregate Certificate Principal Balance of the Class of Subordinate Certificates then
outstanding with the Lowest Priority is to be reduced to zero and on which Realized Losses
are to be allocated to such class or classes, the excess, if any, of (i) the amount that
would otherwise be distributable in respect of principal on such class or classes of
Certificates on such Distribution Date over (ii) the excess, if any, of the aggregate
Certificate Principal Balance of such class or classes of Certificates immediately prior to
such Distribution Date over the aggregate amount of Realized Losses to be allocated to such
classes of Certificates on such Distribution Date as reduced by any amount calculated
pursuant to Section 4.02(b)(i)(E). With respect to any Mortgage Pool that is comprised of
two or more Loan Groups, the Excess Subordinate Principal Amount will be allocated between
each Loan Group on a pro rata basis in accordance with the amount of Realized Losses
attributable to each Loan Group and allocated to the Certificates on such Distribution Date.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Extraordinary Events: Any of the following conditions with respect to a Mortgaged
Property (or, with respect to a Cooperative Loan, the Cooperative Apartment) or Mortgage
Loan causing or resulting in a loss which causes the liquidation of such Mortgage Loan:
(a)....losses that are of the type that would be covered by the fidelity bond and the
errors and omissions insurance policy required to be maintained pursuant to
Section 3.12(b) but are in excess of the coverage maintained thereunder;
(b)....nuclear reaction or nuclear radiation or radioactive contamination, all
whether controlled or uncontrolled, and whether such loss be direct or indirect, proximate
or remote or be in whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss";
(c)....hostile or warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or expected attack:
1. by any government or sovereign power, de jure or de facto, or by any
authority maintaining or using military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or forces;
(d)....any weapon of war employing atomic fission or radioactive force whether in
time of peace or war; or
(e)....insurrection, rebellion, revolution, civil war, usurped power or action taken
by governmental authority in hindering, combating or defending against such an occurrence,
seizure or destruction under quarantine or customs regulations, confiscation by order of any
government or public authority; or risks of contraband or illegal transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by or resulting
from an Extraordinary Event.
Xxxxxx Xxx: Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Distribution Date: The Distribution Date on which the final distribution in
respect of the Certificates will be made pursuant to Section 9.01, which Final Distribution
Date shall in no event be later than the end of the 90-day liquidation period described in
Section 9.02.
Fitch: Fitch, Inc. or its successor in interest.
Form 10-K Certification: As defined in Section 4.03(e).
Foreclosure Profits: As to any Distribution Date or related Determination Date and
any Mortgage Loan, the excess, if any, of Liquidation Proceeds, Insurance Proceeds and REO
Proceeds (net of all amounts reimbursable therefrom pursuant to Section 3.10(a)(ii)) in
respect of each Mortgage Loan or REO Property for which a Cash Liquidation or REO
Disposition occurred in the related Prepayment Period over the sum of the unpaid principal
balance of such Mortgage Loan or REO Property (determined, in the case of an REO
Disposition, in accordance with Section 3.14) plus accrued and unpaid interest at the
Mortgage Rate on such unpaid principal balance from the Due Date to which interest was last
paid by the Mortgagor to the first day of the month following the month in which such Cash
Liquidation or REO Disposition occurred.
Fraud Losses: Losses on Mortgage Loans as to which there was fraud in the
origination of such Mortgage Loan.
Freddie Mac: Federal Home Loan Mortgage Corporation, a corporate instrumentality of
the United States created and existing under Title III of the Emergency Home Finance Act of
1970, as amended, or any successor thereto.
Highest Priority: As of any date of determination, the Class of Subordinate
Certificates then outstanding with a Certificate Principal Balance greater than zero, with
the earliest priority for payments pursuant to Section 4.02(a), in the following order:
Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates.
Independent: When used with respect to any specified Person, means such a Person who
(i) is in fact independent of the Company, the Master Servicer and the Trustee, or any
Affiliate thereof, (ii) does not have any direct financial interest or any material indirect
financial interest in the Company, the Master Servicer or the Trustee or in an Affiliate
thereof, and (iii) is not connected with the Company, the Master Servicer or the Trustee as
an officer, employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
Initial Certificate Principal Balance: With respect to each Class of Certificates,
the Certificate Principal Balance of such Class of Certificates as of the Cut-off Date, as
set forth in the Series Supplement.
Initial Monthly Payment Fund: An amount representing scheduled principal
amortization and interest at the Net Mortgage Rate for the Due Date in the first Due Period
commencing subsequent to the Cut-off Date for those Mortgage Loans for which the Trustee
will not be entitled to receive such payment, and as more specifically defined in the Series
Supplement.
Initial Notional Amount: With respect to any Class or Subclass of Interest Only
Certificates, the amount initially used as the principal basis for the calculation of any
interest payment amount, as more specifically defined in the Series Supplement.
Initial Subordinate Class Percentage: As defined in the Series Supplement.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans pursuant to any
Primary Insurance Policy or any other related insurance policy covering a Mortgage Loan
(excluding any Certificate Policy (as defined in the Series Supplement)), to the extent such
proceeds are payable to the mortgagee under the Mortgage, any Subservicer, the Master
Servicer or the Trustee and are not applied to the restoration of the related Mortgaged
Property (or, with respect to a Cooperative Loan, the related Cooperative Apartment) or
released to the Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing mortgage loans held for its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any successor
thereto or the named insurer in any replacement policy.
Interest Accrual Period: As defined in the Series Supplement.
Interest Only Certificates: A Class or Subclass of Certificates not entitled to
payments of principal, and designated as such in the Series Supplement. The Interest Only
Certificates will have no Certificate Principal Balance.
Interim Certification: As defined in Section 2.02.
Junior Certificateholder: The Holder of not less than 95% of the Percentage
Interests of the Junior Class of Certificates.
Junior Class of Certificates: The Class of Subordinate Certificates outstanding as
of the date of the repurchase of a Mortgage Loan pursuant to Section 4.07 herein that has
the Lowest Priority.
Late Collections: With respect to any Mortgage Loan, all amounts received during any
Due Period, whether as late payments of Monthly Payments or as Insurance Proceeds,
Liquidation Proceeds or otherwise, which represent late payments or collections of Monthly
Payments due but delinquent for a previous Due Period and not previously recovered.
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received by the Master
Servicer in connection with the taking of an entire Mortgaged Property by exercise of the
power of eminent domain or condemnation or in connection with the liquidation of a defaulted
Mortgage Loan through trustee's sale, foreclosure sale or otherwise, other than REO Proceeds.
Loan Group: Any group of Mortgage Loans designated as a separate loan group in the
Series Supplement. The Certificates relating to each Loan Group will be designated in the
Series Supplement.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a percentage, the
numerator of which is the current principal balance of the related Mortgage Loan at the date
of determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Lower Priority: As of any date of determination and any Class of Subordinate
Certificates, any other Class of Subordinate Certificates then outstanding with a
Certificate Principal Balance greater than zero, with later priority for payments pursuant
to Section 4.02(a).
Lowest Priority: As of any date of determination, the Class of Subordinate
Certificates then outstanding with the latest priority for payments pursuant to
Section 4.02(a), in the following order: Class B-3, Class B-2, Class B-1, Class M-3, Class
M-2 and Class M-1 Certificates.
Maturity Date: The latest possible maturity date, solely for purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the Certificate Principal
Balance of each Class of Certificates (other than the Interest Only Certificates which have
no Certificate Principal Balance) and each Uncertificated REMIC Regular Interest would be
reduced to zero, as designated in the Series Supplement.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of placeStateDelaware, or any successor thereto.
MERS(R)System: The system of recording transfers of Mortgages electronically
maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered with MERS on
the MERS(R)System.
MLCC: Xxxxxxx Xxxxx Credit Corporation, or its successor in interest.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a Servicing
Modification.
Modified Mortgage Rate: As to any Mortgage Loan that is the subject of a Servicing
Modification, the Mortgage Rate minus the rate per annum by which the Mortgage Rate on such
Mortgage Loan was reduced.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the subject of a
Servicing Modification, the Net Mortgage Rate minus the rate per annum by which the Mortgage
Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the mortgagee of such
Mortgage Loan, solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO Property) and
any Due Date, the payment of principal and interest due thereon in accordance with the
amortization schedule at the time applicable thereto (after adjustment, if any, for
Curtailments and for Deficient Valuations occurring prior to such Due Date but before any
adjustment to such amortization schedule by reason of any bankruptcy, other than a Deficient
Valuation, or similar proceeding or any moratorium or similar waiver or grace period and
before any Servicing Modification that constitutes a reduction of the interest rate on such
Mortgage Loan).
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note related to a Mortgage Loan which is not
a Cooperative Loan, the mortgage, deed of trust or other comparable instrument creating a
first lien on an estate in fee simple or leasehold interest in real property securing a
Mortgage Note. With respect to each Obligation to Pay related to a Sharia Mortgage Loan,
the Sharia Mortgage Loan Security Instrument.
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, including any Sharia 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, (ii) with respect to each Sharia Mortgage Loan, the related
Obligation to Pay, Sharia Mortgage Loan Security Instrument, Sharia Mortgage Loan
Co-Ownership Agreement, Assignment Agreement and Amendment of Security Instrument and
Mortgage File and all rights appertaining thereto and (iii) with respect to each Mortgage
Loan other than a Cooperative Loan or a Sharia Mortgage 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. With respect to each Sharia Mortgage Loan, the related Obligation to
Pay.
Mortgage Pool: The pool of mortgage loans, including all Loan Groups, if any,
consisting of the Mortgage Loans.
Mortgage Rate: As to any Mortgage Loan, the interest rate borne by the related
Mortgage Note, or any modification thereto other than a Servicing Modification. As to any
Sharia Mortage Loan, the profit factor described in the related Obligation to Pay, 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, or with respect to a Sharia Mortgage
Loan, the consumer on an Obligation to Pay.
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 placecountry-regionUnited 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.
Obligation to Pay: The originally executed obligation to pay or similar agreement
evidencing the obligation of the consumer under a Sharia Mortgage Loan, together with any
modification thereto.
Officers' Certificate: A certificate signed by the Chairman of the Board, the
President or a Vice President or Assistant Vice President, or a Director or Managing
Director, and by the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Company or the Master Servicer, as the case may be, and
delivered to the Trustee, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the Trustee and the
Master Servicer, who may be counsel for the Company or the Master Servicer, provided that
any opinion of counsel (i) referred to in the definition of "Disqualified Organization" or
(ii) relating to the qualification of any REMIC formed under the Series Supplement or
compliance with the REMIC Provisions must, unless otherwise specified, be an opinion of
Independent counsel.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan (including an REO
Property) which was not the subject of a Principal Prepayment in Full, Cash Liquidation or
REO Disposition and which was not purchased, deleted or substituted for prior to such Due
Date pursuant to Section 2.02, 2.03, 2.04 or 4.07.
Ownership Interest: As to any Certificate, any ownership or security interest in
such Certificate, including any interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
Pass-Through Rate: As defined in the Series Supplement.
Paying Agent: The Trustee or any successor Paying Agent appointed by the Trustee.
Percentage Interest: With respect to any Certificate (other than a Class R
Certificate), the undivided percentage ownership interest in the related Class evidenced by
such Certificate, which percentage ownership interest shall be equal to the Initial
Certificate Principal Balance thereof or Initial Notional Amount (in the case of any
Interest Only Certificate) thereof divided by the aggregate Initial Certificate Principal
Balance or the aggregate of the Initial Notional Amounts, as applicable, of all the
Certificates of the same Class. With respect to a Class R Certificate, the interest in
distributions to be made with respect to such Class evidenced thereby, expressed as a
percentage, as stated on the face of each such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
country-regionUnited States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the
placecountry-regionUnited States;
(ii) repurchase agreements on obligations specified in clause (i) maturing not more
than one month from the date of acquisition thereof, provided that the
unsecured obligations of the party agreeing to repurchase such obligations are
at the time rated by each Rating Agency in its highest short-term rating
available;
(iii) federal funds, certificates of deposit, demand deposits, time deposits and
bankers' acceptances (which shall each have an original maturity of not more
than 90 days and, in the case of bankers' acceptances, shall in no event have
an original maturity of more than 365 days or a remaining maturity of more
than 30 days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the United States
or any state thereof or of any domestic branch of a foreign depository
institution or trust company; provided that the debt obligations of such
depository institution or trust company (or, if the only Rating Agency is
Standard & Poor's, in the case of the principal depository institution in a
depository institution holding company, debt obligations of the depository
institution holding company) at the date of acquisition thereof have been
rated by each Rating Agency in its highest short-term rating available; and
provided further that, if the only Rating Agency is Standard & Poor's and if
the depository or trust company is a principal subsidiary of a bank holding
company and the debt obligations of such subsidiary are not separately rated,
the applicable rating shall be that of the bank holding company; and, provided
further that, if the original maturity of such short-term obligations of a
domestic branch of a foreign depository institution or trust company shall
exceed 30 days, the short-term rating of such institution shall be A-1+ in the
case of Standard & Poor's if Standard & Poor's is the Rating Agency;
(iv) commercial paper and demand notes (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United States
or any state thereof which on the date of acquisition has been rated by each
Rating Agency in its highest short-term rating available; provided that such
commercial paper shall have a remaining maturity of not more than 30 days;
(v) a money market fund or a qualified investment fund rated by each Rating Agency
in its highest long-term rating available; and
(vi) other obligations or securities that are acceptable to each Rating Agency as a
Permitted Investment hereunder and will not reduce the rating assigned to any
Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency, as evidenced in writing;
provided, however, no instrument shall be a Permitted Investment if it represents, either
(1) the right to receive only interest payments with respect to the underlying debt
instrument or (2) the right to receive both principal and interest payments derived from
obligations underlying such instrument and the principal and interest payments with respect
to such instrument provide a yield to maturity greater than 120% of the yield to maturity at
par of such underlying obligations. References herein to the highest rating available on
unsecured long-term debt shall mean AAA in the case of Standard & Poor's and Fitch and Aaa
in the case of Xxxxx'x, and references herein to the highest rating available on unsecured
commercial paper and short-term debt obligations shall mean A-1 in the case of Standard &
Poor's, P-1 in the case of Xxxxx'x and either A-1 by Standard & Poor's, P-1 by Xxxxx'x or
F-1 by Fitch in the case of Fitch; provided, however, that any Permitted Investment that is
a short-term debt obligation rated A-1 by Standard & Poor's must satisfy the following
additional conditions: (i) the total amount of debt from A-1 issuers must be limited to the
investment of monthly principal and interest payments (assuming fully amortizing
collateral); (ii) the total amount of A-1 investments must not represent more than 20% of
the aggregate outstanding Certificate Principal Balance of the Certificates and each
investment must not mature beyond 30 days; (iii) investments in A-1 rated securities are not
eligible for the Reserve Fund; (iv) the terms of the debt must have a predetermined fixed
dollar amount of principal due at maturity that cannot vary; and (v) if the investments may
be liquidated prior to their maturity or are being relied on to meet a certain yield,
interest must be tied to a single interest rate index plus a single fixed spread (if
any) and must move proportionately with that index.
Permitted Transferee: Any Transferee of a Class R Certificate, other than a
Disqualified Organization or Non-United States Person.
Person: Any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
Pledged Amount: With respect to any Pledged Asset Loan, the amount of money remitted
to Combined Collateral LLC, at the direction of or for the benefit of the related Mortgagor.
Pledged Asset Loan: Any Mortgage Loan supported by Pledged Assets or such other
collateral, other than the related Mortgaged Property, set forth in the Series Supplement.
Pledged Assets: With respect to any Mortgage Loan, all money, securities, security
entitlements, accounts, general intangibles, instruments, documents, certificates of
deposit, commodities contracts and other investment property and other property of whatever
kind or description pledged by Combined Collateral LLC as security in respect of any
Realized Losses in connection with such Mortgage Loan up to the Pledged Amount for such
Mortgage Loan, and any related collateral, or such other collateral as may be set forth in
the Series Supplement.
Pledged Asset Mortgage Servicing Agreement: The Pledged Asset Mortgage Servicing
Agreement, dated as of February 28, 1996 between MLCC and the Master Servicer.
Pooling and Servicing Agreement or Agreement: With respect to any Series, this
Standard Terms together with the related Series Supplement.
Pool Stated Principal Balance: As to any Distribution Date, the aggregate of the
Stated Principal Balances of each Mortgage Loan.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate equal to the
excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b) the Discount Net Mortgage
Rate (but not less than 0.00%) per annum.
Prepayment Distribution Trigger: With respect to any Distribution Date and any Class
of Subordinate Certificates (other than the Class M-1 Certificates), a test that shall be
satisfied if the fraction (expressed as a percentage) equal to the sum of the Certificate
Principal Balances of such Class and each Class of Subordinate Certificates with a Lower
Priority than such Class immediately prior to such Distribution Date divided by the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date is greater than or equal to the sum
of the related Initial Subordinate Class Percentages of such Classes of Subordinate
Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any Mortgage Loan
(other than a Mortgage Loan relating to an REO Property) that was the subject of (a) a
Principal Prepayment in Full during the portion of the related Prepayment Period that falls
during the prior calendar month, an amount equal to the excess of one month's interest at
the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan) on the Stated Principal Balance of such Mortgage Loan over the amount of interest
(adjusted to the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan)) paid by the Mortgagor for such month to the date of such Principal
Prepayment in Full or (b) a Curtailment during the prior calendar month, an amount equal to
one month's interest at the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of
a Modified Mortgage Loan) on the amount of such Curtailment.
Prepayment Period: As to any Distribution Date and Principal Prepayment in Full, the
period commencing on the 16th day of the month prior to the month 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 mortgage loan purchase and conduit servicing program and all supplements and
amendments thereto published by Residential Funding from time to time.
Purchase Price: With respect to any Mortgage Loan (or REO Property) required to be
or otherwise purchased on any date pursuant to Section 2.02, 2.03, 2.04 or 4.07, an amount
equal to the sum of (i) 100% of the Stated Principal Balance thereof plus the principal
portion of any related unreimbursed Advances and (ii) unpaid accrued interest at the
Adjusted Mortgage Rate (or Modified Net Mortgage Rate plus the rate per annum at which the
Servicing Fee is calculated in the case of a Modified Mortgage Loan) (or at the Net Mortgage
Rate (or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) in the case of
a purchase made by the Master Servicer) on the Stated Principal Balance thereof to the Due
Date in the Due Period related to the Distribution Date occurring in the month following the
month of purchase from the Due Date to which interest was last paid by the Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by Residential
Funding or the Company for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officers' Certificate delivered to the Trustee, with a copy
to the Custodian,
(i) have an outstanding principal balance, after deduction of the principal
portion of the monthly payment due in the month of substitution (or in the
case of a substitution of more than one Mortgage Loan for a Deleted Mortgage
Loan, an aggregate outstanding principal balance, after such deduction), not
in excess of the Stated Principal Balance of the Deleted Mortgage Loan (the
amount of any shortfall to be deposited by Residential Funding in the
Custodial Account in the month of substitution);
(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than and not more than
1% per annum higher than the Mortgage Rate and Net Mortgage Rate,
respectively, of the Deleted Mortgage Loan as of the date of substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no higher than that of
the Deleted Mortgage Loan at the time of substitution;
(iv) have a remaining term to stated maturity not greater than (and not more than
one year less than) that of the Deleted Mortgage Loan;
(v) comply with each representation and warranty set forth in Sections 2.03 and
2.04 hereof and Section 4 of the Assignment Agreement; and
(vi) have a Pool Strip Rate equal to or greater than that of the Deleted Mortgage
Loan.
Notwithstanding any other provisions herein, (x) with respect to any Qualified Substitute
Mortgage Loan substituted for a Deleted Mortgage Loan which was a Discount Mortgage Loan,
such Qualified Substitute Mortgage Loan shall be deemed to be a Discount Mortgage Loan and
to have a Discount Fraction equal to the Discount Fraction of the Deleted Mortgage Loan and
(y) in the event that the "Pool Strip Rate" of any Qualified Substitute Mortgage Loan as
calculated pursuant to the definition of "Pool Strip Rate" is greater than the Pool Strip
Rate of the related Deleted Mortgage Loan
(i) the Pool Strip Rate of such Qualified Substitute Mortgage Loan shall be equal
to the Pool Strip Rate of the related Deleted Mortgage Loan for purposes of
calculating the Pass-Through Rate on the Class A-V Certificates and
(ii) the excess of the Pool Strip Rate on such Qualified Substitute Mortgage Loan
as calculated pursuant to the definition of "Pool Strip Rate" over the Pool
Strip Rate on the related Deleted Mortgage Loan shall be payable to the Class
R Certificates pursuant to Section 4.02 hereof.
Rating Agency: Each of the statistical credit rating agencies specified in the
Preliminary Statement of the Series Supplement. If any agency or a successor is no longer
in existence, "Rating Agency" shall be such statistical credit rating agency, or other
comparable Person, designated by the Company, notice of which designation shall be given to
the Trustee and the Master Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property):
(a)....as to which a Cash Liquidation or REO Disposition has occurred, an amount (not
less than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan (or REO
Property) as of the date of Cash Liquidation or REO Disposition, plus (ii) interest (and REO
Imputed Interest, if any) at the Net Mortgage Rate from the Due Date as to which interest
was last paid or advanced to Certificateholders up to the Due Date in the Due Period related
to the Distribution Date on which such Realized Loss will be allocated pursuant to
Section 4.05 on the Stated Principal Balance of such Mortgage Loan (or REO
Property) outstanding during each Due Period that such interest was not paid or advanced,
minus (iii) the proceeds, if any, received during the month in which such Cash Liquidation
(or REO Disposition) occurred, to the extent applied as recoveries of interest at the Net
Mortgage Rate and to principal of the Mortgage Loan, net of the portion thereof reimbursable
to the Master Servicer or any Subservicer with respect to related Advances, Servicing
Advances or other expenses as to which the Master Servicer or Subservicer is entitled to
reimbursement thereunder but which have not been previously reimbursed,
(b)....which is the subject of a Servicing Modification, (i) (1) the amount by which
the interest portion of a Monthly Payment or the principal balance of such Mortgage Loan was
reduced or (2) the sum of any other amounts owing under the Mortgage Loan that were forgiven
and that constitute Servicing Advances that are reimbursable to the Master Servicer or a
Subservicer, and (ii) any such amount with respect to a Monthly Payment that was or would
have been due in the month immediately following the month in which a Principal Prepayment
or the Purchase Price of such Mortgage Loan is received or is deemed to have been received,
(c)....which has become the subject of a Deficient Valuation, the difference between
the principal balance of the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation, or
(d)....which has become the object of a Debt Service Reduction, the amount of such
Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a Debt Service Reduction shall
be deemed a Realized Loss hereunder so long as the Master Servicer has notified the Trustee
in writing that the Master Servicer is diligently pursuing any remedies that may exist in
connection with the representations and warranties made regarding the related Mortgage Loan
and either (A) the related Mortgage Loan is not in default with regard to payments due
thereunder or (B) delinquent payments of principal and interest under the related Mortgage
Loan and any premiums on any applicable primary hazard insurance policy and any related
escrow payments in respect of such Mortgage Loan are being advanced on a current basis by
the Master Servicer or a Subservicer, in either case without giving effect to any Debt
Service Reduction.
To the extent the Master Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such recoveries are applied to reduce the Certificate Principal
Balance of any Class of Certificates on any Distribution Date.
Record Date: With respect to each Distribution Date, the close of business on the
last Business Day of the month next preceding the month in which the related Distribution
Date occurs.
Regular Certificate: Any of the Certificates other than a Class R Certificate.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,
1,531 (January 7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
Relief Act: The Servicemembers Civil Relief Act or similar legislation or
regulations as in effect from time to time.
Relief Act Shortfalls: Shortfalls in interest payable by a Mortgagor that are not
collectible from the Mortgagor pursuant to the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Administrator: Residential Funding Corporation. If Residential Funding
Corporation is found by a court of competent jurisdiction to no longer be able to fulfill
its obligations as REMIC Administrator under this Agreement the Master Servicer or Trustee
acting as Master Servicer shall appoint a successor REMIC Administrator, subject to
assumption of the REMIC Administrator obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and related provisions, and temporary and final regulations (or, to
the extent not inconsistent with such temporary or final regulations, proposed
regulations) and published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
REO Acquisition: The acquisition by the Master Servicer on behalf of the Trustee for
the benefit of the Certificateholders of any REO Property pursuant to Section 3.14.
REO Disposition: As to any REO Property, a determination by the Master Servicer that
it has received all Insurance Proceeds, Liquidation Proceeds, REO Proceeds and other
payments and recoveries (including proceeds of a final sale) which the Master Servicer
expects to be finally recoverable from the sale or other disposition of the REO Property.
REO Imputed Interest: As to any REO Property, for any period, an amount equivalent
to interest (at the Net Mortgage Rate that would have been applicable to the related
Mortgage Loan had it been outstanding) on the unpaid principal balance of the Mortgage Loan
as of the date of acquisition thereof for such period.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO Property
(including, without limitation, proceeds from the rental of the related Mortgaged Property
or, with respect to a Cooperative Loan, the related Cooperative Apartment) which proceeds
are required to be deposited into the Custodial Account only upon the related REO
Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer through
foreclosure or deed in lieu of foreclosure in connection with a defaulted Mortgage Loan.
Reportable Modified Mortgage Loan: Any Mortgage Loan that (i) has been subject to an
interest rate reduction, (ii) has been subject to a term extension or (iii) has had amounts
owing on such Mortgage Loan capitalized by adding such amount to the Stated Principal
Balance of such Mortgage Loan; provided, however, that a Mortgage Loan modified in
accordance with clause (i) above for a temporary period shall not be a Reportable Modified
Mortgage Loan if such Mortgage Loan has not been delinquent in payments of principal and
interest for six months since the date of such modification if that interest rate reduction
is not made permanent thereafter.
Request for Release: A request for release, the forms of which are attached as
Exhibit F hereto, or an electronic request in a form acceptable to the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance policy
which is required to be maintained from time to time under this Agreement, the Program Guide
or the related Subservicing Agreement in respect of such Mortgage Loan.
Required Surety Payment: With respect to any Additional Collateral Loan that becomes
a Liquidated Mortgage Loan, the lesser of (i) the principal portion of the Realized Loss
with respect to such Mortgage Loan and (ii) the excess, if any, of (a) the amount of
Additional Collateral required at origination with respect to such Mortgage Loan over
(b) the net proceeds realized by the Subservicer from the related Additional Collateral.
Residential Funding: Residential Funding Corporation, a Delaware corporation, in its
capacity as seller of the Mortgage Loans to the Company and not in its capacity as Master
Servicer, and any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer of the
Corporate Trust Department of the Trustee, including any Senior Vice President, any Vice
President, any Assistant Vice President, any Assistant Secretary, any Trust Officer or
Assistant Trust Officer, 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, in each case with direct
responsibility for the administration of the Agreements.
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.
Securitization Transaction: Any transaction involving a sale or other transfer of
mortgage loans directly or indirectly to an issuing entity in connection with an issuance of
publicly offered or privately placed, rated or unrated mortgage-backed securities.
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.
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
(ii) that for any Distribution Date on which the Senior Percentage is greater than
the Percentage as of the Closing Date, the Senior Accelerated Distribution
Percentage for such Distribution Date shall be 100%, or, if the Mortgage Pool
is comprised of two or more Loan Groups, for any Distribution Date on which
the weighted average of the Senior Percentages for each Loan Group, weighted
on the basis of the Stated Principal Balances of the Mortgage Loans in the
related Loan Group, exceeds the weighted average of the initial Senior
Percentages (calculated on such basis) for each Loan Group, each of the Senior
Accelerated Distribution Percentages for such Distribution Date will equal
100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal Balances of
the related Senior Certificates (other than the Class A-P Certificates, if any) to zero, the
related Senior Accelerated Distribution Percentage shall thereafter be 0%.
Senior Certificate: As defined in the Series Supplement.
Senior Percentage: As defined in the Series Supplement.
Senior Support Certificate: A Senior Certificate that provides additional credit
enhancement to certain other classes of Senior Certificates and designated as such in the
Preliminary Statement of the Series Supplement.
Series: All of the Certificates issued pursuant to a Pooling and Servicing Agreement
and bearing the same series designation.
Series Supplement: The agreement into which this Standard Terms is incorporated and
pursuant to which, together with this Standard Terms, a Series of Certificates is issued.
Servicing Accounts: The account or accounts created and maintained pursuant to
Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of pocket" costs
and expenses incurred in connection with a default, delinquency or other unanticipated event
by the Master Servicer or a Subservicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) the preservation, restoration and protection
of a Mortgaged Property or, with respect to a Cooperative Loan, the related Cooperative
Apartment, (ii) any enforcement or judicial proceedings, including foreclosures, including
any expenses incurred in relation to any such proceedings that result from the Mortgage Loan
being registered on the MERS System, (iii) the management and liquidation of any REO
Property, (iv) any mitigation procedures implemented in accordance with Section 3.07, and
(v) compliance with the obligations under Sections 3.01, 3.08, 3.12(a) and 3.14, including,
if the Master Servicer or any Affiliate of the Master Servicer provides services such as
appraisals and brokerage services that are customarily provided by Persons other than
servicers of mortgage loans, reasonable compensation for such services.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of Regulation
AB, as such may be amended from time to time.
Servicing Fee: With respect to any Mortgage Loan and Distribution Date, the fee
payable monthly to the Master Servicer in respect of master servicing compensation that
accrues at an annual rate 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.
Sharia Mortgage Loan: A declining balance co-ownership transaction, structured so as
to comply with Islamic religious law.
Sharia Mortgage Loan Co-Ownership Agreement: The agreement that defines the
relationship between the consumer and co-owner and the parties' respective rights under a
Sharia Mortgage Loan, including their respective rights with respect to the indicia of
ownership of the related Mortgaged Property.
Sharia Mortgage Loan Security Instrument: The mortgage, security instrument or other
comparable instrument creating a first lien on an estate in fee simple or leasehold interest
in real property securing an Obligation to Pay.
Special Hazard Loss: Any Realized Loss not in excess of the cost of the lesser of
repair or replacement of a Mortgaged Property (or, with respect to a Cooperative Loan, the
related Cooperative Apartment) suffered by such Mortgaged Property (or Cooperative
Apartment) on account of direct physical loss, exclusive of (i) any loss of a type covered by
a hazard policy or a flood insurance policy required to be maintained in respect of such
Mortgaged Property pursuant to Section 3.12(a), except to the extent of the portion of such
loss not covered as a result of any coinsurance provision and (ii) any Extraordinary Loss.
Standard & Poor's: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related REO Property,
at any given time, (i) the sum of (a) the Cut-off Date Principal Balance of the Mortgage
Loan plus (b) any amount by which the Stated Principal Balance of the Mortgage Loan is
increased pursuant to a Servicing Modification, minus (ii) the sum of (a) the principal
portion of the Monthly Payments due with respect to such Mortgage Loan or REO Property
during each Due Period ending prior to the most recent Distribution Date which were received
or with respect to which an Advance was made, and (b) all Principal Prepayments with respect
to such Mortgage Loan or REO Property, and all Insurance Proceeds, Liquidation Proceeds and
REO Proceeds, to the extent applied by the Master Servicer as recoveries of principal in
accordance with Section 3.14 with respect to such Mortgage Loan or REO Property, in each
case which were distributed pursuant to Section 4.02 on any previous Distribution Date, and
(c) any Realized Loss allocated to Certificateholders with respect thereto for any previous
Distribution Date.
Subclass: With respect to the Class A-V Certificates, any Subclass thereof issued
pursuant to Section 5.01(c). Any such Subclass will represent the Uncertificated Class A-V
REMIC Regular Interest or Interests specified by the initial Holder of the Class A-V
Certificates pursuant to Section 5.01(c).
Subordinate Certificate: Any one of the Class M Certificates or Class B
Certificates, executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit B and Exhibit C, respectively.
Subordinate Class Percentage: With respect to any Distribution Date and any Class of
Subordinate Certificates, a fraction, expressed as a percentage, the numerator of which is
the aggregate Certificate Principal Balance of such Class of Subordinate Certificates
immediately prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties) (other than the
related Discount Fraction of each Discount Mortgage Loan) immediately prior to such
Distribution Date.
Subordinate Percentage: As of any Distribution Date and, with respect to any
Mortgage Pool comprised of two or more Loan Groups, any Loan Group, 100% minus the related
Senior Percentage as of such Distribution Date.
Subsequent Recoveries: As of any Distribution Date, amounts received by the Master
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 3.10) or surplus amounts held by the Master Servicer to cover estimated expenses
(including, but not limited to, recoveries in respect of the representations and warranties
made by the related Seller pursuant to the applicable Seller's Agreement and assigned to the
Trustee pursuant to Section 2.04) specifically related to a Mortgage Loan that was the
subject of a Cash Liquidation or an REO Disposition prior to the related Prepayment Period
that resulted in a Realized Loss.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of reference thereto,
is subject to a Subservicing Agreement.
Subservicer: Any Person with whom the Master Servicer has entered into a
Subservicing Agreement and who generally satisfied the requirements set forth in the Program
Guide in respect of the qualification of a Subservicer as of the date of its approval as a
Subservicer by the Master Servicer.
Subservicer Advance: Any delinquent installment of principal and interest on a
Mortgage Loan which is advanced by the related Subservicer (net of its Subservicing
Fee) pursuant to the Subservicing Agreement.
Subservicing Account: An account established by a Subservicer in accordance with
Section 3.08.
Subservicing Agreement: The written contract between the Master Servicer and any
Subservicer relating to servicing and administration of certain Mortgage Loans as provided
in Section 3.02, generally in the form of the servicer contract referred to or contained in
the Program Guide or in such other form as has been approved by the Master Servicer and the
Company. With respect to Additional Collateral Loans subserviced by MLCC, the Subservicing
Agreement shall also include the Addendum and Assignment Agreement and the Pledged Asset
Mortgage Servicing Agreement. With respect to any Pledged Asset Loan subserviced by GMAC
Mortgage Corporation, the Addendum and Assignment Agreement, dated as of November 24, 1998,
between the Master Servicer and GMAC Mortgage Corporation, as such agreement may be amended
from time to time.
Subservicing Fee: As to any Mortgage Loan, the fee payable monthly to the related
Subservicer (or, in the case of a Nonsubserviced Mortgage Loan, to the Master Servicer) in
respect of subservicing and other compensation that accrues at an annual rate equal to the
excess of the Mortgage Rate borne by the related Mortgage Note over the rate per annum
designated on the Mortgage Loan Schedule as the "CURR NET" for such Mortgage Loan.
Surety: Ambac, or its successors in interest, or such other surety as may be
identified in the Series Supplement.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE), dated February
28, 1996 in respect to Mortgage Loans originated by MLCC, or the Surety Bond (Policy No.
AB0240BE), dated March 17, 1999 in respect to Mortgage Loans originated by Novus Financial
Corporation, in each case issued by Ambac for the benefit of certain beneficiaries,
including the Trustee for the benefit of the Holders of the Certificates, but only to the
extent that such Surety Bond covers any Additional Collateral Loans, or such other Surety
Bond as may be identified in the Series Supplement.
Tax Returns: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net Loss
Allocation, or any successor forms, to be filed on behalf of any REMIC formed under the
Series Supplement and under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other governmental
taxing authority under any applicable provisions of federal, state or local tax laws.
Transaction Party: As defined in Section 12.02(a).
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation or other form
of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
Trust Fund: The segregated pool of assets consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral securing such
Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans due after the
Cut-off Date (other than Monthly Payments due in the month of the Cut-Off
Date) as shall be on deposit in the Custodial Account or in the Certificate
Account and identified as belonging to the Trust Fund, including the proceeds
from the liquidation of Additional Collateral for any Additional Collateral
Loan or Pledged Assets for any Pledged Asset Loan, but not including amounts
on deposit in the Initial Monthly Payment Fund,
(iii) property that secured a Mortgage Loan and that has been acquired for the
benefit of the Certificateholders by foreclosure or deed in lieu of
foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if any, the
Pledged Assets with respect to each Pledged Asset Loan, and the interest in
the Surety Bond transferred to the Trustee pursuant to Section 2.01,
(v) the Initial Monthly Payment Fund, and
(vi) all proceeds of clauses (i) through (v) above.
Trustee Information: As specified in Section 12.05(a)(i)(A).
Underwriter: As defined in the Series Supplement.
Uninsured Cause: Any cause of damage to property subject to a Mortgage such that the
complete restoration of such property is not fully reimbursable by the hazard insurance
policies.
United States Person: A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the United
States, provided that, for purposes solely of the restrictions on the transfer of residual
interests, no partnership or other entity treated as a partnership for United States federal
income tax purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is not a
corporation for United States federal income tax purposes are required by the applicable
operating agreement to be United States Persons, any state thereof, or the District of
Columbia (except in the case of a partnership, to the extent provided in Treasury
regulations) or any political subdivision thereof, or an estate that is described in
Section 7701(a)(30)(D) of the Code, or a trust that is described in Section 7701(a)(30)(E) of
the Code.
Voting Rights: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate, and more specifically designated in Article XI of the Series
Supplement.
Section 1.02...Use of Words and Phrases.
"Herein," "hereby," "hereunder," 'hereof," "hereinbefore," "hereinafter" and other
equivalent words refer to the Pooling and Servicing Agreement as a whole. All references
herein to Articles, Sections or Subsections shall mean the corresponding Articles, Sections
and Subsections in the Pooling and Servicing Agreement. The definition set forth herein
include both the singular and the plural.
References in the Pooling and Servicing Agreement to "interest" on and "principal" of
the Mortgage Loans shall mean, with respect to the Sharia Mortgage Loans, amounts in respect
profit payments and acquisition payments, respectively.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01...Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof, does hereby assign
to the Trustee without recourse all the right, title and interest of the Company in and to
the Mortgage Loans, including all interest and principal received on or with respect to the
Mortgage Loans after the Cut-off Date (other than payments of principal and interest due on
the Mortgage Loans in the month of the Cut-off Date). In connection with such transfer and
assignment, the Company does hereby deliver to the Trustee the Certificate Policy (as
defined in the Series Supplement), if any. The Company, the Master Servicer and the Trustee
agree that it is not intended that any mortgage loan be included in the Trust that is (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27,
2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home 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.
(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 or a Sharia Mortgage Loan):
(i) The original Mortgage Note, endorsed without recourse to the order of the Trustee and
showing an unbroken chain of endorsements from the originator thereof to the Person
endorsing it to the Trustee, or with respect to any Destroyed Mortgage Note, an
original lost note affidavit from the related Seller or Residential Funding stating
that the original Mortgage Note was lost, misplaced or destroyed, together with a
copy of the related Mortgage Note;
(ii) The original Mortgage, noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a
MOM Loan, with evidence of recording indicated thereon or a copy of the Mortgage with
evidence of recording indicated thereon;
(iii) Unless the Mortgage Loan is registered on the MERS(R)System, an original Assignment of
the Mortgage to the Trustee with evidence of recording indicated thereon or a copy of
such assignment with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Mortgage showing an unbroken
chain of title from the originator thereof to the Person assigning it to the Trustee
(or to MERS, if the Mortgage Loan is registered on the MERS(R)System and noting the
presence of a MIN) with evidence of recordation noted thereon or attached thereto, or
a copy of such assignment or assignments of the Mortgage with evidence of recording
indicated thereon; and
(v) The original of each modification, assumption agreement or preferred loan agreement,
if any, relating to such Mortgage Loan or a copy of each modification, assumption
agreement or preferred loan agreement.
(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.
and (III) with respect to each Sharia Mortgage Loan so assigned:
(i) The original Obligation to Pay, 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
Obligation to Pay, an original affidavit from the related Seller or Residential
Funding stating that the original Obligation to Pay was lost, misplaced or destroyed,
together with a copy of the related Obligation to Pay;
(ii) The original Sharia Mortgage Loan Security Instrument, with evidence of recording
indicated thereon or a copy of the Sharia Mortgage Loan Security Instrument with
evidence of recording indicated thereon;
(iii) An original Assignment and Amendment of Security Instrument, assigned to the Trustee
with evidence of recording indicated thereon or a copy of such Assignment and
Amendment of Security Instrument with evidence of recording indicated thereon;
(iv) The original recorded assignment or assignments of the Sharia Mortgage Loan Security
Instrument showing an unbroken chain of title from the originator thereof to the
Person assigning it to the Trustee with evidence of recordation noted thereon or
attached thereto, or a copy of such assignment or assignments of the Sharia Mortgage
Loan Security Instrument with evidence of recording indicated thereon;
(v) The original Sharia Mortgage Loan Co-Ownership Agreement with respect to the related
Sharia Mortgage Loan; and
(vi) The original of each modification or assumption agreement, if any, relating to such
Sharia Mortgage Loan or a copy of each modification or assumption agreement.
(c) The Company may, in lieu of delivering the original of the documents set forth in
Sections 2.01(b)(I)(ii), (iii), (iv) and (v), Section (b)(II)(ii), (iv), (vii), (ix) and
(x) and Sections 2.01(b)(III)(ii), (iii), (iv), (v) and (vi) (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 Sections 2.01(b)(I)(ii),
(iii), (iv) and (v), Sections (b)(II)(ii), (iv), (vii), (ix) and (x) and
Sections 2.01(b)(III)(ii), (iii), (iv), (v) and (vi) (or copies thereof as permitted by such
Section) for any Mortgage Loan and (ii) a written request by the Trustee to deliver those
documents with respect to any or all of the Mortgage Loans then being held by the Master
Servicer, the Master Servicer shall deliver a complete set of such documents to the Trustee
or the Custodian or Custodians that are the duly appointed agent or agents of the Trustee.
(d) Notwithstanding the provisions of Section 2.01(c), in connection with any Mortgage
Loan, if the Company cannot deliver the original of the Mortgage, any assignment,
modification, assumption agreement or preferred loan agreement (or copy thereof as permitted
by Section 2.01(b)) with evidence of recording thereon concurrently with the execution and
delivery of this Agreement because of (i) a delay caused by the public recording office
where such Mortgage, assignment, modification, assumption agreement or preferred loan
agreement as the case may be, has been delivered for recordation, or (ii) a delay in the
receipt of certain information necessary to prepare the related assignments, the Company
shall deliver or cause to be delivered to the Trustee or the respective Custodian a copy of
such Mortgage, assignment, modification, assumption agreement or preferred loan agreement.
The Company (i) shall promptly cause to be recorded in the appropriate public office
for real property records the Assignment referred to in clause (I)(iii) of Section 2.01(b),
except (a) in states where, in the opinion of counsel acceptable to the Master Servicer,
such recording is not required to 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, (ii) shall promptly cause to be filed
the Form UCC-3 assignment and UCC-1 financing statement referred to in clauses (II)(vii) and
(x), respectively, of Section 2.01(b) and (iii) shall promptly cause to be recorded in the
appropriate public recording office for real property records the Assignment Agreement and
Amendment of Security Instrument referred to in clause (III)(iii) of Section 2.01(b). If
any Assignment, Assignment Agreement and Amendment of Security Instrument, 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, Assignment Agreement and
Amendment of Security Instrument, Form UCC-3 or Form UCC-1, as applicable, or cure such
defect, as the case may be, and cause such Assignment or Assignment Agreement and Amendment
of Security Instrument to be recorded in accordance with this paragraph. The Company shall
promptly deliver or cause to be delivered to the Trustee or the respective Custodian such
Mortgage or Assignment or Assignment Agreement and Amendment of Security Instrument 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, Obligation to
Pay, Assignment Agreement and Amendment of Security Instrument or Assignment of Mortgage in
blank, the Company shall, or shall cause the Custodian to, complete the endorsement of the
Mortgage Note, Obligation to Pay, Assignment Agreement and Amendment of Security Instrument
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), Sections
2.01(b)(II)(vi) and (vii) and Sections 2.01(b)(III)(ii), (iii), and (iv) that may be
delivered as a copy rather than the original may be delivered to the Trustee or the
Custodian.
In connection with the assignment of any Mortgage Loan registered on the MERS(R)
System, the Company further agrees that it will cause, at the Company's own expense, within
30 Business Days after the Closing Date, the MERS(R)System to indicate that such Mortgage
Loans have been assigned by the Company to the Trustee in accordance with this Agreement for
the benefit of the Certificateholders by including (or deleting, in the case of Mortgage
Loans which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the code in the field
"Pool Field" which identifies the series of the Certificates issued in connection with such
Mortgage Loans. The Company further agrees that it will not, and will not permit the Master
Servicer to, and the Master Xxxxxxxx agrees that it will not, alter the codes referenced in
this paragraph with respect to any Mortgage Loan during the term of this Agreement unless
and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.
(e) Residential Funding hereby assigns to the Trustee its security interest in and to any
Additional Collateral or Pledged Assets, its right to receive amounts due or to become due
in respect of any Additional Collateral or Pledged Assets pursuant to the related
Subservicing Agreement and its rights as beneficiary under the Surety Bond in respect of any
Additional Collateral Loans. With respect to any Additional Collateral Loan or Pledged
Asset Loan, Residential Funding shall cause to be filed in the appropriate recording office
a UCC-3 statement giving notice of the assignment of the related security interest to the
Trust Fund and shall thereafter cause the timely filing of all necessary continuation
statements with regard to such financing statements.
(f) It is intended that the conveyance by the Company to the Trustee of the Mortgage
Loans as provided for in this Section 2.01 be and the Uncertificated REMIC Regular
Interests, if any (as provided for in Section 2.06), be construed as a sale by the Company
to the Trustee of the Mortgage Loans and any Uncertificated REMIC Regular Interests for the
benefit of the Certificateholders. Further, it is not intended that such conveyance be
deemed to be a pledge of the Mortgage Loans and any Uncertificated REMIC Regular Interests
by the Company to the Trustee to secure a debt or other obligation of the Company. However,
if the Mortgage Loans and any Uncertificated REMIC Regular Interests are held to be property
of the Company or of Residential Funding, or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans and any Uncertificated REMIC
Regular Interests, then it is intended that (a) this Agreement shall be a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided
for in Section 2.01 shall be deemed to be, and hereby is, (1) a grant by the Company to the
Trustee of a security interest in all of the Company's right (including the power to convey
title thereto), title and interest, whether now owned or hereafter acquired, in and to any
and all general intangibles, payment intangibles, accounts, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property and other property of whatever kind or description
now existing or hereafter acquired consisting of, arising from or relating to any of the
following: (A) the Mortgage Loans, including (i) with respect to each Cooperative Loan, the
related Mortgage Note, Security Agreement, Assignment of Proprietary Lease, Cooperative
Stock Certificate and Cooperative Lease, (ii) with respect to each Sharia Mortgage Loan, the
related Sharia Mortgage Loan Security Instrument, Sharia Mortgage Loan Co-Ownership
Agreement, Obligation to Pay and Assignment Agreement and Amendment of Security Instrument,
(iii) with respect to each Mortgage Loan other than a Cooperative Loan or a Sharia Mortgage
Loan, the related Mortgage Note and Mortgage, and (iv) 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 and 9-106 thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property, shall be
deemed notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents of, or persons holding for (as applicable) the Trustee for
the purpose of perfecting such security interest under applicable law.
The Company and, at the Company's direction, Residential Funding and the Trustee
shall, to the extent consistent with this Agreement, take such reasonable actions as may be
necessary to ensure that, if this Agreement were determined to create a security interest in
the Mortgage Loans, any Uncertificated REMIC Regular Interests and the other property
described above, such security interest would be determined to be a perfected security
interest of first priority under applicable law and will be maintained as such throughout
the term of this Agreement. Without limiting the generality of the foregoing, the Company
shall prepare and deliver to the Trustee not less than 15 days prior to any filing date and,
the Trustee shall forward for filing, or shall cause to be forwarded for filing, at the
expense of the Company, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect the Trustee's security interest in or lien on the Mortgage Loans and any
Uncertificated REMIC Regular Interests, as evidenced by an Officers' Certificate of the
Company, including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of Residential Funding, the
Company or the Trustee (such preparation and filing shall be at the expense of the Trustee,
if occasioned by a change in the Trustee's name), (2) any change of location of the place of
business or the chief executive office of Residential Funding or the Company, (3) any
transfer of any interest of Residential Funding or the Company in any Mortgage Loan or
(4) any transfer of any interest of Residential Funding or the Company in any Uncertificated
REMIC Regular Interest.
(g) The Master Servicer hereby acknowledges the receipt by it of the Initial Monthly
Payment Fund. The Master Servicer shall hold such Initial Monthly Payment Fund in the
Custodial Account and shall include such Initial Monthly Payment Fund in the Available
Distribution Amount for the initial Distribution Date. Notwithstanding anything herein to
the contrary, the Initial Monthly Payment Fund shall not be an asset of any REMIC. To the
extent that the Initial Monthly Payment Fund constitutes a reserve fund for federal income
tax purposes, (1) it shall be an outside reserve fund and not an asset of any REMIC, (2) it
shall be owned by the Seller and (3) amounts transferred by any REMIC to the Initial Monthly
Payment Fund shall be treated as transferred to the Seller or any successor, all within the
meaning of Section 1.860G-2(h) of the Treasury Regulations.
(h) The Company agrees that the sale of each Pledged Asset Loan pursuant to this
Agreement will also constitute the assignment, sale, setting-over, transfer and conveyance
to the Trustee, without recourse (but subject to the Company's covenants, representations
and warranties specifically provided herein), of all of the Company's obligations and all of
the Company's right, title and interest in, to and under, whether now existing or hereafter
acquired as owner of the Mortgage Loan with respect to all money, securities, security
entitlements, accounts, general intangibles, instruments, documents, certificates of
deposit, commodities contracts, and other investment property and other property of whatever
kind or description consisting of, arising from or related to (i) the Assigned Contracts,
(ii) all rights, powers and remedies of the Company as owner of such Mortgage Loan under or
in connection with the Assigned Contracts, whether arising under the terms of such Assigned
Contracts, by statute, at law or in equity, or otherwise arising out of any default by the
Mortgagor under or in connection with the Assigned Contracts, including all rights to
exercise any election or option or to make any decision or determination or to give or
receive any notice, consent, approval or waiver thereunder, (iii) all security interests in
and lien of the Company as owner of such Mortgage Loan in the Pledged Amounts and all money,
securities, security entitlements, accounts, general intangibles, instruments, documents,
certificates of deposit, commodities contracts, and other investment property and other
property of whatever kind or description and all cash and non-cash proceeds of the sale,
exchange, or redemption of, and all stock or conversion rights, rights to subscribe,
liquidation dividends or preferences, stock dividends, rights to interest, dividends,
earnings, income, rents, issues, profits, interest payments or other distributions of cash
or other property that is credited to the Custodial Account, (iv) all documents, books and
records concerning the foregoing (including all computer programs, tapes, disks and related
items containing any such information) and (v) all insurance proceeds (including proceeds
from the Federal Deposit Insurance Corporation or the Securities Investor Protection
Corporation or any other insurance company) of any of the foregoing or replacements thereof
or substitutions therefor, proceeds of proceeds and the conversion, voluntary or
involuntary, of any thereof. The foregoing transfer, sale, assignment and conveyance does
not constitute and is not intended to result in the creation, or an assumption by the
Trustee, of any obligation of the Company, or any other person in connection with the
Pledged Assets or under any agreement or instrument relating thereto, including any
obligation to the Mortgagor, other than as owner of the Mortgage Loan.
Section 2.02. Acceptance by Trustee.
The Trustee acknowledges receipt (or, with respect to Mortgage Loans subject to a
Custodial Agreement, and based solely upon a receipt or certification executed by the
Custodian, receipt by the respective Custodian as the duly appointed agent of the
Trustee) of the documents referred to in Section 2.01(b)(I)(i) and Section 2.01(b)(II)(i),
(iii), (v), (vi) and (viii) above (except that for purposes of such acknowledgment only, a
Mortgage Note may be endorsed in blank) and declares that it, or a Custodian as its agent,
holds and will hold such documents and the other documents constituting a part of the
Mortgage Files delivered to it, or a Custodian as its agent, and the rights of Residential
Funding with respect to any Pledged Assets, Additional Collateral and the Surety Bond
assigned to the Trustee pursuant to Section 2.01, in trust for the use and benefit of all
present and future Certificateholders. The Trustee or Custodian (such Custodian being so
obligated under a Custodial Agreement) agrees, for the benefit of Certificateholders, to
review each Mortgage File delivered to it pursuant to Section 2.01(b) within 45 days after
the Closing Date to ascertain that all required documents (specifically as set forth in
Section 2.01(b)), have been executed and received, and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule, as supplemented, that have been
conveyed to it, and to deliver to the Trustee a certificate (the "Interim Certification") to
the effect that all documents 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 Residential Funding of such omission or defect and
request that Residential Funding 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 Residential
Funding does not correct or cure such omission or defect within such period, the Master
Servicer shall require Residential Funding to purchase such Mortgage Loan from the Trust
Fund at its Purchase Price within 90 days from the date the Master Servicer was notified of
such omission or defect; provided that if the omission or defect would cause the Mortgage
Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code,
any such cure or repurchase must occur within 90 days from the date such breach was
discovered. The Purchase Price for any such Mortgage Loan shall be deposited 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 Residential
Funding 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 Residential Funding or its designee any Mortgage Loan released
pursuant hereto and thereafter such Mortgage Loan shall not be part of the Trust Fund. It
is understood and agreed that the obligation of Residential Funding 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;
(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 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 Residential Funding.
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 (to the extent assigned to the Company
pursuant to the Assignment Agreement) applicable to a Mortgage Loan. Insofar as the
Assignment Agreement relates to the representations and warranties made by Residential
Funding or the related Seller in respect of such Mortgage Loan and any remedies provided
thereunder for any breach of such representations and warranties, such right, title and
interest may be enforced by the Master Servicer on behalf of the Trustee and the
Certificateholders. Upon the discovery by the Company, the Master Servicer, the Trustee or
any Custodian of a breach of any of the representations and warranties made in 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 Residential Funding of such breach and request that
Residential Funding either (i) cure such breach in all material respects within 90 days from
the date the Master Servicer was notified of such breach or (ii) purchase such Mortgage Loan
from the Trust Fund at the Purchase Price and in the manner set forth in Section 2.02;
provided that Residential Funding shall have the option to substitute a Qualified Substitute
Mortgage Loan or Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
cure, repurchase or substitution must occur within 90 days from the date the breach was
discovered. If the breach of representation and warranty that gave rise to the obligation to
repurchase or substitute a Mortgage Loan pursuant to Section 4 of the Assignment Agreement
was the representation and warranty set forth in clause (xii) or (xxxviii) of Section 4
thereof, then the Master Servicer shall request that Residential Funding pay to the Trust
Fund, concurrently with and in addition to the remedies provided in the preceding sentence,
an amount equal to any liability, penalty or expense that was actually incurred and paid out
of or on behalf of the Trust Fund, and that directly resulted from such breach, or if
incurred and paid by the Trust Fund thereafter, concurrently with such payment. In the event
that Residential Funding elects to substitute a Qualified Substitute Mortgage Loan or Loans
for a Deleted Mortgage Loan pursuant to this Section 2.04, Residential Funding shall deliver
to the Trustee 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 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, Residential
Funding shall be deemed to have made the representations and warranties with respect to the
Qualified Substitute Mortgage Loan contained in the related 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 Residential Funding to cure such
breach or purchase or to substitute for, such Mortgage Loan as to which such a breach has
occurred and is continuing and to make any additional payments required under the Assignment
Agreement in connection with a breach of the representation and warranty in clause (xii) or
(xxxviii) of Section 4 thereof shall constitute the sole remedy respecting such breach
available to the Certificateholders or the Trustee on behalf of Certificateholders. If the
Master Servicer is Residential Funding, then the Trustee shall also have the right to give
the notification and require the purchase or substitution provided for in the second
preceding paragraph in the event of such a breach of a representation or warranty made by
Residential Funding in the Assignment Agreement. In connection with the purchase of or
substitution for any such Mortgage Loan by Residential Funding, the Trustee shall assign to
Residential Funding all of the Trustee's right, title and interest in respect of the
Assignment Agreement applicable to such Mortgage Loan.
Section 2.05. Execution and Authentication of Certificates/Issuance of Certificates
Evidencing Interests in REMIC I.
As provided in Section 2.05 of the Series Supplement.
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II Regular Interests;
Acceptance by the Trustee.
As provided in Section 2.06 of the Series Supplement.
Section 2.07. Issuance of Certificates Evidencing Interests in REMIC II.
As provided in Section 2.07 of the Series Supplement.
Section 2.08. Purposes and Powers of the Trust.
The purpose of the trust, as created hereunder, is to engage in the following
activities:
(a) to sell the Certificates to the Company in exchange for the Mortgage Loans;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith; and
(d) subject to compliance with this Agreement, to engage in such other activities as may
be required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Notwithstanding the provisions of Section 11.01, the trust shall not engage in any activity
other than in connection with the foregoing or other than as required or authorized by the
terms of this Agreement while any Certificate is outstanding, and this Section 2.08 may not
be amended, without the consent of the Certificateholders evidencing a majority of the
aggregate Voting Rights of the Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans in accordance
with the terms of this Agreement and the respective Mortgage Loans , following such
procedures as it would employ in its good faith business judgment and which are normal and
usual in its general mortgage servicing activities, and in the case of the Mortgage Loans
being subserviced by Xxxxx Fargo, if any, such procedures that comply with applicable
federal, state and local law and that are in accordance with accepted mortgage servicing
practices of prudent mortgage lending institutions which service loans of the same type as
the Mortgage Loans in the jurisdiction in which the related Mortgaged Property is located,
and shall have full power and authority, acting alone or through Subservicers as provided in
Section 3.02, to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration. Without limiting the generality of the
foregoing, the Master Servicer in its own name or in the name of a Subservicer is hereby
authorized and empowered by the Trustee when the Master Servicer or the Subservicer, as the
case may be, believes it appropriate in its best judgment, to execute and deliver, on behalf
of the Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of consent to
assumption or modification in connection with a proposed conveyance, or of assignment of any
Mortgage and Mortgage Note in connection with the repurchase of a Mortgage Loan and all
other comparable instruments, or with respect to the modification or re-recording of a
Mortgage for the purpose of correcting the Mortgage, the subordination of the lien of the
Mortgage in favor of a public utility company or government agency or unit with powers of
eminent domain, the taking of a deed in lieu of foreclosure, the commencement, prosecution
or completion of judicial or non-judicial foreclosure, the conveyance of a Mortgaged
Property to the related Insurer, the acquisition of any property acquired by foreclosure or
deed in lieu of foreclosure, or the management, marketing and conveyance of any property
acquired by foreclosure or deed in lieu of foreclosure with respect to the Mortgage Loans
and with respect to the Mortgaged Properties. The Master Servicer further is authorized and
empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own
name or in the name of the Subservicer, when the Master Servicer or the Subservicer, as the
case may be, believes it is appropriate in its best judgment to register any Mortgage Loan
on the MERS(R)System, or cause the removal from the registration of any Mortgage Loan on the
MERS(R)System, to execute and deliver, on behalf of the Trustee and the Certificateholders or
any of them, any and all instruments of assignment and other comparable instruments with
respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns. Any expenses incurred in connection
with the actions described in the preceding sentence shall be borne by the Master Servicer
in accordance with Section 3.16(c), with no right of reimbursement; provided, that if, as a
result of MERS discontinuing or becoming unable to continue operations in connection with
the MERS System, it becomes necessary to remove any Mortgage Loan from registration on the
MERS System and to arrange for the assignment of the related Mortgages to the Trustee, then
any related expenses shall be reimbursable to the Master Servicer. Notwithstanding the
foregoing, subject to Section 3.07(a), the Master Servicer shall not permit any modification
with respect to any Mortgage Loan that would both constitute a sale or exchange of such
Mortgage Loan within the meaning of Section 1001 of the Code and any proposed, temporary or
final regulations promulgated thereunder (other than in connection with a proposed
conveyance or assumption of such Mortgage Loan that is treated as a Principal Prepayment in
Full pursuant to Section 3.13(d) hereof) and cause any REMIC formed under the Series
Supplement to fail to qualify as a REMIC under the Code. The Trustee shall furnish the
Master Servicer with any powers of attorney and other documents necessary or appropriate to
enable the Master Servicer to service and administer the Mortgage Loans. The Trustee shall
not be liable for any action taken by the Master Servicer or any Subservicer pursuant to
such powers of attorney. In servicing and administering any Nonsubserviced Mortgage Loan,
the Master Servicer shall, to the extent not inconsistent with this Agreement, comply with
the Program Guide as if it were the originator of such Mortgage Loan and had retained the
servicing rights and obligations in respect thereof. In connection with servicing and
administering the Mortgage Loans, the Master Servicer and any Affiliate of the Master
Servicer (i) may perform services such as appraisals and brokerage services that are not
customarily provided by servicers of mortgage loans, and shall be entitled to reasonable
compensation therefor in accordance with Section 3.10 and (ii) may, at its own discretion
and on behalf of the Trustee, obtain credit information in the form of a "credit score" from
a credit repository.
(b) All costs incurred by the Master Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage Loans shall not,
for the purpose of calculating monthly distributions to the Certificateholders, be added to
the amount owing under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loan so permit, and such costs shall be recoverable to the extent permitted by
Section 3.10(a)(ii).
(c) The Master Servicer may enter into one or more agreements in connection with the
offering of pass-through certificates evidencing interests in one or more of the
Certificates providing for the payment by the Master Servicer of amounts received by the
Master Servicer as servicing compensation hereunder and required to cover certain Prepayment
Interest Shortfalls on the Mortgage Loans, which payment obligation will thereafter be an
obligation of the Master Servicer hereunder.
Section 3.02. Subservicing Agreements Between Master Servicer and Subservicers; Enforcement
of Subservicers' and Sellers' Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements entered into by
Residential Funding and Subservicers prior to the execution and delivery of this Agreement,
and may enter into new Subservicing Agreements with Subservicers, for the servicing and
administration of all or some of the Mortgage Loans. Each Subservicer of a Mortgage Loan
shall be entitled to receive and retain, as provided in the related Subservicing Agreement
and in Section 3.07, the related Subservicing Fee from payments of interest received on such
Mortgage Loan after payment of all amounts required to be remitted to the Master Servicer in
respect of such Mortgage Loan. For any Mortgage Loan that is a Nonsubserviced Mortgage Loan,
the Master Servicer shall be entitled to receive and retain an amount equal to the
Subservicing Fee from payments of interest. Unless the context otherwise requires,
references in this Agreement to actions taken or to be taken by the Master Servicer in
servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf
of the Master Servicer. Each Subservicing Agreement will be upon such terms and conditions
as are generally required or permitted by the Program Guide and are not inconsistent with
this Agreement and as the Master Servicer and the Subservicer have agreed. A representative
form of Subservicing Agreement is attached to this Agreement as Exhibit E. With the
approval of the Master Servicer, a Subservicer may delegate its servicing obligations to
third-party servicers, but such Subservicer will remain obligated under the related
Subservicing Agreement. The Master Servicer and a Subservicer may enter into amendments
thereto or a different form of Subservicing Agreement, and the form referred to or included
in the Program Guide is merely provided for information and shall not be deemed to limit in
any respect the discretion of the Master Servicer to modify or enter into different
Subservicing Agreements; provided, however, that any such amendments or different forms
shall be consistent with and not violate the provisions of either this Agreement or the
Program Guide in a manner which would materially and adversely affect the interests of the
Certificateholders. The Program Guide and any other Subservicing Agreement entered into
between the Master Servicer and any Subservicer shall require the Subservicer to accurately
and fully report its borrower credit files to each of the Credit Repositories in a timely
manner.
(b) As part of its servicing activities hereunder, the Master Servicer, for the benefit
of the Trustee and the Certificateholders, shall use its best reasonable efforts to enforce
the obligations of each Subservicer under the related Subservicing Agreement and of each
Seller under the related Seller's Agreement insofar as the Company's rights with respect to
such obligation has been assigned to the Trustee hereunder, to the extent that the
non-performance of any such Seller's obligation would have a material and adverse effect on
a Mortgage Loan, including, without limitation, the obligation to purchase a Mortgage Loan
on account of defective documentation, as described in Section 2.02, or on account of a
breach of a representation or warranty, as described in Section 2.04. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of Subservicing
Agreements or Seller's Agreements, as appropriate, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such time as the
Master Servicer would employ in its good faith business judgment and which are normal and
usual in its general mortgage servicing activities. The Master Servicer shall pay the costs
of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a
general recovery resulting from such enforcement to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a specific
recovery of costs, expenses or attorneys fees against the party against whom such
enforcement is directed. For purposes of clarification only, the parties agree that the
foregoing is not intended to, and does not, limit the ability of the Master Servicer to be
reimbursed for expenses that are incurred in connection with the enforcement of a Seller's
obligations (insofar as the Company's rights with respect to such Seller's obligations have
been assigned to the Trustee hereunder) and are reimbursable pursuant to
Section 3.10(a)(viii).
Section 3.03. Successor Subservicers.
The Master Servicer shall be entitled to terminate any Subservicing Agreement that
may exist in accordance with the terms and conditions of such Subservicing Agreement and
without any limitation by virtue of this Agreement; provided, however, that in the event of
termination of any Subservicing Agreement by the Master Servicer or the Subservicer, the
Master Servicer shall either act as servicer of the related Mortgage Loan or enter into a
Subservicing Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Servicer or any Affiliate of Residential
Funding acts as servicer, it will not assume liability for the representations and
warranties of the Subservicer which it replaces. If the Master Servicer enters into a
Subservicing Agreement with a successor Subservicer, the Master Servicer shall use
reasonable efforts to have the successor Subservicer assume liability for the
representations and warranties made by the terminated Subservicer in respect of the related
Mortgage Loans and, in the event of any such assumption by the successor Subservicer, the
Master Servicer may, in the exercise of its business judgment, release the terminated
Subservicer from liability for such representations and warranties.
Section 3.04. Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Master Servicer or a Subservicer or
reference to actions taken through a Subservicer or otherwise, the Master Servicer shall
remain obligated and liable to the Trustee and the Certificateholders for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section 3.01
without diminution of such obligation or liability by virtue of such Subservicing Agreements
or arrangements or by virtue of indemnification from the Subservicer or the Company and to
the same extent and under the same terms and conditions as if the Master Servicer alone were
servicing and administering the Mortgage Loans. The Master Servicer shall be entitled to
enter into any agreement with a Subservicer or Seller for indemnification of the Master
Servicer and nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section 3.05. No Contractual Relationship Between Subservicer and Trustee or
Certificateholders.
Any Subservicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving a Subservicer in its capacity as such and
not as an originator shall be deemed to be between the Subservicer and the Master Servicer
alone and the Trustee and the Certificateholders shall not be deemed parties thereto and
shall have no claims, rights, obligations, duties or liabilities with respect to the
Subservicer in its capacity as such except as set forth in Section 3.06. The foregoing
provision shall not in any way limit a Subservicer's obligation to cure an omission or
defect or to repurchase a Mortgage Loan as referred to in Section 2.02 hereof.
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee.
(a) If the Master Servicer shall for any reason no longer be the master servicer
(including by reason of an Event of Default), the Trustee, its designee or its successor
shall thereupon assume all of the rights and obligations of the Master Servicer under each
Subservicing Agreement that may have been entered into. The Trustee, its designee or the
successor servicer for the Trustee shall be deemed to have assumed all of the Master
Servicer's interest therein and to have replaced the Master Servicer as a party to the
Subservicing Agreement to the same extent as if the Subservicing Agreement had been assigned
to the assuming party except that the Master Servicer shall not thereby be relieved of any
liability or obligations under the Subservicing Agreement.
(b) The Master Servicer shall, upon request of the Trustee but at the expense of the
Master Servicer, deliver to the assuming party all documents and records relating to each
Subservicing Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of each Subservicing Agreement to the assuming party.
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to Custodial Account.
(a) The Master Servicer shall make reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions of any
related Primary Insurance Policy, follow such collection procedures as it would employ in
its good faith business judgment and which are normal and usual in its general mortgage
servicing activities. Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the Due Date for payments
due on a Mortgage Loan in accordance with the Program Guide; provided, however, that the
Master Servicer shall first determine that any such waiver or extension will not impair the
coverage of any related Primary Insurance Policy or materially adversely affect the lien of
the related Mortgage. Notwithstanding anything in this Section to the contrary, the Master
Servicer or any Subservicer shall not enforce any prepayment charge to the extent that such
enforcement would violate any applicable law. In the event of any such arrangement, the
Master Servicer shall make timely advances on the related Mortgage Loan during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements unless otherwise agreed to by the
Holders of the Classes of Certificates affected thereby; provided, however, that no such
extension shall be made if any such advance would be a Nonrecoverable Advance. Consistent
with the terms of this Agreement, the Master Servicer may also waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance with any such
term or in any manner grant indulgence to any Mortgagor if in the Master Servicer's
determination such waiver, modification, postponement or indulgence is not materially
adverse to the interests of the Certificateholders (taking into account any estimated
Realized Loss that might result absent such action); provided, however, that the Master
Servicer may not modify materially or permit any Subservicer to modify any Mortgage Loan,
including without limitation any modification that would change the Mortgage Rate, forgive
the payment of any principal or interest (unless in connection with the liquidation of the
related Mortgage Loan or except in connection with prepayments to the extent that such
reamortization is not inconsistent with the terms of the Mortgage Loan), capitalize any
amounts owing on the Mortgage Loan by adding such amount to the outstanding principal
balance of the Mortgage Loan, or extend the final maturity date of such Mortgage Loan,
unless such Mortgage Loan is in default or, in the judgment of the Master Servicer, such
default is reasonably foreseeable; provided, further, that (1) no such modification shall
reduce the interest rate on a Mortgage Loan below one-half of the Mortgage Rate as in effect
on the Cut-Off Date, but not less than the sum of the rates at which the Servicing Fee and
the Subservicing Fee with respect to such Mortgage Loan accrues plus the rate at which the
premium paid to the Certificate Insurer, if any, accrues, (2) the final maturity date for
any Mortgage Loan shall not be extended beyond the Maturity Date, (3) the Stated Principal
Balance of all Reportable Modified Mortgage Loans subject to Servicing Modifications
(measured at the time of the Servicing Modification and after giving effect to any Servicing
Modification) can be no more than five percent of the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date, unless such limit is increased from time to time with
the consent of the Rating Agencies and the Certificate Insurer, if any. In addition, any
amounts owing on a Mortgage Loan added to the outstanding principal balance of such Mortgage
Loan must be fully amortized over the remaining term of such Mortgage Loan, and such amounts
may be added to the outstanding principal balance of a Mortgage Loan only once during the
life of such Mortgage Loan. Also, the addition of such amounts described in the preceding
sentence shall be implemented in accordance with the Program Guide and may be implemented
only by Subservicers that have been approved by the Master Servicer for such purpose. In
connection with any Curtailment of a Mortgage Loan, the Master Servicer, to the extent not
inconsistent with the terms of the Mortgage Note and local law and practice, may permit the
Mortgage Loan to be reamortized such that the Monthly Payment is recalculated as an amount
that will fully amortize the remaining Stated Principal Balance thereof by the original
Maturity Date based on the original Mortgage Rate; provided, that such re-amortization shall
not be permitted if it would constitute a reissuance of the Mortgage Loan for federal income
tax purposes, except if such reissuance is described in Treasury Regulation
Section 1.860G-2(b)(3).
(b) The Master Servicer shall establish and maintain a Custodial Account in which the
Master Servicer shall deposit or cause to be deposited on a daily basis, except as otherwise
specifically provided herein, the following payments and collections remitted by
Subservicers or received by it in respect of the Mortgage Loans subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans due on or before
the Cut-off Date):
(i) All payments on account of principal, including Principal Prepayments made by
Mortgagors on the Mortgage Loans and the principal component of any Subservicer
Advance or of any REO Proceeds received in connection with an REO Property for which
an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate on the Mortgage
Loans, including Buydown Funds, if any, and the interest component of any Subservicer
Advance or of any REO Proceeds received in connection with an REO Property for which
an REO Disposition has occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds (net of any
related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section 2.02, 2.03, 2.04,
4.07 or 9.01 and all amounts required to be deposited in connection with the
substitution of a Qualified Substitute Mortgage Loan pursuant to Section 2.03 or 2.04;
(v) Any amounts required to be deposited pursuant to Section 3.07(c) or 3.21;
(vi) All amounts transferred from the Certificate Account to the Custodial Account in
accordance with Section 4.02(a);
(vii) Any amounts realized by the Subservicer and received by the Master Servicer in
respect of any Additional Collateral; and
(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 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 , or with respect to the Mortgage Loans,
subserviced by Xxxxx Fargo, if any, within two (2) Business Days of receipt, 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 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, 4.07 or 9.01) which represent (A) Late Collections of
Monthly Payments for which any such advance was made in the case of Subservicer
Advances or Advances pursuant to Section 4.04 and (B) recoveries of amounts in
respect of which such advances were made in the case of Servicing Advances;
(iii) to pay to itself or the related Subservicer (if not previously retained by such
Subservicer) out of each payment received by the Master Servicer on account of
interest on a Mortgage Loan as contemplated by Sections 3.14 and 3.16, an amount
equal to that remaining portion of any such payment as to interest (but not in excess
of the Servicing Fee and the Subservicing Fee, if not previously retained) which,
when deducted, will result in the remaining amount of such interest being interest at
the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan) on the amount specified in the amortization schedule of the related
Mortgage Loan as the principal balance thereof at the beginning of the period
respecting which such interest was paid after giving effect to any previous
Curtailments;
(iv) to pay to itself as additional servicing compensation any interest or investment
income earned on funds and other property deposited in or credited to the Custodial
Account that it is entitled to withdraw pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any Foreclosure Profits, any
amounts remitted by Subservicers as interest in respect of Curtailments pursuant to
Section 3.08(b), and any amounts paid by a Mortgagor in connection with a Principal
Prepayment in Full in respect of interest for any period during the calendar month in
which such Principal Prepayment in Full is to be distributed to the
Certificateholders;
(vi) to pay to itself, a Subservicer, a Seller, Residential Funding, the Company or any
other appropriate Person, as the case may be, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased or otherwise transferred
pursuant to Section 2.02, 2.03, 2.04, 4.07 or 9.01, all amounts received thereon and
not required to be distributed to the Certificateholders as of the date on which the
related Stated Principal Balance or Purchase Price is determined;
(vii) to reimburse itself or the related Subservicer for any Nonrecoverable Advance or
Advances in the manner and to the extent provided in subSection (c) below, and any
Advance or Servicing Advance made in connection with a modified Mortgage Loan that is
in default or, in the judgment of the Master Servicer, default is reasonably
foreseeable pursuant to Section 3.07(a), to the extent the amount of the Advance or
Servicing Advance was added to the Stated Principal Balance of the Mortgage Loan in a
prior calendar month, or any Advance reimbursable to the Master Servicer pursuant to
Section 4.02(a);
(viii) to reimburse itself or the Company for expenses incurred by and reimbursable to it or
the Company pursuant to Sections 3.01(a), 3.11, 3.13, 3.14(c), 6.03, 10.01 or
otherwise, or in connection with enforcing, in accordance with this Agreement, any
repurchase, substitution or indemnification obligation of any Seller (other than an
Affiliate of the Company) pursuant to the related Seller's Agreement;
(ix) to reimburse itself for Servicing Advances expended by it (a) pursuant to
Section 3.14 in good faith in connection with the restoration of property damaged by
an Uninsured Cause, and (b) in connection with the liquidation of a Mortgage Loan or
disposition of an REO Property to the extent not otherwise reimbursed pursuant to
clause (ii) or (viii) above; and
(x) to withdraw any amount deposited in the Custodial Account that was not required to be
deposited therein pursuant to Section 3.07; and
(xi) to reimburse or pay any Subservicer any such amounts as are due thereto under the
applicable Subservicing Agreement and have not been retained by or paid to the
Subservicer, to the extent provided in the related Subservicing Agreement.
(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 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 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.
The Master Servicer shall obtain and maintain at its own expense and keep in full force and
effect throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions insurance policy covering the Master Servicer's officers and employees and other
persons acting on behalf of the Master Servicer in connection with its activities under this
Agreement. The amount of coverage shall be at least equal to the coverage that would be
required by Xxxxxx Xxx or Freddie Mac, whichever is greater, with respect to the Master
Servicer if the Master Servicer were servicing and administering the Mortgage Loans for
Xxxxxx Xxx or Freddie Mac. In the event that any such bond or policy ceases to be in
effect, the Master Servicer shall obtain a comparable replacement bond or policy from an
issuer or insurer, as the case may be, meeting the requirements, if any, of the Program
Guide and acceptable to the Company. Coverage of the Master Servicer under a policy or bond
obtained by an Affiliate of the Master Servicer and providing the coverage required by this
Section 3.12(b) shall satisfy the requirements of this Section 3.12(b).
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and Modification Agreements;
Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Master Servicer or
Subservicer, to the extent it has knowledge of such conveyance, shall enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that such enforcement
will not adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing:
(i) the Master Servicer shall not be deemed to be in default under this
Section 3.13(a) by reason of any transfer or assumption which the Master Servicer is
restricted by law from preventing; and
(ii) if the Master Servicer determines that it is reasonably likely that any Mortgagor
will bring, or if any Mortgagor does bring, legal action to declare invalid or
otherwise avoid enforcement of a due-on-sale clause contained in any Mortgage Note or
Mortgage, the Master Servicer shall not be required to enforce the due-on-sale
clause or to contest such action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause to the extent
set forth in Section 3.13(a), in any case in which a Mortgaged Property is to be conveyed to
a Person by a Mortgagor, and such Person is to enter into an assumption or modification
agreement or supplement to the Mortgage Note or Mortgage which requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Master Servicer is authorized, subject to
the requirements of the sentence next following, to execute and deliver, on behalf of the
Trustee, the assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or Mortgage or
other instruments as are reasonable or necessary to carry out the terms of the Mortgage Note
or Mortgage or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person; provided, however, none of such terms and
requirements shall either (i) both (A) constitute a "significant modification" effecting an
exchange or reissuance of such Mortgage Loan under the REMIC Provisions and (B) cause any
portion of any REMIC formed under the Series Supplement to fail to qualify as a REMIC under
the Code or (subject to Section 10.01(f)), result in the imposition of any tax on
"prohibited transactions" or (ii) constitute "contributions" after the start-up date under
the REMIC Provisions. The Master Servicer shall execute and deliver such documents only if
it reasonably determines that (i) its execution and delivery thereof will not conflict with
or violate any terms of this Agreement or cause the unpaid balance and interest on the
Mortgage Loan to be uncollectible in whole or in part, (ii) any required consents of
insurers under any Required Insurance Policies have been obtained and (iii) subsequent to
the closing of the transaction involving the assumption or transfer (A) the Mortgage Loan
will continue to be secured by a first mortgage lien pursuant to the terms of the Mortgage,
(B) such transaction will not adversely affect the coverage under any Required Insurance
Policies, (C) the Mortgage Loan will fully amortize over the remaining term thereof, (D) no
material term of the Mortgage Loan (including the interest rate on the Mortgage Loan) will
be altered nor will the term of the Mortgage Loan be changed and (E) if the
seller/transferor of the Mortgaged Property is to be released from liability on the Mortgage
Loan, such release will not (based on the Master Servicer's or Subservicer's good faith
determination) adversely affect the collectability of the Mortgage Loan. Upon receipt of
appropriate instructions from the Master Servicer in accordance with the foregoing, the
Trustee shall execute any necessary instruments for such assumption or substitution of
liability as directed in writing by the Master Servicer. Upon the closing of the
transactions contemplated by such documents, the Master Servicer shall cause the originals
or true and correct copies of the assumption agreement, the release (if any), or the
modification or supplement to the Mortgage Note or Mortgage to be delivered to the Trustee
or the Custodian and deposited with the Mortgage File for such Mortgage Loan. Any fee
collected by the Master Servicer or such related Subservicer for entering into an assumption
or substitution of liability agreement will be retained by the Master Servicer or such
Subservicer as additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for a partial release of the related Mortgaged
Property, the granting of an easement thereon in favor of another Person, any alteration or
demolition of the related Mortgaged Property (or, with respect to a Cooperative Loan, the
related Cooperative Apartment) without any right of reimbursement or other similar matters
if it has determined, exercising its good faith business judgment in the same manner as it
would if it were the owner of the related Mortgage Loan, that the security for, and the
timely and full collectability of, such Mortgage Loan would not be adversely affected
thereby and that any portion of any REMIC formed under the Series Supplement would not fail
to continue to qualify as a REMIC under the Code as a result thereof and (subject to
Section 10.01(f)) that no tax on "prohibited transactions" or "contributions" after the
startup day would be imposed on any such REMIC as a result thereof. Any fee collected by the
Master Servicer or the related Subservicer for processing such a request will be retained by
the Master Servicer or such Subservicer as additional servicing compensation.
(d) Subject to any other applicable terms and conditions of this Agreement, the Trustee
and Master Servicer shall be entitled to approve an assignment in lieu of satisfaction with
respect to any Mortgage Loan, provided the obligee with respect to such Mortgage Loan
following such proposed assignment provides the Trustee and Master Servicer with a "Lender
Certification for Assignment of Mortgage Loan" in the form attached hereto as Exhibit M, in
form and substance satisfactory to the Trustee and Master Servicer, providing the
following: (i) that the substance of the assignment is, and is intended to be, a
refinancing of 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 or action, the Master
Servicer shall, consistent with Section 3.11, follow such practices and procedures as it
shall deem necessary or advisable, as shall be normal and usual in its general mortgage
servicing activities and as shall be required or permitted by the Program Guide, as
applicable; provided that the Master Servicer shall not be liable in any respect hereunder
if the Master Servicer is acting in connection with any such foreclosure or other conversion
in a manner that is consistent with the provisions of this Agreement. The Master Servicer,
however, shall not be required to expend its own funds or incur other reimbursable charges
in connection with any foreclosure, or attempted foreclosure which is not completed, or
towards the restoration of any property unless it shall determine (i) that such restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage Loan to Holders
of Certificates of one or more Classes after reimbursement to itself for such expenses or
charges and (ii) that such expenses or charges will be recoverable to it through Liquidation
Proceeds, Insurance Proceeds, or REO Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 3.10, whether or not
such expenses and charges are actually recoverable from related Liquidation Proceeds,
Insurance Proceeds or REO Proceeds). In the event of such a determination by the Master
Servicer pursuant to this Section 3.14(a), the Master Servicer shall be entitled to
reimbursement of such amounts pursuant to Section 3.10.
In addition to the foregoing, the Master Servicer shall use its best reasonable
efforts to realize upon any Additional Collateral for such of the Additional Collateral
Loans as come into and continue in default and as to which no satisfactory arrangements can
be made for collection of delinquent payments pursuant to Section 3.07; provided that the
Master Servicer shall not, on behalf of the Trustee, obtain title to any such Additional
Collateral as a result of or in lieu of the disposition thereof or otherwise; and provided
further that (i) the Master Servicer shall not proceed with respect to such Additional
Collateral in any manner that would impair the ability to recover against the related
Mortgaged Property, and (ii) the Master Servicer shall proceed with any REO Acquisition in a
manner that preserves the ability to apply the proceeds of such 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 and any of the Mortgage Loans and Pledged Asset Loans, the Master Servicer
shall perform its obligations under the Credit Support Pledge Agreement in accordance with
such agreement and in a manner that is in the best interests of the Certificateholders.
Further, the Master Servicer shall use its best reasonable efforts to realize upon any
Pledged Assets for such of the Pledged Asset Loans as come into and continue in default and
as to which no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07; provided that the Master Servicer shall not, on behalf of the
Trustee, obtain title to any such Pledged Assets as a result of or in lieu of the
disposition thereof or otherwise; and provided further that (i) the Master Servicer shall
not proceed with respect to such Pledged Assets in any manner that would impair the ability
to recover against the related Mortgaged Property, and (ii) the Master Servicer shall
proceed with any REO Acquisition in a manner that preserves the ability to apply the
proceeds of such Pledged Assets against amounts owed under the defaulted Mortgage Loan. Any
proceeds realized from such Pledged Assets (other than amounts to be released to the
Mortgagor or the related guarantor in accordance with procedures that the Master Servicer
would follow in servicing loans held for its own account, subject to the terms and
conditions of the related Mortgage and Mortgage Note and to the terms and conditions of any
security agreement, guarantee agreement, mortgage or other agreement governing the
disposition of the proceeds of such Pledged Assets) shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.10. Any other payment received by the
Master Servicer in respect of such Pledged Assets shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 3.10.
Concurrently with the foregoing, the Master Servicer may pursue any remedies that may
be available in connection with a breach of a representation and warranty with respect to
any such Mortgage Loan in accordance with Sections 2.03 and 2.04. However, the Master
Servicer is not required to continue to pursue both foreclosure (or similar remedies) with
respect to the Mortgage Loans and remedies in connection with a breach of a representation
and warranty if the Master Servicer determines in its reasonable discretion that one such
remedy is more likely to result in a greater recovery as to the Mortgage Loan. Upon the
occurrence of a Cash Liquidation or REO Disposition, following the deposit in the Custodial
Account of all Insurance Proceeds, Liquidation Proceeds and other payments and recoveries
referred to in the definition of "Cash Liquidation" or "REO Disposition," as applicable,
upon receipt by the Trustee of written notification of such deposit signed by a Servicing
Officer, the Trustee or any Custodian, as the case may be, shall release to the Master
Servicer the related Mortgage File and the Trustee shall execute and deliver such
instruments of transfer or assignment prepared by the Master Servicer, in each case without
recourse, as shall be necessary to vest in the Master Servicer or its designee, as the case
may be, the related Mortgage Loan, and thereafter such Mortgage Loan shall not be part of
the Trust Fund. Notwithstanding the foregoing or any other provision of this Agreement, in
the Master Servicer's sole discretion with respect to any defaulted Mortgage Loan or REO
Property as to either of the following provisions, (i) a Cash Liquidation or REO Disposition
may be deemed to have occurred if substantially all amounts expected by the Master Servicer
to be received in connection with the related defaulted Mortgage Loan or REO Property have
been received, and (ii) for purposes of determining the amount of any Liquidation Proceeds,
Insurance Proceeds, REO Proceeds or any other unscheduled collections or the amount of any
Realized Loss, the Master Servicer may take into account minimal amounts of additional
receipts expected to be received or any estimated additional liquidation expenses expected
to be incurred in connection with the related defaulted Mortgage Loan or REO Property.
(b) If title to any Mortgaged Property is acquired by the Trust Fund as an REO Property
by foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale shall be
issued to the Trustee or to its nominee on behalf of Certificateholders. Notwithstanding
any such acquisition of title and cancellation of the related Mortgage Loan, such REO
Property shall (except as otherwise expressly provided herein) be considered to be an
Outstanding Mortgage Loan held in the Trust Fund until such time as the REO Property shall
be sold. Consistent with the foregoing for purposes of all calculations hereunder so long
as such REO Property shall be considered to be an Outstanding Mortgage Loan it shall be
assumed that, notwithstanding that the indebtedness evidenced by the related Mortgage Note
shall have been discharged, such Mortgage Note and the related amortization schedule in
effect at the time of any such acquisition of title (after giving effect to any previous
Curtailments and before any adjustment thereto by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period) remain in effect.
(c) If the Trust Fund acquires any REO Property as aforesaid or otherwise in connection
with a default or imminent default on a Mortgage Loan, the Master Servicer on behalf of the
Trust Fund shall dispose of such REO Property as soon as practicable, giving due
consideration to the interests of the Certificateholders, but in all cases within three full
years after the taxable year of its acquisition by the Trust Fund for purposes of
Section 860G(a)(8) of the Code (or such shorter period as may be necessary under applicable
state (including any state in which such property is located) law to maintain the status of
any portion of any REMIC formed under the Series Supplement as a REMIC under applicable
state law and avoid taxes resulting from such property failing to be foreclosure property
under applicable state law) or, at the expense of the Trust Fund, request, more than 60 days
before the day on which such grace period would otherwise expire, an extension of such grace
period unless the Master Servicer (subject to Section 10.01(f)) obtains for the Trustee an
Opinion of Counsel, addressed to the Trustee and the Master Servicer, to the effect that the
holding by the Trust Fund of such REO Property subsequent to such period will not result in
the imposition of taxes on "prohibited transactions" as defined in Section 860F of the Code
or cause any REMIC formed under the Series Supplement to fail to qualify as a REMIC (for
federal (or any applicable State or local) income tax purposes) at any time that any
Certificates are outstanding, in which case the Trust Fund may continue to hold such REO
Property (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 (other
than Subsequent Recoveries) resulting from a collection of Liquidation Proceeds, Insurance
Proceeds or REO Proceeds, will be applied in the following order of priority: first, to
reimburse the Master Servicer or the related Subservicer in accordance with
Section 3.10(a)(ii) and, in the case of Xxxxx Fargo as a Subservicer, if applicable, to
reimburse such Subservicer for any Subservicing Fees payable therefrom; second, to the
Certificateholders to the extent of accrued and unpaid interest on the Mortgage Loan, and
any related REO Imputed Interest, at the Net Mortgage Rate (or the Modified Net Mortgage
Rate in the case of a Modified Mortgage Loan), to the Due Date in the related Due Period
prior to the Distribution Date on which such amounts are to be distributed; third, to the
Certificateholders as a recovery of principal on the Mortgage Loan (or REO Property);
fourth, to all Servicing Fees and Subservicing Fees payable therefrom (and the Master
Servicer and the Subservicer shall have no claims for any deficiencies with respect to such
fees which result from the foregoing allocation); and fifth, to Foreclosure Profits.
(e) In the event of a default on a Mortgage Loan one or more of whose obligors is not a
United States Person, in connection with any foreclosure or acquisition of a deed in lieu of
foreclosure (together, "foreclosure") in respect of such Mortgage Loan, the Master Servicer
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 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 (including payment of
premiums for the Primary Insurance Policies, if any, to the extent such premiums are not
required to be paid by the related Mortgagors, and the fees and expenses of the Trustee and
any Custodian) and shall not be entitled to reimbursement therefor except as specifically
provided in Sections 3.10 and 3.14.
(d) The Master Servicer's right to receive servicing compensation may not be transferred
in whole or in part except in connection with the transfer of all of its responsibilities
and obligations of the Master Servicer under this Agreement.
(e) Notwithstanding any other provision herein, the amount of servicing compensation that
the Master Servicer shall be entitled to receive for its activities hereunder for the period
ending on each Distribution Date shall be reduced (but not below zero) by an amount equal to
Compensating Interest (if any) for such Distribution Date. Such reduction shall be applied
during such period as follows: first, to any Servicing Fee or Subservicing Fee to which the
Master Servicer is entitled pursuant to Section 3.10(a)(iii) and second, to any income or
gain realized from any investment of funds held in the Custodial Account or the Certificate
Account to which the Master Servicer is entitled 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 it receives a written request from the Trustee or
the Company, the Master Servicer shall forward to the Trustee and the Company a statement,
certified by a Servicing Officer, setting forth the status of the Custodial Account as of
the close of business on such Distribution Date as it relates to the Mortgage Loans and
showing, for the period covered by such statement, the aggregate of deposits in or
withdrawals from the Custodial Account in respect of the Mortgage Loans for each category of
deposit specified in Section 3.07 and each category of withdrawal specified in Section 3.10.
Section 3.18. Annual Statement as to Compliance.
The Master Servicer will deliver to the Company, the Trustee and any Certificate
Insurer on or before the earlier of (a) March 31 of each year 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, a servicer compliance
certificate, signed by an authorized officer of the Master Servicer, as described in Items
1122(a), 1122(b) and 1123 of Regulation AB, to the effect that:
(i) A review of the Master Servicer's activities during the reporting period and
of its performance under this Agreement has been made under such officer's supervision.
(ii) To the best of such officer's knowledge, based on such review, the Master
Servicer has fulfilled all of its obligations under this Agreement in all material respects
throughout the reporting period or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such officer and
the nature and status thereof.
The Master Servicer shall use commercially reasonable efforts to obtain from all
other parties participating in the servicing function any additional certifications required
under Item 1123 of Regulation AB to the extent required to be included in a Report on Form
10-K; provided, however, that a failure to obtain such certifications shall not be a breach
of the Master Servicer's duties hereunder if any such party fails to deliver such a
certification.
Section 3.19. Annual Independent Public Accountants' Servicing Report.
On or before the earlier of (a) March 31 of each year or (b) with respect to any
calendar year during which the Company's annual report on Form 10-K is required to be filed
in accordance with the Exchange Act and the rules and regulations of the Commission, the
date on which the annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, the Master Servicer at its
expense shall cause a firm of independent public accountants, which shall be members of the
American Institute of Certified Public Accountants, to furnish to the Company and the
Trustee the attestation required under Item 1122(b) of Regulation AB. In rendering such
statement, such firm may rely, as to matters relating to the direct servicing of mortgage
loans by Subservicers, upon comparable statements for examinations conducted by independent
public accountants substantially in accordance with standards established by the American
Institute of Certified Public Accountants (rendered within one year of such statement) with
respect to such Subservicers.
Section 3.20. Rights of the Company in Respect of the Master Servicer.
The Master Servicer shall afford the Company, upon reasonable notice, during normal
business hours access to all records maintained by the Master Servicer in respect of its
rights and obligations hereunder and access to officers of the Master Servicer responsible
for such obligations. Upon request, the Master Servicer shall furnish the Company with its
most recent financial statements and such other information as the Master Servicer possesses
regarding its business, affairs, property and condition, financial or otherwise. The Master
Servicer shall also cooperate with all reasonable requests for information including, but
not limited to, notices, tapes and copies of files, regarding itself, the Mortgage Loans or
the Certificates from any Person or Persons identified by the Company or Residential
Funding. The Company may, but is not obligated to, enforce the obligations of the Master
Servicer hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer hereunder or exercise the rights of
the Master Servicer hereunder; provided that the Master Servicer shall not be relieved of
any of its obligations hereunder by virtue of such performance by the Company or its
designee. The Company shall not have any responsibility or liability for any action or
failure to act by the Master Servicer and is not obligated to supervise the performance of
the Master Servicer under this Agreement or otherwise.
Section 3.21. Administration of Buydown Funds.
(a) With respect to any Buydown Mortgage Loan, the Subservicer has deposited Buydown
Funds in an account that satisfies the requirements for a Subservicing Account (the "Buydown
Account"). The Master Servicer shall cause the Subservicing Agreement to require that upon
receipt from the Mortgagor of the 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 Company, the
Trustee, the Certificateholders or any other party shall be required before the Master
Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance
Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances
on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to
this Agreement to make Advances and Servicing Advances pursuant to and as required by this
Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an
Advancing Person remains entitled to receive reimbursement for any Advances including
Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances
including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together
with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent
such type of Reimbursement Amount is included in the Advance Facility), as applicable,
pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement
Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and
(vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise
in accordance with the documentation establishing the Advance Facility to such Advancing
Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by
such Advancing Person in an Advance Facility Notice described below in Section 3.22(b).
Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility,
the Master Servicer may direct, and if so directed in writing the Trustee is hereby
authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts
identified pursuant to the preceding sentence. An Advancing Person whose obligations
hereunder are limited to the funding of Advances and/or Servicing Advances shall not be
required to meet the qualifications of a Master Servicer or a Subservicer pursuant to
Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this
Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance
Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the
Available Distribution Amount or distributed to Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes the election set
forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver
to the Trustee a written notice and payment instruction (an "Advance Facility Notice"),
providing the Trustee with written payment instructions as to where to remit Advance
Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent
such type of Reimbursement Amount is included within the Advance Facility) on subsequent
Distribution Dates. The payment instruction shall require the applicable Reimbursement
Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee
designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated
by the joint written direction of the Master Servicer and the related Advancing Person (and
any related Advance Facility Trustee).
(c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or
Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer
would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and
(vii) hereof, assuming the Master Servicer or the Advancing Person had made the related
Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect
to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this
Agreement, no Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this Agreement. Neither
the Company nor the Trustee shall have any duty or liability with respect to the calculation
of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to
track or monitor the administration of the Advance Facility and the Company shall not have
any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the
related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and
provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to
amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person.
The Successor Master Servicer shall be entitled to rely on any such information provided by
the Master Servicer and the Successor Master Servicer shall not be liable for any errors in
such information.
(d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees
to execute such acknowledgments, certificates, and other documents provided by the Master
Servicer and reasonably satisfactory to the Trustee recognizing the interests of any
Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master
Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22,
and such other documents in connection with such Advance Facility as may be reasonably
requested from time to time by any Advancing Person or Advance Facility Trustee and
reasonably satisfactory to the Trustee.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated
to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with
respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the
qualifications set forth below:
(i) Any successor Master Servicer to Residential Funding (a "Successor Master
Servicer") and the Advancing Person or Advance Facility Trustee shall be required to
apply all amounts available in accordance with this Section 3.22(e) to the
reimbursement of Advances and Servicing Advances in the manner provided for herein;
provided, however, that after the succession of a Successor Master Servicer, (A) to
the extent that any Advances or Servicing Advances with respect to any particular
Mortgage Loan are reimbursed from payments or recoveries, if any, from the related
Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to
that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or
Advance Facility Trustee in respect of Advances and/or Servicing Advances related to
that Mortgage Loan to the extent of the interest of the Advancing Person or Advance
Facility Trustee in such Advances and/or Servicing Advances, second to the Master
Servicer in respect of Advances and/or Servicing Advances related to that Mortgage
Loan in excess of those in which the Advancing Person or Advance Facility Trustee
Person has an interest, and third, to the Successor Master Servicer in respect of any
other Advances and/or Servicing Advances related to that Mortgage Loan, from such
sources as and when collected, and (B) reimbursements of Advances and Servicing
Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing
Person or Advance Facility Trustee, on the one hand, and any such Successor Master
Servicer, on the other hand, on the basis of the respective aggregate outstanding
unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to
the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this
Agreement, on the one hand, and any such Successor Master Servicer, on the other
hand, and without regard to the date on which any such Advances or Servicing Advances
shall have been made. In the event that, as a result of the FIFO allocation made
pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the
Advancing Person or Advance Facility Trustee relates to Advances or Servicing
Advances that were made by a Person other than Residential Funding or the Advancing
Person or Advance Facility Trustee, then the Advancing Person or Advance Facility
Trustee shall be required to remit any portion of such Reimbursement Amount to the
Person entitled to such portion of such Reimbursement Amount. Without limiting the
generality of the foregoing, Residential Funding shall remain entitled to be
reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and
Servicing Advances funded by Residential Funding to the extent the related
Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or
Advance Facility Trustee. The documentation establishing any Advance Facility shall
require Residential Funding to provide to the related Advancing Person or Advance
Facility Trustee loan by loan information with respect to each Reimbursement Amount
distributed to such Advancing Person or Advance Facility Trustee on each date of
remittance thereof to such Advancing Person or Advance Facility Trustee, to enable
the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each
Reimbursement Amount with respect to each Mortgage Loan.
(ii) By way of illustration, and not by way of limiting the generality of the foregoing,
if the Master Servicer resigns or is terminated at a time when the Master Servicer is
a party to an Advance Facility, and is replaced by a Successor Master Servicer, and
the Successor Master Servicer directly funds Advances or Servicing Advances with
respect to a Mortgage Loan and does not assign or pledge the related Reimbursement
Amounts to the related Advancing Person or Advance Facility Trustee, then all
payments and recoveries received from the related Mortgagor or received in the form
of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance
Proceeds collected in connection with a liquidation of such Mortgage Loan) will be
allocated first to the Advancing Person or Advance Facility Trustee until the related
Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master
Servicer and the Advancing Person, which were made prior to any Advances or Servicing
Advances made by the Successor Master Servicer, have been reimbursed in full, at
which point the Successor Master Servicer shall be entitled to retain all related
Reimbursement Amounts subsequently collected with respect to that Mortgage Loan
pursuant to Section 3.10 of this Agreement. To the extent that the Advances or
Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis
pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner
will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one
hand, and the Successor Master Servicer, on the other hand, as described in
clause (i)(B) above.
(f) The Master Servicer shall remain entitled to be reimbursed for all Advances and
Xxxxxxxxx Advances funded by the Master Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing Person.
(g) Any amendment to this Section 3.22 or to any other provision of this Agreement that
may be necessary or appropriate to effect the terms of an Advance Facility as described
generally in this Section 3.22, including amendments to add provisions relating to a
successor Master Servicer, may be entered into by the Trustee, the Company and the Master
Servicer without the consent of any Certificateholder, with written confirmation from each
Rating Agency that the amendment will not result in the reduction of the ratings on any
class of the Certificates below the lesser of the then current or original ratings on such
Certificates, and an opinion of counsel as required by Section 11.01(c) notwithstanding
anything to the contrary in Section 11.01 of or elsewhere in this Agreement.
(h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor
Master Servicer or any other Person might otherwise have against the Master Servicer under
this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing
Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing
Person.
(i) At any time when an Advancing Person shall have ceased funding Advances and/or
Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility
Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse
all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for
which were assigned to the Advancing Person, then upon the delivery of a written notice
signed by the Advancing Person and the Master Servicer or its successor or assign) to the
Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the
Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and
retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10.
(j) After delivery of any Advance Facility Notice, and until any such Advance Facility
Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be
amended or otherwise modified without the prior written consent of the related Advancing
Person.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account.
(a) The Master Servicer on behalf of the Trustee shall establish and maintain a
Certificate Account in which the Master Servicer shall cause to be deposited on behalf of
the Trustee on or before 2:00 P.M. New York time on each Certificate Account Deposit Date by
wire transfer of immediately available funds an amount equal to the sum of (i) any Advance
for the immediately succeeding Distribution Date, (ii) any amount required to be deposited
in the Certificate Account pursuant to Section 3.12(a), (iii) any amount required to be
deposited in the Certificate Account pursuant to Section 3.16(e) or Section 4.07 and
(iv) all other amounts constituting the Available Distribution Amount for the immediately
succeeding Distribution Date.
(b) The Trustee shall, upon written request from the Master Servicer, invest or cause the
institution maintaining the Certificate Account to invest the funds in the Certificate
Account in Permitted Investments designated in the name of the Trustee for the benefit of
the Certificateholders, which shall mature or be payable on demand not later than the
Business Day next preceding the Distribution Date next following the date of such investment
(except that (i) any investment in the institution with which the Certificate Account is
maintained may mature or be payable on demand on such Distribution Date and (ii) any other
investment may mature or be payable on demand on such Distribution Date if the Trustee shall
advance funds on such Distribution Date to the Certificate Account in the amount payable on
such investment on such Distribution Date, pending receipt thereof to the extent necessary
to make distributions on the Certificates) and shall not be sold or disposed of prior to
maturity. Subject to Section 3.16(e), all income and gain realized from any such investment
shall be for the benefit of the Master Servicer and shall be subject to its withdrawal or
order from time to time. The amount of any losses incurred in respect of any such
investments shall be deposited in the Certificate Account by the Master Servicer out of its
own funds immediately as realized without any right of reimbursement.
Section 4.02. Distributions.
As provided in Section 4.02 of the Series Supplement.
Section 4.03. Statements to Certificateholders; Statements to Rating Agencies; Exchange Act
Reporting.
(a) Concurrently with each distribution charged to the Certificate Account and with
respect to each Distribution Date the Master Servicer shall forward to the Trustee and the
Trustee shall either forward by mail or make available to each Holder and the Company, via
the Trustee's internet website, a statement (and at its option, any additional files
containing the same information in an alternative format) setting forth information as to
each Class of Certificates, the Mortgage Pool and, if the Mortgage Pool is comprised of two
or more Loan Groups, each Loan Group, to the extent applicable. This statement will include
the information set forth in an exhibit to the Series Supplement. Such exhibit shall set
forth the Trustee's internet website address together with a phone number. The Trustee
shall mail to each Holder that requests a paper copy by telephone a paper copy via first
class mail. The Trustee may modify the distribution procedures set forth in this
Section provided that such procedures are no less convenient for the Certificateholders. The
Trustee shall provide prior notification to the Company, the Master Servicer and the
Certificateholders regarding any such modification. In addition, the Master Servicer shall
provide to any manager of a trust fund consisting of some or all of the Certificates, upon
reasonable request, such additional information as is reasonably obtainable by the Master
Servicer at no additional expense to the Master Servicer. Also, at the request of a Rating
Agency, the Master Servicer shall provide the information relating to the Reportable
Modified Mortgage Loans substantially in the form attached hereto as Exhibit Q to such
Rating Agency within a reasonable period of time; provided, however, that the Master
Servicer shall not be required to provide such information more than four times in a
calendar year to any Rating Agency.
(b) Within a reasonable period of time after it receives a written request from a Holder
of a Certificate, other than a Class R Certificate, the Master Servicer shall prepare, or
cause to be prepared, and shall forward, or cause to be forwarded, to each Person who at any
time during the calendar year was the Holder of a Certificate, other than a Class R
Certificate, a statement containing the information set forth in clauses (v) and (vi) 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 it receives a written request from any
Holder of a Class R Certificate, the Master Servicer shall prepare, or cause to be prepared,
and shall forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Class R Certificate, a statement containing the applicable
distribution information provided pursuant to this Section 4.03 aggregated for such calendar
year or applicable portion thereof during which such Person was the Holder of a Class R
Certificate. Such obligation of the Master Servicer shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the Master
Servicer pursuant to any requirements of the Code.
(d) Upon the written request of any Certificateholder, the Master Servicer, as soon as
reasonably practicable, shall provide the requesting Certificateholder with such information
as is necessary and appropriate, in the Master Servicer's sole discretion, for purposes of
satisfying applicable reporting requirements under Rule 144A.
(e) The Master Servicer shall, on behalf of the Company and in respect of the Trust Fund,
sign and cause to be filed with the Commission any periodic reports required to be filed
under the provisions of the Exchange Act, and the rules and regulations of the Commission
thereunder including, without limitation, reports on Form 10-K, Form 10-D and Form 8-K. In
connection with the preparation and filing of such periodic reports, the Trustee shall
timely provide to the Master Servicer (I) a list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year, (II) copies of all pleadings,
other legal process and any other documents relating to any claims, charges or complaints
involving the Trustee, as trustee hereunder, or the Trust Fund that are received by a
Responsible Officer of the Trustee, (III) notice of all matters that, to the actual
knowledge of a Responsible Officer of the Trustee, have been submitted to a vote of the
Certificateholders, other than those matters that have been submitted to a vote of the
Certificateholders at the request of the Company or the Master Servicer, and (IV) notice of
any failure of the Trustee to make any distribution to the Certificateholders as required
pursuant to 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.
(f) Any Form 10-K filed with the Commission in connection with this Section 4.03 shall
include, with respect to the Certificates relating to such 10-K:
(i) A certification, signed by the senior officer in charge of the servicing functions of
the Master Servicer, in the form attached as Exhibit 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.
(ii) A report regarding its assessment of compliance during the preceding calendar year
with all applicable servicing criteria set forth in relevant Commission regulations
with respect to mortgage-backed securities transactions taken as a whole involving
the Master Servicer that are backed by the same types of assets as those backing the
certificates, as well as similar reports on assessment of compliance received from
other parties participating in the servicing function as required by relevant
Commission regulations, as described in Item 1122(a) of Regulation AB. The Master
Servicer shall obtain from all other parties participating in the servicing function
any required assessments.
(iii) With respect to each assessment report described immediately above, a report by a
registered public accounting firm that attests to, and reports on, the assessment
made by the asserting party, as set forth in relevant Commission regulations, as
described in Regulation 1122(b) of Regulation AB and Section 3.19
(iv) The servicer compliance certificate required to be delivered pursuant Section 3.18.
(g) In connection with the Form 10-K Certification, the Trustee shall provide the Master
Servicer with a back-up certification substantially in the form attached hereto as Exhibit P.
(h) This Section 4.03 may be amended in accordance with this Agreement without the
consent of the Certificateholders.
(i) The Trustee shall make available on the Trustee's internet website each of the
reports filed with the Commission by or on behalf of the Company under the Exchange Act upon
delivery of such reports to the Trustee.
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 Paying Agent and the Company (the
information in such statement to be made available to Certificateholders and any Certificate
Insurer by the Master Servicer on request) setting forth (i) the Available Distribution
Amount and (ii) the amounts required to be withdrawn from the Custodial Account and
deposited into the Certificate Account on the immediately succeeding Certificate Account
Deposit Date pursuant to clause (iii) of Section 4.01(a). The determination by the Master
Servicer of such amounts shall, in the absence of obvious error, be presumptively deemed to
be correct for all purposes hereunder and the Trustee shall be protected in relying upon the
same without any independent check or verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account Deposit Date, the
Master Servicer shall either (i) deposit in the Certificate Account from its own funds, or
funds received therefor from the Subservicers, an amount equal to the Advances to be made by
the Master Servicer in respect of the related Distribution Date, which shall be in an
aggregate amount equal to the aggregate amount of Monthly Payments (with each interest
portion thereof adjusted to the Net Mortgage Rate), less the amount of any related Servicing
Modifications, Debt Service Reductions or reductions in the amount of interest collectable
from the Mortgagor pursuant to the Relief Act, on the Outstanding Mortgage Loans as of the
related Due Date, which Monthly Payments were not received as of the close of business as of
the related Determination Date; provided that no Advance shall be made if it would be a
Nonrecoverable Advance, (ii) withdraw from amounts on deposit in the Custodial Account and
deposit in the Certificate Account all or a portion of the Amount Held for Future
Distribution in discharge of any such Advance, or (iii) make advances in the form of any
combination of (i) and (ii) aggregating the amount of such Advance. Any portion of the
Amount Held for Future Distribution so used shall be replaced by the Master Servicer by
deposit in the Certificate Account on or before 11:00 A.M. New York time on any future
Certificate Account Deposit Date to the extent that funds attributable to the Mortgage Loans
that are available in the Custodial Account for deposit in the Certificate Account on such
Certificate Account Deposit Date shall be less than payments to Certificateholders required
to be made on the following Distribution Date. The Master Servicer shall be entitled to use
any Advance made by a Subservicer as described in Section 3.07(b) that has been deposited in
the Custodial Account on or before such Distribution Date as part of the Advance made by the
Master Servicer pursuant to this Section 4.04. The amount of any reimbursement pursuant to
Section 4.02(a) in respect of outstanding Advances on any Distribution Date shall be
allocated to specific Monthly Payments due but delinquent for previous Due Periods, which
allocation shall be made, to the extent practicable, to Monthly Payments which have been
delinquent for the longest period of time. Such allocations shall be conclusive for
purposes of reimbursement to the Master Servicer from recoveries on related Mortgage Loans
pursuant to Section 3.10.
The determination by the Master Servicer that it has made a Nonrecoverable Advance or
that any proposed Advance, if made, would constitute a Nonrecoverable Advance, shall be
evidenced by an Officers' Certificate of the Master Servicer delivered to the Company and
the Trustee.
If the Master Servicer determines as of the Business Day preceding any Certificate
Account Deposit Date that it will be unable to deposit in the Certificate Account an amount
equal to the Advance required to be made for the immediately succeeding Distribution Date,
it shall give notice to the Trustee of its inability to advance (such notice may be given by
telecopy), not later than 3:00 P.M., New York time, on such Business Day, specifying the
portion of such amount that it will be unable to deposit. Not later than 3:00 P.M., New
York time, on the Certificate Account Deposit Date the Trustee shall, unless by 12:00 Noon,
New York time, on such day the Trustee shall have been notified in writing (by
telecopy) that the Master Servicer shall have directly or indirectly deposited in the
Certificate Account such portion of the amount of the Advance as to which the Master
Servicer shall have given notice pursuant to the preceding sentence, pursuant to
Section 7.01, (a) terminate all of the rights and obligations of the Master Servicer under
this Agreement in accordance with Section 7.01 and (b) assume the rights and obligations of
the Master Servicer hereunder, including the obligation to deposit in the Certificate
Account an amount equal to the Advance for the immediately succeeding Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this Section 4.04 into
the Certificate Account.
Section 4.05. Allocation of Realized Losses.
As provided in Section 4.05 of the Series Supplement.
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.
The Master Servicer or the Subservicers shall file information returns with respect
to the receipt of mortgage interests received in a trade or business, the reports of
foreclosures and abandonments of any Mortgaged Property and the information returns relating
to cancellation of indebtedness income with respect to any Mortgaged Property required by
Sections 6050H, 6050J and 6050P, respectively, of the Code, and deliver to the Trustee an
Officers' Certificate on or before March 31 of each year stating that such reports have been
filed. Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.
(a) With respect to any Mortgage Loan which is delinquent in payment by 90 days or more,
the Master Servicer may, at its option, purchase such Mortgage Loan from the Trustee at the
Purchase Price therefor; provided, that such Mortgage Loan that becomes 90 days or more
delinquent during any given calendar quarter shall only be eligible for purchase pursuant to
this Section during the period beginning on the first Business Day of the following calendar
quarter, and ending at the close of business on the second-to-last Business Day of such
following calendar quarter; and provided, further, that such Mortgage Loan is 90 days or
more delinquent at the time of repurchase. Such option if not exercised shall not
thereafter be reinstated as to any Mortgage Loan, unless the delinquency is cured and the
Mortgage Loan thereafter again becomes delinquent in payment by 90 days or more in a
subsequent calendar quarter.
(b) If at any time the Master Servicer makes a payment to the Certificate Account
covering the amount of the Purchase Price for such a Mortgage Loan as provided in
clause (a) above, and the Master Servicer provides to the Trustee a certification signed by a
Servicing Officer stating that the amount of such payment has been deposited in the
Certificate Account, then the Trustee shall execute the assignment of such Mortgage Loan at
the request of the Master Servicer without recourse to the Master Servicer which shall
succeed to all the Trustee's right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an assignment outright
and not for security. The Master Servicer will thereupon own such Mortgage, and all such
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
If, however, the Master Servicer shall have exercised its right to repurchase a
Mortgage Loan pursuant to this Section 4.07 upon the written request of and with funds
provided by the Junior Certificateholder and thereupon transferred such Mortgage Loan to the
Junior Certificateholder, the Master Servicer shall so notify the Trustee in writing.
Section 4.08. Surety Bond.
(a) If a Required Surety Payment is payable pursuant to the Surety Bond with respect to
any Additional Collateral Loan, the Master Servicer shall so notify the Trustee as soon as
reasonably practicable and the Trustee shall promptly complete the notice in the form of
Attachment 1 to the Surety Bond and shall promptly submit such notice to the Surety as a
claim for a Required Surety. The Master Servicer shall upon request assist the Trustee in
completing such notice and shall provide any information requested by the Trustee in
connection therewith.
(b) Upon receipt of a Required Surety Payment from the Surety on behalf of the Holders of
Certificates, the Trustee shall deposit such Required Surety Payment in the Certificate
Account and shall distribute such Required Surety Payment, or the proceeds thereof, in
accordance with the provisions of Section 4.02.
(c) The Trustee shall (i) receive as attorney-in-fact of each Holder of a Certificate any
Required Surety Payment from the Surety and (ii) disburse the same to the Holders of such
Certificates as set forth in Section 4.02.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Senior, Class M, Class B and Class R Certificates shall be substantially in the
forms set forth in Exhibits A, B, C and D, respectively, and shall, on original issue, be
executed and delivered by the Trustee to the Certificate Registrar for authentication and
delivery to or upon the order of the Company upon receipt by the Trustee or one or more
Custodians of the documents specified in Section 2.01. The Certificates shall be issuable
in the minimum denominations designated in the Preliminary Statement to the Series
Supplement.
The Certificates shall be executed by manual or facsimile signature on behalf of an
authorized officer of the Trustee. Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Trustee shall bind the
Trustee, notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificate or did not hold such
offices at the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein executed by
the Certificate Registrar by manual signature, and such certificate upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date of their
authentication.
(b) Except as provided below, registration of Book-Entry Certificates may not be
transferred by the Trustee except to another Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests therein. The
Holders of the Book-Entry Certificates shall hold their respective Ownership Interests in
and to each of such Certificates through the book-entry facilities of the Depository and,
except as provided below, shall not be entitled to Definitive Certificates in respect of
such Ownership Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall transfer the Ownership Interests only in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes (including the
making of payments due on the respective Classes of Book-Entry Certificates) deal with the
Depository as the authorized representative of the Certificate Owners with respect to the
respective Classes of Book-Entry Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to the
respective Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants and brokerage
firms representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of any Class of Book-Entry Certificates with respect to
any particular matter shall not be deemed inconsistent if they are made with respect to
different Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Certificateholders and shall
give notice to the Depository of such record date.
If with respect to any Book-Entry Certificate (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 with respect to such Book-Entry Certificate and (B) the
Company is unable to locate a qualified successor, or (ii)(A) the Depositor at its option
advises the Trustee in writing that it elects to terminate the book-entry system for such
Book-Entry Certificate through the Depositary and (B) upon receipt of notice from the
Depository of the Depositor's election to terminate the book-entry system for such
Book-Entry Certificate, the Depository Participants holding beneficial interests in such
Book-Entry Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owner of such Book-Entry Certificate, through the Depository, of the occurrence
of any such event and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall execute, authenticate and deliver the Definitive Certificates.
In addition, if an Event of Default has occurred and is continuing, each Certificate
Owner materially adversely affected thereby may at its option request a Definitive
Certificate evidencing such Certificate Owner's Percentage Interest in the related Class of
Certificates. In order to make such request, such Certificate Owner shall, subject to the
rules and procedures of the Depository, provide the Depository or the related Depository
Participant with directions for the Trustee to exchange or cause the exchange of the
Certificate Owner's interest in such Class of Certificates for an equivalent Percentage
Interest in fully registered definitive form. Upon receipt by the Trustee of instruction
from the Depository directing the Trustee to effect such exchange (such instructions to
contain information regarding the Class of Certificates and the Certificate Balance being
exchanged, the Depository Participant account to be debited with the decrease, the
registered holder of and delivery instructions for the Definitive Certificates and any other
information reasonably required by the Trustee), (i) the Trustee shall instruct the
Depository to reduce the related Depository Participant's account by the aggregate
Certificate Principal Balance of the Definitive Certificates, (ii) the Trustee shall
execute, authenticate and deliver, in accordance with the registration and delivery
instructions provided by the Depository, a Definitive Certificate evidencing such
Certificate Owner's Percentage Interest in such Class of Certificates and (iii) the Trustee
shall execute and authenticate a new Book-Entry Certificate reflecting the reduction in the
aggregate Certificate Principal Balance of such Class of Certificates by the amount of the
Definitive Certificates.
None of the Company, the Master Servicer or the Trustee shall be liable for any
actions taken by the Depository or its nominee, including, without limitation, any delay in
delivery of any 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) From time to time Residential Funding, as the initial Holder of the Class A-V
Certificates, may exchange such Holder's Class A-V Certificates for Subclasses of Class A-V
Certificates to be issued under this Agreement by delivering a "Request for Exchange"
substantially in the form attached hereto as Exhibit N executed by an authorized officer,
which Subclasses, in the aggregate, will represent the Uncertificated Class A-V REMIC
Regular Interests corresponding to the Class A-V Certificates so surrendered for exchange.
Any Subclass so issued shall bear a numerical designation commencing with Class A-V-1 and
continuing sequentially thereafter, and will evidence ownership of the Uncertificated Class
A-V REMIC Regular Interest or Interests specified in writing by such initial Holder to the
Trustee. The Trustee may conclusively, without any independent verification, rely on, and
shall be protected in relying on, Residential Funding's determinations of the Uncertificated
Class A-V REMIC 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 or exchange shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by, the Holder thereof or his attorney duly authorized in writing.
(d) No transfer, sale, pledge or other disposition of a Class B Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the registration
requirements of the Securities Act of 1933, as amended, and any applicable state securities
laws or is made in accordance with said Act and laws. In the event that a transfer of a
Class B Certificate is to be made either (i)(A) the Trustee shall require a written Opinion
of Counsel acceptable to and in form and substance satisfactory to the Trustee and the
Company that such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made pursuant to said
Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Company
or the Master Servicer (except that, if such transfer is made by the Company or the Master
Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such
Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be
required in connection with the initial transfer of any such Certificate by the Company or
any Affiliate thereof to the Company or an Affiliate of the Company and (B) the Trustee
shall require the transferee to execute a representation letter, substantially in the form
of Exhibit H hereto, and the Trustee shall require the transferor to execute a
representation letter, substantially in the form of Exhibit I hereto, each acceptable to and
in form and substance satisfactory to the Company and the Trustee certifying to the Company
and the Trustee the facts surrounding such transfer, which representation letters shall not
be an expense of the Trustee, the Company or the Master Servicer; provided, however, that
such representation letters will not be required in connection with any transfer of any such
Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the
Company, and the Trustee shall be entitled to conclusively rely upon a representation
(which, upon the request of the Trustee, shall be a written representation) from the
Company, of the status of such transferee as an Affiliate of the Company or (ii) the
prospective transferee of such a Certificate shall be required to provide the Trustee, the
Company and the Master Servicer with an investment letter substantially in the form of
Exhibit J attached hereto (or such other form as the Company in its sole discretion deems
acceptable), which investment letter shall not be an expense of the Trustee, the Company or
the Master Servicer, and which investment letter states that, among other things, such
transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for
its own account or the accounts of other "qualified institutional buyers" as defined under
Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption
from registration requirements under the Securities Act provided by Rule 144A. The Holder of
any such Certificate desiring to effect any such transfer, sale, pledge or other disposition
shall, and does hereby agree to, indemnify the Trustee, the Company, the Master Servicer and
the Certificate Registrar against any liability that may result if the transfer, sale,
pledge or other disposition is not so exempt or is not made in accordance with such federal
and state laws.
(e) (i) In the case of any Class B or Class R Certificate presented for registration in
the name of any Person, either (A) the Trustee shall require an Opinion of Counsel
acceptable to and in form and substance satisfactory to the Trustee, the Company and the
Master Servicer to the effect that the purchase and holding of such Class B or Class R
Certificate are permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code (or comparable
provisions of any subsequent enactments), and will not subject the Trustee, the Company or
the Master Servicer to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master
Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the
Company and the Master Servicer with a certification to the effect set forth in paragraph
six of Exhibit 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 (each,
a "Plan"), or any Person (including, without limitation, an investment manager, a named
fiduciary or a trustee of any Plan) who is using "plan assets," within the meaning of the
U.S. Department of Labor regulation promulgated at 29 C.F.R. Section 2510.3-101, of any 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 any 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 any interest therein) that either
(a) such Transferee is not a Plan or 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 most recently amended by PTE
2002-41, 67 Fed. Reg. 54487 (August 22, 2002) (the "RFC Exemption"), and that it
understands that there are certain conditions to the availability of the RFC
Exemption including that such Certificate must be rated, at the time of purchase, not
lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch or Xxxxx'x or
(c) such Transferee is a Complying Insurance Company.
(iii) (A) If any Class M Certificate (or any interest therein) is acquired or
held by any Person that does not satisfy the conditions described in paragraph
(ii) above, then the last preceding Transferee that either (i) is not a Plan or a
Plan Investor, (ii) acquired such Certificate in compliance with the RFC Exemption,
or (iii) is a Complying Insurance Company shall be restored, to the extent permitted
by law, to all rights and obligations as Certificate Owner thereof retroactive to the
date of such Transfer of such Class M Certificate. The Trustee shall be under no
liability to any Person for making any payments due on such Certificate to such
preceding Transferee.
(B) Any purported Certificate Owner whose acquisition or holding of any Class M
Certificate (or any interest therein) was effected in violation of the
restrictions in this Section 5.02(e) shall indemnify and hold harmless the
Company, the Trustee, the Master Servicer, any Subservicer, each Underwriter
and the Trust Fund from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition or holding.
(f) (i) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to
have agreed to be bound by the following provisions and to have irrevocably authorized the
Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other
than such Person and to negotiate the terms of any mandatory sale under
clause (iii)(B) below and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring any
Ownership Interest in a Class R Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Class R
Certificate, the Trustee shall require delivery to it, and shall not register
the Transfer of any Class R Certificate until its receipt of, (I) an affidavit
and agreement (a "Transfer Affidavit and Agreement," in the form attached
hereto as Exhibit G-1) from the proposed Transferee, in form and substance
satisfactory to the Master Servicer, representing and warranting, among other
things, that it is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person who is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
a Class R Certificate, it will endeavor to remain a Permitted Transferee, and
that it has reviewed the provisions of this Section 5.02(f) and agrees to be
bound by them, and (II) a certificate, in the form attached hereto as Exhibit
G-2, from the Holder wishing to transfer the Class R Certificate, in form and
substance satisfactory to the Master Servicer, representing and warranting,
among other things, that no purpose of the proposed Transfer is to impede the
assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee under clause (B) above, if a Responsible Officer of the Trustee who
is assigned to this Agreement has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Class R Certificate and (y) not to transfer its Ownership Interest unless it
provides a certificate to the Trustee in the form attached hereto as Exhibit
G-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by
purchasing an Ownership Interest in such Certificate, agrees to give the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Class R Certificate, if it is, or is holding an Ownership Interest in a
Class R Certificate on behalf of, a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall
have received the Transfer Affidavit and Agreement, a certificate of the Holder
requesting such transfer in the form attached hereto as Exhibit G-2 and all of such
other documents as shall have been reasonably required by the Trustee as a condition
to such registration. Transfers of the Class R Certificates to Non-United States
Persons and Disqualified Organizations (as defined in Section 860E(e)(5) of the
Code) are prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a Class R
Certificate, then the last preceding Permitted Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof retroactive
to the date of registration of such Transfer of such Class R Certificate. If a
Non-United States Person shall become a holder of a Class R Certificate, then the
last preceding United States Person shall be restored, to the extent permitted by
law, to all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. If a transfer of a Class
R Certificate is disregarded pursuant to the provisions of Treasury Regulations
Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee
shall be restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of such Class
R Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Class R Certificate that is in fact not permitted by
this Section 5.02(f) or for making any payments due on such Certificate to the holder
thereof or for taking any other action with respect to such holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R Certificate in
violation of the restrictions in this Section 5.02(f) and to the extent that
the retroactive restoration of the rights of the Holder of such Class R
Certificate as described in clause (iii)(A) above shall be invalid, illegal or
unenforceable, then the Master Servicer shall have the right, without notice
to the holder or any prior holder of such Class R Certificate, to sell such
Class R Certificate to a purchaser selected by the Master Servicer on such
terms as the Master Servicer may choose. Such purported Transferee shall
promptly endorse and deliver each Class R Certificate in accordance with the
instructions of the Master Servicer. Such purchaser may be the Master Servicer
itself or any Affiliate of the Master Servicer. The proceeds of such sale,
net of the commissions (which may include commissions payable to the Master
Servicer or its Affiliates), expenses and taxes due, if any, will be remitted
by the Master Servicer to such purported Transferee. The terms and conditions
of any sale under this clause (iii)(B) shall be determined in the sole
discretion of the Master Servicer, and the Master Servicer shall not be liable
to any Person having an Ownership Interest in a Class R Certificate as a
result of its exercise of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make available, upon written
request from the Trustee, all information necessary to compute any tax imposed (A) as
a result of the Transfer of an Ownership Interest in a Class R Certificate to any
Person who is a Disqualified Organization, including the information regarding
"excess inclusions" of such Class R Certificates required to be provided to the
Internal Revenue Service and certain Persons as described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund, partnership,
trust, estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Class R Certificate having as among its record holders at any
time any Person who is a Disqualified Organization. Reasonable compensation for
providing such information may be required by the Master Servicer from such Person.
(v) The provisions of this Section 5.02(f) set forth prior to this clause (v) may be
modified, added to or eliminated, provided that there shall have been delivered to
the Trustee the following:
(A) written notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating
Agency to downgrade its then-current ratings, if any, of any Class of the
Senior, Class M or Class B Certificates below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date by
such Rating Agency; and
(B) subject to Section 10.01(f), an Officers' Certificate of the Master Servicer stating
that the Master Servicer has received an Opinion of Counsel, in form and
substance satisfactory to the Master Servicer, to the effect that such
modification, addition to or absence of such provisions will not cause any
portion of any REMIC formed under the Series Supplement to cease to qualify as
a REMIC and will not cause (x) any portion of any REMIC formed under the
Series Supplement to be subject to an entity-level tax caused by the Transfer
of any Class R Certificate to a Person that is a Disqualified Organization or
(y) a Certificateholder or another Person to be subject to a REMIC-related tax
caused by the Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
(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.
The Trustee shall cause each Paying Agent to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee that such Paying Agent
will hold all sums held by it for the payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. Any sums so held by such Paying Agent shall be held only in Eligible
Accounts to the extent such sums are not distributed to the Certificateholders on the date
of receipt by such Paying Agent.
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Company and the Master Servicer.
The Company and the Master Servicer shall each be liable in accordance herewith only
to the extent of the obligations specifically and respectively imposed upon and undertaken
by the Company and the Master Servicer herein. By way of illustration and not limitation,
the Company is not liable for the servicing and administration of the Mortgage Loans, nor is
it obligated by Section 7.01 or Section 10.01 to assume any obligations of the Master
Servicer or to appoint a designee to assume such obligations, nor is it liable for any other
obligation hereunder that it may, but is not obligated to, assume unless it elects to assume
such obligation in accordance herewith.
Section 6.02. Merger or Consolidation of the Company or the Master Servicer; Assignment of
Rights and Delegation of Duties by Master Servicer.
(a) The Company and the Master Servicer will each keep in full effect its existence,
rights and franchises as a corporation under the laws of the state of its incorporation, and
will each obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Any Person into which the Company or the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to which the
Company or the Master Servicer shall be a party, or any Person succeeding to the business of
the Company or the Master Servicer, shall be the successor of the Company or the Master
Servicer, as the case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to the Master
Servicer shall be qualified to service mortgage loans on behalf of Xxxxxx Xxx or Freddie
Mac; and provided further that each Rating Agency's ratings, if any, of the Senior, Class M
or Class B Certificates in effect immediately prior to such merger or consolidation will not
be qualified, reduced or withdrawn as a result thereof (as evidenced by a letter to such
effect from each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04 to the contrary,
the Master Servicer may assign its rights and delegate its duties and obligations under this
Agreement; provided that the Person accepting such assignment or delegation shall be a
Person which is qualified to service mortgage loans on behalf of Xxxxxx Xxx or Freddie Mac,
is reasonably satisfactory to the Trustee and the Company, is willing to service the
Mortgage Loans and executes and delivers to the Company and the Trustee an agreement, in
form and substance reasonably satisfactory to the Company and the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Master Servicer under this
Agreement; provided further that each Rating Agency's rating of the Classes of Certificates
that have been rated in effect immediately prior to such assignment and delegation will not
be qualified, reduced or withdrawn as a result of such assignment and delegation (as
evidenced by a letter to such effect from each Rating Agency). In the case of any such
assignment and delegation, the Master Servicer shall be released from its obligations under
this Agreement, except that the Master Servicer shall remain liable for all liabilities and
obligations incurred by it as Master Servicer hereunder prior to the satisfaction of the
conditions to such assignment and delegation set forth in the next preceding sentence. This
Section 6.02 shall not apply to any sale, transfer, pledge or assignment by Residential
Funding of the Call Rights.
Section 6.03. Limitation on Liability of the Company, the Master Servicer and Others.
Neither the Company, the Master Servicer nor any of the directors, officers,
employees or agents of the Company or the Master Servicer shall be under any liability to
the Trust Fund or the Certificateholders for any action taken or for refraining from the
taking of any action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Company, the Master Servicer or
any such Person against any breach of warranties or representations or covenants made herein
or any liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Company, the Master Servicer and any director,
officer, employee or agent of the Company or the Master Servicer may rely in good faith on
any document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Company, the Master Servicer and any
director, officer, employee or agent of the Company or the Master Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense related to any specific Mortgage Loan or Mortgage
Loans (except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties hereunder or by
reason of reckless disregard of obligations and duties hereunder.
Neither the Company nor the Master Servicer shall be under any obligation to appear
in, prosecute or defend any legal or administrative action, proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement and which
in its opinion may involve it in any expense or liability; provided, however, that the
Company or the Master Servicer may in its discretion undertake any such action, proceeding,
hearing or examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, proceeding, hearing
or examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Company and the Master Servicer shall be entitled to
be reimbursed therefor out of amounts attributable to the Mortgage Loans on deposit in the
Custodial Account as provided by Section 3.10 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated in reduction
of the Accrued Certificate Interest on each Class entitled thereto in the same manner as if
such expenses and costs constituted a Prepayment Interest Shortfall.
Section 6.04. Company and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Company nor the Master
Servicer shall resign from its respective obligations and duties hereby imposed on it except
upon determination that its duties hereunder are no longer permissible under applicable
law. Any such determination permitting the resignation of the Company or the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation by the Master Servicer shall become effective until the
Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities
and obligations in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
Event of Default, wherever used herein, means any one of the following events
(whatever reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be distributed to the
Holders of Certificates of any Class any distribution required to be made under the
terms of the Certificates of such Class and this Agreement and, in either case, such
failure shall continue unremedied for a period of 5 days after the date upon which
written notice of such failure, requiring such failure to be remedied, shall have
been given to the Master Servicer by the Trustee or the Company or to the Master
Servicer, the Company and the Trustee by the Holders of Certificates of such Class
evidencing Percentage Interests aggregating not less than 25%; or
(ii) the Master Servicer shall fail to observe or perform in any material respect any
other of the covenants or agreements on the part of the Master Servicer contained in
the Certificates of any Class or in this Agreement and such failure shall continue
unremedied for a period of 30 days (except that such number of days shall be 15 in
the case of a failure to pay the premium for any Required Insurance Policy) after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Trustee or the Company, or to the
Master Servicer, the Company and the Trustee by the Holders of Certificates of any
Class evidencing, in the case of any such Class, Percentage Interests aggregating not
less than 25%; or
(iii) a decree or order of a court or agency or supervisory authority having jurisdiction
in the premises in an involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law or appointing a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60 days; or
(iv) the Master Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of, or relating to, the Master Servicer or of, or
relating to, all or substantially all of the property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of, or commence a voluntary
case under, any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its obligations;
or
(vi) the Master Servicer shall notify the Trustee pursuant to Section 4.04(b) that it is
unable to deposit in the Certificate Account an amount equal to the Advance.
If an Event of Default described in clauses (i)-(v) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall not have been
remedied, either the Company or the Trustee may, and at the direction of Holders of
Certificates entitled to at least 51% of the Voting Rights, the Trustee shall, by notice in
writing to the Master Servicer (and to the Company if given by the Trustee or to the Trustee
if given by the Company), terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
its rights as a Certificateholder hereunder. If an Event of Default described in
clause (vi) hereof shall occur, the Trustee shall, by notice to the Master Servicer and the
Company, immediately terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
its rights as a Certificateholder hereunder as provided in Section 4.04(b). On or after the
receipt by the Master Servicer of such written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates (other than as a
Holder thereof) or the Mortgage Loans or otherwise, shall subject to Section 7.02 pass to
and be vested in the Trustee or the Trustee's designee appointed pursuant to Section 7.02;
and, without limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer agrees to cooperate with the Trustee in effecting the
termination of the Master Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to the Trustee or its designee for administration by it of
all cash amounts which shall at the time be credited to the Custodial Account or the
Certificate Account or thereafter be received with respect to the Mortgage Loans. No such
termination shall release the Master Servicer for any liability that it would otherwise have
hereunder for any act or omission prior to the effective time of such termination.
Notwithstanding any termination of the activities of Residential Funding in its
capacity as Master Servicer hereunder, Residential Funding shall be entitled to receive, out
of any late collection of a Monthly Payment on a Mortgage Loan which was due prior to the
notice terminating Residential Funding's rights and obligations as Master Servicer hereunder
and received after such notice, that portion to which Residential Funding would have been
entitled pursuant to Sections 3.10(a)(ii), (vi) and (vii) as well as its Servicing Fee in
respect thereof, and any other amounts payable to Residential Funding hereunder the
entitlement to which arose prior to the termination of its activities hereunder. Upon the
termination of Residential Funding as Master Servicer hereunder the Company shall deliver to
the Trustee a copy of the Program Guide.
Section 7.02. Trustee or Company to Act; Appointment of Successor.
(a) On and after the time the Master Servicer receives a notice of termination pursuant
to Section 7.01 or resigns in accordance with Section 6.04, the Trustee or, upon notice to
the Company and with the Company's consent (which shall not be unreasonably withheld) a
designee (which meets the standards set forth below) of the Trustee, shall be the successor
in all respects to the Master Servicer in its capacity as servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master Servicer
(except for the responsibilities, duties and liabilities contained in Sections 2.02 and
2.03(a), excluding the duty to notify related Subservicers or Sellers as set forth in such
Sections, and its obligations to deposit amounts in respect of losses incurred prior to such
notice or termination on the investment of funds in the Custodial Account or the Certificate
Account pursuant to Sections 3.07(c) and 4.01(b) by the terms and provisions hereof);
provided, however, that any failure to perform such duties or responsibilities caused by the
preceding Master Servicer's failure to provide information required by Section 4.04 shall
not be considered a default by the Trustee hereunder. As compensation therefor, the Trustee
shall be entitled to all funds relating to the Mortgage Loans which the Master Servicer
would have been entitled to charge to the Custodial Account or the Certificate Account if
the Master Servicer had continued to act hereunder and, in addition, shall be entitled to
the income from any Permitted Investments made with amounts attributable to the Mortgage
Loans held in the Custodial Account or the Certificate Account. If the Trustee has become
the successor to the Master Servicer in accordance with Section 6.04 or Section 7.01, then
notwithstanding the above, the Trustee may, if it shall be unwilling to so act, or shall, if
it is unable to so act, appoint, or petition a court of competent jurisdiction to appoint,
any established housing and home finance institution, which is also a Xxxxxx Xxx- or Freddie
Mac-approved mortgage servicing institution, having a net worth of not less than $10,000,000
as the successor to the Master Servicer hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of the Master Servicer hereunder. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee shall become
successor to the Master Servicer and shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in excess of
that permitted the initial Master Servicer hereunder. The Company, the Trustee, the
Custodian and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. The Servicing Fee for any successor
Master Servicer appointed pursuant to this Section 7.02 will be lowered with respect to
those Mortgage Loans, if any, where the Subservicing Fee accrues at a rate of less than
0.20% per annum in the event that the successor Master Servicer is not servicing such
Mortgage Loans directly and it is necessary to raise the related Subservicing Fee to a rate
of 0.20% per annum in order to hire a Subservicer with respect to such Mortgage Loans. The
Master Servicer shall pay the reasonable expenses of the Trustee in connection with any
servicing transition hereunder.
(b) In connection with the termination or resignation of the Master Servicer hereunder,
either (i) the successor Master Servicer, including the Trustee if the Trustee is acting as
successor Master Servicer, shall represent and warrant that it is a member of MERS in good
standing and shall agree to comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the Mortgage Loans that are registered with MERS,
in which case the predecessor Master Servicer shall cooperate with the successor Master
Servicer in causing MERS to revise its records to reflect the transfer of servicing to the
successor Master Servicer as necessary under MERS' rules and regulations, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer in causing
MERS to execute and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Trustee and to execute and deliver such other notices, documents
and other instruments as may be necessary or desirable to effect a transfer of such Mortgage
Loan or servicing of such Mortgage Loan on the MERS(R)System to the successor Master
Servicer. The predecessor Master Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The predecessor Master Servicer shall bear
any and all fees of MERS, costs of preparing any assignments of Mortgage, and fees and costs
of filing any assignments of Mortgage that may be required under this subSection (b). The
successor Master Servicer shall cause such assignment to be delivered to the Trustee or the
Custodian promptly upon receipt of the original with evidence of recording thereon or a copy
certified by the public recording office in which such assignment was recorded.
Section 7.03. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the Master Servicer, the
Trustee shall give prompt written notice thereof to the Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Within 60 days after the occurrence of any Event of Default, the Trustee shall
transmit by mail to all Holders of Certificates notice of each such Event of Default
hereunder known to the Trustee, unless such Event of Default shall have been cured or waived.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights affected by a default or
Event of Default hereunder may waive such default or Event of Default; provided, however,
that (a) a default or Event of Default under clause (i) of Section 7.01 may be waived only
by all of the Holders of Certificates affected by such default or Event of Default and
(b) no waiver pursuant to this Section 7.04 shall affect the Holders of Certificates in the
manner set forth in Section 11.01(b)(i) or (ii). Upon any such waiver of a default or Event
of Default by the Holders representing the requisite percentage of Voting Rights affected by
such default or Event of Default, such default or Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other default or Event of Default or impair any right consequent
thereon except to the extent expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Agreement, and use the same degree of care and
skill in their exercise as a prudent investor would exercise or use under the circumstances
in the conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which are
specifically required to be furnished pursuant to any provision of this Agreement, shall
examine them to determine whether they conform to the requirements of this Agreement. The
Trustee shall notify the Certificateholders of any such documents which do not materially
conform to the requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
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
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;
(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 provided that the
Trustee shall remain liable for any acts of such agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated thereunder,
each Holder of a Class R Certificate hereby irrevocably appoints and authorizes the
Trustee to be its attorney-in-fact for purposes of signing any Tax Returns required
to be filed on behalf of the Trust Fund. The Trustee shall sign on behalf of the
Trust Fund and deliver to the Master Servicer in a timely manner any Tax Returns
prepared by or on behalf of the Master Servicer that the Trustee is required to sign
as determined by the Master Servicer pursuant to applicable federal, state or local
tax laws, provided that the Master Servicer shall indemnify the Trustee for signing
any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, 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.
(b) The Master Servicer agrees to indemnify the Trustee for, and to hold the Trustee
harmless against, any loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of, or in connection with, the acceptance and
administration of the Trust Fund, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against any claim in connection with the
exercise or performance of any of its powers or duties under this Agreement, and the
Custodial Agreement and the Master Servicer further agrees to indemnify the Trustee for, and
to hold the Trustee harmless against, any loss, liability or expense arising out of, or in
connection with, the provisions set forth in Section 2.01(a) hereof, including, without
limitation, all costs, liabilities and expenses (including reasonable legal fees and
expenses) of investigating and defending itself against any claim, action or proceeding,
pending or threatened, relating to the provisions of such paragraph, provided that:
(i) with respect to any such claim, the Trustee shall have given the Master Servicer
written notice thereof promptly after the Trustee shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Master Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master Servicer shall
not be liable for settlement of any claim by the Trustee entered into without the
prior consent of the Master Servicer which consent shall not be unreasonably
withheld.
No termination of this Agreement shall affect the obligations created by this
Section 8.05(b) of the Master Servicer to indemnify the Trustee under the conditions and to
the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the Master Servicer in
this Section 8.05(b) shall not pertain to any loss, liability or expense of the Trustee,
including the costs and expenses of defending itself against any claim, incurred in
connection with any actions taken by the Trustee at the direction of the Certificateholders
pursuant to the terms of this Agreement.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a national banking
association having its principal office in a state and city acceptable to the Company and
organized and doing business under the laws of such state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the combined
capital and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
Section 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Company and the Master Servicer. 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), other than any failure to comply with the provisions of Article XII, in
which case no notice or grace period shall be applicable) after the date on which written
notice of such failure, requiring that the same be remedied, shall have been given to the
Trustee by the Company, then the Company may remove the Trustee and appoint a successor
trustee by written instrument delivered as provided in the preceding sentence. In connection
with the appointment of a successor trustee pursuant to the preceding sentence, the Company
shall, on or before the date on which any such appointment becomes effective, obtain from
each Rating Agency written confirmation that the appointment of any such successor trustee
will not result in the reduction of the ratings on any class of the Certificates below the
lesser of the then current or original ratings on such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting Rights may at any
time remove the Trustee and appoint a successor trustee by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the Company, one
complete set to the Trustee so removed and one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.08.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee shall become effective
and such successor trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held by a
Custodian, which shall become the agent of any successor trustee hereunder), and the
Company, the Master Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights, powers, duties
and obligations.
(b) No successor trustee shall accept appointment as provided in this Section unless at
the time of such acceptance such successor trustee shall be eligible under the provisions of
Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in this Section,
the Company shall mail notice of the succession of such trustee hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register. If the Company fails
to mail such notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the Company.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee may be merged
or converted or with which it may be consolidated or any corporation or national banking
association resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or national banking association succeeding to the
business of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the provisions of
Section 8.06, without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. The Trustee
shall mail notice of any such merger or consolidation to the Certificateholders at their
address as shown in the Certificate Register.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund or property
securing the same may at the time be located, the Master Servicer and the Trustee acting
jointly shall have the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust Fund, or any
part thereof, and, subject to the other provisions of this Section 8.10, such powers,
duties, obligations, rights and trusts as the Master Servicer and the Trustee may consider
necessary or desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, or in case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee pursuant to this
Section 8.10 all rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the Trustee, and
such separate trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such separate trustee
or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively as if given
to each of them. Every instrument appointing any separate trustee or co-trustee shall refer
to this Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
Section 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer and the Company, or shall,
at the direction of the Company and the Master Servicer, appoint one or more Custodians who
are not Affiliates of the Company, the Master Servicer or any Seller to hold all or a
portion of the Mortgage Files as agent for the Trustee, by entering into a Custodial
Agreement. Subject to Article VIII, the Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository institution
subject to supervision by federal or state authority, shall have a combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File. Each Custodial Agreement may be amended only as provided
in Section 11.01. The Trustee shall notify the Certificateholders of the appointment of any
Custodian (other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11.
Section 8.12. Appointment of Office or Agency.
The Trustee will maintain an office or agency at the address designated in
Section 11.05 of the Series Supplement where Certificates may be surrendered for registration
of transfer or exchange. The Trustee will maintain an office at the address stated in
Section 11.05 of the Series Supplement where notices and demands to or upon the Trustee in
respect of this Agreement may be served.
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
Section 9.01. Optional Purchase by the Master Servicer of All Certificates; Termination Upon
Purchase by the Master Servicer or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and responsibilities of the
Company, the Master Servicer and the Trustee created hereby in respect of the Certificates
(other than the obligation of the Trustee to make certain payments after the Final
Distribution Date to Certificateholders and the obligation of the Company to send certain
notices as hereinafter set forth) shall terminate upon the last action required to be taken
by the Trustee on the Final Distribution Date pursuant to this Article IX following the
earlier of:
(i) the later of the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage
Loan, or
(ii) the purchase by 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 on the day of
repurchase plus accrued interest thereon at the Mortgage Rate (or Modified Mortgage
Rate in the case of any Modified Mortgage Loan) from the Due Date to which interest
was last paid by the Mortgagor to, but not including, the first day of the month in
which such repurchase price is distributed, provided, however, that in no event shall
the trust created hereby continue beyond (i) the Maturity Date or (ii) 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 the Master Servicer pursuant to Section 4 of the Assignment Agreement in
respect of any liability, penalty or expense that resulted from a breach of the
representation and warranty set forth in clause (xii) or (xxxviii) of such
Section 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. If such right is exercised by the Master Servicer, the Master Servicer
shall be entitled to reimbursement for the full amount of any unreimbursed Advances
theretofore made by it with respect to the Mortgage Loans pursuant to Section 3.10. In
addition, the Master Servicer shall provide to the Trustee the certification required by
Section 3.15 and the Trustee and any Custodian shall, promptly following payment of the
purchase price, release to 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.
(b) The Master Servicer shall give the Trustee not less than 40 days' prior notice of the
Distribution Date on which the Master Servicer anticipates that the final distribution will
be made to Certificateholders (whether as a result of the exercise by Residential Funding of
its right to purchase the assets of the Trust Fund or otherwise) or on which the Master
Servicer anticipates that the Certificates will be purchased (as a result of the exercise by
Residential Funding of its right to purchase the outstanding Certificates). Notice of any
termination, specifying the anticipated Final Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may surrender
their Certificates to the Trustee (if so required by the terms hereof) for payment of the
final distribution and cancellation or notice of any purchase of the outstanding
Certificates shall be given promptly by the Master Servicer (if Residential Funding is
exercising its right to purchase the assets of the Trust Fund or to purchase the outstanding
Certificates), or by the Trustee (in any other case) by letter. Such notice shall be
prepared by the Master Servicer (in the case of Residential Funding exercising its right to
purchase the assets of the Trust Fund or to purchase the outstanding Certificates) or the
Trustee (in any other case) and mailed by the Trustee to the Certificateholders not earlier
than the 15th day and not later than the 25th day of the month next preceding the month of
such final distribution specifying:
(i) the anticipated Final Distribution Date upon which final payment of the Certificates
is anticipated to be made upon presentation and surrender of Certificates at the
office or agency of the Trustee therein designated where required pursuant to this
Agreement or, in the case of the purchase by the Master Servicer of the outstanding
Certificates, the Distribution Date on which such purchase is to be made,
(ii) the amount of any such final payment, or in the case of the purchase of the
outstanding Certificates, the purchase price, in either case, if known, and
(iii) that the Record Date otherwise applicable to such Distribution Date is not applicable
and that payment will be made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified.
If the Master Servicer is obligated to give notice to Certificateholders as
aforesaid, it shall give such notice to the Certificate Registrar at the time such notice is
given to Certificateholders and, if Residential Funding is exercising its rights to purchase
the outstanding Certificates, Residential Funding shall give such notice to each Rating
Agency at the time such notice is given to Certificateholders. As a result of the exercise
by Residential Funding of its right to purchase the assets of the Trust Fund or the
outstanding Certificates, Residential Funding shall deposit in the Custodial Account before
the Final Distribution Date in immediately available funds an amount equal to the purchase
price for the assets of the Trust Fund, computed as provided above.
(c) Upon presentation and surrender of the Certificates by the Certificateholders thereof
in connection with the exercise by Residential Funding of its right to purchase the
Certificates, the Trustee shall distribute to the Certificateholders on the Final
Distribution Date the respective amounts determined in accordance with Section 4.02.
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.
(d) If any Certificateholders shall not surrender their Certificates for final payment
and cancellation on or before the Final Distribution Date (if so required by the terms
hereof), the Trustee shall on such date cause all funds in the Certificate Account not
distributed in final distribution to Certificateholders to be withdrawn therefrom and
credited to the remaining Certificateholders by depositing such funds in a separate escrow
account for the benefit of such Certificateholders, and the Master Servicer (if Residential
Funding exercised its right to purchase the assets of the Trust Fund), or the Trustee (in
any other case) shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution with
respect thereto. If within six months after the second notice any Certificate shall not have
been surrendered for cancellation, the Trustee shall take appropriate steps as directed by
the Master Servicer to contact the remaining Certificateholders concerning surrender of
their Certificates. The costs and expenses of maintaining the escrow account and of
contacting Certificateholders shall be paid out of the assets which remain in the escrow
account. If within nine months after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall pay to the Master Servicer all amounts
distributable to the holders thereof and the Master Servicer shall thereafter hold such
amounts until distributed to such Holders. No interest shall accrue or be payable to any
Certificateholder on any amount held in the escrow account or by the Master Servicer as a
result of such Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
(e) If any Certificateholders do not surrender their Certificates on or before the
Distribution Date on which a purchase of the outstanding Certificates is to be made, the
Trustee shall on such date cause all funds in the Custodial Account deposited therein by
Residential Funding pursuant to Section 9.01(b) to be withdrawn therefrom and deposited in a
separate escrow account for the benefit of such Certificateholders, and the Master Servicer
shall give a second written notice to such Certificateholders to surrender their
Certificates for payment of the purchase price therefor. If within six months after the
second notice any Certificate shall not have been surrendered for cancellation, the Trustee
shall take appropriate steps as directed by the Master Servicer to contact the Holders of
such Certificates concerning surrender of their Certificates. The costs and expenses of
maintaining the escrow account and of contacting Certificateholders shall be paid out of the
assets which remain in the escrow account. If within nine months after the second notice
any Certificates shall not have been surrendered for cancellation in accordance with this
Section 9.01, the Trustee shall pay to the Master Servicer all amounts distributable to the
Holders thereof and the Master Servicer shall thereafter hold such amounts until distributed
to such Holders. No interest shall accrue or be payable to any Certificateholder on any
amount held in the escrow account or by the Master Servicer as a result of such
Certificateholder's failure to surrender its Certificate(s) for payment in accordance with
this Section 9.01. Any Certificate that is not surrendered on the Distribution Date on which
a purchase pursuant to this Section 9.01 occurs as provided above will be deemed to have
been purchased and the Holder as of such date will have no rights with respect thereto
except to receive the purchase price therefor minus any costs and expenses associated with
such escrow account and notices allocated thereto.
(f) All rights of Residential Funding to purchase the assets of the Trust Fund, or to
purchase specified classes of Certificates, as set forth in Section 9.01(a) are referred to
in this Agreement as the "Call Rights". Notwithstanding any other provision of this
Agreement, Residential Funding shall have the right to sell, transfer, pledge or otherwise
assign the Call Rights at any time to any Person. Upon written notice by Residential
Funding to the Trustee and the Master Servicer of any such assignment of the Call Rights to
any assignee, the Trustee and the Master Servicer shall be obligated to recognize such
assignee as the holder of the Call Rights. Such entity, if not Residential Funding or an
affiliate, shall be deemed to represent, at the time of such sale, transfer, pledge or other
assignment, that one of the following will be, and at the time the Call Right is exercised
is, true and correct: (i) the exercise of such Call Right shall not result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (including by
reason of U.S. Department of Labor ("DOL") Prohibited Transaction Class Exemption
("PTCE") 75-1 (Part I), 84-14, 90-1, 91-38, 95-60 or 96-23 or other applicable exemption) or
(ii) such entity is (A) not a party in interest under Section 3(14) of ERISA or a
disqualified person under Section 4975(e)(2) of the Code with respect to any employee
benefit plan subject to Section 406 of ERISA or any plan subject to Section 4975 of the Code
(other than an employee benefit plan or plan sponsored or maintained by the entity, provided
that no assets of such employee benefit plan or plan are invested or deemed to be invested
in the Certificates) and (B) not a "benefit plan investor" as described in DOL regulation
Section 2510.3-101(f)(2). If any such assignee of the Call Right is unable to exercise such
Call Right by reason of the preceding sentence, then the Call Right shall revert to the
immediately preceding assignor of such Call Right subject to the rights of any secured party
therein.
Section 9.02. Additional Termination Requirements.
(a) Each REMIC that comprises the Trust Fund shall be terminated in accordance with the
following additional requirements, unless (subject to Section 10.01(f)) the Trustee and the
Master Servicer have received an Opinion of Counsel (which Opinion of Counsel shall not be
an expense of the Trustee) to the effect that the failure of each such REMIC to comply with
the requirements of this Section 9.02 will not (i) result in the imposition on the Trust of
taxes on "prohibited transactions," as described in Section 860F of the Code, or (ii) cause
any such REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period for each such REMIC
and specify the first day of such period in a statement attached to the Trust Fund's
final Tax Return pursuant to Treasury regulations Section 1.860F-1. The Master
Servicer also shall satisfy all of the requirements of a qualified liquidation for a
REMIC under Section 860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the commencement of such 90-day
liquidation period and, at or prior to the time of making of the final payment on the
Certificates, the Trustee shall sell or otherwise dispose of all of the remaining
assets of the Trust Fund in accordance with the terms hereof; and
(iii) If Residential Funding or the Company is exercising its right to purchase the assets
of the Trust Fund, Residential Funding shall, during the 90-day liquidation period
and at or prior to the Final Distribution Date, purchase all of the assets of the
Trust Fund for cash.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably approves and appoints
the Master Servicer as its attorney-in-fact to adopt a plan of complete liquidation for each
REMIC at the expense of the Trust Fund in accordance with the terms and conditions of this
Agreement.
Section 9.03. Termination of Multiple REMICs.
If the REMIC Administrator makes two or more separate REMIC elections, the applicable
REMIC shall be terminated on the earlier of the Final Distribution Date and the date on
which it is deemed to receive the last deemed distributions on the related Uncertificated
REMIC Regular Interests and the last distribution due on the Certificates is made.
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.
(e) The REMIC Administrator shall provide (i) to any Transferor of a Class R Certificate
such information as is necessary for the application of any tax relating to the transfer of
a Class R Certificate to any Person who is not a Permitted Transferee, (ii) to the Trustee,
and the Trustee shall forward to the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone number of the
person who will serve as the representative of each REMIC.
(f) The Master Servicer and the REMIC Administrator shall take such actions and shall
cause each REMIC created hereunder to take such actions as are reasonably within the Master
Servicer's or the REMIC Administrator's control and the scope of its duties more
specifically set forth herein as shall be necessary or desirable to maintain the status of
each REMIC as a REMIC under the REMIC Provisions (and the Trustee shall assist the Master
Servicer and the REMIC Administrator, to the extent reasonably requested by the Master
Servicer and the REMIC Administrator to do so). The Master Servicer and the REMIC
Administrator shall not knowingly or intentionally take any action, cause the Trust Fund to
take any action or fail to take (or fail to cause to be taken) any action reasonably within
their respective control that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any portion of any REMIC formed under the
Series Supplement as a REMIC or (ii) result in the imposition of a tax upon any such REMIC
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code) (either such event, in the absence of an Opinion of Counsel or
the indemnification referred to in this sentence, an "Adverse REMIC Event") unless the
Master Servicer or the REMIC Administrator, as applicable, has received an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such party fails to
pay such expense, and the Master Servicer or the REMIC Administrator, as applicable,
determines that taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the expense of the
Master Servicer, the REMIC Administrator or the Trustee) to the effect that the contemplated
action will not, with respect to each REMIC created hereunder, endanger such status or,
unless the Master Servicer, the REMIC Administrator or both, as applicable, determine in its
or their sole discretion to indemnify the Trust Fund against the imposition of such a tax,
result in the imposition of such a tax. Wherever in this Agreement a contemplated action may
not be taken because the timing of such action might result in the imposition of a tax on
the Trust Fund, or may only be taken pursuant to an Opinion of Counsel that such action
would not impose a tax on the Trust Fund, such action may nonetheless be taken provided that
the indemnity given in the preceding sentence with respect to any taxes that might be
imposed on the Trust Fund has been given and that all other preconditions to the taking of
such action have been satisfied. The Trustee shall not take or fail to take any action
(whether or not authorized hereunder) as to which the Master Servicer or the REMIC
Administrator, as applicable, has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to such action.
In addition, prior to taking any action with respect to any REMIC created hereunder or any
related assets thereof, or causing any such REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, the Trustee 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.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the "latest possible maturity date" by which the Certificate Principal Balance of each Class
of Certificates (other than the Interest Only Certificates) representing a regular interest
in the applicable REMIC and the Uncertificated Principal Balance of each Uncertificated
REMIC Regular Interest (other than each Uncertificated REMIC Regular Interest represented by
a Class A-V Certificate, if any) and the rights to the Interest Only Certificates and
Uncertificated REMIC Regular Interest represented by any Class A-V Certificate would be
reduced to zero is the Maturity Date for each such Certificate and Interest.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall prepare and file
with the Internal Revenue Service Form 8811, "Information Return for Real Estate Mortgage
Investment Conduits (REMIC) and Issuers of Collateralized Debt Obligations" for each REMIC
created hereunder.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of or substitute for
any of the Mortgage Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of any REMIC
created hereunder, (iii) the termination of any such REMIC pursuant to Article IX of this
Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) nor acquire any assets for any such REMIC, nor sell or dispose of any investments
in the Custodial Account or the Certificate Account for gain nor accept any contributions to
any such REMIC after the Closing Date unless it has received an Opinion of Counsel that such
sale, disposition, substitution or acquisition will not (a) affect adversely the status of
such REMIC as a REMIC or (b) unless the Master Servicer has determined in its sole
discretion to indemnify the Trust Fund against such tax, cause such REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC Provisions.
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company, the REMIC Administrator
and the Master Servicer for any taxes and costs including, without limitation, any
reasonable attorneys fees imposed on or incurred by the Trust Fund, the Company or the
Master Servicer, as a result of a breach of the Trustee's covenants set forth in Article
VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the Company, the Master
Servicer and the Trustee for any taxes and costs (including, without limitation, any
reasonable attorneys' fees) imposed on or incurred by the Trust Fund, the Company, the
Master Servicer or the Trustee, as a result of a breach of the REMIC Administrator's
covenants set forth in this Article X with respect to compliance with the REMIC Provisions,
including without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the REMIC Administrator that contain errors or omissions; provided,
however, that such liability will not be imposed to the extent such breach is a result of an
error or omission in information provided to the REMIC Administrator by the Master Servicer
in which case Section 10.02(c) will apply.
(c) The Master Servicer agrees to indemnify the Trust Fund, the Company, the REMIC
Administrator and the Trustee for any taxes and costs (including, without limitation, any
reasonable attorneys' fees) imposed on or incurred by the Trust Fund, the Company, the REMIC
Administrator or the Trustee, as a result of a breach of the Master Servicer's covenants set
forth in this Article X or in Article III with respect to compliance with the REMIC
Provisions, including without limitation, any penalties arising from the Trustee's execution
of Tax Returns prepared by the Master Servicer that contain errors or omissions.
Section 10.03. Designation of REMIC(s).
As provided in Section 10.03 of the Series Supplement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to time by the
Company, the Master Servicer and the Trustee, without the consent of any of the
Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be inconsistent
with any other provisions herein or therein or to correct any error,
(iii) to modify, eliminate or add to any of its provisions to such extent as shall be
necessary or desirable to maintain the qualification of the Trust Fund as a REMIC at
all times that any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that would be a claim
against the Trust Fund, provided that the Trustee has received an Opinion of Counsel
to the effect that (A) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax and
(B) such action will not adversely affect in any material respect the interests of
any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Custodial Account or the
Certificate Account or to change the name in which the Custodial Account is
maintained, provided that (A) the Certificate Account Deposit Date shall in no event
be later than the related Distribution Date, (B) such change shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder and (C) such change shall not result in a reduction of the
rating assigned to any Class of Certificates below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date, as
evidenced by a letter from each Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(f) or any other
provision hereof restricting transfer of the Class R Certificates, by virtue of their
being the "residual interests" in a REMIC, provided that (A) such change shall not
result in reduction of the rating assigned to any such Class of Certificates below
the lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date, as evidenced by a letter from each Rating Agency to such effect,
and (B) such change shall not (subject to Section 10.01(f)), as evidenced by an
Opinion of Counsel (at the expense of the party seeking so to modify, eliminate or
add such provisions), cause any REMIC created hereunder or any of the
Certificateholders (other than the transferor) to be subject to a federal tax caused
by a transfer to a Person that is not a Permitted Transferee,
(vi) to make any other provisions with respect to matters or questions arising under this
Agreement or such Custodial Agreement which shall not be materially inconsistent with
the provisions of this Agreement, provided that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder, or
(vii) to amend any provision herein or therein that is not material to any of the
Certificateholders.
(b) This Agreement or any Custodial Agreement may also be amended from time to time by
the Company, the Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates with a Certificate Principal Balance greater than zero affected
thereby for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or such Custodial Agreement or of modifying in any
manner the rights of the Holders of Certificates of such Class; provided, however, that no
such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments which are
required to be distributed on any Certificate without the consent of the Holder of
such Certificate,
(ii) reduce the aforesaid percentage of Certificates of any Class the Holders of which are
required to consent to any such amendment, in any such case without the consent of
the Holders of all Certificates of such Class then outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee shall not
consent to any amendment to this Agreement unless it shall have first received an Opinion of
Counsel (subject to Section 10.01(f) and at the expense of the party seeking such
amendment) to the effect that such amendment or the exercise of any power granted to the
Master Servicer, the Company or the Trustee in accordance with such amendment is permitted
hereunder and will not result in the imposition of a federal tax on the Trust Fund or cause
any REMIC created under the Series Supplement to fail to qualify as a REMIC at any time that
any Certificate is outstanding.
(d) Promptly after the execution of any such amendment the Trustee shall furnish written
notification of the substance of such amendment to the Custodian and each Certificateholder.
It shall not be necessary for the consent of Certificateholders under this Section 11.01 to
approve the particular form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(e) The Company shall have the option, in its sole discretion, to obtain and deliver to
the Trustee any corporate guaranty, payment obligation, irrevocable letter of credit, surety
bond, insurance policy or similar instrument or a reserve fund, or any combination of the
foregoing, for the purpose of protecting the Holders of the Class B Certificates against any
or all Realized Losses or other shortfalls. Any such instrument or fund shall be held by the
Trustee for the benefit of the Class B Certificateholders, but shall not be and shall not be
deemed to be under any circumstances included in the Trust Fund. To the extent that any
such instrument or fund constitutes a reserve fund for federal income tax purposes, (i) any
reserve fund so established shall be an outside reserve fund and not an asset of the Trust
Fund, (ii) any such reserve fund shall be owned by the Company, and (iii) amounts
transferred by the Trust Fund to any such reserve fund shall be treated as amounts
distributed by the Trust Fund to the Company or any successor, all within the meaning of
Treasury Regulations Section 1.860G-2(h) as it reads as of the Cut-off Date. In connection
with the provision of any such instrument or fund, this Agreement and any provision hereof
may be modified, added to, deleted or otherwise amended in any manner that is related or
incidental to such instrument or fund or the establishment or administration thereof, such
amendment to be made by written instrument executed or consented to by the Company but
without the consent of any Certificateholder and without the consent of the Master Servicer
or the Trustee being required unless any such amendment would impose any additional
obligation on, or otherwise adversely affect the interests of the Senior Certificateholders,
the Class M Certificateholders, the Master Servicer or the Trustee, as applicable; provided
that the Company obtains (subject to Section 10.01(f)) an Opinion of Counsel (which need not
be an opinion of Independent counsel) to the effect that any such amendment will not cause
(a) any federal tax to be imposed on the Trust Fund, including without limitation, any
federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code and (b) any REMIC
created hereunder to fail to qualify as a REMIC at any time that any Certificate is
outstanding. In the event that the Company elects to provide such coverage in the form of a
limited guaranty provided by General Motors Acceptance Corporation, the Company may elect
that the text of such amendment to this Agreement shall be substantially in the form
attached hereto as Exhibit K (in which case Residential Funding's Subordinate Certificate
Loss Obligation as described in such exhibit shall be established by Residential Funding's
consent to such amendment) and that the limited guaranty shall be executed in the form
attached hereto as Exhibit K, with such changes as the Company shall deem to be appropriate;
it being understood that the Trustee has reviewed and approved the content of such forms and
that the Trustee's consent or approval to the use thereof is not required.
Section 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to recordation
in all appropriate public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere, such
recordation to be effected by the Master Servicer and at its expense on direction by the
Trustee (pursuant to the request of Holders of Certificates entitled to at least 25% of the
Voting Rights), but only upon direction accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as herein provided
and for other purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
Section 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust Fund, nor otherwise affect the rights, obligations and
liabilities of any of the parties hereto.
(b) No Certificateholder shall have any right to vote (except as expressly provided
herein) or in any manner otherwise control the operation and management of the Trust Fund,
or the obligations of the parties hereto, nor shall anything herein set forth, or contained
in the terms of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association; nor shall any Certificateholder
be under any liability to any third person by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Agreement, unless such Holder previously shall have given to the
Trustee a written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates of any Class evidencing in the
aggregate not less than 25% of the related Percentage Interests of such Class, shall have
made written request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such action, suit
or proceeding it being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no one or more
Holders of Certificates of any Class shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of the Holders
of any other of such Certificates of such Class or any other Class, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any right under
this Agreement, except in the manner herein provided and for the common benefit of
Certificateholders of such Class or all Classes, as the case may be. For the protection and
enforcement of the provisions of this Section 11.03, each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 11.04. Governing Law.
This agreement and the Certificates shall be governed by and construed in accordance
with the laws of the State of New York and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 11.05. Notices.
As provided in Section 11.05 of the Series Supplement.
Section 11.06. Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, shall (i) notify each
Rating Agency and the Subservicer at such time as it is otherwise required pursuant to this
Agreement to give notice of the occurrence of any of the events described in clause (a),
(b), (c), (d), (g), (h), (i) or (j) below or (ii) provide a copy to each Rating Agency and
Subservicer at such time as otherwise required to be delivered pursuant to this Agreement of
any of the statements described in clauses (e) and (f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) the termination or appointment of a successor Master Servicer or Trustee or a change
in the majority ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket fidelity bond and the
errors and omissions insurance policy required by Section 3.12 or the cancellation or
modification of coverage under any such instrument,
(e) the statement required to be delivered to the Holders of each Class of Certificates
pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18 and 3.19,
(g) a change in the location of the Custodial Account or the Certificate Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of any Class of
Certificates resulting from the failure by the Master Servicer to make an Advance pursuant
to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events described in
clauses (d), (g) or (h) above, the Master Servicer shall provide prompt written notice to
each Rating Agency and the Subservicer of any such event known to the Master Servicer.
Section 11.07. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates or the
rights of the Holders thereof.
Section 11.08. Supplemental Provisions for Resecuritization.
This Agreement may be supplemented by means of the addition of a separate Article
hereto (a "Supplemental Article") for the purpose of resecuritizing any of the Certificates
issued hereunder, under the following circumstances. With respect to any Class or Classes
of Certificates issued hereunder, or any portion of any such Class, as to which the Company
or any of its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Company may deposit such Resecuritized Certificates into a
new REMIC, grantor trust or custodial arrangement (a "Restructuring Vehicle") to be held by
the Trustee pursuant to a Supplemental Article. The instrument adopting such Supplemental
Article shall be executed by the Company, the Master Servicer and the Trustee; provided,
that neither the Master Servicer nor the Trustee shall withhold their consent thereto if
their respective interests would not be materially adversely affected thereby. To the
extent that the terms of the Supplemental Article do not in any way affect any provisions of
this Agreement as to any of the Certificates initially issued hereunder, the adoption of the
Supplemental Article shall not constitute an "amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions relating to the
holding of the Resecuritized Certificates by the Trustee, the establishment of the
Restructuring Vehicle, the issuing of various classes of new certificates by the
Restructuring Vehicle and the distributions to be made thereon, and any other provisions
necessary for the purposes thereof. In connection with each Supplemental Article, the
Company shall deliver to the Trustee an Opinion of Counsel to the effect that (i) the
Restructuring Vehicle will qualify as a REMIC, grantor trust or other entity not subject to
taxation for federal income tax purposes and (ii) the adoption of the Supplemental Article
will not endanger the status of the Trust Fund as a REMIC or (subject to
Section 10.01(f)) result in the imposition of a tax upon the Trust Fund (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC as set forth in Section 860G(d) of the Code).
Section 11.09. Allocation of Voting Rights.
As provided in Section 11.09 of the Series Supplement.
SECTION 11.10 No Petition.
The Company, 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, 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.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of Parties; Reasonableness.
The Company, the Trustee and the Master Servicer acknowledge and agree that the
purpose of this Article XII is to facilitate compliance by the Company with the provisions
of Regulation AB and related rules and regulations of the Commission. The Company shall not
exercise its right to request delivery of information or other performance under these
provisions other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission under the
Securities Act and the Exchange Act. Each of the Master Servicer and the Trustee
acknowledges that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff, consensus
among participants in the mortgage-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Company in good faith for delivery
of information under these provisions on the basis of evolving interpretations of Regulation
AB. Each of the Master Servicer and the Trustee shall cooperate reasonably with the Company
to deliver to the Company (including any of its assignees or designees), any and all
disclosure, statements, reports, certifications, records and any other information necessary
in the reasonable, good faith determination of the Company to permit the Company to comply
with the provisions of Regulation AB.
Section 12.02. Additional Representations and Warranties of the Trustee.
(a) The Trustee shall be deemed to represent to the Company as of the date hereof and on
each date on which information is provided to the Company under Sections 12.01, 12.02(b) or
12.03 that, except as disclosed in writing to the Company prior to such date: (i) it is not
aware and has not received notice that any default, early amortization or other performance
triggering event has occurred as to any other Securitization Transaction due to any default
of the Trustee; (ii) there are no aspects of its financial condition that could have a
material adverse effect on the performance by it of its trustee obligations under this
Agreement or any other Securitization Transaction as to which it is the trustee; (iii) there
are no material legal or governmental proceedings pending (or known to be
contemplated) against it that would be material to Certificateholders; (iv) there are no
relationships or transactions relating to the Trustee with respect to the Company or any
sponsor, issuing entity, servicer, trustee, originator, significant obligor, enhancement or
support provider or other material transaction party (as each of such terms are used in
Regulation AB) relating to the Securitization Transaction contemplated by the Agreement, as
identified by the Company to the Trustee in writing as of the Closing Date (each, a
"Transaction Party") that are outside the ordinary course of business or on terms other than
would be obtained in an arm's length transaction with an unrelated third party, apart from
the Securitization Transaction, and that are material to the investors' understanding of the
Certificates; and (v) the Trustee is not an affiliate of any Transaction Party. The Company
shall notify the Trustee of any change in the identity of a Transaction Party after the
Closing Date.
(b) If so requested by the Company on any date following the Closing Date, the Trustee
shall, within five Business Days following such request, confirm in writing the accuracy of
the representations and warranties set forth in paragraph (a) of this Section or, if any
such representation and warranty is not accurate as of the date of such confirmation,
provide the pertinent facts, in writing, to the Company. Any such request from the Company
shall not be given more than once each calendar quarter, unless the Company shall have a
reasonable basis for a determination that any of the representations and warranties may not
be accurate.
Section 12.03. Information to be Provided by the Trustee.
For so long as the Certificates are outstanding, for the purpose of satisfying the
Company's reporting obligation under the Exchange Act with respect to any class of
Certificates, the Trustee shall provide to the Company a written description of (a) any
litigation or governmental proceedings pending against the Trustee as of the last day of
each calendar month that would be material to Certificateholders, and (b) any affiliations
or relationships (as described in Item 1119 of Regulation AB) that develop following the
Closing Date between the Trustee and any Transaction Party of the type described in
Section 12.02(a)(iv) or 12.02(a)(v) as of the last day of each calendar year. Any
descriptions required with respect to legal proceedings, as well as updates to previously
provided descriptions, under this Section 12.03 shall be given no later than five Business
Days prior to the Determination Date following the month in which the relevant event occurs,
and any notices and descriptions required with respect to affiliations, as well as updates
to previously provided descriptions, under this Section 12.03 shall be given no later than
January 31 of the calendar year following the year in which the relevant event occurs. As
of the date the Company or Master Servicer files each Report on Form 10-D and Report on Form
10-K with respect to the Certificates, the Trustee will be deemed to represent that any
information previously provided under this Article XII is materially correct and does not
have any material omissions unless the Trustee has provided an update to such information.
The Company will allow the Trustee to review any disclosure relating to material litigation
against the Trustee prior to filing such disclosure with the Commission to the extent the
Company changes the information provided by the Trustee.
Section 12.04. Report on Assessment of Compliance and Attestation.
On or before March 15 of each calendar year, the Trustee shall:
(a) deliver to the Company a report (in form and substance reasonably satisfactory to the
Company) regarding the Trustee's assessment of compliance with the applicable Servicing
Criteria during the immediately preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to the Company and signed by an authorized officer of the Trustee, and shall address each of
the Servicing Criteria specified on Exhibit R hereto; and
(b) deliver to the Company a report of a registered public accounting firm reasonably
acceptable to the Company that attests to, and reports on, the assessment of compliance made
by the Trustee and delivered pursuant to the preceding paragraph. Such attestation shall be
in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and the Exchange Act.
Section 12.05. Indemnification; Remedies.
(a) The Trustee shall indemnify the Company, each affiliate of the Company, the Master
Servicer and each broker dealer acting as underwriter, placement agent or initial purchaser
of the Certificates or each Person who controls any of such parties (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the foregoing, and
shall hold each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged to be contained in
any information, report, certification, accountants' attestation or other material
provided under this Article XII by or on behalf of the Trustee (collectively, the
"Trustee Information"), or (B) the omission or alleged omission to state in the
Trustee Information a material fact required to be stated in the Trustee Information
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be construed solely by
reference to the Trustee Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to whether the
Trustee Information or any portion thereof is presented together with or separately
from such other information; or
(ii) any failure by the Trustee to deliver any information, report, certification or other
material when and as required under this Article XII, other than a failure by the
Trustee to deliver an accountants' attestation.
(b) In the case of any failure of performance described in clause (ii) of
Section 12.05(a), the Trustee shall promptly reimburse the Company for all costs reasonably
incurred by the Company in order to obtain the information, report, certification,
accountants' attestation or other material not delivered as required by the Trustee and
(ii) cooperate with the Company to mitigate any damages that may result from such failure.
(c) The Company and the Master Servicer shall indemnify the Trustee, each affiliate of
the Trustee or each Person who controls the Trustee (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of the Trustee, and shall hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon (i) any untrue statement of a material fact
contained or alleged to be contained in any information provided under this Agreement by or
on behalf of the Company or Master Servicer for inclusion in any report filed with
Commission under the Exchange Act (collectively, the "RFC Information"), or (ii) the
omission or alleged omission to state in the RFC Information a material fact required to be
stated in the RFC Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, by way of
clarification, that clause (ii) of this paragraph shall be construed solely by reference to
the RFC Information and not to any other information communicated in connection with a sale
or purchase of securities, without regard to whether the RFC Information or any portion
thereof is presented together with or separately from such other information.
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 (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.]
Certificate No. [____] Rate [based on a Notional Amount]
Class [A-___] Senior Percentage Interest: ____%
Date of Pooling and Servicing Agreement Aggregate Initial [Certificate Principal
and Cut-off Date: Balance] [Interest Only/Class A-V] [Notional
[______________] Amount] [Subclass Notional Amount] of the
Class [A-___] Certificates: $________
First Distribution Date: [Initial] [Certificate Principal Balance]
[______________] [Interest Only/Class A-V] [Subclass]
[Notional Amount] of this Certificate:
$[______________]
Master Servicer:
Residential Funding Corporation
[Assumed] [Scheduled] Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE 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 FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Residential Funding Mortgage Securities I, Inc.,
the Master Servicer, the Trustee referred to below or GMAC Mortgage 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 Funding Mortgage
Securities I, 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 Funding Mortgage
Securities I, Inc. (hereinafter called the "Company," which term includes any successor
entity under the Agreement referred to below). The Trust Fund was created pursuant to a
Series Supplement, dated as specified above, to the Standard Terms of Pooling and Servicing
Agreement dated as of ________________ (together, the "Pooling and Servicing Agreement" or
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 [related] Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount [(of interest and
principal, if any)] required to be distributed to Holders of Class A- Certificates on such
Distribution Date. [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.]
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] of this Certificate is set forth above.]
[The Certificate Principal Balance hereof will be reduced to the extent of distributions
allocable to principal and any Realized Losses allocable hereto.]
This Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified hereon
(herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth herein and in
the Agreement. In the event Master Servicer funds are advanced with respect to any Mortgage
Loan, such advance is reimbursable to the Master Servicer, to the extent provided in the
Agreement, from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
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 66.6% 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 Xxxxxx'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 [in the related Loan Group] 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 [in the
related Loan Group] 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 [in the related Loan Group] and all property acquired
in respect of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
[related] Certificates from the Holders thereof; provided, that any such option may only be
exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the related Loan
Group] 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 Group [in the related Loan Group].
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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: _______________________ [TRUSTEE],
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A- ] Certificates referred to in the within-mentioned
Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate to the
following address:
Dated: _________________________________ ______________________________________
Signature by or on behalf of assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available
funds to _______________________for the account of __________________ account number
______________-, or, if mailed by check, to ____________________________. Applicable
statements should be mailed to ________________________.
This information is provided by _____________________, the assignee named above, or
________________, as its agent.
EXHIBIT B
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE [RELATED] 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.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED BY VIRTUE OF
ITS PURCHASE OR HOLDING OF SUCH CERTIFICATE (OR ANY INTEREST HEREIN) THAT EITHER (A) SUCH
TRANSFEREE 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 (EACH, A "PLAN"), OR ANY PERSON (INCLUDING, WITHOUT
LIMITATION, AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY PLAN) WHO IS USING
"PLAN ASSETS," WITHIN THE MEANING OF THE U.S. DEPARTMENT OF LABOR REGULATION PROMULGATED AT
29 C.F.R.ss.2510.3-101, OF ANY PLAN (EACH, A "PLAN INVESTOR") TO EFFECT SUCH ACQUISITION,
(B) IT HAS ACQUIRED AND IS HOLDING THIS CERTIFICATE IN RELIANCE ON U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION EXEMPTION ("PTE") 94-29, 59 FED. REG. 14674 (MARCH 29, 1994), AS MOST
RECENTLY AMENDED BY PTE 2002-41, 67 FED. REG. 54487 (AUGUST 22, 2002) (THE "RFC EXEMPTION"),
AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE RFC
EXEMPTION INCLUDING THAT 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 USED TO PURCHASE OR HOLD THE
CERTIFICATE (OR ANY INTEREST HEREIN) IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS DEFINED
IN U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60), AND
(III) THE CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED (EACH
ENTITY THAT SATISFIES THIS CLAUSE (C), A "COMPLYING INSURANCE COMPANY").
IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN VIOLATION OF THE
PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST PRECEDING TRANSFEREE THAT EITHER (A) IS
NOT A PLAN OR A PLAN INVESTOR, (B) ACQUIRED SUCH CERTIFICATE IN COMPLIANCE WITH THE RFC
EXEMPTION OR (C) 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
ANY 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.
Certificate No. [____]
Class [M-___] Subordinate
Date of Pooling and Servicing Agreement Principal Balance of the Class M
and Cut-off Date: Certificates: $_______________
[______________]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[______________]
Master Servicer:
Residential Funding Corporation
[Assumed] [Schedule] Final
Distribution Date: CUSIP
[______________] [______________]
MORTGAGE 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 FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Residential Funding Mortgage Securities I, Inc.,
the Master Servicer, the Trustee referred to below or GMAC Mortgage 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 Funding Mortgage
Securities I, 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 Funding Mortgage Securities I, Inc.
(hereinafter called the "Company," which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a Series Supplement,
dated as specified above, to the Standard Terms of Pooling and Servicing Agreement dated as
of ________________ (together, the "Pooling and Servicing Agreement" or 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 [related] Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest and principal,
if any) required to be distributed to Holders of Class M-___ Certificates on such
Distribution Date.
Distributions on this Certificate will be made either by the Master Servicer acting
on behalf of the Trustee or by a Paying Agent appointed by the Trustee in immediately
available funds (by wire transfer or otherwise) for the account of the Person entitled
thereto if such Person shall have so notified the Master Servicer or such Paying Agent, or
by check mailed to the address of the Person entitled thereto, as such name and address
shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be made
after due notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee for that
purpose in 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, any transferee of this Certificate will be deemed to have
represented by virtue of its purchase or holding of this Certificate (or any interest
herein) that either (a) such transferee is not a Plan or a Plan Investor, (b) it has acquired
and is holding this Certificate in reliance on the RFC Exemption and that it understands
that there are certain conditions to the availability of the RFC Exemption including that
this Certificate must be rated, at the time of purchase, not lower than "BBB-" (or its
equivalent) by Standard & Poor's, Fitch or Xxxxx'x or (c) the transferee is a Complying
Insurance Company. In addition, any purported Certificate Owner whose acquisition or
holding of this Certificate (or any 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 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 66.6% 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 Xxxxxx'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 [in the related Loan Group] 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 [in the
related Loan Group] 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 [in the related Loan Group] and all property acquired
in respect of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
[related] Certificates from the Holders thereof; provided, that any such option may only be
exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the related Loan
Group] 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 Group [in the related Loan Group].
Unless the certificate of authentication hereon has been executed by the Certificate
Registrar, by manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: _______________________ [TRUSTEE],
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A- ] Certificates referred to in the within-mentioned
Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate to the
following address:
Dated: _________________________________ ______________________________________
Signature by or on behalf of assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available
funds to _______________________for the account of __________________ account number
______________-, or, if mailed by check, to ____________________________. Applicable
statements should be mailed to ________________________.
This information is provided by _____________________, the assignee named above, or
________________, as its agent.
EXHIBIT C
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE RELATED SENIOR
CERTIFICATES AND THE RELATED 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 (OR ANY INTEREST HEREIN) MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE MASTER SERVICER WITH EITHER
(A) A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE AGREEMENT OR (B) 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 AND HOLDING OF THIS CERTIFICATE IS
PERMISSIBLE UNDER APPLICABLE LAW, 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 INTERNAL REVENUE CODE OF 1986, AS AMENDED (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 AND LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE
TRUSTEE, THE COMPANY OR THE MASTER SERVICER.
Certificate No. [____]
Class [B-___] Subordinate
Date of Pooling and Servicing Agreement Principal Balance of the Class B-___
and Cut-off Date: Certificates as of the Cut-off Date: $________
[______________]
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[______________]
Master Servicer:
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in the distributions allocable
to the Class B-___ Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans formed and
sold by RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Residential Funding Mortgage Securities I, Inc.,
the Master Servicer, the Trustee referred to below or GMAC Mortgage 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 Funding Mortgage
Securities I, 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 B-___ 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 Funding Mortgage Securities I, Inc. (hereinafter called the "Company,"
which term includes any successor entity under the Agreement referred to below). The Trust
Fund was created pursuant to a Series Supplement, dated as specified above, to the Standard
Terms of Pooling and Servicing Agreement dated as of ________________ (together, the
"Pooling and Servicing Agreement" or 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 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 [related] Available Distribution Amount in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class 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 Section 5.02(e) of 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.
As described above, no transfer of this Certificate (or any interest herein) shall be
made unless the transferee provides the Trustee, the Company and the Master Servicer with
either (a) a certification pursuant to Section 5.02(e) of the Agreement stating that either
(i) the transferee is not an employee benefit or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code (each, a "Plan"), or any Person
(including, without limitation, an investment manager, a named fiduciary or a trustee of any
Plan) who is using "plan assets," within the meaning of the U.S. Department of Labor
regulation promulgated at 29 X.X.X.xx. 2510.3-101, of any Plan (each, a "Plan Investor") to
effect such acquisition or (ii) the transferee is an insurance company, the source of funds
used to purchase or hold such Certificate (or any interest therein) is an "insurance company
general account" (as defined in U.S. Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60 and the conditions set forth in Sections I and III of PTCE 95-60
have been satisfied, or (b) 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 and holding of this Certificate is permissible under applicable law, will not
constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will
not subject the Trustee, the Company or the Master Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in the Agreement, which opinion of counsel shall not be an expense of
the Trustee, the Company or the Master Servicer.
This Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified hereon
(herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth herein and in
the Agreement. In the event Master Servicer funds are advanced with respect to any Mortgage
Loan, such advance is reimbursable to the Master Servicer, to the extent provided in the
Agreement, from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made by the Master
Servicer from time to time for purposes other than distributions to Certificateholders, such
purposes including without limitation reimbursement to the Company and the Master Servicer
of advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the amendment of the
Agreement and the modification of the rights and obligations of the Company, the Master
Servicer and the Trustee and the rights of the Certificateholders under the Agreement at any
time by the Company, the Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66.6% 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 Xxxxxx'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 [in the related Loan Group] 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 [in the
related Loan Group] 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 [in the related Loan Group] and all property acquired
in respect of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
[related] Certificates from the Holders thereof; provided, that any such option may only be
exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the related Loan
Group] 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 Group [in the related Loan Group].
Unless the certificate of authentication hereon has been executed by the Certificate
Registrar, by manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: _______________________ [TRUSTEE],
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A- ] Certificates referred to in the within-mentioned
Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate to the
following address:
Dated: _________________________________ ______________________________________
Signature by or on behalf of assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available
funds to _______________________for the account of __________________ account number
______________-, or, if mailed by check, to ____________________________. Applicable
statements should be mailed to ________________________.
This information is provided by _____________________, the assignee named above, or
________________, as its agent.
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON OR A
DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE (OR ANY INTEREST HEREIN) MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE MASTER SERVICER WITH EITHER
(A) A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE AGREEMENT OR (B) 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 AND HOLDING OF THIS CERTIFICATE IS
PERMISSIBLE UNDER APPLICABLE LAW, 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 (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 AND LIABILITIES UNDER ERISA OR SECTION 4975
OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, WHICH OPINION OF COUNSEL
SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE COMPANY OR THE MASTER SERVICER.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IF THE
PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER AND THE TRUSTEE
THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE
SUBJECT TO TAX AND EXCEPT FOR FREDDIE 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. [____]
Class [R-___] Senior
Date of Pooling and Servicing Agreement Aggregate Initial Certificate Principal
and Cut-off Date: Balance of the Class R-___ Certificates:
[______________] $100.00
First Distribution Date: Initial Certificate Principal Balance of this
[______________] Certificate:
$[______________]
Master Servicer: Percentage Interest: _____%
Residential Funding Corporation
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in the distributions allocable
to the Class R[-__] Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans formed and
sold by RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Residential Funding Mortgage Securities I, Inc.,
the Master Servicer, the Trustee referred to below or GMAC Mortgage 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 Funding Mortgage
Securities I, 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 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
Funding Mortgage Securities I, Inc. (hereinafter called the "Company," which term includes
any successor entity under the Agreement referred to below). The Trust Fund was created
pursuant to a Series Supplement, dated as specified above, to the Standard Terms of Pooling
and Servicing Agreement dated as of ________________ (together, the "Pooling and Servicing
Agreement" or 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 [related] Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest and principal,
if any) required to be distributed to Holders of Class 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.
As described above, no transfer of this Certificate (or any interest herein) shall be
made unless the transferee provides the Trustee, the Company and the Master Servicer with
either (a) a certification pursuant to Section 5.02(e) of 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 (each, a "Plan"), or any Person (including,
without limitation, an insurance company investing its general accounts, an investment
manager, a named fiduciary or a trustee of any Plan) who is using "plan assets," within the
meaning of the U.S. Department of Labor regulation promulgated at 29 C.F.R.ss.2510.3-101, of
any Plan (each, a "Plan Investor") to effect such acquisition, or (b) 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 and holding of this Certificate is
permissible under applicable law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or comparable provisions
of any subsequent enactments), and will not subject the Trustee, the Company or the Master
Servicer to any obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement, which opinion of
counsel shall not be an expense of the Trustee, the Company or the Master Servicer.
This Certificate is one of a duly authorized issue of Certificates issued in several
Classes designated as Mortgage Pass-Through Certificates of the Series specified hereon
(herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth herein and in
the Agreement. In the event Master Servicer funds are advanced with respect to any Mortgage
Loan, such advance is reimbursable to the Master Servicer, to the extent provided in the
Agreement, from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account and/or the
Certificate Account created for the benefit of Certificateholders may be made by the Master
Servicer from time to time for purposes other than distributions to Certificateholders, such
purposes including without limitation reimbursement to the Company and the Master Servicer
of advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the amendment of the
Agreement and the modification of the rights and obligations of the Company, the Master
Servicer and the Trustee and the rights of the Certificateholders under the Agreement at any
time by the Company, the Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66.6% 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 Xxxxxx'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 [in the related Loan Group] 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 [in the
related Loan Group] 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 [in the related Loan Group] and all property acquired
in respect of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
[related] Certificates from the Holders thereof; provided, that any such option may only be
exercised if the Pool Stated Principal Balance of the Mortgage Loans [in the related Loan
Group] 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 Group [in the related Loan Group].
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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: _______________________ [TRUSTEE],
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A- ] Certificates referred to in the within-mentioned
Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please print or typewrite name and address including postal zip code of assignee) a
Percentage Interest evidenced by the within Mortgage Pass-Through Certificate and hereby
authorizes the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate to the
following address:
Dated: _________________________________ ______________________________________
Signature by or on behalf of assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available
funds to _______________________for the account of __________________ account number
______________-, or, if mailed by check, to ____________________________. Applicable
statements should be mailed to ________________________.
This information is provided by _____________________, the assignee named above, or
________________, as its agent.
EXHIBIT E
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:
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.
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.
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.
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.
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.
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.
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.
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: (_____) _____-_________
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.
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.
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:
Title: Title:
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.
Series Supplement, to the Standard Terms of Pooling and Servicing Agreement,
Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (circle one)
Mortgage Loan Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection with such
payments which are required to be deposited have been or will be so deposited as provided in
the Pooling and Servicing Agreement."
Residential Funding Corporation
Authorized Signature
******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents being
enclosed with a copy of this form. You should retain this form for your files in accordance
with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name:___________________
Title:
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 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 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 of 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.
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. (a) The Owner 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 (each, a "Plan"), or any Person (including,
without limitation, an insurance company investing its general accounts, an investment
manager, a named fiduciary or a trustee of any Plan) who is using "plan assets," within the
meaning of the U.S. Department of Labor regulation promulgated at 29 C.F.R.ss.2510.3-101, of
any Plan (each, a "Plan Investor") to effect such acquisition; or
(b) The Owner has provided the Trustee, the Company and the Master Servicer with an
opinion of counsel acceptable to and in form and substance satisfactory to the Trustee, the
Company and the Master Servicer to the effect that the purchase and holding of Certificates
is permissible under applicable law, will not constitute or result in any non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or comparable
provisions of any subsequent enactments) and will not subject the Trustee, the Company or
the Master Servicer to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken in the Pooling and
Servicing Agreement, which opinion of counsel shall not be an expense of the Trustee, the
Company or the Master Servicer.
In addition, the Owner 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 transferee unless such transferee meets the requirements set forth
in either (a) or (b) above.
Capitalized terms used but not defined herein shall have the meanings assigned in the
Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Title of Officer] and
its corporate seal to be hereunto attached, attested by its [Assistant] Secretary, this day
of _____,___ 200__.
[NAME OF OWNER]
By:_______________________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_____________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or proved to
me to be the same person who executed the foregoing instrument and to be the [Title of
Officer] of the Owner, and acknowledged to me that he executed the same as his free act and
deed and the free act and deed of the Owner.
Subscribed and sworn before me this ___ day of ________, 200 __.
NOTARY PUBLIC
COUNTY OF_________________________________________
STATE OF__________________________________________
My Commission expires the __ day of _____, 20__.
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
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, Washington, DC, 20503, with copies to the Internal Revenue Service,
Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S, Washington, DC 20224. 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.
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.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to set
forth an alternative safe harbor that taxpayers could use while the IRS and the Treasury
considered comments on the proposed regulations. Under the alternative safe harbor, if a
transferor meets the investigation requirement and the representation requirement but the
transfer fails to meet the formula test, the transferor may invoke the safe harbor if the
transferee meets a two-prong test (the asset test). A transferee generally meets the first
prong of this test if, at the time of the transfer, and in each of the two years preceding
the year of transfer, the transferee's gross assets exceed $100 million and its net assets
exceed $10 million. A transferee generally meets the second prong of this test if it is a
domestic, taxable corporation and agrees in writing not to transfer the interest to any
person other than another domestic, taxable corporation that also satisfies the requirements
of the asset test. A transferor cannot rely on the asset test if the transferor knows, or
has reason to know, that the transferee will not comply with its written agreement to limit
the restrictions on subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied in the case of
a transfer or assignment of a noneconomic residual interest to a foreign branch of an
otherwise eligible transferee. If such a transfer or assignment were permitted, a corporate
taxpayer might seek to claim that the provisions of an applicable income tax treaty would
resource excess inclusion income as foreign source income, and that, as a consequence, any
U.S. tax liability attributable to the excess inclusion income could be offset by foreign
tax credits. Such a claim would impede the assessment or collection of U.S. tax on excess
inclusion income, contrary to the congressional purpose of assuring that such income will be
taxable in all events. See, e.g., sections 860E(a)(1), (b), (e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers transferring noneconomic
residual interests to foreign branches have attempted to rely on the formula test to obtain
safe harbor treatment in an effort to impede the assessment or collection of U.S. tax on
excess inclusion income. Accordingly, the final regulations provide that if a noneconomic
residual interest is transferred to a foreign permanent establishment or fixed base of a
U.S. taxpayer, the transfer is not eligible for safe harbor treatment under either the asset
test or the formula test. The final regulations also require a transferee to represent that
it will not cause income from the noneconomic residual interest to be attributable to a
foreign permanent establishment or fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer may use to
qualify for safe harbor status under the formula test. Section 1.860E-1(c)(8)(i) provides
that the transferee is presumed to pay tax at a rate equal to the highest rate of tax
specified in Section 11(b). Some commentators were concerned that this presumed rate of
taxation was too high because it does not take into consideration taxpayers subject to the
alternative minimum tax rate. In light of the comments received, this provision has been
amended in the final regulations to allow certain transferees that compute their taxable
income using the alternative minimum tax rate to use the alternative minimum tax rate
applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present values in the
formula test are to be computed using a discount rate equal to the applicable Federal
short-term rate prescribed by Section 1274(d). This is a change from the proposed regulation
and Rev. Proc. 2001-12. In those publications the provision stated that "present values are
computed using a discount rate equal to the applicable Federal rate prescribed in
Section 1274(d) compounded semiannually" and that "[a] lower discount rate may be used if the
transferee can demonstrate that it regularly borrows, in the course of its trade or
business, substantial funds at such lower rate from an unrelated third party." The IRS and
the Treasury Department have learned that, based on this provision, certain taxpayers have
been attempting to use unrealistically low or zero interest rates to satisfy the formula
test, frustrating the intent of the test. Furthermore, the Treasury Department and the IRS
believe that a rule allowing for a rate other than a rate based on an objective index would
add unnecessary complexity to the safe harbor. As a result, the rule in the proposed
regulations that permits a transferee to use a lower discount rate, if the transferee can
demonstrate that it regularly borrows substantial funds at such lower rate, is not included
in the final regulations; and the Federal short-term rate has been substituted for the
applicable Federal rate. To simplify taxpayers' computations, the final regulations allow
use of any of the published short-term rates, provided that the present values are computed
with a corresponding period of compounding. With the exception of the provisions relating
to transfers to foreign branches, these changes generally have the proposed applicability
date of February 4, 2000, but taxpayers may choose to apply the interest rate formula set
forth in the proposed regulation and Rev. Proc. 2001-12 for transfers occurring before
August 19, 2002.
[[Page 47453]]
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of noneconomic
residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a significant economic
impact on a substantial number of small entities. This certification is based on the fact
that it is unlikely that a substantial number of small entities will hold REMIC residual
interests. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility
Act (5 U.S.C. chapter 6) is not required. It has been determined that this Treasury
decision is not a significant regulatory action as defined in Executive Order 12866.
Therefore, a regulatory assessment is not required. It also has been determined that
sections 553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do not
apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However, other
personnel from the IRS and Treasury Department participated in their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
__________ , 20__
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[Trustee]
Attention: Residential Funding Corporation Series _______
Re: Mortgage 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 Pass-Through Certificates, Series ________, Class
R[-__] (the "Certificates"), pursuant to Section 5.02 of the Series Supplement, dated as of
________________, to the Standard Terms of Pooling and Servicing Agreement dated as of
________________ (together, the "Pooling and Servicing Agreement") among Residential Funding
Mortgage Securities I, Inc., as seller (the "Company"), Residential Funding Corporation, as
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 indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Seller understands that the transfer of a Class R[-__]
Certificate may not be respected for United States income tax purposes (and the Seller may
continue to be liable for United States income taxes associated therewith) unless the Seller
has conducted such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee is not both a United
States Person and a Permitted Transferee.
Very truly yours,
(Seller)
By:_______________________________________________
Name:
Title:
EXHIBIT H
FORM OF INVESTOR REPRESENTATION LETTER
______________ , 20___
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
[Trustee]
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Corporation Series ________
RE: Mortgage Pass-Through Certificates,
Series ________, [Class B- ]
Ladies and Gentlemen:
_________________- (the "Purchaser") intends to purchase from _________________ (the
"Seller") $_____________ Initial Certificate Principal Balance of Mortgage Pass-Through
Certificates, Series ________, Class (the "Certificates"), issued pursuant to the Series
Supplement, dated as of ________________, to the Standard Terms of Pooling and Servicing
Agreement dated as of ________________ (together, the "Pooling and Servicing
Agreement") among Residential Funding Mortgage Securities I, 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,
(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 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 Internal Revenue Code of 1986, as amended (the "Code") (each, a "Plan"),
or any Person (including, without limitation, an investment manager, a named fiduciary or a
trustee of any Plan) who is using "plan assets," within the meaning of the U.S. Department
of Labor ("DOL") regulation promulgated at 29 X.X.X.xx. 2510.3-101, of any Plan (each, a
"Plan Investor"), to effect such acquisition;
(b) is an insurance company, the source of funds used to purchase or hold the Certificate
(or any interest therein) is an "insurance company general account" (as defined in DOL
Prohibited Transaction Class Exemption ("PTCE") 95-60), and the conditions set forth in
Sections I and III of PTCE 95-60 have been satisfied; or
(c) has provided the Trustee, the Company and the Master Servicer with an opinion of
counsel acceptable to and in form and substance satisfactory to the Trustee, the Company and
the Master Servicer to the effect that the purchase and holding of the Certificates is
permissible under applicable law, will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or comparable provisions
of any subsequent enactments), and will not subject the Trustee, the Company or the Master
Servicer to any obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of the Trustee, the Company or
the Master Servicer.
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 transferee unless such transferee meets the requirements
set forth in either (a), (b) or (c) above.
Very truly yours,
By:_______________________________________________
Name:
Title:
EXHIBIT I
FORM OF TRANSFEROR REPRESENTATION LETTER
_________, 20___
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
[Trustee]
Attention: Residential Funding Corporation Series ________
Re: Mortgage 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 Pass-Through Certificates, Series ________, Class (the "Certificates"),
issued pursuant to the Series Supplement, dated as of ________________, to the Standard
Terms of Pooling and Servicing Agreement dated as of ________________ (together, the
"Pooling and Servicing Agreement") among Residential Funding Mortgage Securities I, 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 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the Seller, the Trustee and
the Master Servicer (as defined in the Series Supplement, dated as of ________________, to
the Standard Terms of Pooling and Servicing Agreement dated as of ________________ (the
"Agreement") among Residential Funding Corporation as Master Servicer, Residential Funding
Mortgage Securities I, 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 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 Internal Revenue Code of 1986, as amended (the "Code") (each, a "Plan"),
or any Person (including, without limitation, an investment manager, a named fiduciary or a
trustee of any Plan) who is using "plan assets," within the meaning of the U.S. Department
of Labor ("DOL") regulation promulgated at 29 X.X.X.xx. 2510.3-101, of any Plan (each, a
"Plan Investor"), to effect such acquisition; or
(b) is an insurance company, the source of funds used to purchase or hold the
Certificates (or any interest therein) is an "insurance company general account" (as defined
in DOL Prohibited Transaction Class Exemption ("PTCE") 95-60), and the conditions set forth
in Sections I and III PTCE 95-60 have been satisfied; or
(c) has provided the Trustee, the Company and the Master Servicer with an opinion of
counsel acceptable to and in form and substance satisfactory to the Trustee, the Company and
the Master Servicer to the effect that the purchase and holding of the Certificates is
permissible under applicable law, will not constitute or result in any non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or comparable provisions
of any subsequent enactments) and will not subject the Trustee, the Company or the Master
Servicer to any obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of the Trustee, the Company or
the Master Servicer.
4. This document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall be deemed to
be an original; such counterparts, together, shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of the date set
forth below.
____________________________ __________________________
Print Name of Seller Print Name of 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.
____ ____ Will the Buyer be purchasing the
Yes No Rule 144A 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:_____________________________________________
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:
1. As indicated below, the undersigned is the President, Chief Financial Officer or
Senior Vice President of the Buyer or, if the Buyer is a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act of 1933 ("Rule 144A") because
Buyer is part of a Family of Investment Companies (as defined below), is such an officer of
the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified institutional buyer"
as defined in SEC Rule 144A because (i) the Buyer is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Buyer alone, or the
Buyer's Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
The Buyer owned $ in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
The Buyer is part of a Family of Investment Companies which owned in the aggregate
$ _____________________in securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser or investment
advisers that are affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of issuers that
are affiliated with the Buyer or are part of the Buyer's Family of Investment Companies,
(ii) bank deposit notes and certificates of deposit, (iii) loan participations,
(iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the parties to
which this certification is made are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice, the Buyer's
purchase of Rule 144A Securities will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
Print Name of Buyer
By:______________________________________________
Name:
Title:
IF AN ADVISOR:
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 XIII
SUBORDINATE CERTIFICATE LOSS COVERAGE; LIMITED GUARANTY
Section 13.01. Subordinate Certificate Loss Coverage; Limited Guaranty. (a) Subject
to subSection (c) below, prior to the later of the third Business Day prior to each
Distribution Date or the related Determination Date, the Master Servicer shall determine
whether it or any 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 13.02. Residential Funding's
obligations as described in this Section are referred to herein as the "Subordinate
Certificate Loss Obligation."
(d)____The Trustee will promptly notify General Motors Acceptance Corporation of any
failure of Residential Funding to make any payments hereunder and shall demand payment
pursuant to the limited guaranty (the "Limited Guaranty"), executed by General Motors
Acceptance Corporation, of Residential Funding's obligation to make payments pursuant to
this Section, in an amount equal to the lesser of (i) the Amount Available and (ii) such
required payments, by delivering to General Motors Acceptance Corporation a written demand
for payment by wire transfer, not later than the second Business Day prior to the
Distribution Date for such month, with a copy to the Master Servicer.
(e)____All payments made by Residential Funding pursuant to this Section or amounts
paid under the Limited Guaranty shall be deposited directly in the Certificate Account, for
distribution on the Distribution Date for such month to the Class 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 13.02. Amendments Relating to the Limited Guaranty. Notwithstanding
Sections 11.01 or 13.01: (i) the provisions of this Article XIII may be amended, superseded
or deleted, (ii) the Limited Guaranty or Subordinate Certificate Loss Obligation may be
amended, reduced or canceled, and (iii) any other provision of this Agreement which is
related or incidental to the matters described in this Article XIII may be amended in any
manner; in each case by written instrument executed or consented to by the Company and
Residential Funding but without the consent of any Certificateholder and without the consent
of the Master Servicer or the Trustee being required unless any such amendment would impose
any additional obligation on, or otherwise adversely affect the interests of, the Master
Servicer or the Trustee, as applicable; provided that the Company shall also obtain a letter
from each nationally recognized credit rating agency that rated the Class B Certificates at
the request of the Company to the effect that such amendment, reduction, deletion or
cancellation will not lower the rating on the Class B Certificates below the lesser of
(a) the then-current rating assigned to the Class B Certificates by such rating agency and
(b) the original rating assigned to the Class B Certificates by such rating agency, unless
(A) the Holder of 100% of the Class B Certificates is Residential Funding or an Affiliate of
Residential Funding, or (B) such amendment, reduction, deletion or cancellation is made in
accordance with Section 11.01(e) and, provided further that the Company obtains (subject to
the provisions of Section 10.01(f) as if the Company was substituted for the Master Servicer
solely for the purposes of such provision), in the case of a material amendment or
supersession (but not a reduction, cancellation or deletion of the Limited Guaranty or the
Subordinate Certificate Loss Obligation), an Opinion of Counsel (which need not be an
opinion of Independent counsel) to the effect that any such amendment or supersession will
not cause either (a) any federal tax to be imposed on the Trust Fund, including without
limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of
the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code
or (b) the Trust Fund to fail to qualify as a REMIC at any time that any Certificate is
outstanding. A copy of any such instrument shall be provided to the Trustee and the Master
Servicer together with an Opinion of Counsel that such amendment complies with this
Section 13.02.
EXHIBIT L
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates
Series ________
___________, 20____
[Trustee]
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 13.01 of the Series Supplement, dated as of ________________, to the Standard Terms
of Pooling and Servicing Agreement dated as of ________________ (together, the "Servicing
Agreement"), among Residential Funding Mortgage Securities I, Inc. (the "Company"),
Residential Funding and __________ (the "Trustee") as amended by Amendment No. thereto,
dated as of , with respect to the Mortgage Pass-Through Certificates, Series ________ (the
"Certificates"); and
WHEREAS, pursuant to Section 13.01 of the Servicing Agreement, Residential Funding
agrees to make payments to the Holders of the Class 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 xxxxxx acknowledged, GMAC agrees as
follows:
1. Provision of Funds. (a) GMAC agrees to contribute and deposit in the Certificate
Account on behalf of Residential Funding (or otherwise provide to Residential Funding, or to
cause to be made available to Residential Funding), either directly or through a subsidiary,
in any case prior to the related Distribution Date, such moneys as may be required by
Residential Funding to perform its Subordinate Certificate Loss Obligation when and as the
same arises from time to time upon the demand of the Trustee in accordance with
Section 13.01 of the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall be absolute, irrevocable
and unconditional and shall not be affected by the transfer by GMAC or any other person of
all or any part of its or their interest in Residential Funding, by any insolvency,
bankruptcy, dissolution or other proceeding affecting Residential Funding or any other
person, by any defense or right of counterclaim, set-off or recoupment that GMAC may have
against Residential Funding or any other person or by any other fact or circumstance.
Notwithstanding the foregoing, GMAC's obligations under clause (a) shall terminate upon the
earlier of (x) substitution for this Limited Guaranty pursuant to Section 13.01(f) of the
Servicing Agreement, or (y) the termination of the Trust Fund pursuant to the Servicing
Agreement.
2. Waiver. GMAC hereby waives any failure or delay on the part of Residential Funding,
the Trustee or any other person in asserting or enforcing any rights or in making any claims
or demands hereunder. Any defective or partial exercise of any such rights shall not
preclude any other or further exercise of that or any other such right. GMAC further waives
demand, presentment, notice of default, protest, notice of acceptance and any other notices
with respect to this Limited Guaranty, including, without limitation, those of action or
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 13.02 of the Servicing
Agreement. The obligations of GMAC under this Limited Guaranty shall continue and remain in
effect so long as the Servicing Agreement is not modified or amended in any way that might
affect the obligations of GMAC under this Limited Guaranty without the prior written consent
of GMAC.
4. Successor. Except as otherwise expressly provided herein, the guarantee herein set
forth shall be binding upon GMAC and its respective successors.
5. Governing Law. This Limited Guaranty shall be governed by the laws of the State of
New York.
6. Authorization and Reliance. GMAC understands that a copy of this Limited Guaranty
shall be delivered to the Trustee in connection with the execution of Amendment No. 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.
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:
[Trustee], as Trustee
By: _______
Name:
Title:
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
By: _______
Name:
Title:
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
_____________, 20______
Residential Funding Mortgage Securities I, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[Trustee]
Attention: Residential Funding Corporation Series ________
Re: Mortgage 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 Series Supplement, dated as of ________________, to
the Standard Terms of Pooling and Servicing Agreement dated as of ________________
(together, the "Pooling and Servicing Agreement") among Residential Funding Mortgage
Securities I, Inc., as seller (the "Company"), Residential Funding Corporation, as master
servicer, and the Trustee. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Lender hereby certifies,
represents and warrants to, and covenants with, the Master Servicer and the Trustee that:
(a) 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;
(b) 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;
(c) 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 such assignment is at the request of the borrower
under the related Mortgage Loan.
Very truly yours,
(Xxxxxx)
By:_______________________________________________
Name:
Title:
EXHIBIT N
FORM OF REQUEST FOR EXCHANGE
[Date]
U.S. Bank National Association
U.S. Bank Corporate Trust Services
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000-0000
Re: Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates, Series [________]
Residential Funding Corporation, as the Holder of a ____% Percentage Interest of the
[Class/Subclass] of Class A-V Certificates, hereby requests the Trustee to exchange the
above-referenced Certificates for the Subclasses referred to below:
1. 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 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 Class A-V Certificates surrendered
for exchange.
The capitalized terms used but not defined herein shall have the meanings set forth
in the Pooling and Servicing Agreement, dated as of _______, among Residential Funding
Mortgage Securities I, Inc., Residential Funding Corporation and U.S. Bank National
Association, 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 this report on Form 10-K and all reports on Form 10-D required to be
filed in respect of the period covered by this report on Form 10-K of the trust (the
Exchange Act periodic reports) created pursuant to the Pooling and Servicing Agreement dated
__________ (the "Agreement") among Residential Funding Mortgage Securities I, Inc.,
Residential Funding Corporation (the "Master Servicer") and [Name of Trustee] (the
"Trustee");
2. Based on my knowledge, Exchange Act periodic reports, taken as a whole, do 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 with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other information
required to be provided under Form 10-D for the period covered by this report is included in
the Exchange Act periodic reports;
4. I am responsible for reviewing the activities performed by the Master Servicer and
based on my knowledge and the compliance review conducted in preparing the servicer
compliance statement required in this report under Item 1123 of Regulation AB and except as
disclosed in the Exchange Act periodic reports, the Master Servicer has fulfilled its
obligations under the Agreement; and
5. All of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included in this report
in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been included as an exhibit to this report, except as otherwise disclosed in this report.
Any material instances of noncompliance described in such reports have been disclosed in
this report on Form 10-K.
In giving the certifications above, I have reasonably relied on the information
provided to me by the following unaffiliated parties: [the Trustee].
Date:____________
_________________________________*
[Signature]
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 U.S. Bank National Association (the
"Trustee") certifies that:
1. The Trustee has performed all of the duties specifically required to be performed by
it pursuant to the provisions of the Pooling and Servicing Agreement dated ____________ (the
"Agreement") by and among Residential Funding Mortgage Securities I, Inc. (the "Company"),
Residential Funding Corporation (the "Master Servicer") and Trustee in accordance with the
standards set forth therein.
2. Based on my knowledge, the list of Certificateholders as shown on the Certificate
Register as of the end of each calendar year that is provided by the Trustee pursuant to
Section 4.03(f)(I) of the Agreement is accurate as of the last day of the 20___ calendar
year.
Capitalized terms used and not defined herein shall have the meanings given such
terms in the Agreement.
IN WITNESS THEREOF, 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 Terms (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
EXHIBIT R
SERVICING CRITERIA
The assessment of compliance to be delivered by the Trustee shall address, at a
minimum, the criteria identified below as "Applicable Servicing Criteria"
-------------------------------------------------------------------------- ------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------- ------------------
REFERENCE CRITERIA
----------------- -------------------------------------------------------- ------------------
GENERAL SERVICING CONSIDERATIONS
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and
compliance with such servicing activities.
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the pool assets are
maintained.
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
----------------- -------------------------------------------------------- ------------------
CASH COLLECTION AND ADMINISTRATION
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(i) Payments on pool assets are deposited into the |X|(as to
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days accounts held by
specified in the transaction agreements. Trustee)
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an |X|(as to
obligor or to an investor are made only by authorized investors only)
personnel.
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of |X|(as to
overcollateralization, are separately maintained accounts held by
(e.g., with respect to commingling of cash) as set Trustee)
1122(d)(2)(iv) forth in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements;
(C) reviewed and approved by someone other than the
person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days
of their original identification, or such other number
of days specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
INVESTOR REMITTANCES AND REPORTING
----------------- -------------------------------------------------------- ------------------
1122(d)(3)(i) Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of pool assets serviced by the
servicer.
----------------- -------------------------------------------------------- ------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in |X|
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
Disbursements made to an investor are posted within
two business days to the servicer's investor records,
or such other number of days specified in the |X|
1122(d)(3)(iii) transaction agreements.
----------------- -------------------------------------------------------- ------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, |X|
1122(d)(3)(iv) or custodial bank statements.
----------------- -------------------------------------------------------- ------------------
POOL ASSET ADMINISTRATION
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(i) Collateral or security pool asset is maintained as
required by the transaction agreements or related
asset pool documents.
----------------- -------------------------------------------------------- ------------------
Pool assets and related documents are safeguarded as
1122(d)(4)(ii) required by the transaction agreements
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction
agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made
in accordance with the related pool asset documents
are posted to the servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance
with the related pool asset documents.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(v) The servicer's records regarding the pool assets agree
with the servicer's records with respect to an
obligor's unpaid principal balance.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's pool asset (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a pool asset is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent pool assets including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
pool assets with variable rates are computed based on
the related pool asset documents.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's pool asset documents, on
at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable pool asset documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related pool asset, or such other number of days
specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
----------------- -------------------------------------------------------- ------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of
1122(d)(4)(xiii) days specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements.
----------------- -------------------------------------------------------- ------------------
Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the |X|
1122(d)(4)(xv) transaction agreements.
----------------- -------------------------------------------------------- ------------------
