RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.,
Company,
RESIDENTIAL FUNDING COMPANY, LLC,
Master Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
SERIES SUPPLEMENT,
DATED AS OF NOVEMBER 1, 2007
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
DATED AS OF NOVEMBER 1, 2007
Mortgage Pass-Through Certificates
Series 2007-S9
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................4
Section 1.01 Definitions.............................................4
Section 1.02 Use of Words and Phrases...............................24
ARTICLE II ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL
ISSUANCE OF CERTIFICATES.....................................25
Section 2.01 Conveyance of Mortgage Loans...........................25
Section 2.02 Acceptance by Trustee..................................25
Section 2.03 Representations, Warranties and Covenants of the
Master Servicer and the Company........................25
Section 2.04 Representations and Warranties of Residential
Funding................................................28
Section 2.05 Execution and Authentication of Class R-I
Certificates...........................................28
Section 2.06 Conveyance of Uncertificated REMIC I Regular
Interests; Acceptance by the Trustee...................29
Section 2.07 Issuance of Certificates Evidencing Interest in
REMIC II...............................................29
Section 2.08 Purposes and Powers of the Trust.......................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.....................30
Section 3.02 Subservicing Agreements Between Master Servicer
and Subservicers; Enforcement of Subservicers' and
Sellers' Obligations...................................30
Section 3.03 Successor Subservicers.................................31
Section 3.04 Liability of the Master Servicer.......................31
Section 3.05 No Contractual Relationship Between Subservicer
and Trustee or Certificateholders......................31
Section 3.06 Assumption or Termination of Subservicing
Agreements by Trustee..................................31
Section 3.07 Collection of Certain Mortgage Loan Payments;
Deposits to Custodial Account..........................31
Section 3.08 Subservicing Accounts; Servicing Accounts..............33
Section 3.09 Access to Certain Documentation and Information
Regarding the Mortgage Loans...........................33
Section 3.10 Permitted Withdrawals from the Custodial Account.......33
Section 3.11 Maintenance of the Primary Insurance Policies;
Collections Thereunder.................................33
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(continued)
PAGE
Section 3.12 Maintenance of Fire Insurance and Omissions and
Fidelity Coverage......................................33
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments...........33
Section 3.14 Realization Upon Defaulted Mortgage Loans..............33
Section 3.15 Trustee to Cooperate; Release of Custodial Files.......33
Section 3.16 Servicing and Other Compensation; Compensating
Interest...............................................33
Section 3.17 Reports to the Trustee and the Company.................34
Section 3.18 Annual Statement as to Compliance......................34
Section 3.19 Annual Independent Public Accountants' Servicing
Report.................................................34
Section 3.20 Rights of the Company in Respect of the Master
Servicer...............................................34
Section 3.21 Administration of Buydown Funds........................34
Section 3.22 Advance Facility.......................................34
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS...............................35
Section 4.01 Certificate Account....................................35
Section 4.02 Distributions..........................................35
Section 4.03 Statements to Certificateholders; Statements to
Rating Agencies; Exchange Act Reporting................44
Section 4.04 Distribution of Reports to the Trustee and the
Company; Advances by the Master Servicer...............45
Section 4.05 Allocation of Realized Losses..........................45
Section 4.06 Reports of Foreclosures and Abandonment of
Mortgaged Property.....................................47
Section 4.07 Optional Purchase of Defaulted Mortgage Loans..........47
Section 4.08 Surety Bond............................................47
Section 4.09 Class P Reserve Account................................47
ARTICLE V THE CERTIFICATES.............................................48
Section 5.01 The Certificates.......................................48
Section 5.02 Registration of Transfer and Exchange of
Certificates...........................................48
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates......48
Section 5.04 Persons Deemed Owners..................................48
Section 5.05 Appointment of Paying Agent............................48
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.06 U.S.A. Patriot Act Compliance..........................48
Section 5.07 Exchangeable Certificates..............................48
Section 5.08 Tax Status and Reporting of Exchangeable
Certificates...........................................50
ARTICLE VI THE COMPANY AND THE MASTER SERVICER (SEE ARTICLE VI OF
THE STANDARD TERMS)..........................................52
ARTICLE VII DEFAULT (SEE ARTICLE VII OF THE STANDARD TERMS)..............53
ARTICLE VIII CONCERNING THE TRUSTEE (SEE ARTICLE VIII OF THE STANDARD
TERMS).......................................................54
ARTICLE IX TERMINATION OR OPTIONAL PURCHASE OF ALL
CERTIFICATES (SEE ARTICLE IX
OF THE STANDARD TERMS).......................................55
ARTICLE X REMIC PROVISIONS.............................................56
Section 10.01 REMIC Administration...................................56
Section 10.02 Master Servicer; REMIC Administrator and Trustee
Indemnification........................................56
Section 10.03 Designation of REMIC(s)................................56
Section 10.04 Distributions on the Uncertificated REMIC I
Regular Interests, Uncertificated REMIC II Regular
Interests and Uncertificated REMIC II Regular
Interests Z............................................56
Section 10.05 Compliance with Withholding Requirements...............58
ARTICLE XI MISCELLANEOUS PROVISIONS.....................................59
Section 11.01 Amendment..............................................59
Section 11.02 Recordation of Agreement, Counterparts.................59
Section 11.03 Limitation on Rights of Certificateholders.............59
Section 11.04 Governing Laws.........................................59
Section 11.05 Notices................................................59
Section 11.06 Required Notices to Rating Agency and Subservicer......60
Section 11.07 Severability of Provisions.............................60
Section 11.08 Supplemental Provisions for Resecuritization...........60
Section 11.09 Allocation of Voting Rights............................60
Section 11.10 No Petition............................................60
ARTICLE XII COMPLIANCE WITH REGULATION
AB
(SEE ARTICLE XII OF THE STANDARD TERMS)......................61
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TABLE OF CONTENTS
(continued)
EXHIBITS
Exhibit One-I: Mortgage Loan Schedule (Group I Loans)
Exhibit One-II: Mortgage Loan Schedule (Group II Loans)
Exhibit Two-I: Schedule of Discount Fractions for Group I Loans
Exhibit Two-II: Schedule of Discount Fractions for Group II Loans
Exhibit Three: Information to be Included in Monthly Distribution Date
Statement
Exhibit Four: Standard Terms of Pooling and Servicing Agreement dated
as of November 1, 2007
Exhibit Five: Exchangeable Combination Group
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This is a Series Supplement, dated as of November 1, 2007 (the "Series
Supplement"), to the Standard Terms of Pooling and Servicing Agreement, dated as
of November 1, 2007 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 COMPANY, LLC, 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 prepayment charges to which the Class P Certificates are
entitled), as two real estate mortgage investment conduits (each a "REMIC") for
federal income tax purposes.
The terms and provisions of the Standard Terms are hereby incorporated by
reference herein as though set forth in full herein. If any term or provision
contained herein shall conflict with or be inconsistent with any provision
contained in the Standard Terms, the terms and provisions of this Series
Supplement shall govern. 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.
1
Aggregate
Initial
Certificate
Pass-Through Principal Maturity Minimum
Designation Rate Balance Features(1) Date S&P/Fitch Denominations(2)
Class I-A-1 6.00% $128,850,000 Super Senior/Fixed Rate October 2037 AAA/AAA $25,000.00
Class I-A-2 6.00% $5,400,000 Senior Support/Fixed Rate October 2037 AAA/AAA $25,000.00
Super
Class II-A-1 5.50% $28,931,000 Senior/Exchangeable(3)/Fixed Rate September 2022 AAA/AAA $25,000.00
Senior Support/
Class II-A-2 5.50% $1,230,000 Exchangeable(3)/Fixed Rate September 2022 AAA/AAA $25,000.00
Class II-A-3 5.50% $30,161,000 Senior/Exchanged(3)/Fixed Rate September 2022 AAA/AAA $25,000.00
Class I-A-P 0.00% $594,733 Senior/Principal Only October 2037 AAA/AAA $25,000.00
Variable
Class I-A-V Rate(4) Notional(5) Senior/Interest Only/Variable Rate October 2037 AAA/AAA $2,000,000.00
Class II-A-P 0.00% $43,465 Senior/Principal Only September 2022 AAA/AAA $25,000.00
Variable
Class II-A-V Rate(4) Notional(5) Senior/Interest Only/Variable Rate September 2022 AAA/AAA $2,000,000.00
Class R-I 6.00% $50 Senior/Residual/Fixed Rate October 2037 AAA/AAA (6)
Class R-II 5.50% $100 Senior/Residual/Fixed Rate October 2037 AAA/AAA (6)
Variable
Class M-1 Rate(7) $3,449,000 Mezzanine/Variable Rate October 2037 NA/AA $100,000.00
Variable
Class M-2 Rate(7) $1,465,000 Mezzanine/Variable Rate October 2037 NA/A $250,000.00
Variable
Class M-3 Rate(7) $603,000 Mezzanine/Variable Rate October 2037 NA/BBB $250,000.00
Class P 6.00% $50 Senior/Group I Prepayment Charge October 2037 AAA/AAA $50.00
Variable
Class B-1 Rate(7) $949,000 Subordinate/Variable Rate October 2037 NA/BB $250,000.00
Variable
Class B-2 Rate(7) $258,500 Subordinate/Variable Rate October 2037 NA/B $250,000.00
Variable
Class B-3 Rate(7) $603,390 Subordinate/Variable Rate October 2037 NA/NA $250,000.00
(1) The Certificates, other than the Class B and Class R Certificates shall be
Book-Entry Certificates. The Class B Certificates and the Class R Certificates
shall be delivered to the holders thereof in physical form.
(2) The Certificates, other than the Class R Certificates, shall be issuable in
minimum dollar denominations as indicated above (by Certificate Principal
Balance or Notional Amount, as applicable) and integral multiples of $1 (or
$1,000 in the case of the Class B-1, Class B-2 and Class B-3 Certificates) in
excess thereof, except that one Certificate of any of the Class B-1, Class B-2
and Class B-3 Certificates that contain an uneven multiple of $1,000 shall be
issued in a denomination equal to the sum of the related minimum denomination
set forth above and such uneven multiple for such Class or the sum of such
denomination and an integral multiple of $1,000.
(3) The Class II-A-1 and Class II-A-2 Certificates are exchangeable for the
related class of exchanged certificates, which is the Class II-A-3 Certificates,
in each case as described herein.
(4) The initial Pass-Through Rate on the Class I-A-V Certificates is 0.4410% and
the initial Pass-Through Rate on the Class II-A-V Certificates is 0.4556%.
(5) The Class I-A-V Certificates and Class II-A-V Certificates each do not have
a certificate principal balance. For the purpose of calculating interest
payments, interest will accrue on a notional amount equal to, in the case of
Class I-A-V Certificate, the aggregate stated principal balance of the mortgage
loans in loan group I, which is initially equal to approximately $140,831,054,
and in the case of Class II-A-V Certificates, the aggregate stated principal
balance of the mortgage loans in loan group II, which is initially equal to
approximately $31,546,235.
(6) 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%.
(7) The pass-through rate on the Class M Certificates and Class B Certificates
is equal to the weighted average of 6.00% per annum and 5.50% per annum,
weighted on the basis of the portion of loan group I and loan group II,
respectively, represented by the Class M Certificates and Class B Certificates.
The pass-through rate on the Class M Certificates and Class B Certificates with
respect to the initial interest accrual period is approximately 5.908% per
annum.
2
The Group I Loans have an aggregate principal balance as of the Cut-off
Date of $140,831,054. The Group II Loans have an aggregate principal balance as
of the Cut-off Date of $31,546,235. The Mortgage Loans have an aggregate
principal balance as of the Cut-off Date of $172,377,289.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
3
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
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 (to the extent not offset by the
Master Servicer with a payment of Compensating Interest as provided
in Section 4.01 of the Standard Terms),
(ii) the interest portions of Realized Losses, including Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses and
Extraordinary Losses, not allocated through subordination;
(iii) the interest portion of any Advances that were made with respect to
delinquencies that were ultimately determined to be Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or
Extraordinary Losses; and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Relief Act or similar legislation or regulations,
all allocated as described below.
The Class I-A Percentage of these reductions with respect to the Group I Loans
will be allocated among the Holders of the Group I Senior Certificates, other
than the Class I-A-P Certificates, in proportion to the amounts of Accrued
Certificate Interest that would have been payable to those Certificates from the
Group I Loans on that Distribution Date absent such reductions. The Class II-A
Percentage of these reductions with respect to the Group II Loans will be
allocated among the Holders of the Group II Senior Certificates, other than the
Class II-A-P Certificates, in proportion to the amounts of Accrued Certificate
Interest that would have been payable to those Certificates from the Group II
Loans on that Distribution Date absent such reductions. The remainder of these
reductions will be allocated among the Holders of the Class M Certificates and
the Class B Certificates in proportion to the respective amounts of Accrued
Certificate Interest that would have been payable on that Distribution Date
absent these reductions. In the case of each Class of Class A Certificates
(other than the Principal-Only Certificates), Class M Certificates and Class B
Certificates, Accrued Certificate Interest on that Class will be further reduced
by the interest portion (adjusted to the Net Mortgage Rate) of Realized Losses
that are allocated solely to such Class of Class A Certificates, Class M
Certificates or Class B Certificates pursuant to Section 4.05.
4
Aggregate Available Distribution Amount: With respect to a Distribution
Date, the sum of the Available Distribution Amounts for both Loan Groups for
such Distribution Date.
Aggregate Class A-P Principal Distribution Amount: With respect to a
Distribution Date, the sum of the Class A-P Principal Distribution Amounts for
both Loan Groups for such Distribution Date.
Aggregate Senior Interest Distribution Amount: With respect to a
Distribution Date, the sum of the Senior Interest Distribution Amounts for both
Loan Groups for such Distribution Date.
Aggregate Senior Principal Distribution Amount: With respect to a
Distribution Date, the sum of the Senior Principal Distribution Amounts for both
Loan Groups for such Distribution Date.
Bankruptcy Amount: As of any date of determination prior to the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (A)
$100,000, over (B) the aggregate amount of Bankruptcy Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section 4.05 of
this Series Supplement. As of any date of determination on or after the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of:
(1) the lesser of (a) the Bankruptcy Amount calculated as of the
close of business on the Business Day immediately preceding the most
recent anniversary of the Cut-off Date coinciding with or preceding such
date of determination (or, if such date of determination is an anniversary
of the Cut-off Date, the Business Day immediately preceding such date of
determination) (for purposes of this definition, the "Relevant
Anniversary") and (b) the greater of:
(A) the greater of (i) 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) $100,000; and
(B) the greater of (i) the product of (x) an amount equal to
the largest difference in the related Monthly Payment for any
Non-Primary Residence Loan remaining in 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) $100,000,
over
5
(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.
Certificate: Any Class A, Class M, Class B, Class P 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 2007-S9" and which must be an Eligible
Account.
Certificate Group: With respect to (i) Loan Group I, the Group I Senior
Certificates; and (ii) Loan Group II, the Group II Senior Certificates.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal Balance
of such Certificate pursuant to Section 4.02, minus
(iii) the sum of (x) the aggregate of all amounts previously distributed
with respect to such Certificate (or any predecessor Certificate)
and applied to reduce the Certificate Principal Balance thereof
pursuant to Section 4.02(a) and (y) the aggregate of all reductions
in Certificate Principal Balance deemed to have occurred in
connection with Realized Losses which were previously allocated to
such Certificate (or any predecessor Certificate) pursuant to
Section 4.05;
6
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. The Certificate
Principal Balance of any Exchangeable Certificates or Exchanged Certificates
that are not outstanding on any Distribution Date will be equal to zero.
Class A Certificate: Any Class I-A or Class II-A Certificate.
Class A-P Certificates: The Class I-A-P Certificates, which relate to and
are payable from the Group I Loans, and Class II-A-P Certificates, which relate
to and are payable from the Group II Loans.
Class A-P Collection Shortfall: With respect to the Cash Liquidation or
REO Disposition of a Discount Mortgage Loan, any Distribution Date and any Loan
Group, the extent to which the amount described in clause (C) of the definition
of Class A-P Principal Distribution Amount for such Loan Group is less than the
amount described in clause (C)(1) of such definition.
Class A-P Principal Distribution Amount: With respect to any Distribution
Date and each Loan Group, an amount equal to the aggregate of:
(A) the related Discount Fraction of the principal portion of each Monthly
Payment on each Discount Mortgage Loan in the related Loan Group due
during the related Due Period, whether or not received on or prior to the
related Determination Date, minus the Discount Fraction of the principal
portion of any related Debt Service Reduction which together with other
Bankruptcy Losses on the related Mortgage Loans exceeds the Bankruptcy
Amount for that Loan Group;
(B) the related Discount Fraction of the principal portion of all
unscheduled collections on each Discount Mortgage Loan in the related
Loan Group received during the preceding calendar month or, in the case
of Principal Prepayments in Full, during the related Prepayment Period
(other than amounts received in connection with a Cash Liquidation or
REO Disposition of a Discount Mortgage Loan in the related Loan Group
described in clause (C) below), including Principal Prepayments in
Full, Curtailments, Subsequent Recoveries and repurchases (including
deemed repurchases under Section 3.07(b) of the Standard Terms) of
Discount Mortgage Loans in the related Loan Group (or, in the case of a
substitution of a Deleted Mortgage Loan in the related Loan Group, the
Discount Fraction of the amount of any shortfall deposited in the
Custodial Account in connection with such substitution);
(C) in connection with the Cash Liquidation or REO Disposition of a
Discount Mortgage Loan in the related Loan Group that did not result in
any Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, an amount equal to the
lesser of (1) the applicable Discount Fraction of the Stated Principal
Balance of such Discount Mortgage Loan immediately prior to such
Distribution Date and (2) the aggregate amount of the collections on
such Discount Mortgage Loan to the extent applied as recoveries of
principal;
7
(D) any amounts allocable to principal for the related Loan Group for any
previous Distribution Date (calculated pursuant to clauses (A) through (C)
above) that remain undistributed; and
(E) the amount of the related Class A-P Collection Shortfalls for such
Distribution Date and Loan Group 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 the related Loan
Group for such Distribution Date; minus
(F) the Discount Fraction of the related Capitalization Reimbursement Amount
for the related Loan Group for such Distribution Date, if any, related to
each Discount Mortgage Loan in the related Loan Group.
Class A-V Certificates: The Class I-A-V Certificates, which relate to and
are payable from the Group I Loans, and Class II-A-V Certificates, which relate
to and are payable from the Group II Loans.
Class B Certificates: Any one of the Class B-1, Class B-2 or Class B-3
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit C.
Class I-A Certificates: Any one of the Class I-A-1, Class I-A-2, Class
I-A-P or Class I-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 I-A Percentage: With respect to any Distribution Date, the
percentage equal to the aggregate Certificate Principal Balance of the Group I
Senior Certificates, other than the Class I-A-P Certificates, immediately prior
to that Distribution Date divided by the aggregate Stated Principal Balance of
all of the Mortgage Loans (or related REO Properties) in Loan Group I, other
than the Discount Fraction of the Discount Mortgage Loans in Loan Group I,
immediately prior to that Distribution Date. The Class I-A Percentage will
initially equal approximately 95.73% and will in no event exceed 100%.
Class II-A Certificates: Any one of the Class II-A-1, Class II-A-2, Class
II-A-3, Class II-A-P or Class II-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 II-A Percentage: With respect to any Distribution Date, the
percentage equal to the aggregate Certificate Principal Balance of the Group II
Senior Certificates, other than the Class II-A-P Certificates, immediately prior
to that Distribution Date divided by the aggregate Stated Principal Balance of
all of the Mortgage Loans (or related REO Properties) in Loan Group II, other
than the Discount Fraction of the Discount Mortgage Loans in Loan Group II,
immediately prior to that Distribution Date. The Class II-A Percentage will
initially equal approximately 95.74% and will in no event exceed 100%.
Class M Certificates: Any one of the Class M-1, Class M-2, or Class M-3
Certificates, executed by the Trustee an authenticated by the Certificate
Registrar substantially in the form annexed to the Standard Terms as Exhibit B.
Class P Certificate: Any one of the Class P Certificates executed by the
Trustee and authenticated by the Certificate Registrar substantially in the form
annexed to the Standard Terms as Exhibit C-1 and evidencing a percentage
interest in any Prepayment Charges.
Class P Reserve Account: The account established and maintained by the
Trustee pursuant to Section 4.09 hereof. The Class P Reserve Account will not be
part of any REMIC hereunder.
8
Class R Certificate: Any one of the Class R-I and Class R-II Certificates.
Class R-I Certificate: Any one of the Class R-I Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit D and evidencing an interest
designated as a "residual interest" in REMIC I for purposes of the REMIC
Provisions.
Class R-II Certificate: Any one of the Class R-II Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit D and evidencing an interest
designated as a "residual interest" in REMIC II for purposes of the REMIC
Provisions.
Closing Date: November 20, 2007.
Combination Group: The Combination Group set forth on Exhibit Five
hereto.
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 2007-S9.
Credit Support Depletion Date: The first Distribution Date on which the
aggregate Certificate Principal Balance of the Class M Certificates and the
Class B Certificates have been reduced to zero.
Cut-off Date: November 1, 2007.
Determination Date: With respect to any Distribution Date, the second
Business Day prior to such Distribution Date.
Discount Fraction: With respect to each Discount Mortgage Loan in Loan
Group I, a fraction expressed as a percentage, the numerator of which is 6.00%
minus the Net Mortgage Rate for such Discount Mortgage Loan and the denominator
of which is 6.00%. The Class I-A-P Certificates will be entitled to payments
based on the Discount Fraction of the Discount Mortgage Loans in Loan Group I.
With respect to each Discount Mortgage Loan in Loan Group II, a fraction
expressed as a percentage, the numerator of which is 5.50% minus the Net
Mortgage Rate for such Discount Mortgage Loan and the denominator of which is
5.50%. The Class II-A-P Certificates will be entitled to payments based on the
Discount Fraction of the Discount Mortgage Loans in Loan Group II.
Discount Mortgage Loan: With respect to (i) Loan Group I, any Mortgage
Loan with a Net Mortgage Rate less that 6.00% per annum or (ii) Loan Group II,
any Mortgage Loan with a Net Mortgage Rate less than 5.50% per annum.
9
Discount Net Mortgage Rate: With respect to Loan Group I, 6.00% per annum
and, with respect to Loan Group II, 5.50% per annum.
Due Period: With respect to each Distribution Date and any Mortgage Loan,
the calendar month of such Distribution Date.
Eligible Funds: With respect to any Distribution Date and Loan Group, the
portion, if any, of (a) the Available Distribution Amount for such Loan Group or
Aggregate Available Distribution Amount, as applicable, over (b) the sum of (i)
the aggregate amount of Accrued Certificate Interest on the related Senior
Certificates or Aggregate Senior Interest Distribution Amount, as applicable,
(ii) the related Senior Principal Distribution Amount or Aggregate Senior
Principal Distribution Amount, as applicable (both determined without regard to
Section 4.02(a)(ii)(Z)(F) of this Series Supplement), (iii) the related Class
A-P Principal Distribution Amount or Aggregate Class A-P Principal Distribution
Amount, as applicable (both determined without regard to clause (E) of the
definition of Class A-P Principal Distribution Amount) and (iv) the aggregate
amount of Accrued Certificate Interest on the Class M, Class B-1 and Class B-2
Certificates, as applicable. In the event there are Class A-P Shortfalls
remaining for both Loan Groups on any Distribution Date, the Eligible Funds will
be allocated to each Loan Group, pro rata, based on the aggregate unpaid Class
A-P Shortfalls for each Loan Group.
Excess Bankruptcy Losses: Bankruptcy Losses in excess of the related
Bankruptcy Amount.
Excess Fraud Losses: Fraud Losses in excess of the related Fraud Loss
Amount.
Excess Special Hazard Losses: Special Hazard Losses in excess of the
related Special Hazard Amount.
Excess Subordinate Principal Amount: With respect to any Distribution Date
and each Loan Group, on which the aggregate Certificate Principal Balance of the
Class of Subordinate Certificates issued in connection with the related Loan
Group, then outstanding with the Lowest Priority is to be reduced to zero and on
which Realized Losses are to be allocated to such class or classes, the excess,
if any, of (i) the amount that would otherwise be distributable in respect of
principal on such class or classes of Certificates on such Distribution Date
over (ii) the excess, if any, of the aggregate Certificate Principal Balance of
such class or classes of Certificates immediately prior to such Distribution
Date over the aggregate amount of Realized Losses to be allocated to such
classes of Certificates on such Distribution Date as reduced by any amount
calculated pursuant to clause (E) of the definition of Class A-P Principal
Distribution Amount. The Excess Subordinate Principal Amount will be allocated
among the Loan Groups, on a pro rata basis, based on the amount of Realized
Losses on the Mortgage Loans in each Loan Group allocated to the Certificates on
that Distribution Date.
Exchangeable Certificates: The Class II-A-1 and Class II-A-2
Certificates.
Exchanged Certificates: The Class II-A-3 Certificates.
10
Fraud Loss Amount: As of any date of determination after the Cut-off Date,
an amount equal to: (X) prior to the second anniversary of the Cut-off Date, an
amount equal to 1.00% of the aggregate outstanding principal balance of all of
the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of Certificates in
accordance with Section 4.05 of this Series Supplement since the Cut-off Date up
to such date of determination and (Y) from the third to the fifth anniversary of
the Cut-off Date, an amount equal to (1) the lesser of (a) the Fraud Loss Amount
as of the most recent anniversary of the Cut-off Date and (b) 0.50% of the
aggregate outstanding principal balance of all of the Mortgage Loans as of the
most recent anniversary of the Cut-off Date minus (2) the 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.
Grantor Trust: That portion of the Trust Fund consisting of the
Grantor Trust Uncertificated REMIC Regular Interests.
Grantor Trust Account: The account designated by the Trustee pursuant
to Section 5.08.
Grantor Trust Uncertificated REMIC Regular Interest: Any of the
Uncertificated REMIC II Regular Interests (other than, for the avoidance of
doubt, any Uncertificated REMIC II Regular Interests Z), which are beneficially
owned in the form of their related Exchangeable Certificates or Exchanged
Certificates and rights with respect thereto.
Group I Loans: The Mortgage Loans designated on the Mortgage Loan Schedule
as Group I Loans.
Group I Senior Certificates: The Class I-A-1, Class I-A-2, Class I-A-V,
Class I-A-P, Class P and Class R-I Certificates, which relate to and are payable
from the Group I Loans.
Group I Subordinate Component: On any date of determination, the excess of
the aggregate Stated Principal Balance of the Group I Loans as of such date over
the aggregate Certificate Principal Balance of the Group I Senior Certificates
(other than the Interest Only Certificates) then outstanding.
Group II Loans: The Mortgage Loans designated on the Mortgage Loan
Schedule as Group II Loans.
Group II Senior Certificates: The Class II-A-1, Class II-A-2, Class
II-A-3, Class II-A-P, Class II-A-V and Class R-II Certificates, which relate to
and are payable from the Group II Loans.
11
Group II Subordinate Component: On any date of determination, the excess
of the aggregate Stated Principal Balance of the Group II Loans as of such date
over the aggregate Certificate Principal Balance of the Group II Senior
Certificates (other than the Interest Only Certificates) then outstanding.
Initial Notional Amount: With respect to any Class I-A-V Certificates or
Subclass thereof issued pursuant to Section 5.01(c) of the Standard Terms, the
aggregate Cut-off Date Principal Balance of the Mortgage Loans relating to the
Uncertificated REMIC I Regular Interests Z1, and correspondingly, the
Uncertificated REMIC II Regular Interests Z1, corresponding to such Class or
Subclass on such date. With respect to any Class II-A-V Certificates or Subclass
thereof issued pursuant to Section 5.01(c) of the Standard Terms, the aggregate
Cut-off Date Principal Balance of the Mortgage Loans relating to the
Uncertificated REMIC I Regular Interests Z2, and correspondingly, the
Uncertificated REMIC II Regular Interests Z2, corresponding to such Class or
Subclass on such date.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Certificate Principal Balance of such Class of Subordinate Certificates divided
by the aggregate Stated Principal Balance of all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 2.01% Class B-1: 0.55%
Class M-2: 0.85% Class B-2: 0.15%
Class M-3: 0.35% Class B-3: 0.35%
Interest Accrual Period: With respect to any Class of Certificates and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs.
Interest Only Certificates: Any one of the Class A-V Certificates.
The Interest Only Certificates will have no Certificate Principal Balance.
Loan Group: Either of Loan Group I or Loan Group II.
Loan Group I: The group of Mortgage Loans comprised of the Group I
Loans.
Loan Group II: The group of Mortgage Loans comprised of the Group II
Loans.
Maturity Date: With respect to Certificates in the Certificate Group
related to Loan Group I, the Distribution Date in October 2037, which is the
Distribution Date in the month immediately following the latest scheduled
maturity date of any Mortgage Loan in Loan Group I. With respect to Certificates
in the Certificate Group related to Loan Group II, the Distribution Date in
September 2022, which is the Distribution Date immediately in the month
following the latest scheduled maturity date of any Mortgage Loan in Loan Group
II.
Mortgage Loan Schedule: The list or lists of the Mortgage Loans attached
hereto as Exhibit One-I (with respect to Loan Group I) and Exhibit One-II (with
respect to Loan Group II) (in each case, as amended from time to time to reflect
the addition of Qualified Substitute Mortgage Loans), which list or lists shall
set forth the following information as to each Mortgage Loan in the related Loan
Group:
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(a) the Mortgage Loan identifying number ("RFC LOAN #");
(b) the maturity of the Mortgage Note ("MATURITY DATE");
(c) the Mortgage Rate ("ORIG RATE");
(d) the Subservicer pass-through rate ("CURR NET");
(e) the Net Mortgage Rate ("NET MTG RT");
(f) the Pool Strip Rate ("STRIP");
(g) the initial scheduled monthly payment of principal, if any, and
interest ("ORIGINAL P & I");
(h) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(i) the Loan-to-Value Ratio at origination ("LTV");
(j) the rate at which the Subservicing Fee accrues ("SUBSERV FEE") and at
which the Servicing Fee accrues ("MSTR SERV FEE");
(k) a code "T," "BT" or "CT" under the column "LN FEATURE," indicating that
the Mortgage Loan is secured by a second or vacation residence;
(l) a code "N" under the column "OCCP CODE," indicating that the Mortgage
Loan is secured by a non-owner occupied residence; and
(m) a code "Y" under the column "PREPAY PENALTY IND," indicating that the
Mortgage Loan is a Prepayment Charge Loan.
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 any Class
I-A-V Certificates, an amount equal to the aggregate Stated Principal Balance of
the Group I 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 I-A-V Certificates or Subclass thereof issued pursuant
to Section 5.01(c) of the Standard Terms, the aggregate Stated Principal Balance
of the Group I Loans corresponding to the Uncertificated REMIC I Regular
Interests Z1, and correspondingly, the Uncertificated REMIC II Regular Interests
Z1, 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). As of any Distribution Date with
respect to any Class II-A-V Certificates, an amount equal to the aggregate
Stated Principal Balance of the Group II 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 II-A-V
Certificates or Subclass thereof issued pursuant to Section 5.01(c) of the
Standard Terms, the aggregate Stated Principal Balance of the Group II Loans
corresponding to the Uncertificated REMIC I Regular Interests Z2, and
correspondingly, the Uncertificated REMIC II Regular Interests Z2, 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).
13
Pass-Through Rate: With respect to the Class A Certificates (other than
the Class A-V Certificates and the Principal Only Certificates) and Class R
Certificates and any Distribution Date, the per annum rates set forth in the
Preliminary Statement hereto. With respect to each Class of 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 in the
related Loan Group as of the Due Date in the related Due Period, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans in the
related Loan Group as of the day immediately preceding such Distribution Date.
With respect to the Class I-A-V Certificates and the Class II-A-V Certificates
and the initial Distribution Date, the Pass-Through Rates are equal to 0.4410%
and 0.4556% per annum, respectively. With respect to any Subclass of Class I-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 Group I Loans
corresponding to the Uncertificated REMIC I Regular Interests Z1 corresponding
to the Uncertificated REMIC II Regular Interests Z1 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 Group I Loans as of the day
immediately preceding such Distribution Date (or with respect to the initial
Distribution Date, at the close of business on the Cut-Off Date). With respect
to any Subclass of Class II-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 Group II Loans corresponding to the Uncertificated REMIC I Regular
Interests Z2 corresponding to the Uncertificated REMIC II Regular Interests Z2
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 Group
II 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. The Pass-Through Rate on the Class
M Certificates and Class B Certificates as of any date of determination is equal
to the weighted average of 6.00% per annum and 5.50% per annum weighted on the
basis of the Group I Subordinate Component and Group II Subordinate Component,
respectively, as of such date of determination. For federal income tax purposes,
however, the Pass-Through Rate on the Class M Certificates and Class B
Certificates is expressed as a per annum rate equal to the weighted average of
the Uncertificated Pass-Through Rates applicable to Uncertificated REMIC I
Regular Interest I-X and Uncertificated REMIC I Regular Interest II-X weighted
on the basis of the Uncertificated Principal Balances of such Uncertificated
REMIC I Regular Interests immediately preceding such Distribution Date. The
Pass-Through Rate on the Class M Certificates and Class B Certificates with
respect to the initial Interest Accrual Period is approximately 5.908% per
annum.
Pool Strip Rate: The pool strip rate on any Group I Loan is equal to its
Net Mortgage Rate minus 6.00%, but not less than 0.00%. The pool strip rate on
any Group II loan is equal to its Net Mortgage Rate minus 5.50%, but not less
than 0.00%.
Prepayment Assumption: With respect to each Loan Group, 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
related 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 the related Mortgage Loans in
the first month of the life of such 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 related
Mortgage Loans.
14
Prepayment Charge Loan: Any Group I Loan for which a Prepayment Charge may
be assessed and to which such Prepayment Charge the Class P Certificates are
entitled, as indicated on the Mortgage Loan Schedule.
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 December
2012 (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
15
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, the close of business on the last Business Day of the month next
preceding the month in which the related Distribution Date occurs.
Related Classes: As to any Uncertificated REMIC II Regular Interests Z,
the Class A-V Certificates or Subclass thereof issued pursuant to Section
5.01(c) of the Standard Terms representing the Uncertificated REMIC II Regular
Interests Z corresponding to such Uncertificated REMIC II Regular Interests Z.
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 the prepayment charges to which the Class P
Certificates are entitled) 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, related to the Mortgage Loans, and
(v) all proceeds of clauses (i) through (iv) above.
REMIC I Certificates: The Class R-I Certificates.
REMIC I Subordinate Balance Ratio: The ratio among the principal balances
of each of the Uncertificated REMIC I Regular Interests ending with the
designation "X," equal to the ratio among: (1) the Group I Subordinate Component
and (2) the Group II Subordinate Component.
16
REMIC II: The segregated pool of assets consisting of the Uncertificated
REMIC I Regular Interests, with respect to which a separate REMIC election is to
be made.
REMIC II Certificates: The Class R-II Certificates and the certificated
REMIC II Regular Interests.
REMIC II Regular Interests: Each of the certificated interests represented
by the Class I-A-1 Certificates, the Class I-A-2 Certificates, the Class I-A-P
Certificates, the Class II-A-P Certificates, the Class M Certificates and the
Class B Certificates, any of Uncertificated REMIC II Regular Interests Z, and
each of Uncertificated REMIC II Regular Interests II-A-1 and II-A-2 shall have
an initial Uncertificated Principal Balance equal to $28,931,000 and $1,230,000,
respectively, shall each have a pass-through rate for federal income tax
purposes equal to 5.5% per annum, and shall correspond to the Class II-A-1 and
Class II-A-2 Certificates, as the case may be.
Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date and any
Loan Group, 100%. With respect to any Distribution Date thereafter and such Loan
Group, 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 related Senior Percentage
for such Distribution Date;
provided, however,
(i) that any scheduled reduction to the Senior Accelerated Distribution
Percentage for either Loan Group described above shall not occur as
of any Distribution Date unless either:
(a)(1)(X) the outstanding principal balance of the Mortgage Loans in
both Loan Groups delinquent 60 days or more (including Mortgage Loans
which are in foreclosure, have been foreclosed or otherwise liquidated, or
with respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding Certificate Principal Balance of the Subordinate Certificates,
is less than 50% or (Y) the outstanding principal balance of Mortgage
Loans in both Loan Groups delinquent 60 days or more (including Mortgage
Loans which are in foreclosure, have been foreclosed or otherwise
liquidated, or with respect to which the Mortgagor is in bankruptcy and
any REO Property) averaged over the last six months, as a percentage of
the aggregate outstanding principal balance of all Mortgage Loans in both
Loan Groups averaged over the last six months, does not exceed 2% and (2)
Realized Losses on the Mortgage Loans in both Loan Groups 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
17
(b)(1) the outstanding principal balance of the Mortgage Loans in
both Loan Groups delinquent 60 days or more (including Mortgage Loans
which are in foreclosure, have been foreclosed or otherwise liquidated, or
with respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans in both Loan Groups
averaged over the last six months, does not exceed 4% and (2) Realized
Losses on the Mortgage Loans in both Loan Groups 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 related Senior
Percentage is greater than the related Senior Percentage as of the
Closing Date, the related Senior Accelerated Distribution Percentage
for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the Senior Certificates related to a Loan Group (other than the
related Class A-P Certificates) to zero, the related Senior Accelerated
Distribution Percentage shall thereafter be 0%.
Senior Certificate: Any one of the Group I Senior Certificates or Group II
Senior 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), Exhibit D (Class R) and Exhibit C-1 (Class P).
Senior Interest Distribution Amount: With respect to any Distribution Date
and Loan Group, the amount of Accrued Certificate Interest required to be
distributed from the related Available Distribution Amount to the Holders of the
related Senior Certificates for that Distribution Date.
Senior Percentage: The Class I-A Percentage or Class II-A Percentage, as
applicable.
Senior Principal Distribution Amount: As to any Distribution Date and Loan
Group, the lesser of (a) the balance of the related 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 clause (E) of the definition of Class A-P
Principal Distribution Amount) (or, on or after the Credit Support Depletion
Date, the amount required to be distributed to the related Class A-P
Certificateholders pursuant to Section 4.02(e)), in each case, for the related
Loan Group, and (b) the sum of the amounts required to be distributed to the
Senior Certificateholders of the related Certificate Group on such Distribution
Date pursuant to Section 4.02(a)(ii)(Z).
18
Special Hazard Amount: As of any Distribution Date, an amount equal to
$3,989,354 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 (B) the greatest 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 21.9% (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 Loan Group and each Class of Subordinate Certificates, (a)
the sum of the following: (i) such Class's pro rata share, based on the
Certificate Principal Balance of each Class of Subordinate certificates then
outstanding, of the aggregate of the amounts calculated (without giving effect
to the related Senior Percentages) for such Distribution Date for the related
Loan Group under clauses (1), (2) and (3) of Section 4.02(a)(ii)(Z)(A) of this
Series Supplement 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)(Z)(B)(b) of this Series Supplement for the
related Loan Group (without giving effect to the related Senior Accelerated
Distribution Percentages) to the extent such collections are not otherwise
distributed to the related Senior Certificates; (iii) the product of (x) the
related Prepayment Distribution Percentage and (y) the aggregate of all
Principal Prepayments in Full received in the related Prepayment Period and
Curtailments received in the preceding calendar month for the related Loan Group
(other than the related Discount Fraction of such Principal Prepayments in Full
19
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 the related Loan Group for such Distribution Date not paid
to the Senior Certificates; and (v) any amounts described in clauses (i), (ii)
and (iii) as determined for any previous Distribution Date, that remain
undistributed to the extent that such amounts are not attributable to Realized
Losses which have been allocated to a Class of Subordinate Certificates minus
(b) the sum of (i) with respect to the Class of Subordinate Certificates with
the Lowest Priority, any Excess Subordinate Principal Amount for such
Distribution Date; and (ii) the Capitalization Reimbursement Amount for such
Loan Group and Distribution Date, other than the related Discount Fraction of
any portion of that amount related to each Discount Mortgage Loan in the related
Loan Group, multiplied by a fraction, the numerator of which is the 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) 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, and
(vi) all proceeds of clauses (i) through (v) 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 one month's
interest at the related Uncertificated Pass-Through Rate on the Uncertificated
Principal Balance of such Uncertificated REMIC I Regular Interest (ii) as to the
Uncertificated REMIC I Regular Interest Z and Uncertificated REMIC II Regular
Interest Z, an amount equal to one month's interest at the Pool Strip Rate of
the related Mortgage Loan on the principal balance of such Mortgage Loan reduced
by such regular interest's pro-rata share of any prepayment interest shortfalls
or other reductions of interest allocable to the related Class A-V Certificates
and (iii) as to the Uncertificated REMIC II Regular Interest (other than any
Uncertificated REMIC II Regular Interest Z), an amount equal to one month's
interest at the related Uncertificated Pass-Through Rate on the Uncertificated
Principal Balance of such Uncertificated REMIC II Regular Interest.
20
Uncertificated Pass-Through Rate: With respect to each of the
Uncertificated REMIC I Regular Interests, other than the Uncertificated REMIC I
Regular Interests Z, the per annum rate specified in the definition of
Uncertificated REMIC I Regular Interests. With respect to each Uncertificated
REMIC I Regular Interest Z, the Pool Strip Rate for the related Mortgage Loan,
with respect to each Uncertificated REMIC II Regular Interests Z, 100% of the
Uncertificated Pass-Through Rate on the related identically numbered
Uncertificated REMIC I Regular Interests Z and with respect to each of the other
Uncertificated REMIC II Regular Interests (other than Uncertificated REMIC II
Regular Interest Z), 5.50% per annum.
Uncertificated Principal Balance: With respect to each Uncertificated
REMIC I or II Regular Interest, other than the Uncertificated REMIC I or II
Regular Interests Z, as defined in the definition of Uncertificated REMIC I or
II Regular Interest.
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 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 (c) 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(c), 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 Regular Interest Distribution Amount for
each Uncertificated 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).
21
----------------------------------------------------
Uncertificated Pass-Through Initial
REMIC I Regular Rate Principal Balance
Interests
----------------------------------------------------
I-X 6.00% $ 599
----------------------------------------------------
I-Y 6.00% $ 14,077
----------------------------------------------------
I-ZZZ 6.00% $140,221,545
----------------------------------------------------
II-X 5.50% $ 135
----------------------------------------------------
II-Y 5.50% $ 31,499,473
----------------------------------------------------
II-ZZZ 5.50% $ 3,162
----------------------------------------------------
I-A-P-L 0.00% $ 594,733
----------------------------------------------------
II-A-P-L 0.00% $ 43,465
----------------------------------------------------
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 Interests Z: Each of the Uncertificated
REMIC I Regular Interests Z1 and Uncertificated REMIC I Regular Interests Z2.
Uncertificated REMIC I Regular Interests Z1: Each of the 246
uncertificated partial undivided beneficial ownership interests in REMIC I,
numbered sequentially from 1 to 246, each relating to the particular Mortgage
Loan in Loan Group I identified by such sequential number on the Mortgage Loan
Schedule, each having no principal balance, and each bearing interest at the
respective Pool Strip Rate on the Stated Principal Balance of the related
Mortgage Loan.
Uncertificated REMIC I Regular Interests Z2: Each of the 52 uncertificated
partial undivided beneficial ownership interests in REMIC I, numbered
sequentially from 1 to 52, each relating to the particular Mortgage Loan in Loan
Group II identified by such sequential number on the Mortgage Loan Schedule,
each having no principal balance, and each bearing interest at the respective
Pool Strip Rate on the Stated Principal Balance of the related Mortgage Loan.
Uncertificated REMIC II Regular Interests Z: Each of the Uncertificated
REMIC II Regular Interests Z1 and Uncertificated REMIC II Regular Interests Z2.
Uncertificated REMIC II Regular Interests Z1: Each of the 246
uncertificated partial undivided beneficial ownership interests in REMIC II
numbered sequentially from 1 to 246, each relating to the identically numbered
Uncertificated REMIC I Regular Interests Z1, 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 II Regular Interests Z2: Each of the 52
uncertificated partial undivided beneficial ownership interests in REMIC II
numbered sequentially from 1 to 52, each relating to the identically numbered
Uncertificated REMIC I Regular Interests Z2, 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 II Regular Interests Z 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.
22
Uncertificated REMIC II Regular Interest Distribution Amounts: With
respect to the Uncertificated REMIC II Regular Interests Z, the Uncertificated
REMIC II Regular Interests Z Distribution Amount.
Uncertificated REMIC Regular Interest: Any of the Uncertificated REMIC I
Regular Interests or the Uncertificated REMIC II Regular Interests Z.
Uncertificated REMIC II Regular Interests: Any of Uncertificated REMIC II
Regular Interest Z or any of uncertificated REMIC II Regular Interest II-A-1 or
II-A-2.
Underwriter: Credit Suisse Securities (USA) LLC.
Underwriting Agreement: The underwriting agreement, dated as of
November 16, 2007, among the Company, the Master Servicer and the Underwriter.
WHFIT: A "Widely Held Fixed Investment Trust" as that term is defined
in Treasury Regulations section 1.671-5(b)(22) or successor provisions.
WHFIT Regulations: Treasury Regulations section 1.671-5, as amended.
WHMT: A "Widely Held Mortgage Trust" as that term is defined in
Treasury Regulations section 1.671-5(b)(23) or successor provisions.
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.
23
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) (See Section 2.01(b) of the Standard Terms)
(c) (See Section 2.01(c) of the Standard Terms)
(d) (See Section 2.01(d) of the Standard Terms)
(e) (See Section 2.01(e) of the Standard Terms)
(f) (See Section 2.01(f) of the Standard Terms)
(g) (See Section 2.01(g) of the Standard Terms)
(h) (See Section 2.01(h) of the Standard Terms)
Section 2.02 Acceptance by Trustee. (See Section 2.02 of the Standard
Terms)
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer and the Company.
(a) For representations, warranties and covenants of the Master Servicer, see
Section 2.03(a) of the Standard Terms.
(b) The Company hereby represents and warrants to the Trustee for the benefit
of Certificateholders that as of the Cut-off Date (or, if otherwise
specified below, as of the date so specified):
(i) No Group I Loan is 30 or more days Delinquent in the payment of
principal and interest as of the Cut-Off Date. As of the Cut-Off Date,
approximately 2.8% of the Group I Loans have been 30 to 59 days Delinquent
in payment of principal and interest since their origination, and as of the
Cut-off Date, no Group I Loan has been 60 or more days Delinquent in
payment of principal and interest since their origination. No Group II Loan
is 30 or more days Delinquent in the payment of principal and interest as
of the Cut-off Date and no Group II Loan has been 30 or more days
Delinquent in payment of principal and interest since its origination.
(ii) The information set forth in Exhibit One-I and Exhibit One-II
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;
24
(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, in the case of Group I Loans, and
15 years, in the case of Group II Loans;
(iv) To the best of the Company's knowledge, with respect to all of
the Group I Loans and Group II Loans, if a Mortgage Loan is secured by a
Mortgaged Property with a Loan-to-Value Ratio at origination in excess of
80%, (i) any such Group I 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% and (ii) any such Group II
Loan is the subject of a Primary Insurance Policy that insures that (a) at
least 25% of the Stated Principal Balance of the Mortgage Loan at
origination if the Loan-to-Value Ratio is between 95.00% and 90.01%, (b) at
least 12% of such balance if the Loan-to-Value Ratio is between 90.00% and
85.01%, and (c) at least 6% of such balance if the Loan-to-Value Ratio is
between 85.00% and 80.01%. To the best of the Company's knowledge, each
such Primary Insurance Policy is in full force and effect and the Trustee
is entitled to the benefits thereunder;
(v) The issuers of the Primary Insurance Policies are insurance
companies whose claims-paying abilities are currently acceptable to each
Rating Agency;
(vi) No more than 1.7% of the Group I 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 1.5% of the Group I
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;
no more than 4.4% of the Group II Loans by aggregate Cut-off Date Principal
Balance are secured by Mortgaged Properties located in any one zip code
area in the State of Illinois and no more than 3.1% of the Group II Loans
by aggregate Cut-off Date Principal Balance are secured by Mortgaged
Properties located in any one zip code area outside the State of Illinois;
(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 therefore from the Mortgagor;
25
(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 41.11% of the Group I Loans by aggregate Cut-off
Date Principal Balance were underwritten under a reduced loan documentation
program; no more than 67.34% of the Group II 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) No more than 0.5% of the Group I Loans are Buydown Mortgage Loans
and none of the Group II 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) No more than 0.8% of the Group I Loans are Cooperative Loans and
none of the Group II Loans are Cooperative Loans;
(xv) Except with respect to approximately 1.2% of the Group I 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
26
(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 of the Standard Terms; 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 of the Standard Terms 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 therefore, 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.
27
Section 2.06 Conveyance of Uncertificated REMIC I 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 and the Class P
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 and the Class P
Certificates). The rights of the Holders of each Class of Certificates (other
than the Class R-I Certificates and the Class P 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 therefore,
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 and the Class P 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 Regulation ss.
1.6011-4(c).
28
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 of the Standard Terms, 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.
29
(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.
(a) (See Section 3.07(a) of the Standard Terms)
(b) The Master Servicer shall establish and maintain a Custodial Account
in which the Master Servicer shall deposit or cause to be deposited within two
Business Days of receipt by the Master Servicer, 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), 3.08(b) or 3.21;
30
(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 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. Amounts received
by the Master Servicer in connection with Prepayment Charges on the Prepayment
Charge Loans shall be remitted by the Master Servicer, upon receipt thereof, to
the Trustee and shall be deposited by the Trustee, upon the receipt thereof and
written direction with respect thereto, into the Class P Reserve Account. The
Custodial Account may contain funds that belong to one or more trust funds
created for mortgage pass-through certificates of other Series but may not
contain funds relating to the Mortgage Loans that are not included in such trust
funds. 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) (See Section 3.07(c) of the Standard Terms)
(d) (See Section 3.07(d) of the Standard Terms)
(e) Notwithstanding Section 3.07(a), The Master Servicer shall not waive
(or permit a Subservicer to waive) any Prepayment Charge unless: (i) the
enforceability thereof shall have been limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally, (ii) the enforcement thereof is illegal, or any local, state or
federal agency has threatened legal action if the prepayment penalty is
enforced, (iii) the collectability thereof shall have been limited due to
acceleration in connection with a foreclosure or other involuntary payment or
(iv) such waiver is standard and customary in servicing similar Mortgage Loans
and relates to a default or a reasonably foreseeable default and would, in the
reasonable judgment of the Master Servicer, maximize recovery of total proceeds
31
taking into account the value of such Prepayment Charge and the related Mortgage
Loan. In no event will the Master Servicer waive a Prepayment Charge in
connection with a refinancing of a Mortgage Loan that is not related to a
default or a reasonably foreseeable default. If a Prepayment Charge is waived,
but does not meet the standards described above, then the Master Servicer is
required to deposit into the Class P Reserve Account the amount of such waived
Prepayment Charge at the time that the amount prepaid on the related Group I
Loan is required to be deposited into the Custodial Account. Notwithstanding any
other provisions of this Agreement, any payments made by the Master Servicer in
respect of any waived Prepayment Charges pursuant to this Section shall be
deemed to be paid outside of the Trust Fund and not part of any REMIC.
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. (See
Section 3.15 of the Standard Terms)
Section 3.16 Servicing and Other Compensation; Compensating Interest.
(a) (See Section 3.16(a) of the Standard Terms)
(b) Additional servicing compensation in the form of assumption
fees, late payment charges, investment income on amounts in the Custodial
Account or the Certificate Account or otherwise (but not including
Prepayment Charges) shall be retained by the Master Servicer or the
Subservicer to the extent provided herein, subject to clause (e) below.
Prepayment Charges shall be deposited into the Class P Reserve Account and
shall be paid on each Distribution Date to the Holders of the Class P
Certificates.
32
(c) (See Section 3.16(c) of the Standard Terms)
(d) (See Section 3.16(d) of the Standard Terms)
(e) (See Section 3.16(e) 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)
33
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 of the Standard Terms 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 therefore, 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), (c), (d), (e) and (f) below), in each case to the
extent of the related Available Distribution Amount remaining, and further
subject to the provisions of Section 4.02(a)(ii)(Y) below with respect to
Prepayment Charges, to the extent of Prepayment Charges on deposit in the Class
P Reserve Account:
(i) (X) from the Available Distribution Amount related to the Loan Group
I, to the holders of the Group I Senior Certificates (other than
the Class I-A-P Certificates) on a pro rata basis based on the
Accrued Certificate Interest payable on such Certificates with
respect to such Distribution Date, the Accrued Certificate
Interest on such Classes of Certificates (or Subclasses, if any,
with respect to the Class I-A-V Certificates) for such
Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date, except as
provided in the last paragraph of this Section 4.02(a); and
34
(Y) from the Available Distribution Amount related to the Loan
Group II, to the holders of the Group II Senior Certificates (other
than the Class II-A-P Certificates) on a pro rata basis based on the
Accrued Certificate Interest payable on such Certificates with
respect to such Distribution Date, the Accrued Certificate Interest
on such Classes of Certificates (or Subclasses, if any, with respect
to the Class II-A-V Certificates) for such Distribution Date, plus
any Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided in the last paragraph
of this Section 4.02(a);
(ii) (X) to the Class I-A-P Certificates from the Available Distribution
Amount from Loan Group I and to the Class II-A-P Certificates from
the Available Distribution Amount from Loan Group II, the Class A-P
Principal Distribution Amount for the related Loan Group, until the
Certificate Principal Balance of the related Class A-P Certificates
has been reduced to zero;
(Y) to the Class P Certificates, the Prepayment Charges on
deposit in the Class P Reserve Account; and
(Z) to the Senior Certificates (other than the related Class
A-P Certificates) of each Certificate Group, from the Available
Distribution Amount for the related Loan Group in the priorities and
amounts set forth in Sections 4.02(b) through 4.02(f), the sum of
the following (applied to reduce the Certificate Principal Balances
of such Senior Certificates, as applicable):
(A) the related Senior Percentage for such Distribution Date and Loan
Group, as applicable, 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 in the
related Loan Group (other than the related Discount Fraction of
the principal portion of such payment with respect to a Discount
Mortgage Loan, if any, in the related Loan Group), 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,
if any) which together with other Bankruptcy Losses on the
Mortgage Loans in the related Loan Group exceeds the related
Bankruptcy Amount;
35
(2) the Stated Principal Balance of any Mortgage Loan in the
related Loan Group repurchased during the preceding calendar
month (or deemed to have been so repurchased in accordance with
Section 3.07(b) of the Standard Terms) pursuant to Sections 2.02,
2.03, 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 in the related Loan Group 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,
if any); 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)(Z)(B) of this Series Supplement, including
without limitation Insurance Proceeds, Liquidation Proceeds and
REO Proceeds) with respect to the related Loan Group, 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, if any, in the related Loan Group);
(B) with respect to each Mortgage Loan in the related Loan Group for
which a Cash Liquidation or a REO Disposition occurred during the preceding
calendar month (or was deemed to have occurred during such period in
accordance with Section 3.07(b) of the Standard Terms) and did not result
in any Excess Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or Extraordinary Losses, an amount equal to the lesser of (a) the
related Senior Percentage for such Distribution Date times the Stated
Principal Balance of such Mortgage Loan (other than the related Discount
Fraction of such Stated Principal Balance, with respect to each Discount
Mortgage Loan) and (b) the related Senior Accelerated Distribution
Percentage for such Distribution Date times the related unscheduled
collections (including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan pursuant to Section
3.14 of the Standard Terms (in each case other than the portion of such
unscheduled collections, with respect to a Discount Mortgage Loan, included
in clause (C) of the definition of Class A-P Principal Distribution Amount
in this Series Supplement);
36
(C) the related Senior Accelerated Distribution Percentage for such
Distribution Date times the aggregate of all Principal Prepayments in Full
with respect to the related Loan Group received in the related Prepayment
Period and Curtailments with respect to the related Loan Group received in
the preceding calendar month (other than the related Discount Fraction of
such Principal Prepayments in Full and Curtailments, with respect to each
Discount Mortgage Loan in the related Loan Group);
(D) any Excess Subordinate Principal Amount for such Distribution Date
with respect to such Loan Group;
(E) any amounts to be allocated to the related Loan Group from the
other Loan Group pursuant to the second paragraph of Section 4.02(d) of
this Series Supplement; and
(F) any amounts described in subsection (ii)(Z), clauses (A), (B), (C)
and (E) 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 (F) to the extent that such
amounts are not attributable to Realized Losses which have been allocated
to the Subordinate Certificates; minus
(G) the related Capitalization Reimbursement Amount for such
Distribution Date, other than the related Discount Fraction of any portion
of that amount related to each Discount Mortgage Loan, if any, in the
related Loan Group, multiplied by a fraction, the numerator of which is the
related Senior Principal Distribution Amount, without giving effect to this
clause (G), and the denominator of which is the sum of the principal
distribution amounts for all Classes of related Certificates other than the
related Class A-P Certificates, payable from the Available Distribution
Amount for the related Loan Group without giving effect to any reductions
for the related 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;
37
(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 each Loan Group for such Distribution Date, minus (y)
the amount of any Class A-P Collection Shortfalls for each Loan Group
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 therefore, 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 each Loan Group for such Distribution Date, minus (y) the amount of
any Class A-P Collection Shortfalls for each Loan Group 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 therefore, 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 each Loan Group for such Distribution Date minus (y) the amount of any
Class A-P Collection Shortfalls for each Loan Group 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 therefore, 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;
38
(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 each Loan Group for such Distribution Date minus (y) the amount of any
Class A-P Collection Shortfalls for each Loan Group 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
therefore, 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 each Loan Group for such Distribution Date minus (y) the amount of any
Class A-P Collection Shortfalls for each Loan Group 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
therefore, 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 each Loan Group 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 therefore;
(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 each Loan Group for such Distribution Date minus (y) the amount of any
Class A-P Collection Shortfalls for each Loan Group 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 a Certificate Group, in the priority set
forth in Section 4.02(b), (c), (d), (e) and (f) of this Series Supplement,
the portion, if any, of the Available Distribution Amounts for the related
Loan Group remaining after the foregoing distributions, applied to reduce
the Certificate Principal Balances of such Senior Certificates, but in no
event more than the aggregate of the outstanding Certificate Principal
Balances of each such Class of Senior Certificates, and thereafter, to
each Class of Subordinate Certificates then outstanding beginning with
such Class with the Highest Priority, any portion of the related Available
Distribution Amount remaining after the related Senior Certificates have
been retired, applied to reduce the Certificate Principal Balance of each
such Class of Subordinate Certificates, but in no event more than the
outstanding Certificate Principal Balance of each such Class of
Subordinate Certificates; and
39
(xvii) to the Class R-II Certificates, the balance, if any, of the
Available Distribution Amount for each Loan Group.
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) On each Distribution Date occurring prior to the Credit Support
Depletion Date, the Senior Principal Distribution Amount for Loan Group I shall
be distributed in the following manner and priority:
(i) first, to the Class R-I Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(ii) second, to the Class P Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; and
(iii) third, to the Class I-A-1 and Class I-A-2 Certificates, pro rata, in
accordance with their respective Certificate Principal Balance, until the
Certificate Principal Balances thereof have been reduced to zero.
(c) On each Distribution Date occurring prior to the Credit Support
Depletion Date, the Senior Principal Distribution Amount for Loan Group II shall
be distributed in the following manner and priority:
(i) first, to the Class R-II Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(ii) second, to the Class II-A-1 and Class II-A-2 Certificates, pro
rata, in accordance with their respective Certificate Principal
Balance, until the Certificate Principal Balances thereof have been
reduced to zero.
40
(d) On any Distribution Date prior to the occurrence of the Credit Support
Depletion Date that occurs after the reduction of the aggregate Certificate
Principal Balance of the Senior Certificates of any Certificate Group to zero,
the outstanding Senior Certificates of the other Certificate Group will be
entitled to receive 100% of the mortgagor prepayments on the Mortgage Loans in
the Loan Group related to Senior Certificates that have been fully paid. Such
amounts allocated to Senior Certificates shall be treated as part of the related
Available Distribution Amount and distributed as part of the related Senior
Principal Distribution Amount in accordance with the priorities set forth in
Section 4.02(b) and Section 4.02(c), as applicable, in reduction of the
Certificate Principal Balances thereof. Notwithstanding the foregoing, remaining
Senior Certificates will not be entitled to receive mortgagor prepayments on the
Mortgage Loans in a Loan Group related to Senior Certificates that have been
fully paid if the following two conditions are satisfied: (1) the weighted
average of the Subordinate Percentages for both Loan Groups for such
Distribution Date, weighted on the basis of the Stated Principal Balances of the
Mortgage Loans in the related Loan Group, is at least two times the weighted
average of the initial Subordinate Percentages for both Loan Groups, calculated
on that basis and (2) the outstanding principal balance of the Mortgage Loans in
both Loan Groups delinquent 60 days or more averaged over the last six months,
as a percentage of the aggregate outstanding Certificate Principal Balance of
the Class M Certificates and Class B Certificates, is less than 50%.
On any Distribution Date prior to the Credit Support Depletion Date on
which the aggregate Certificate Principal Balance of the Senior Certificates of
any Certificate Group is greater than the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group in each case after giving effect to
distributions to be made on such Distribution Date, (1) 100% of the mortgagor
prepayments allocable to the Class M Certificates and Class B Certificates on
the Mortgage Loans in the other Loan Group will be distributed to such
undercollateralized Senior Certificates in accordance with the priorities set
forth in Section 4.02(b) and Section 4.02(c), as applicable, in reduction of the
Certificate Principal Balances thereof, until the aggregate Certificate
Principal Balance of such certificates equals the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group and (2) an amount equal
to one month's interest at a rate of 6.00% per annum in the case of Loan Group I
and 5.50% per annum in the case of Loan Group II on the amount of such
difference will be distributed, pro rata, from the Available Distribution Amount
for the other Loan Group otherwise allocable to the Class M Certificates and
Class B Certificates, based on such amounts otherwise allocable to the Class M
Certificates and Class B Certificates, as follows: first to pay any unpaid
interest on such undercollateralized Senior Certificates and then to pay
principal on those certificates in accordance with the priorities set forth in
Section 4.02(b) and Section 4.02(c), as applicable.
(e) On or after the occurrence of the related Credit Support Depletion
Date, all priorities relating to distributions as described in Section 4.02(b)
and (c) of this Series Supplement in respect of principal among the Senior
Certificates in the related Certificate Group (other than the related Class A-P
Certificates) will be disregarded, and (i) an amount equal to the Class A-P
Principal Distribution Amount for the related Loan Group shall be distributed to
the Class A-P Certificates in that Certificate Group, and (ii) the Senior
Principal Distribution Amount for the related Loan Group will be distributed to
the remaining Senior Certificates in the related Certificate Group (other than
the related Class A-P Certificates) pro rata in accordance with their respective
outstanding Certificate Principal Balances.
41
(f) After the reduction of the Certificate Principal Balances of all
Classes of Senior Certificates of a Certificate Group (other than the related
Class A-P Certificates) to zero but prior to the related Credit Support
Depletion Date, such Senior Certificates (other than the related Class A-P
Certificates) will be entitled to no further distributions of principal thereon
and the applicable Available Distribution Amount will be distributed solely to
the holders of the related Class A-P Certificates, the related Class A-V
Certificates, and the Subordinate Certificates, in each case as described
herein.
(g) In addition to the foregoing distributions, with respect to any
Subsequent Recoveries, the Master Servicer shall deposit such funds into the
Custodial Account pursuant to Section 3.07(b)(iii) of the Standard Terms. If,
after taking into account such Subsequent Recoveries, the amount of a Realized
Loss is reduced, the amount of such Subsequent Recoveries will be applied to
increase the Certificate Principal Balance of the Class of Subordinate
Certificates with 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.
(h) The Classes of Exchangeable Certificates outstanding on any
Distribution Date shall be entitled to the principal and interest distributions
for such Certificates pursuant to this Section 4.02. In the event that the
Classes of Exchangeable Certificates comprising the Combination Group are
exchanged for their related Exchanged Certificates, such Exchanged Certificates
shall be entitled to the principal distributions that would be allocable to the
related Exchangeable Certificates pursuant to this Section 4.02 if such
Exchangeable Certificates were outstanding on such date. Such Exchanged
Certificates shall also be entitled to the combined Pass-Through Rate of the
related Exchangeable Certificates.
(i) 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 therefore except as otherwise provided by this Series Supplement
or applicable law.
42
(j) Except as otherwise provided in Section 9.01 of the Standard Terms, if
the Master Servicer anticipates that a final distribution with respect to any
Class of Certificates will be made on 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) of the Standard
Terms do not surrender their Certificates for final cancellation, the Trustee
shall cause funds distributable with respect to such Certificates to be
withdrawn from the Certificate Account and credited to a separate escrow account
for the benefit of such Certificateholders as provided in Section 9.01(d) of the
Standard Terms.
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting.
(a) (See Section 4.03(a) of the Standard Terms)
(b) (See Section 4.03(b) of the Standard Terms)
(c) (See Section 4.03(c) of the Standard Terms)
(d) (See Section 4.03(d) of the Standard Terms)
(e) (See Section 4.03(e) of the Standard Terms)
(f) (See Section 4.03(f) of the Standard Terms)
(g) (See Section 4.03(g) of the Standard Terms)
(h) (See Section 4.03(h) of the Standard Terms)
(i) On each Distribution Date, the Trustee shall either forward by mail or
otherwise make available to Standard & Poor's, a statement setting forth whether
any exchanges of Exchangeable Certificates have taken place since the preceding
Distribution Date and the percentage of any exchanges that have taken place.
(j) On each Distribution Date, the Trustee shall either forward by mail or
otherwise make available to Standard & Poor's, a statement setting forth (i)
whether any exchanges of Exchangeable Certificates or Exchanged Certificates
have taken place since the preceding Distribution Date, (ii) the Exchanged
Certificates or Exchangeable Certificates received by the Certificateholder as a
result of each such exchange that took place since the preceding Distribution
Date, and (iii) a fraction, expressed as a percentage, the numerator of which is
the aggregate Certificate Principal Balance of all Certificates of any Class of
Certificates that were exchanged since the preceding Distribution Date, and the
denominator of which is the Initial Certificate Principal Balance of such Class
of Certificates.
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)
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 Realized Loss
is on a Discount Mortgage Loan, to the related Class A-P Certificates in an
amount equal to the related Discount Fraction of the principal portion thereof
until the Certificate Principal Balance of such Class A-P Certificates has been
reduced to zero, and the remainder of such Realized Losses on the Discount
Mortgage Loans in the related Loan Group and the entire amount of such Realized
Losses on Non-Discount Mortgage Loans in the related Loan Group will be
allocated (i) among all the Group I Senior Certificates other than the Class
I-A-P Certificates (in the case of a Realized Loss on a Group I Loan) and, in
the case of the interest portion of such Realized Loss, the Class I-A-V
Certificates (in the case of a Realized Loss on a Group I Loan) on a pro rata
basis; provided, however, that Realized Losses otherwise allocable to the Class
I-A-1 Certificates will be allocated to the Class I-A-2 Certificates, until the
Certificate Principal Balance of the Class I-A-2 Certificates has been reduced
to zero and (ii) among all of the Group II Senior Certificates other than the
Class II-A-P Certificates (in the case of a Realized Loss on a Group II Loan)
and, in the case of the interest portion of such Realized Loss, Class II-A-V
Certificates (in the case of a Realized Loss on a Group II Loan) on a pro rata
basis, as described below; provided, however, that Realized Losses otherwise
allocable to the Class II-A-1 Certificates will be allocated to the Class II-A-2
Certificates, until the Certificate Principal Balance of the Class II-A-2
Certificates has been reduced to zero.
44
In addition, the Classes of Exchangeable Certificates outstanding on any
Distribution Date shall bear the share of Realized Losses and interest
shortfalls allocable to such Classes of Certificates as provided in this Section
4.05 and the definition of Accrued Certificate Interest. In addition, the Class
of Exchanged Certificates shall be allocated the Realized Losses and interest
shortfalls that would be allocable to each of the Classes of related
Exchangeable Certificates in the Combination Group pursuant to this Section 4.05
and the definition of Accrued Certificate Interest were such Classes of
Exchangeable Certificates outstanding on such date.
The principal portion of any Excess Special Hazard Losses, Excess
Bankruptcy Losses, Excess Fraud Losses and Extraordinary Losses on Discount
Mortgage Loans will be allocated to the related Class A-P Certificates in an
amount equal to the related Discount Fraction thereof. The Class I-A Percentage
or Class II-A Percentage (as applicable) of the remainder of the principal
portion of such losses on Discount Mortgage Loans and the Class I-A Percentage
or Class II-A Percentage (as applicable) of the entire amount of the principal
portion of such losses on Non-Discount Mortgage Loans will be allocated to (i)
the Group I Senior Certificates (other than the Class I-A-P Certificates and the
Class I-A-V Certificates), on a pro rata basis (in the case of a Realized Loss
on a Group I Loan), and (ii) the Group II Senior Certificates (other than the
Class II-A-P Certificates and the Class II-A-V Certificates), on a pro rata
basis (in the case of a Realized Loss on a Group II Loan). The remainder of the
principal portion of such losses on Discount Mortgage Loans and Non-Discount
Mortgage Loans will be allocated to the Class M Certificates and Class B
Certificates on a pro rata basis. The interest portion of such losses will be
allocated to all of the Certificates in the related Certificate Group, on a pro
rata basis based on the Accrued Certificate Interest thereon payable from the
related Loan Group in respect of the related Distribution Date.
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 from the related Loan Group in
respect of such Distribution Date (without regard to any Compensating Interest
allocated to the Available Distribution Amount of such Loan Group for such
Distribution Date) in the case of an interest portion of a Realized Loss;
provided that no such reduction shall reduce the aggregate Certificate Principal
Balance of the Certificates in the Certificate Group related to Loan Group I or
Loan Group II, as applicable, below the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group. 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
45
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) of the Standard Terms, such Realized Losses
and other losses allocated to the Class A-V Certificates shall be allocated
among such Subclasses in proportion to the respective amounts of Accrued
Certificate Interest payable on such Distribution Date that would have resulted
absent such reductions.
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged
Property. (See Section 4.06 of the Standard Terms)
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See
Section 4.07 of the Standard Terms)
Section 4.08 Surety Bond. (See Section 4.08 of the Standard Terms)
Section 4.09 Class P Reserve Account.
(a) The Trustee shall establish a Class P Reserve Account on behalf of the
Holders of the Class P Certificates. The Class P Reserve Account must be an
Eligible Account. The Class P Reserve Account shall be entitled "Class P Reserve
Account, U.S. Bank National Association, as Trustee for the benefit of Holders
of Residential Funding Mortgage Securities I, Inc., Mortgage Asset-Backed
Pass-Through Certificates, Series 2007-S9," (the "Class P Reserve Account"). All
amounts received by the Master Servicer in connection with Prepayment Charges on
the Prepayment Charge Loans shall be deposited by the Master Servicer into the
Class P Reserve Account upon receipt thereof. Funds on deposit in the Class P
Reserve Account shall be held in trust by the Trustee for the Holder of the
Class P Certificates. Amounts on deposit in the Class P Reserve Account shall be
held and remain uninvested, and the Trustee shall have no liability for interest
or other compensation therein. The Class P Reserve Account shall not be a part
of any REMIC hereunder.
(b) On each Distribution Date, the Master Servicer on behalf of the
Trustee (or the Paying Agent appointed by the Trustee) shall withdraw the amount
then on deposit in the Class P Reserve Account representing Prepayment Charges
in respect of the Prepayment Charge Loans received after the immediately
preceding Distribution Date, and distribute such amounts to the Holders of the
Class P Certificates in accordance with Section 4.02(a)(ii)(Y).
46
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. (See Section 5.01 of the Standard Terms)
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) (See Section 5.02(a) of the Standard Terms)
(b) (See Section 5.02(b) of the Standard Terms)
(c) (See Section 5.02(c) of the Standard Terms)
(d) (See Section 5.02(d) of the Standard Terms)
(e) (See Section 5.02(e) of the Standard Terms)
(f) (See Section 5.02(f) of the Standard Terms)
(g) (See Section 5.02(g) of the Standard Terms)
(h) (See Section 5.02(h) of the Standard Terms)
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. (See
Section 5.03 of the Standard Terms)
Section 5.04 Persons Deemed Owners. (See Section 5.04 of the Standard
Terms)
Section 5.05 Appointment of Paying Agent. (See Section 5.05 of the
Standard Terms)
Section 5.06 U.S.A. Patriot Act Compliance. (See Section 5.06 of the
Standard Terms)
Section 5.07 Exchangeable Certificates.
(a) Upon the presentation and surrender by any Certificateholder of its
Exchangeable Certificates or Exchanged Certificates, as applicable, in the
appropriate combination as set forth in Exhibit Five, such Certificateholder
shall hereunder transfer, assign, set over and otherwise convey to the Trustee,
all of such Certificateholder's right, title and interest in and to such
Exchangeable Certificates or Exchanged Certificates, as applicable.
The Exchangeable Certificates and Exchanged Certificates shall be
transferred in uncertificated form to the Underwriter pursuant to Section 3 of
the Underwriting Agreement. The Exchangeable Certificates or Exchanged
Certificates in which the Underwriter does not take an initial position in on
the books of DTC shall be transferred by the Underwriter to the Trustee to be
held in trust. U.S. Bank National Association, acting in its capacity as
Trustee, acknowledges (i) the transfer and assignment to it of the
uncertificated Exchangeable Certificates or Exchanged Certificates, as
applicable, pursuant to this Section 5.07 and Section 3 of the Underwriting
Agreement and (ii) any transfer and assignment of uncertificated Exchangeable
Certificates or Exchanged Certificates, as applicable, pursuant to the foregoing
paragraph, and hereby declares that it will hold the same in trust for the
Certificateholders on the terms contained in this Agreement.
47
(b) The Exchangeable Certificates and Exchanged Certificates authorized by this
Agreement shall have the characteristics specified or determined as set forth in
Exhibit Five, and otherwise shall be subject to the terms and provisions set
forth herein.
(c) The Exchangeable Certificates and the Exchanged Certificates, as applicable,
shall be exchangeable on the books of DTC for the Exchanged Certificates or
Exchangeable Certificates, as applicable, on and after the Closing Date, in
accordance with the terms and conditions set forth and otherwise in accordance
with the procedures specified hereunder.
In the case of the Combination Group, the Exchangeable Certificates
shall be exchangeable for the Exchanged Certificates related to the Combination
Group in respective denominations determined based on the proportion that the
initial Certificate Principal Balances of the Exchangeable Certificates bear to
the original Certificate Principal Balance of the related Exchanged
Certificates, as set forth in Exhibit Five. Upon any such exchange, the portions
of the Exchangeable Certificates designated for exchange shall be deemed
exchanged and replaced by the Exchanged Certificates issued in exchange
therefore. Correspondingly, Exchanged Certificates related to the Combination
Group may be further designated for exchange for the Exchangeable Certificates
(or for other Exchanged Certificates, if applicable) related to the Combination
Group in respective denominations determined based on the proportion that the
initial Certificate Principal Balances of such Exchanged Certificates bear to
the original Certificate Principal Balances of the Exchangeable Certificates or
the related Exchanged Certificates, in each case, as set forth in Exhibit Five.
There shall be no limitation on the number of exchanges authorized pursuant to
this Section 5.07, and, except as provided below, no fee or other charge shall
be payable to the Trustee or DTC in connection therewith.
In order to effect an exchange of Certificates, the
Certificateholder shall notify the Trustee and the Master Servicer in writing,
substantially in the form of Exhibit S, (including by e-mail at
xxx.xxxxxxxx@xxxxxx.xxx and XXXxxxxxxxXxxxxxxxxxxx@xxxxxxx.xxx), and in
accordance with the requirements set forth herein, no earlier than the first
calendar day of the month of the proposed exchange date and no later than three
Business Days before the proposed exchange date. The exchange date will be
subject to the Trustee's approval but it can generally be any Business Day other
than the first and last Business Days of the month and subject to the preceding
sentence. The notice must be on the Certificateholder's letterhead, carry a
medallion stamp guarantee and set forth the following information: (i) the CUSIP
number of each Certificate or Certificates (as applicable) to be exchanged and
Certificate or Certificates (as applicable) to be received; (ii) the outstanding
Certificate Principal Balance and the initial Certificate Principal Balance of
the Certificates to be exchanged; (iii) the DTC participant numbers to be
debited and credited and (iv) the proposed exchange date. After receiving the
notice, the Trustee will e-mail the certificateholder wire payment instructions
relating to the exchange fee. The Trustee will utilize the Deposit and
Withdrawal System at DTC to exchange the Certificates. A notice becomes
irrevocable on the second Business Day before the proposed exchange date.
48
Notwithstanding any other provision herein set forth, a fee shall be
payable to the Trustee in connection with each exchange equal to $10,000;
provided, however, multiple exchanges on any given exchange date by a single
investor will be deemed to be a single exchange on such exchange date by such
investor. Such fee must be received by the Trustee prior to the exchange date or
such exchange shall not be effected.
The Trustee shall make the first distribution on an Exchangeable
Certificate or an Exchanged Certificate received in an exchange transaction on
the Distribution Date in the following month to the Certificateholder of record
as of the close of business on the last day of the month of the exchange. The
Trustee may rely on the monthly certificate of the Master Servicer in order to
make any calculation needed relating to the distribution of principal and
interest on the Exchangeable Certificates and the related Exchanged
Certificates.
Section 5.08 Tax Status and Reporting of Exchangeable Certificates.
(a) It is intended that the Grantor Trust be classified for federal income tax
purposes as a grantor trust under Subpart E, part I of subchapter J of chapter 1
of the Code, and the powers granted and obligations undertaken in this Agreement
shall be construed so as to further such intent. Under no circumstances shall
the Trustee, the Master Servicer, the Company or the REMIC Administrator have
the power to vary the investments of the Holders of Exchangeable Certificates or
Exchanged Certificates in their related assets of the Grantor Trust in order to
take advantage of variations in the market to improve their rate of return. The
Exchangeable Certificates and the Exchanged Certificates represent undivided
beneficial ownership of the Grantor Trust Uncertificated REMIC Regular Interests
identified as related to such Certificates in the definition of Uncertificated
REMIC Regular Interests.
(b) The REMIC Administrator shall prepare or cause to be prepared all of the Tax
Returns that it determines are required with respect to the Grantor Trust and
deliver such Tax Returns in a timely manner to the Trustee, and, if required by
applicable law, the Trustee is directed to and 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 such Tax
Returns that contain errors or omissions. The Trustee and the 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 such Tax Returns.
(c) Each beneficial owner of an Exchangeable Certificate or an Exchanged
Certificate shall be deemed to have instructed the Trustee to deposit the
related Grantor Trust Uncertificated REMIC Regular Interests into the Grantor
Trust. The Trustee shall establish and maintain a Grantor Trust Account. On each
Distribution Date, the Master Servicer on behalf of the Trustee (or the Paying
Agent appointed by the Trustee) shall be deemed to have deposited into the
Grantor Trust Account all amounts deemed distributed with respect to Grantor
Trust Uncertificated REMIC Regular Interests pursuant to the provisions of
Section 10.04(b).
49
(d) The Grantor Trust is a WHFIT that is a WHMT. The Trustee will report as
required under the WHFIT Regulations to the extent such information is
reasonably necessary. To enable the Trustee to do so, and to the extent such
information is not in the Trustee's possession, the REMIC Administrator shall
provide such information to the Trustee on a timely basis. The Trustee is hereby
directed pursuant to this Agreement to assume that DTC is the only "middleman"
(as such term is defined in the WHFIT Regulations) unless the Company or the
Master Servicer notifies the Trustee in writing of the identities of other
"middlemen" that are Holders of Exchangeable Certificates or Exchanged
Certificates. The Master Servicer and the Company agree to notify the Trustee in
writing of any such additional "middlemen" of which they have knowledge.
(e) The Trustee will report required WHFIT information using the accrual method,
except to the extent the WHFIT Regulations specifically require a different
method. The Trustee will be under no obligation to determine whether any
Exchangeable or Exchanged Certificateholder or other beneficial owner of an
Exchangeable Certificate or an Exchanged Certificate, to the extent the Trustee
knows of any other beneficial owner of an Exchangeable Certificate or an
Exchanged Certificate, uses the cash or accrual method. The Trustee will make
available information as required by the WHFIT Regulations to Exchangeable and
Exchanged Certificateholders annually. In addition, the Trustee will not be
responsible or liable for providing subsequently amended, revised or updated
information to any Exchangeable or Exchanged Certificateholder, unless requested
in writing by such Certificateholder.
(f) To the extent required by the WHFIT Regulations, the Trustee will use
reasonable efforts to make available on its website the CUSIP Numbers for the
Exchangeable Certificates and the Exchanged Certificates. The Trustee will make
reasonable good faith efforts to keep the CUSIP Numbers information on its
website accurate and updated to the extent CUSIP Numbers have been received. The
Trustee will not be liable for investor reporting delays that result from the
receipt of inaccurate or untimely CUSIP Number information.
50
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
51
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
52
ARTICLE VIII
CONCERNING THE TRUSTEE
(SEE ARTICLE VIII OF THE STANDARD TERMS)
53
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL
CERTIFICATES (SEE ARTICLE IX OF THE STANDARD TERMS)
54
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard
Terms)
Section 10.02 Master Servicer; REMIC Administrator and Trustee
Indemnification. (See Section 10.02 of the Standard Terms)
Section 10.03 Designation of REMIC(s).
The REMIC Administrator will make an election to treat the segregated pool
of assets described in the definition of REMIC I (as defined herein), and
subject to this Agreement (including the Mortgage Loans but excluding the
prepayment charges to which the Class P Certificates are entitled), as a REMIC
("REMIC I") for federal income tax purposes. The REMIC Administrator will make
an election to treat the segregated pool of assets consisting of the
Uncertificated REMIC I Regular Interests, and subject to this Agreement, as a
REMIC ("REMIC II") for federal income tax purposes.
The Uncertificated REMIC I Regular Interests will be "regular interests"
in REMIC I and the Class R-I Certificates will be the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions (as defined in the
Standard Terms).
The Uncertificated REMIC II Regular Interests, the rights in which will be
represented by the related Exchanged and Exchangeable Certificates, as the case
may be, the Class I-A-1, Class I-A-2, Class I-A-P, Class II-A-P, Class M-1,
Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates, the
Uncertificated REMIC II Regular Interests Z1 and Uncertificated REMIC II Regular
Interest Z2, the rights in and to which will be represented by the related 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
related Class A-V Certificates pursuant to Section 5.01(c) of the Standard
Terms, any such Subclass will represent the related Uncertificated REMIC II
Regular Interests Z1 or Uncertificated REMIC II Regular Interests Z2, as
applicable, specified by the initial Holder of the related Class A-V
Certificates pursuant to said Section. The Class P Certificates will not
represent ownership of an interest in any REMIC.
Section 10.04 Distributions on the Uncertificated REMIC I Regular
Interests and Uncertificated REMIC II Regular Interests.
(a) On each Distribution Date the Trustee shall be deemed to distribute to
itself, as the holder of the Uncertificated REMIC I Regular Interests and to the
holder of the Class R-I Certificate, Uncertificated Accrued Interest on the
Uncertificated REMIC I Regular Interests and Class R-I Certificate, pro rata,
for such Distribution Date, plus any Uncertificated Accrued Interest thereon
remaining unpaid from any previous Distribution Date.
55
(b) Distributions of principal from the Group I Loans shall be deemed to
be made to the Class R-I Certificate, until the principal balance of the Class
R-I Certificate has been reduced to zero.
(c) Distributions of principal from the Loan Groups shall then be deemed
to be made to the related Uncertificated REMIC I Regular Interests first, so as
to keep the Uncertificated Principal Balance of each such related Uncertificated
REMIC I Regular Interest ending with the designation "Y" equal to 0.01% of the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group (other than the portion thereof allocable to the related Class A-P
Certificates); second, so as to keep the principal balance of each such related
Uncertificated REMIC I Regular Interest ending with the designation "X" equal to
0.01% of the Group I Subordinate Component or the Group II Subordinate
Component, as the case may be (except that if on any Distribution Date the
Subordinate Component for any Loan Group is greater than the Subordinate
Component for such Loan Group on the preceding Distribution Date, the least
amount of principal shall be distributed to Uncertificated REMIC I Regular
Interests I-X and II-X such that the REMIC I Subordinate Balance Ratio is
maintained); and third, any remaining principal shall be distributed to the
related Uncertificated REMIC I Regular Interest ZZZ. Realized Losses on the
Mortgage Loans shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal Balance of
each Uncertificated REMIC I Regular Interest ending with the designation "Y"
equal to 0.01% of the aggregate Stated Principal Balance of the Mortgage Loans
in the related Loan Group (other than the portion thereof allocable to the
related Class A-P Certificates); second, Realized Losses shall be applied after
all distributions have been made on each Distribution Date, so as to keep the
principal balance of each Uncertificated REMIC I Regular Interest ending with
the designation "X" equal to 0.01% of the Group I Subordinate Component or the
Group II Subordinate Component, as the case may be (except that if on any
Distribution Date the Subordinate Component for any Group of Loans is greater
than the Subordinate Component for such Group of Loans on the preceding
Distribution Date, the least amount of Realized Losses shall be applied to
Uncertificated REMIC I Regular Interests I-X and II-X such that the REMIC I
Subordinate Balance Ratio is maintained); and third, the remaining Realized
Losses shall be allocated to the related Uncertificated REMIC I Regular Interest
ZZZ.
(d) Distributions of principal and interest, and the allocation of
Realized Losses to the Uncertificated REMIC II Regular Interests (other than
Uncertificated REMIC II Regular Interests Z) shall be deemed made in accordance
with such distribution and allocations as made and applied to the Class II-A-1
and Class II-A-2 Certificates, as applicable.
(e) In determining from time to time the amounts distributable on the
Uncertificated REMIC I or II Regular Interests, Realized Losses allocated to the
REMIC II Regular Interests shall be deemed allocated, taking into account the
provisions of (c) above, proportionately to the Uncertificated REMIC I Regular
Interests corresponding to the related Loan Group in which the Realized Loss has
occured.
(f) Notwithstanding the deemed distributions on the Uncertificated REMIC I
or II Regular Interests described in this Section 10.04, distributions of funds
from the Certificate Account shall be made only in accordance with Section 4.02.
56
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.
57
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 2007-S9
Fitch Ratings Xxx Xxxxx Xxxxxx 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.
58
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 I-A-V Certificates, 1.0% of all Voting Rights
shall be allocated among the Holders of the Class II-A-V Certificates and 0.5%
and 0.5% 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).
59
ARTICLE XII
COMPLIANCE WITH REGULATION AB
(SEE ARTICLE XII OF THE STANDARD TERMS)
60
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/ Xxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President Title: Vice President
[Seal] RESIDENTIAL FUNDING COMPANY, LLC
Attest: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx Name: Xxx Xxxxxxxx
Title: Associate Title: Associate
[Seal] U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
Attest:____________________________ By:_______________________________________
Name: Name:
Title: Title:
Series Supplement
RFMSI Series 2007-S9
Series Supplement
RFMSI Series 2007-S9
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the _____ day of November, 2007 before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxxx, 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 November, 2007 before me, a notary public in and
for said State, personally appeared Xxx Xxxxxxxx, known to me to be an Associate
of Residential Funding Company, LLC, one of the limited liability companies that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said limited liability company, and acknowledged to me
that such limited liability company 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 November, 2007 before me, a notary public in and
for said State, personally appeared _________________________, known to me to be
an _________________________ 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-I
MORTGAGE LOAN SCHEDULE
GROUP I LOANS
(Available from the Company upon request)
EXHIBIT ONE-I
EXHIBIT ONE-II
MORTGAGE LOAN SCHEDULE
GROUP II LOANS
(Available from the Company upon request)
EXHIBIT ONE-II
EXHIBIT TWO-I
SCHEDULE OF DISCOUNT FRACTIONS
FOR GROUP I LOANS
(Available from the Company upon request)
EXHIBIT TWO-I
EXHIBIT TWO-II
SCHEDULE OF DISCOUNT FRACTIONS
FOR GROUP II LOANS
(Available from the Company upon request)
EXHIBIT TWO-II
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 and the identity of the
party receiving such fees or expenses;
(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 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) for each Loan Group, the weighted average remaining term to maturity
of the Mortgage Loans after giving effect to the amounts distributed on such
Distribution Date;
(x) for each Loan Group, 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) for each Loan Group, 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;
EXHIBIT THREE-1
(xiii) for each Loan Group, 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) for each Loan Group, 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 of the Standard Terms;
(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) in the aggregate and for each Loan Group, the number, Stated
Principal Balance and actual principal balance of REO Properties;
(xix) 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;
(xx) the Pass-Through Rate with respect to each Class of Class A-V
Certificates;
(xxi) the Notional Amount with respect to each class of Interest Only
Certificates;
(xxii) the occurrence of the Credit Support Depletion Date;
(xxiii) the Senior Accelerated Distribution Percentages applicable to such
distribution;
(xxiv) the Senior Percentages and Subordinate Class Percentage for such
Distribution Date;
(xxv) in the aggregate and for each Loan Group, the aggregate amount of
any recoveries on previously foreclosed loans; and
(xxvi) payment made from the Class P Reserve Account on such Distribution
Date and the balance of the Class P Reserve Account after giving effect to such
amounts.
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 THREE-2
EXHIBIT FOUR
STANDARD TERMS OF POOLING AND SERVICING
AGREEMENT DATED AS OF NOVEMBER 1, 2007
[See Standard Terms of Pooling and Servicing Agreement at Tab 3 of the
closing set]
EXHIBIT FOUR-1
================================================================================
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2007
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.........................................33
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES.........34
Section 2.01 Conveyance of Mortgage Loans.....................................34
Section 2.02 Acceptance by Trustee............................................41
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer and the Company.........................................42
Section 2.04 Representations and Warranties of Residential Funding............44
Section 2.05 Execution and Authentication of Certificates/Issuance of
Certificates Evidencing Interests in REMIC I Certificates........46
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II Regular
Interests; Acceptance by the Trustee.............................46
Section 2.07 Issuance of Certificates Evidencing Interests in REMIC II........46
Section 2.08 Purposes and Powers of the Trust.................................46
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...........................47
Section 3.01 Master Servicer to Act as Servicer...............................47
Section 3.02 Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations......................................................49
Section 3.03 Successor Subservicers...........................................50
Section 3.04 Liability of the Master Servicer.................................50
Section 3.05 No Contractual Relationship Between Subservicer and Trustee
or Certificateholders............................................50
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee..........................................................51
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account................................................51
Section 3.08 Subservicing Accounts; Servicing Accounts........................54
Section 3.09 Access to Certain Documentation and Information Regarding
the Mortgage Loans...............................................55
Section 3.10 Permitted Withdrawals from the Custodial Account.................56
-i-
TABLE OF CONTENTS
(continued
PAGE
Section 3.11 Maintenance of the Primary Insurance Policies; Collections
Thereunder.......................................................57
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity
Coverage.........................................................58
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.....................60
Section 3.14 Realization Upon Defaulted Mortgage Loans........................62
Section 3.15 Trustee to Cooperate; Release of Custodial Files.................65
Section 3.16 Servicing and Other Compensation; Compensating Interest..........66
Section 3.17 Reports to the Trustee and the Company...........................67
Section 3.18 Annual Statement as to Compliance and Servicing Assessment.......67
Section 3.19 Annual Independent Public Accountants' Servicing Report..........68
Section 3.20 Rights of the Company in Respect of the Master Servicer..........68
Section 3.21 Administration of Buydown Funds..................................69
Section 3.22 Advance Facility.................................................69
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS...........................................73
Section 4.01 Certificate Account..............................................73
Section 4.02 Distributions....................................................74
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting.................................74
Section 4.04 Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer..................................76
Section 4.05 Allocation of Realized Losses....................................78
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property....78
Section 4.07 Optional Purchase of Defaulted Mortgage Loans....................78
Section 4.08 Surety Bond......................................................79
ARTICLE V THE CERTIFICATES.........................................................79
Section 5.01 The Certificates.................................................79
Section 5.02 Registration of Transfer and Exchange of Certificates............82
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates................88
Section 5.04 Persons Deemed Owners............................................88
-ii-
TABLE OF CONTENTS
(continued
PAGE
Section 5.05 Appointment of Paying Agent......................................88
Section 5.06 U.S.A. Patriot Act Compliance....................................89
Section 5.07 Exchangeable Certificates........................................89
Section 5.08 Tax Status and Reporting of Exchangeable Certificates ...........89
ARTICLE VI THE COMPANY AND THE MASTER SERVICER......................................89
Section 6.01 Respective Liabilities of the Company and the Master Servicer....89
Section 6.02 Merger or Consolidation of the Company or the Master
Servicer; Assignment of Rights and Delegation of Duties by
Master Servicer..................................................89
Section 6.03 Limitation on Liability of the Company, the Master Servicer
and Others.......................................................91
Section 6.04 Company and Master Servicer Not to Resign........................91
ARTICLE VII DEFAULT..................................................................92
Section 7.01 Events of Default................................................92
Section 7.02 Trustee or Company to Act; Appointment of Successor..............94
Section 7.03 Notification to Certificateholders...............................95
Section 7.04 Waiver of Events of Default......................................95
ARTICLE VIII CONCERNING THE TRUSTEE...................................................95
Section 8.01 Duties of Trustee................................................95
Section 8.02 Certain Matters Affecting the Trustee............................97
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans............99
Section 8.04 Trustee May Own Certificates.....................................99
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification..................................................99
Section 8.06 Eligibility Requirements for Trustee............................100
Section 8.07 Resignation and Removal of the Trustee..........................101
Section 8.08 Successor Trustee...............................................102
Section 8.09 Merger or Consolidation of Trustee..............................102
Section 8.10 Appointment of Co-Trustee or Separate Trustee...................102
Section 8.11 Appointment of the Custodian....................................103
Section 8.12 Appointment of Office or Agency.................................104
ARTICLE IX TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES....................104
-iii-
TABLE OF CONTENTS
(continued
PAGE
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...................104
Section 9.02 Additional Termination Requirements.............................108
Section 9.03 Termination of Multiple REMICs..................................109
ARTICLE X REMIC PROVISIONS........................................................109
Section 10.01 REMIC Administration............................................109
Section 10.02 Master Servicer, REMIC Administrator and Trustee
Indemnification.................................................112
Section 10.03 Designation of REMIC(s).........................................113
Section 10.04 Distributions on the Uncertificated REMIC I and REMIC II
Regular Interests...............................................113
Section 10.05 Compliance with Withholding Requirements........................113
ARTICLE XI MISCELLANEOUS PROVISIONS................................................114
Section 11.01 Amendment.......................................................114
Section 11.02 Recordation of Agreement; Counterparts..........................116
Section 11.03 Limitation on Rights of Certificateholders......................117
Section 11.04 Governing Law...................................................117
Section 11.05 Notices.........................................................118
Section 11.06 Required Notices to Rating Agency and Subservicer...............118
Section 11.07 Severability of Provisions......................................119
Section 11.08 Supplemental Provisions for Resecuritization....................119
Section 11.09 Allocation of Voting Rights.....................................119
Section 11.10 No Petition.....................................................119
ARTICLE XII COMPLIANCE WITH REGULATION AB...........................................120
Section 12.01 Intent of the Parties; Reasonableness...........................120
Section 12.02 Additional Representations and Warranties of the Trustee........120
Section 12.03 Information to be Provided by the Trustee.......................121
Section 12.04 Report on Assessment of Compliance and Attestation..............121
Section 12.05 Indemnification; Remedies.......................................122
-iv-
TABLE OF CONTENTS
(continued
EXHIBITS
Exhibit A: Form of Class A Certificate
Exhibit A-I: Form of Class X Certificate
Exhibit B: Form of Class M Certificate
Exhibit C: Form of Class B Certificate
Exhibit C-I: Form of Class P Certificate
Exhibit C-II: Form of Class SB 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
Exhibit S: Form of Exchange Notice
-v-
This is the Standard Terms of Pooling and Servicing Agreement, dated as of
November 1, 2007 (the "Standard Terms", and as incorporated by reference into a
Series Supplement dated as of the date specified therein, 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 COMPANY, LLC, 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 the Agreement in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Mortgage Loans.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accretion Termination Date: As defined in the Series Supplement.
Accrual Certificates: As defined in the Series Supplement.
Accrued Certificate Interest: With respect to each Distribution Date, as
to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class or
Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (to the extent not
offset by the Master Servicer with a payment of Compensating
Interest as provided in Section 4.01),
1
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan)) of Realized Losses on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (including Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses and Extraordinary Losses) not allocated solely to one or
more specific Classes of Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on all Mortgage
Loans or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group, which
remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property and (B) made
with respect to delinquencies that were ultimately determined to
be Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses 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, and
(iv) any other interest shortfalls not covered by the subordination
provided by the related Class M Certificates and related 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 related Class M Certificates and the related
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 each Class of Class B
Certificates or each 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
2
guarantees, and (A) all money, securities, security entitlements, accounts,
general intangibles, payment rights, instruments, documents, deposit accounts,
certificates of deposit, commodities contracts and other investment property and
other property of whatever kind or description now existing or hereafter
acquired which is pledged as collateral for such guarantee or (B) any mortgaged
property securing the performance of such guarantee, or (iii) such other
collateral as may be set forth in the Series Supplement.
Additional Collateral Loan: Each Mortgage Loan that is supported by
Additional Collateral.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date
of determination, the Mortgage Rate borne by the related Mortgage Note, less the
rate at which the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master
Servicer, pursuant to Section 4.04.
Advance Facility: As defined in Section 3.22.
Advance Facility Notice: As defined in Section 3.22.
Advance Facility Trustee: As defined in Section 3.22.
Advancing Person: As defined in Section 3.22.
Advance Reimbursement Amounts: As defined in Section 3.22.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Ambac: Ambac Assurance Corporation (formerly known as AMBAC Indemnity
Corporation).
Amount Held for Future Distribution: As to any Distribution Date and,
with respect to any Mortgage Pool that is comprised of two or more Loan Groups,
each Loan Group, the total of the amounts held in the Custodial Account at the
close of business on the preceding Determination Date on account of (i)
Liquidation Proceeds, Subsequent Recoveries, Insurance Proceeds, Curtailments,
Mortgage Loan purchases made pursuant to Section 2.02, 2.03, 2.04 or 4.07 and
Mortgage Loan substitutions made pursuant to Section 2.03 or 2.04 received or
made in the month of such Distribution Date (other than such Liquidation
Proceeds, Insurance Proceeds and purchases of Mortgage Loans that the Master
Servicer has deemed to have been received in the preceding month in accordance
with Section 3.07(b)), and Principal Prepayments in Full made after the related
Prepayment Period, and (ii) payments which represent early receipt of scheduled
payments of principal and interest due on a date or dates subsequent to the
related Due Date.
3
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,
LLC, National Financial Services Corporation and the Mortgagor or other person
pledging the related Pledged Assets; the Additional Collateral Agreement,
between GMAC Mortgage, LLC 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)
4
any amount deposited in the Certificate Account pursuant to Section 4.07 or
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 (w) aggregate
Foreclosure Profits, (x) the Amount Held for Future Distribution, and (y)
amounts permitted to be withdrawn by the Master Servicer from the Custodial
Account in respect of the Mortgage Loans pursuant to clauses (ii)-(x),
inclusive, of Section 3.10(a). Such amount shall be determined separately for
each Loan Group. Additionally, with respect to any Mortgage Pool that is
comprised of two or more Loan Groups, if on any Distribution Date Compensating
Interest provided pursuant to Section 3.16(e) is less than Prepayment Interest
Shortfalls incurred on the Mortgage Loans in connection with Principal
Prepayments in Full and Curtailments made in the prior calendar month, such
Compensating Interest shall be allocated on such Distribution Date to the
Available Distribution Amount for each Loan Group on a pro rata basis in
accordance with the respective amounts of such Prepayment Interest Shortfalls
incurred on the Mortgage Loans in such Loan Group in respect of such
Distribution Date.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that neither a Deficient
Valuation nor a Debt Service Reduction shall be deemed a Bankruptcy Loss
hereunder so long as the Master Servicer has notified the Trustee in writing
that the Master Servicer is diligently pursuing any remedies that may exist in
connection with the representations and warranties made regarding the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any premiums on any applicable
primary hazard insurance policy and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Master Servicer
or a Subservicer, in either case without giving effect to any Debt Service
Reduction.
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 State of
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.
5
Calendar Quarter: A Calendar Quarter shall consist of one of the
following time periods in any given year: January 1 through March 31, April 1
through June 30, July 1 through September 30, and October 1 through December 31.
Capitalization Reimbursement Amount: With respect to any Distribution
Date and, with respect to any Mortgage Pool comprised of two or more Loan
Groups, each Loan Group, the amount of Advances or Servicing Advances that were
added to the Stated Principal Balance of all Mortgage Loans or, if the Mortgage
Pool is comprised of two or more Loan Groups, on the Mortgage Loans in the
related Loan Group, during the prior calendar month and reimbursed to the Master
Servicer or Subservicer on or prior to such Distribution Date pursuant to
Section 3.10(a)(vii), plus the Capitalization Reimbursement Shortfall Amount
remaining unreimbursed from any prior Distribution Date and reimbursed to the
Master Servicer or Subservicer on or prior to such Distribution Date.
Capitalization Reimbursement Shortfall Amount: With respect to any
Distribution Date and, with respect to any Mortgage Pool comprised of two or
more Loan Groups, each Loan Group, the amount, if any, by which the amount of
Advances or Servicing Advances that were added to the Stated Principal Balance
of all Mortgage Loans (or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group) during the preceding
calendar month exceeds the amount of principal payments on the Mortgage Loans
included in the Available Distribution Amount (or, if the Mortgage Pool is
comprised of two or more Loan Groups, Available Distribution Amount for the
related Loan Group) for that Distribution Date.
Cash Liquidation: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with respect to
such Mortgage Loan.
Certificate Account Deposit Date: As to any Distribution Date, the
Business Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, and, in respect of any Insured
Certificates, the Certificate Insurer to the extent of Cumulative Insurance
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.
6
Certificate Insurer: As defined in the Series Supplement.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent, if any, and otherwise on the books of a Depository Participant, if any,
and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02, plus
(iii) in the case of each Accrual Certificate, an amount equal to the
aggregate Accrued Certificate Interest added to the Certificate
Principal Balance thereof prior to such date of determination,
minus
(iv) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(a) and (y) the aggregate
of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously
allocated to such Certificate (or any predecessor Certificate)
pursuant to Section 4.05;
provided, that the Certificate Principal Balance of each Certificate of the
Class of Subordinate Certificates with the Lowest Priority at any given time
shall be further reduced by an amount equal to the Percentage Interest
represented by such Certificate multiplied by the excess, if any, of (A) the
then aggregate Certificate Principal Balance of all Classes of Certificates then
outstanding over (B) the then aggregate Stated Principal Balance of the Mortgage
Loans.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates bearing the same
designation. The initial Class A-V Certificates and any Subclass thereof issued
pursuant to Section 5.01(c) shall be a single Class for purposes of this
Agreement.
Class A-P Certificate: Any one of the Certificates designated as a Class
A-P Certificate.
Class A-P Collection Shortfall: With respect to the Cash Liquidation or
REO Disposition of a Discount Mortgage Loan, any Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, the excess of the amount described in Section 4.02(b)(i)(C)(1) (for the
related Loan Group, if applicable) over the amount described in Section
4.02(b)(i)(C)(2).
7
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.
Class P Certificate: Any one of the Certificates designated as a Class P
Certificate.
Class R Certificate: Any one of the Certificates designated as a Class R
Certificate.
Class SB Certificate: Any one of the Certificates designated as a Class
SB Certificate.
Class X Certificate: Any one of the Certificates designated as a Class X
Certificate.
Closing Date: As defined in the Series Supplement.
Code: The Internal Revenue Code of 1986, as amended.
Combined Collateral LLC: Combined Collateral LLC, a Delaware limited
liability company.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date, and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, to the extent funds are available from the servicing fee and any
additional servicing compensation, 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 Loan Group on 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 or, if the Mortgage Pool is comprised of
two or more Loan Groups, the Mortgage Loans in the related Loan Group
immediately preceding such Distribution Date and (b) all income and gain on
amounts held in the Custodial Account and the Certificate Account and payable to
the Certificateholders with respect to the Mortgage Loans or, if the Mortgage
Pool is comprised of two or more Loan Groups, the Mortgage Loans in the related
Loan Group and such Distribution Date.
Compliance With Laws Representation: The following representation and
warranty (or any representation and warranty that is substantially similar) made
by Residential Funding in Section 5 of Assignment Agreement: "Each Mortgage Loan
at the time it was made complied in all material respects with all applicable
local, state, and federal laws, including, but not limited to, all applicable
anti-predatory lending laws".
8
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, LLC,
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 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.
9
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.
Custodial File: Any mortgage loan document in the Mortgage File that is
required to be delivered to the Trustee or Custodian pursuant to Section 2.01(b)
of this Agreement.
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.
10
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 Obligation 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 "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
11
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; provided that if
the rating of such depository institution falls below Standard and Poor's
short-term rating of A-2, such depository institution will be replaced within 30
days, or (ii) in the case of the Custodial Account, a trust account or accounts
maintained in the corporate trust department of U.S. Bank National Association,
or (iii) in the case of the Certificate Account, a trust account or accounts
maintained in the corporate trust department of the Trustee, or (iv) an account
or accounts of a depository institution acceptable to each Rating Agency (as
evidenced in writing by each Rating Agency that use of any such account as the
Custodial Account or the Certificate Account will not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the then-current rating
assigned to such Certificates).
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.
12
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.
13
Fitch: Fitch Ratings or its successor in interest.
Foreclosure Profits: As to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition occurred in the
related Prepayment Period over the sum of the unpaid principal balance of such
Mortgage Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
Form 10-K Certification: As defined in Section 4.03(e).
Fraud Losses: Realized Losses on Mortgage Loans as to which there was
fraud in the origination of such Mortgage Loan.
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.
14
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan (excluding any Certificate Policy (as defined in the
Series Supplement)), to the extent such proceeds are payable to the mortgagee
under the Mortgage, any Subservicer, the Master Servicer or the Trustee and are
not applied to the restoration of the related Mortgaged Property (or, with
respect to a Cooperative Loan, the related Cooperative Apartment) or released to
the Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing mortgage loans held for its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any
successor thereto or the named insurer in any replacement policy.
Interest Accrual Period: As defined in the Series Supplement.
Interest Only Certificates: A Class or Subclass of Certificates not
entitled to payments of principal, and designated as such in the Series
Supplement. The Interest Only Certificates will have no Certificate Principal
Balance.
Interim Certification: As defined in Section 2.02.
International Borrower: In connection with any Mortgage Loan, a borrower
who is (a) a United States citizen employed in a foreign country, (b) a
non-permanent resident alien employed in the United States or (c) a citizen of a
country other than the United States with income derived from sources outside
the United States.
Junior Certificateholder: The Holder of not less than 95% of the
Percentage Interests of the Junior Class of Certificates.
Junior Class of Certificates: The Class of Subordinate Certificates
outstanding as of the date of the repurchase of a Mortgage Loan pursuant to
Section 4.07 herein that has the Lowest Priority.
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. If the Mortgage Pool is comprised
of two or more Loan Groups, any of such Loan Groups.
15
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of which
is the Appraised Value of the related Mortgaged Property.
Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of Subordinate Certificates then
outstanding with a later priority for payments pursuant to Section 4.02(a).
Lowest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the latest priority for payments
pursuant to Section 4.02(a), in the following order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1 Certificates.
Maturity Date: The latest possible maturity date, solely for purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates which have no Certificate Principal Balance) and each
Uncertificated REMIC Regular Interest would be reduced to zero, as designated in
the Series Supplement.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
MLCC: Xxxxxxx Xxxxx Credit Corporation, or its successor in interest.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a
Servicing Modification.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the subject
of a Servicing Modification, the Net Mortgage Rate minus the rate per annum by
which the Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment, if any, for Curtailments and for Deficient Valuations occurring
prior to such Due Date but before any adjustment to such amortization schedule
by reason of any bankruptcy, other than a Deficient Valuation, or similar
proceeding or any moratorium or similar waiver or grace period and before any
Servicing Modification that constitutes a reduction of the interest rate on such
Mortgage Loan).
16
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 Mortgage 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.
17
Net Mortgage Rate: As to each Mortgage Loan, a per annum rate of
interest equal to the Adjusted Mortgage Rate.
Non-Discount Mortgage Loan: A Mortgage Loan that is not a Discount
Mortgage Loan.
Non-Primary Residence Loans: The Mortgage Loans designated as secured by
second or vacation residences, or by non-owner occupied residences, on the
Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be
made by the Master Servicer or Subservicer in respect of a Mortgage Loan (other
than a Deleted Mortgage Loan) which, in the good faith judgment of the Master
Servicer, will not, or, in the case of a proposed Advance, would not, be
ultimately recoverable by the Master Servicer from related Late Collections,
Insurance Proceeds, Liquidation Proceeds, REO Proceeds or amounts reimbursable
to the Master Servicer pursuant to Section 4.02(a) hereof. To the extent that
any Mortgagor is not obligated under the related Mortgage documents to pay or
reimburse any portion of any Servicing Advances that are outstanding with
respect to the related Mortgage Loan as a result of a modification of such
Mortgage Loan by the Master Servicer, which forgives amounts which the Master
Servicer or Subservicer had previously advanced, and the Master Servicer
determines that no other source of payment or reimbursement for such advances is
available to it, such Servicing Advances shall be deemed to be Nonrecoverable
Advances. The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate delivered
to the Company, the Trustee and any Certificate Insurer.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Notional Amount: With respect to any Class or Subclass of Interest Only
Certificates, an amount used as the principal basis for the calculation of any
interest payment amount, as more specifically defined in the Series Supplement.
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.
18
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in Full, Cash Liquidation or REO Disposition and which was not purchased,
deleted or substituted for prior to such Due Date pursuant to Section 2.02,
2.03, 2.04 or 4.07.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As defined in the Series Supplement.
Paying Agent: The Trustee or any successor Paying Agent appointed by the
Trustee.
Percentage Interest: With respect to any Certificate (other than a Class
R Certificate), the undivided percentage ownership interest in the related Class
evidenced by such Certificate, which percentage ownership interest shall be
equal to the Initial Certificate Principal Balance thereof or Initial Notional
Amount (in the case of any Interest Only Certificate) thereof divided by the
aggregate Initial Certificate Principal Balance or the aggregate of the Initial
Notional Amounts, as applicable, of all the Certificates of the same Class. With
respect to a Class R Certificate, the interest in distributions to be made with
respect to such Class evidenced thereby, expressed as a percentage, as stated on
the face of each such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to timely payment of principal
and interest by the United States or any agency or
instrumentality thereof when such obligations are backed by the
full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition
thereof, provided that the unsecured short-term debt obligations
of the party agreeing to repurchase such obligations are at the
time rated by each Rating Agency in its highest short-term rating
available;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity
of more than 365 days or a remaining maturity of more than 30
days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a
foreign depository institution or trust company; provided that
the debt obligations of such depository institution or trust
company at the date of acquisition thereof have been rated by
each Rating Agency in its highest short-term rating available;
and, provided further that, if the original maturity of such
short-term obligations of a domestic branch of a foreign
depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be at least A-1 in
the case of Standard & Poor's if Standard & Poor's serves as
a Rating Agency;
19
(iv) commercial paper and demand notes (having original maturities of
not more than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof which on the date
of acquisition has been rated by each Rating Agency in its
highest short-term rating available; provided that such
commercial paper shall have a remaining maturity of not more than
30 days;
(v) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to
instruments that otherwise would constitute Permitted Investments
hereunder and have been rated by each Rating Agency in its
highest short-term rating available (in the case of Standard &
Poor's such rating shall be either AAAm or AAAm-G), including any
such fund that is managed by the Trustee or any affiliate of the
Trustee or for which the Trustee or any of its affiliates acts as
an adviser; and
(vi) other obligations or securities that are acceptable to each
Rating Agency as a Permitted Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by such
Rating Agency (without giving effect to any Certificate Policy
(as defined in the Series Supplement) in the case of Insured
Certificates (as defined in the Series Supplement) below the
lower of the then-current rating assigned to such Certificates by
such Rating Agency, as evidenced in writing;
provided, however, no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's and Fitch and Aaa
in the case of Moody's, and for purposes of this Agreement, any references
herein to the highest rating available on unsecured commercial paper and
short-term debt obligations shall mean the following: A-1 in the case of
Standard & Poor's, P-1 in the case of Moody's and F-1 in the case of Fitch;
provided, however, that any Permitted Investment that is a short-term debt
obligation rated A-1 by Standard & Poor's must satisfy the following additional
conditions: (i) the total amount of debt from A-1 issuers must be limited to the
investment of monthly principal and interest payments (assuming fully amortizing
collateral); (ii) the total amount of A-1 investments must not represent more
than 20% of the aggregate outstanding Certificate Principal Balance of the
Certificates and each investment must not mature beyond 30 days; (iii) the terms
of the debt must have a predetermined fixed dollar amount of principal due at
maturity that cannot vary; and (iv) if the investments may be liquidated prior
to their maturity or are being relied on to meet a certain yield, interest must
be tied to a single interest rate index plus a single fixed spread (if any) and
must move proportionately with that index. Any Permitted Investment may be held
by or through the Trustee or its Affiliates.
Permitted Transferee: Any Transferee of a Class R Certificate, other
than a Disqualified Organization or Non-United States Person.
20
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pledged Amount: With respect to any Pledged Asset Loan, the amount of
money remitted to Combined Collateral LLC, at the direction of or for the
benefit of the related Mortgagor.
Pledged Asset Loan: Any Mortgage Loan supported by Pledged Assets or
such other collateral, other than the related Mortgaged Property, set forth in
the Series Supplement.
Pledged Assets: With respect to any Mortgage Loan, all money,
securities, security entitlements, accounts, general intangibles, payment
intangibles, instruments, documents, deposit accounts, certificates of deposit,
commodities contracts and other investment property and other property of
whatever kind or description pledged by Combined Collateral LLC as security in
respect of any Realized Losses in connection with such Mortgage Loan up to the
Pledged Amount for such Mortgage Loan, and any related collateral, or such other
collateral as may be set forth in the Series Supplement.
Pledged Asset Mortgage Servicing Agreement: The Pledged Asset Mortgage
Servicing Agreement, dated as of February 28, 1996 between MLCC and the Master
Servicer.
Pooling and Servicing Agreement or Agreement: With respect to any
Series, this Standard Terms together with the related Series Supplement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of each Mortgage Loan.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b)
the Discount Net Mortgage Rate (but not less than 0.00%) per annum.
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such Class
and each Class of Subordinate Certificates with a Lower Priority than such Class
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date is greater than or equal to the sum
of the related Initial Subordinate Class Percentages of such Classes of
Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the portion of the
related Prepayment Period that falls during the prior calendar month, an amount
equal to the excess of one month's interest at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on the
Stated Principal Balance of such Mortgage Loan over the amount of interest
(adjusted to the Net Mortgage Rate (or Modified Net Mortgage Rate in the case of
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.
21
Prepayment Period: As to any Distribution Date and Principal Prepayment
in Full, the period commencing on the 16th day of the month prior to the month
in which that Distribution Date occurs and ending on the 15th day of the month
in which such Distribution Date occurs.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or any replacement policy therefor referred to in Section 2.03(b)(iv)
and (v).
Principal Only Certificates: A Class of Certificates not entitled to
payments of interest, and more specifically designated as such in the Series
Supplement.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is received in advance of its scheduled Due Date
and is not accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan that is made by the Mortgagor.
Program Guide: Collectively, the Client Guide and the Servicer Guide for
Residential Funding's Expanded Criteria Mortgage Program.
Purchase Price: With respect to any Mortgage Loan (or REO Property)
required to be or otherwise purchased on any date pursuant to Section 2.02,
2.03, 2.04 or 4.07, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof plus the principal portion of any related unreimbursed
Advances and (ii) unpaid accrued interest at the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate 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);
22
(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 45 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
23
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.
24
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.
Reimbursement Amounts: As defined in Section 3.22.
Relief Act: The Servicemembers Civil Relief Act or similar legislation
or regulations as in effect from time to time.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Administrator: Residential Funding Company, LLC. If Residential
Funding Company, LLC is found by a court of competent jurisdiction to no longer
be able to fulfill its obligations as REMIC Administrator under this Agreement
the Master Servicer or Trustee acting as Master Servicer shall appoint a
successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Acquisition: The acquisition by the Master Servicer on behalf of the
Trustee for the benefit of the Certificateholders of any REO Property pursuant
to Section 3.14.
REO Disposition: As to any REO Property, a determination by the Master
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds, REO
Proceeds and other payments and recoveries (including proceeds of a final sale)
which the Master Servicer expects to be finally recoverable from the sale or
other disposition of the REO Property.
REO Imputed Interest: As to any REO Property, for any period, an amount
equivalent to interest (at the Net Mortgage Rate that would have been applicable
to the related Mortgage Loan had it been outstanding) on the unpaid principal
balance of the Mortgage Loan as of the date of acquisition thereof for such
period.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO
Property (including, without limitation, proceeds from the rental of the related
Mortgaged Property or, with respect to a Cooperative Loan, the related
Cooperative Apartment) which proceeds are required to be deposited into the
Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed in lieu of foreclosure in connection with a
defaulted Mortgage Loan.
25
Reportable Modified Mortgage Loan: Any Mortgage Loan that (i) has been
subject to an interest rate reduction, (ii) has been subject to a term extension
or (iii) has had amounts owing on such Mortgage Loan capitalized by adding such
amount to the Stated Principal Balance of such Mortgage Loan; provided, however,
that a Mortgage Loan modified in accordance with clause (i) above for a
temporary period shall not be a Reportable Modified Mortgage Loan if such
Mortgage Loan has not been delinquent in payments of principal and interest for
six months since the date of such modification if that interest rate reduction
is not made permanent thereafter.
Request for Release: A request for release, the forms of which are
attached as Exhibit F hereto, or an electronic request in a form acceptable to
the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement, the Program Guide or the related Subservicing Agreement in respect of
such Mortgage Loan.
Required Surety Payment: With respect to any Additional Collateral Loan
that becomes a Liquidated Mortgage Loan, the lesser of (i) the principal portion
of the Realized Loss with respect to such Mortgage Loan and (ii) the excess, if
any, of (a) the amount of Additional Collateral required at origination with
respect to such Mortgage Loan over (b) the net proceeds realized by the
Subservicer from the related Additional Collateral.
Residential Funding: Residential Funding Company, LLC, a Delaware
limited liability company, in its capacity as seller of the Mortgage Loans to
the Company and any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Department of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers to whom, with respect to a particular matter,
such matter is referred, in each case with direct responsibility for the
administration of the Agreement.
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.
26
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 (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with
respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding Certificate Principal Balance of the Subordinate
Certificates, is less than 50% or (Y) the outstanding principal balance
of Mortgage Loans delinquent 60 days or more (including Mortgage Loans
which are in foreclosure, have been foreclosed or otherwise liquidated,
or with respect to which the Mortgagor is in bankruptcy and any REO
Property) averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged
over the last six months, does not exceed 2% and (2) Realized Losses on
the Mortgage Loans to date for such Distribution Date if occurring
during the sixth, seventh, eighth, ninth or tenth year (or any year
thereafter) after the Closing Date are less than 30%, 35%, 40%, 45% or
50%, respectively, of the sum of the Initial Certificate Principal
Balances of the Subordinate Certificates or
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(b)(1) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more (including Mortgage Loans which are in
foreclosure, have been foreclosed or otherwise liquidated, or with
respect to which the Mortgagor is in bankruptcy and any REO Property)
averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans averaged over the
last six months, does not exceed 4% and (2) Realized Losses on the
Mortgage Loans to date for such Distribution Date, if occurring during
the sixth, seventh, eighth, ninth or tenth year (or any year thereafter)
after the Closing Date are less than 10%, 15%, 20%, 25% or 30%,
respectively, of the sum of the Initial Certificate Principal Balances
of the Subordinate Certificates, and
(ii) that for any Distribution Date on which the Senior Percentage is
greater than the Senior Percentage as of the Closing Date, the
Senior Accelerated Distribution Percentage for such Distribution
Date shall be 100%, or, if the Mortgage Pool is comprised of two
or more Loan Groups, for any Distribution Date on which the
weighted average of the Senior Percentages for each Loan Group,
weighted on the basis of the Stated Principal Balances of the
Mortgage Loans in the related Loan Group (excluding the Discount
Fraction of the Discount Mortgage Loans in such Loan Group)
exceeds the weighted average of the initial Senior Percentages
(calculated on such basis) for each Loan Group, each of the
Senior Accelerated Distribution Percentages for such
Distribution Date will equal 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the Class A-P
Certificates, if any) to zero, the related Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificate: As defined in the Series Supplement.
Senior Percentage: As defined in the Series Supplement.
Senior Support Certificate: A Senior Certificate that provides
additional credit enhancement to certain other classes of Senior Certificates
and designated as such in the Preliminary Statement of the Series Supplement.
Series: All of the Certificates issued pursuant to a Pooling and
Servicing Agreement and bearing the same series designation.
Series Supplement: The agreement into which this Standard Terms is
incorporated and pursuant to which, together with this Standard Terms, a Series
of Certificates is issued.
Servicing Accounts: The account or accounts created and maintained
pursuant to Section 3.08.
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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 Advance Reimbursement Amounts: As defined in Section 3.22.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
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.
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Standard & Poor's: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, as of any Distribution Date, (i) the sum of (a) the Cut-off Date
Principal Balance of the Mortgage Loan plus (b) any amount by which the Stated
Principal Balance of the Mortgage Loan has been increased pursuant to a
Servicing Modification, minus (ii) the sum of (a) the principal portion of the
Monthly Payments due with respect to such Mortgage Loan or REO Property during
each Due Period ending with the Due Period related to the previous Distribution
Date which were received or with respect to which an Advance was made, and (b)
all Principal Prepayments with respect to such Mortgage Loan or REO Property,
and all Insurance Proceeds, Liquidation Proceeds and REO Proceeds, to the extent
applied by the Master Servicer as recoveries of principal in accordance with
Section 3.14 with respect to such Mortgage Loan or REO Property, in each case
which were distributed pursuant to Section 4.02 on any previous Distribution
Date, and (c) any Realized Loss allocated to Certificateholders with respect
thereto for any previous Distribution Date.
Subclass: With respect to the Class A-V Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent the
Uncertificated REMIC Regular Interest or Interests Z 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.
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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, LLC, the Addendum and Assignment Agreement, dated as of
November 24, 1998, between the Master Servicer and GMAC Mortgage, LLC, as such
agreement may be amended from time to time.
Subservicing Fee: As to any Mortgage Loan, the fee payable monthly to
the related Subservicer (or, in the case of a Nonsubserviced Mortgage Loan, to
the Master Servicer) in respect of subservicing and other compensation that
accrues at an annual rate equal to the excess of the Mortgage Rate borne by the
related Mortgage Note over the rate per annum designated on the Mortgage Loan
Schedule as the "CURR NET" for such Mortgage Loan.
Successor Master Servicer: As defined in Section 3.22.
Surety: Ambac, or its successors in interest, or such other surety as
may be identified in the Series Supplement.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996 in respect to Mortgage Loans originated by MLCC, or the
Surety Bond (Policy No. AB0240BE), dated March 17, 1999 in respect to Mortgage
Loans originated by Novus Financial Corporation, in each case issued by Ambac
for the benefit of certain beneficiaries, including the Trustee for the benefit
of the Holders of the Certificates, but only to the extent that such Surety Bond
covers any Additional Collateral Loans, or such other Surety Bond as may be
identified in the Series Supplement.
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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 related to a Series, with
respect to which one or more REMIC elections are to be made pursuant to this
Agreement, consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral
securing such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans
due after the Cut-off Date as shall be on deposit in the
Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund, including the proceeds from the
liquidation of Additional Collateral for any Additional
Collateral Loan or Pledged Assets for any Pledged Asset Loan, but
not including amounts on deposit in the Initial Monthly Payment
Fund,
(iii) property that secured a Mortgage Loan and that has been acquired
for the benefit of the Certificateholders by foreclosure or deed
in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if
any, the Pledged Assets with respect to each Pledged Asset Loan,
and the interest in the Surety Bond transferred to the Trustee
pursuant to Section 2.01, and
(v) all proceeds of clauses (i) through (iv) above.
Trustee Information: As specified in Section 12.05(a)(i)(A).
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.
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United States Person or U.S. Person: (i) A citizen or resident of the
United States, (ii) a corporation, partnership or other entity treated as a
corporation or partnership for United States federal income tax purposes
organized in or under the laws of the United States or any state thereof or the
District of Columbia (unless, in the case of a partnership, Treasury regulations
provide otherwise), provided that, for purposes solely of the restrictions on
the transfer of residual interests, no partnership or other entity treated as a
partnership for United States federal income tax purposes shall be treated as a
United States Person or U.S. Person unless all persons that own an interest in
such partnership either directly or indirectly through any chain of entities no
one of which is a corporation for United States federal income tax purposes are
required by the applicable operating agreement to be United States Persons,
(iii) an estate the income of which is includible in gross income for United
States tax purposes, regardless of its source, or (iv) a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trust. Notwithstanding the preceding
sentence, to the extent provided in Treasury regulations, certain Trusts in
existence on August 20, 1996, and treated as United States persons prior to such
date, that elect to continue to be treated as United States persons will also be
a U.S. Person.
U.S.A. Patriot Act: Uniting and Strengthening America by Providing
Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001, as amended.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate, and more specifically
designated in Article XI of the Series Supplement.
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.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee for the benefit of the Certificateholders
without recourse all the right, title and interest of the Company in and
to the Mortgage Loans, including all interest and principal received on
or with respect to the Mortgage Loans after the Cut-off Date (other than
payments of principal and interest due on the Mortgage Loans in the
month of the Cut-off Date). In connection with such transfer and
assignment, the Company does hereby deliver to the Trustee the
Certificate Policy (as defined in the Series Supplement), if any for the
benefit of the Holders of the Insured Certificates (as defined in the
Series Supplement).
(b) In connection with such assignment, except as set forth in Section
2.01(c) and subject to Section 2.01(d) below, the Company does hereby
(1) with respect to each Mortgage Loan (other than a Cooperative Loan or
a Sharia Mortgage Loan), deliver to the Master Servicer (or an Affiliate
of the Master Servicer) each of the documents or instruments described
in clause (I)(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 the Custodian on behalf of the Trustee, the documents or instruments
described in clauses (I)(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 the Custodian on
behalf of the Trustee, the documents or instruments described in clauses
(I)(i), (iv) and (v) below, (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 the Custodian on behalf of the
Trustee, the documents or instruments described in clauses (I)(i),
(iii), (iv) and (v) below, and (5) with respect to each Cooperative Loan
and Sharia Mortgage Loan, deliver to and deposit with the Trustee, or to
the Custodian on behalf of the Trustee, the documents and instruments
described in clause (II) and clause (III) below:
(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 in
blank or to the order of the Trustee, and showing an unbroken chain of
endorsements from the originator thereof to the Person endorsing it to
the Trustee, or with respect to any Destroyed Mortgage Note, an original
lost note affidavit from the related Seller or Residential Funding
stating that the original Mortgage Note was lost, misplaced or
destroyed, together with a copy of the related Mortgage Note;
34
(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; 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 or a copy of such Cooperative Lease and
Assignment of Proprietary Lease and copies of such intervening
assignments;
(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 or copies thereof;
(iv) The original recognition agreement by the Cooperative of
the interests of the mortgagee with respect to the related Cooperative
Loan or a copy thereof;
(v) The Security Agreement or a copy thereof;
(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;
35
(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 or a copy
thereof;
(ix) The original of each modification, assumption agreement or
preferred loan agreement, if any, relating to such Cooperative Loan or a
copy of each modification, assumption agreement or preferred loan
agreement; 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 or copies thereof;
(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 or a copy of such
Sharia Mortgage Loan Co-Ownership Agreement; 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.
36
(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), Sections (b)(II)(ii), (iv),
(vii), (ix) and (x) and Sections 2.01(b)(III)(ii), (iii), (iv), (v) and (vi) (or
copies thereof) to the Trustee or to the Custodian on behalf of the Trustee,
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 to the Custodian on behalf of the Trustee.
The parties hereto agree that it is not intended that any Mortgage Loan
be included in the Trust Fund that is either (i) a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Act effective November 27, 2003, (ii) a
"High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, (iii) a "High Cost Home Mortgage Loan" as defined in
the Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
or (iv) a "High-Cost Home Loan" as defined in the Indiana House Enrolled Act No.
1229, effective as of January 1, 2005.
(d) 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 to the Custodian on
behalf of the Trustee 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
37
(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), any Assignment, substitute
Assignment, 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 to the Custodian on behalf of
the Trustee 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 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.
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
38
to be a pledge of the Mortgage Loans and any Uncertificated REMIC Regular
Interests by the Company to the Trustee to secure a debt or other obligation of
the Company. Nonetheless, (a) this Agreement is intended to be and hereby is a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in this 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,
any Custodian on behalf of the Trustee or any other agent of the Trustee of
Mortgage Notes or such other items of property as constitute instruments, money,
payment intangibles, negotiable documents, goods, deposit accounts, letters of
credit, advices of credit, investment property, certificated securities or
chattel paper shall be deemed to be "possession by the secured party," or
possession by a purchaser or a person designated by such secured party, for
purposes of perfecting the security interest pursuant to the Minnesota Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction as in effect (including, without limitation, Sections 8-106, 9-313,
9-314 and 9-106 thereof); and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable) the Trustee for the purpose of perfecting such
security interest under applicable law.
The Company and, at the Company's direction, Residential Funding and the
Trustee shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
determined to create a security interest in the Mortgage Loans, any
Uncertificated REMIC Regular Interests and the other property described above,
such security interest would be determined to be a perfected security interest
39
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 type or jurisdiction of organization of Residential Funding or the
Company, (3) any transfer of any interest of Residential Funding or the Company
in any Mortgage Loan or (4) any transfer of any interest of Residential Funding
or the Company in any Uncertificated REMIC Regular Interest.
(g) The Master Servicer hereby acknowledges the receipt by it of the Initial
Monthly Payment Fund. The Master Servicer shall hold such Initial Monthly
Payment Fund in the Custodial Account and shall include such Initial Monthly
Payment Fund in the Available Distribution Amount for the Mortgage Loans or,
with respect to any Mortgage Pool comprised of two or more Loan Groups, the
Mortgage Loans in each Loan Group, for the initial Distribution Date.
Notwithstanding anything herein to the contrary, the Initial Monthly Payment
Fund shall not be an asset of any REMIC. To the extent that the Initial Monthly
Payment Fund constitutes a reserve fund for federal income tax purposes, (1) it
shall be an outside reserve fund and not an asset of any REMIC, (2) it shall be
owned by the Seller and (3) amounts transferred by any REMIC to the Initial
Monthly Payment Fund shall be treated as transferred to the Seller or any
successor, all within the meaning of Section 1.860G-2(h) of the Treasury
Regulations.
(h) The Company agrees that the sale of each Pledged Asset Loan pursuant to this
Agreement will also constitute the assignment, sale, setting-over, transfer and
conveyance to the Trustee, without recourse (but subject to the Company's
covenants, representations and warranties specifically provided herein), of all
of the Company's obligations and all of the Company's right, title and interest
in, to and under, whether now existing or hereafter acquired as owner of the
Mortgage Loan with respect to any and all money, securities, security
entitlements, accounts, general intangibles, payment intangibles, instruments,
documents, deposit accounts, certificates of deposit, commodities contracts, and
other investment property and other property of whatever kind or description
consisting of, arising from or related to (i) the Assigned Contracts, (ii) all
rights, powers and remedies of the Company as owner of such Mortgage Loan under
or in connection with the Assigned Contracts, whether arising under the terms of
such Assigned Contracts, by statute, at law or in equity, or otherwise arising
out of any default by the Mortgagor under or in connection with the Assigned
Contracts, including all rights to exercise any election or option or to make
any decision or determination or to give or receive any notice, consent,
approval or waiver thereunder, (iii) the Pledged Amounts and all money,
40
securities, security entitlements, accounts, general intangibles, payment
intangibles, instruments, documents, deposit accounts, certificates of deposit,
commodities contracts, and other investment property and other property of
whatever kind or description and all cash and non-cash proceeds of the sale,
exchange, or redemption of, and all stock or conversion rights, rights to
subscribe, liquidation dividends or preferences, stock dividends, rights to
interest, dividends, earnings, income, rents, issues, profits, interest payments
or other distributions of cash or other property that secures a Pledged Asset
Loan, (iv) all documents, books and records concerning the foregoing (including
all computer programs, tapes, disks and related items containing any such
information) and (v) all insurance proceeds (including proceeds from the Federal
Deposit Insurance Corporation or the Securities Investor Protection Corporation
or any other insurance company) of any of the foregoing or replacements thereof
or substitutions therefor, proceeds of 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 required to be
delivered to the Trustee (or Custodian on behalf of the Trustee) pursuant to
Section 2.01(b) above (except that for purposes of such acknowledgment only, a
Mortgage Note may be endorsed in blank) and declares that it, or the Custodian
as its agent, holds and will hold such documents and the other documents
constituting a part of the Custodial Files delivered to it, or a Custodian as
its agent, 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 (the Custodian being so
obligated under a Custodial Agreement) agrees, for the benefit of
Certificateholders, to review each Custodial File delivered to it pursuant to
Section 2.01(b) within 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
41
Master Servicer shall promptly notify Residential Funding of such omission or
defect and request Residential Funding to 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, 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 the
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
owners' 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) The Master Servicer hereby represents and warrants to the Trustee for
the benefit of the Certificateholders that as of the Closing Date:
(i) The Master Servicer is a limited liability company 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
Formation or Limited Liability Company Agreement or constitute a
material default (or an event which, with notice or lapse of time, or
both, would constitute a material default) under, or result in the
material breach of, any material contract, agreement or other instrument
to which the Master Servicer is a party or which may be applicable to
the Master Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Company, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
42
(iv) The Master Servicer is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default might
have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Master Servicer or
its properties or might have consequences that would materially
adversely affect its performance hereunder;
(v) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vi) The Master Servicer will comply in all material respects in
the performance of this Agreement with all reasonable rules and
requirements of each insurer under each Required Insurance Policy;
(vii) No information, certificate of an officer, statement
furnished in writing or report delivered to the Company, any Affiliate
of the Company or the Trustee by the Master Servicer will, to the
knowledge of the Master Servicer, contain any untrue statement of a
material fact or omit a material fact necessary to make the information,
certificate, statement or report not misleading;
(viii) The Master Servicer has examined each existing, and will
examine each new, Subservicing Agreement and is or will be familiar with
the terms thereof. The terms of each existing Subservicing Agreement and
each designated Subservicer are acceptable to the Master Servicer and
any new Subservicing Agreements will comply with the provisions of
Section 3.02; and
(ix) The Master Servicer is a member of MERS in good standing,
and will comply in all material respects with the rules and procedures
of MERS in connection with the servicing of the Mortgage Loans that are
registered with MERS.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(a) shall survive delivery of the respective
Custodial Files to the Trustee or the Custodian.
43
Upon discovery by either the Company, the Master Servicer, the Trustee
or the Custodian of a breach of any representation or warranty set forth in this
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties (the Custodian being so
obligated under a Custodial Agreement). Within 90 days of its discovery or its
receipt of notice of such breach, the Master Servicer shall either (i) cure such
breach in all material respects or (ii) to the extent that such breach is with
respect to a Mortgage Loan or a related document, purchase such Mortgage Loan
from the Trust Fund at the Purchase Price and in the manner set forth in Section
2.02; provided that if the 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
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 the 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 (the 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
44
"qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such
cure, repurchase or substitution must occur within 90 days from the date the
breach was discovered. If a breach of the Compliance With Laws Representation
has given rise to the obligation to repurchase or substitute a Mortgage Loan
pursuant to Section 45 of the Assignment Agreement, then the Master Servicer
shall request that Residential Funding pay to the Trust Fund, concurrently with
and in addition to the remedies provided in the preceding sentence, an amount
equal to any liability, penalty or expense that was actually incurred and paid
out of or on behalf of the Trust Fund, and that directly resulted from such
breach, or if incurred and paid by the Trust Fund thereafter, concurrently with
such payment. In the event that Residential Funding elects to substitute a
Qualified Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant
to this Section 2.04, Residential Funding shall deliver to the Trustee or the
Custodian for the benefit of the Certificateholders with respect to such
Qualified Substitute Mortgage Loan or Loans, the original Mortgage Note, the
Mortgage, an Assignment of the Mortgage in recordable form, if required pursuant
to Section 2.01, and such other documents and agreements as are required by
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 45 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
45 of the Assignment Agreement.
45
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, a Mortgage Loan as to
which such a breach has occurred and is continuing and to make any additional
payments required under the Assignment Agreement in connection with a breach of
the Compliance With Laws Representation shall constitute the sole remedy
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 Certificates.
As provided in Section 2.05 of the Series Supplement.
Section 2.06 Conveyance of Uncertificated REMIC I and REMIC II Regular
Interests; Acceptance by the Trustee.
As provided in Section 2.06 of the Series Supplement.
Section 2.07 Issuance of Certificates Evidencing Interests in REMIC II.
As provided in Section 2.07 of the Series Supplement.
Section 2.08 Purposes and Powers of the Trust.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Certificates to the Company in exchange for the Mortgage Loans;
46
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Notwithstanding the provisions of Section 11.01, the trust shall not engage in
any activity other than in connection with the foregoing or other than as
required or authorized by the terms of this Agreement while any Certificate is
outstanding, and this Section 2.08 may not be amended, without the consent of
the Certificateholders evidencing a majority of the aggregate Voting Rights of
the Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans
in accordance with the terms of this Agreement and the respective Mortgage Loans
and shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do any and all things which it may deem necessary
or desirable in connection with such servicing and administration. Without
limiting the generality of the foregoing, the Master Servicer in its own name or
in the name of a Subservicer is hereby authorized and empowered by the Trustee
when the Master Servicer or the Subservicer, as the case may be, believes it
appropriate in its good faith business 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
47
management, marketing and conveyance of any property acquired by foreclosure or
deed in lieu of foreclosure with respect to the Mortgage Loans and with respect
to the Mortgaged Properties. The Master Servicer further is authorized and
empowered by the Trustee, on behalf of the Certificateholders and the Trustee,
in its own name or in the name of the Subservicer, when the Master Servicer or
the Subservicer, as the case may be, believes it appropriate in its good faith
business 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).
(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.
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Section 3.02 Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements entered
into by Residential Funding and Subservicers prior to the execution and delivery
of this Agreement, and may enter into new Subservicing Agreements with
Subservicers, for the servicing and administration of all or some of the
Mortgage Loans. Each Subservicer of a Mortgage Loan shall be entitled to receive
and retain, as provided in the related Subservicing Agreement and in Section
3.07, the related Subservicing Fee from payments of interest received on such
Mortgage Loan after payment of all amounts required to be remitted to the Master
Servicer in respect of such Mortgage Loan. For any Mortgage Loan that is a
Nonsubserviced Mortgage Loan, the Master Servicer shall be entitled to receive
and retain an amount equal to the Subservicing Fee from payments of interest.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Each Subservicing Agreement will be upon such terms and conditions as
are generally required or permitted by the Program Guide and are not
inconsistent with this Agreement and as the Master Servicer and the Subservicer
have agreed. A representative form of Subservicing Agreement is attached hereto
as Exhibit E. With the approval of the Master Servicer, a Subservicer may
delegate its servicing obligations to third-party servicers, but such
Subservicer will remain obligated under the related Subservicing Agreement. The
Master Servicer and a Subservicer may enter into amendments thereto or a
different form of Subservicing Agreement, and the form referred to or included
in the Program Guide is merely provided for information and shall not be deemed
to limit in any respect the discretion of the Master Servicer to modify or enter
into different Subservicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of either this Agreement or the Program Guide in a manner which would
materially and adversely affect the interests of the Certificateholders. The
Program Guide and any other Subservicing Agreement entered into between the
Master Servicer and any Subservicer shall require the Subservicer to accurately
and fully report its borrower credit files to each of the Credit Repositories in
a timely manner.
(b) As part of its servicing activities hereunder, the Master Servicer, for the
benefit of the Trustee and the Certificateholders, shall use its best reasonable
efforts to enforce the obligations of each Subservicer under the related
Subservicing Agreement and of each Seller under the related Seller's Agreement
insofar as the Company's rights with respect to Seller's obligation has been
assigned to the Trustee hereunder, to the extent that the non-performance of any
such Seller's obligation would have a material and adverse effect on a Mortgage
Loan, including, without limitation, the obligation to purchase a Mortgage Loan
on account of defective documentation, as described in Section 2.02, or on
account of a breach of a representation or warranty, as described in Section
2.04. Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Subservicing Agreements or Seller's Agreements, as
49
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 good faith 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.
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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 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
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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 the rate at
which 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 and (2) the final maturity date for any Mortgage Loan shall
not be extended beyond the Maturity Date. 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);
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(iv) All proceeds of any Mortgage Loans purchased pursuant to
Section 2.02, 2.03, 2.04 or 4.07 (including amounts received from
Residential Funding pursuant to the last paragraph of Section 5 of the
Assignment Agreement in respect of any liability, penalty or expense
that resulted from a breach of the Compliance With Laws Representation)
and all amounts required to be deposited in connection with the
substitution of a Qualified Substitute Mortgage Loan pursuant to Section
2.03 or 2.04;
(v) Any amounts required to be deposited pursuant to Section
3.07(c), 3.08(b) 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, unless otherwise set
forth in the Series Supplement, 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. Further, the Master Servicer
shall, not less frequently than every two Business Days, remove from the
Custodial Account any funds relating to Mortgage Loans that are owned by the
Master Servicer.
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.
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(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 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 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.
54
(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.
55
Section 3.10 Permitted Withdrawals from the Custodial Account.
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein
pursuant to Section 3.07 that are attributable to the Mortgage Loans for
the following purposes:
(i) to make deposits into the Certificate Account in the amounts
and in the manner provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer for
previously unreimbursed Advances, Servicing Advances or other expenses
made pursuant to Sections 3.01, 3.07(a), 3.08, 3.11, 3.12(a), 3.14 and
4.04 or otherwise reimbursable pursuant to the terms of this Agreement,
such withdrawal right being limited to amounts received on the related
Mortgage Loans (including, for this purpose, REO Proceeds, Insurance
Proceeds, Liquidation Proceeds and proceeds from the purchase of a
Mortgage Loan pursuant to Section 2.02, 2.03, 2.04 or 4.07) which
represent (A) Late Collections of Monthly Payments for which any such
advance was made in the case of Subservicer Advances or Advances
pursuant to Section 4.04 and (B) recoveries of amounts in respect of
which such advances were made in the case of Servicing Advances;
(iii) to pay to 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 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 servicing compensation any interest or
investment income earned on funds and other property deposited in or
credited to the Custodial Account that it is entitled to withdraw
pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any
Foreclosure Profits and any amounts 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;
56
(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 any advance made
and expenses incurred by it or the Company, to the extent such advances
and expenses are reimbursable to it or the Company pursuant to this
Agreement (including but not limited to, amounts reimbursable (A)
pursuant to Sections 3.01(a), 3.01(b), 3.11, 3.13, 3.14(c), 6.03 or
10.01 and (B) in connection with enforcing, in accordance with this
Agreement, any repurchase, substitution or indemnification obligation of
any Seller (other than an Affiliate of the Company) pursuant to the
related Seller's Agreement);
(ix) to reimburse itself for Servicing Advances expended by it
(a) pursuant to Section 3.14 in good faith in connection with the
restoration of property damaged by an Uninsured Cause, and (b) in
connection with the liquidation of a Mortgage Loan or disposition of an
REO Property to the extent not otherwise reimbursed pursuant to clause
(ii) or (viii) above; and
(x) to withdraw any amount deposited in the Custodial Account
that was not required to be deposited therein pursuant to Section 3.07.
(b) Since, in connection with withdrawals pursuant to clauses
(ii), (iii), (v) and (vi), the Master Servicer's entitlement thereto is
limited to collections or other recoveries on the related Mortgage Loan,
the Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Custodial Account pursuant to such clauses.
(c) The Master Servicer shall be entitled to reimburse itself or
the related Subservicer for any advance made in respect of a Mortgage
Loan that the Master Servicer determines to be a Nonrecoverable Advance
by withdrawal from the Custodial Account of amounts on deposit therein
attributable to the Mortgage Loans on any Certificate Account Deposit
Date succeeding the date of such determination. Such right of
reimbursement in respect of a Nonrecoverable Advance relating to an
Advance pursuant to Section 4.04 on any such Certificate Account Deposit
Date shall be limited to an amount not exceeding the portion of such
Advance previously paid to Certificateholders (and not theretofore
reimbursed to the Master Servicer or the related Subservicer).
Section 3.11 Maintenance of the Primary Insurance Policies; Collections
Thereunder.
(a) The Master Servicer shall not take, or permit any Subservicer to take, any
action which would result in non-coverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of the Master Servicer or
Subservicer, would have been covered thereunder. To the extent coverage is
available, the Master Servicer shall keep or cause to be kept in full force and
effect each such Primary Insurance Policy until the principal balance of the
related Mortgage Loan secured by a Mortgaged Property is reduced to 80% or less
57
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
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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.
(b) The Master Servicer shall obtain and maintain at its own expense and
keep in full force and effect throughout the term of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy covering the Master
Servicer's officers and employees and other persons acting on behalf of the
Master Servicer in connection with its activities under this Agreement. The
amount of coverage shall be at least equal to the coverage that would be
required by Xxxxxx Xxx or Freddie Mac, whichever is greater, with respect to the
Master Servicer if the Master Servicer were servicing and administering the
Mortgage Loans for Xxxxxx Xxx or Freddie Mac. In the event that any such bond or
policy ceases to be in effect, the Master Servicer shall obtain a comparable
replacement bond or policy from an issuer or insurer, as the case may be,
meeting the requirements, if any, of the Program Guide and acceptable to the
Company. Coverage of the Master Servicer under a policy or bond obtained by an
Affiliate of the Master Servicer and providing the coverage required by this
Section 3.12(b) shall satisfy the requirements of this Section 3.12(b).
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Section 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
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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.
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Section 3.14 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall foreclose upon or otherwise comparably convert
(which may include an REO Acquisition) the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07. Alternatively, the Master Servicer may take other
actions in respect of a defaulted Mortgage Loan, which may include (i) accepting
a short sale (a payoff of the Mortgage Loan for an amount less than the total
amount contractually owed in order to facilitate a sale of the Mortgaged
Property by the Mortgagor) or permitting a short refinancing (a payoff of the
Mortgage Loan for an amount less than the total amount contractually owed in
order to facilitate refinancing transactions by the Mortgagor not involving a
sale of the Mortgaged Property), (ii) arranging for a repayment plan or (iii)
agreeing to a modification in accordance with Section 3.07. In connection with
such foreclosure or other conversion, the Master Servicer shall, consistent with
Section 3.11, follow such practices and procedures as it shall deem necessary or
advisable, as shall be normal and usual in its general mortgage servicing
activities and as shall be required or permitted by the Program Guide; provided
that the Master Servicer shall not be liable in any respect hereunder if the
Master Servicer is acting in connection with any such foreclosure or other
conversion in a manner that is consistent with the provisions of this Agreement.
The Master Servicer, however, shall not be required to expend its own funds or
incur other reimbursable charges in connection with any foreclosure, or
attempted foreclosure which is not completed, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to Holders of
Certificates of one or more Classes after reimbursement to itself for such
expenses or charges and (ii) that such expenses or charges will be recoverable
to it through Liquidation Proceeds, Insurance Proceeds, or REO Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 3.10, whether or not such expenses and
charges are actually recoverable from related Liquidation Proceeds, Insurance
Proceeds or REO Proceeds). In the event of such a determination by the Master
Servicer pursuant to this Section 3.14(a), the Master Servicer shall be entitled
to reimbursement of such amounts pursuant to Section 3.10.
In addition to the foregoing, the Master Servicer shall use its best
reasonable efforts to realize upon any Additional Collateral for such of the
Additional Collateral Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07; provided that the Master Servicer shall not, on behalf
of the Trustee, obtain title to any such Additional Collateral as a result of or
in lieu of the disposition thereof or otherwise; and provided further that (i)
the Master Servicer shall not proceed with respect to such Additional Collateral
in any manner that would impair the ability to recover against the related
Mortgaged Property, and (ii) the Master Servicer shall proceed with any REO
Acquisition in a manner that preserves the ability to apply the proceeds of such
Additional Collateral against amounts owed under the defaulted Mortgage Loan.
Any proceeds realized from such Additional Collateral (other than amounts to be
released to the Mortgagor or the related guarantor in accordance with procedures
that the Master Servicer would follow in servicing loans held for its own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note and to the terms and conditions of any security agreement,
guarantee agreement, mortgage or other agreement governing the disposition of
the proceeds of such Additional Collateral) shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.10. Any other payment
received by the Master Servicer in respect of such Additional Collateral shall
be deposited in the Custodial Account subject to withdrawal pursuant to Section
3.10.
For so long as the Master Servicer is the Master Servicer under the
Credit Support Pledge Agreement, the Master Servicer shall perform its
obligations under the Credit Support Pledge Agreement in accordance with such
agreement and in a manner that is in the best interests of the
Certificateholders. Further, the Master Servicer shall use its best reasonable
efforts to realize upon any Pledged Assets for such of the Pledged Asset Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07; provided that the Master Servicer shall not, on behalf of the
Trustee, obtain title to any such Pledged Assets as a result of or in lieu of
the disposition thereof or otherwise; and provided further that (i) the Master
Servicer shall not proceed with respect to such Pledged Assets in any manner
that would impair the ability to recover against the related Mortgaged Property,
and (ii) the Master Servicer shall proceed with any REO Acquisition in a manner
that preserves the ability to apply the proceeds of such Pledged Assets against
amounts owed under the defaulted Mortgage Loan. Any proceeds realized from such
Pledged Assets (other than amounts to be released to the Mortgagor or the
related guarantor in accordance with procedures that the Master Servicer would
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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 the
Custodian, as the case may be, shall release to the Master Servicer the related
Custodial File and the Trustee shall execute and deliver such instruments of
transfer or assignment prepared by the Master Servicer, in each case without
recourse, as shall be necessary to vest in the Master Servicer or its designee,
as the case may be, the related Mortgage Loan, and thereafter such Mortgage Loan
shall not be part of the Trust Fund. Notwithstanding the foregoing or any other
provision of this Agreement, in the Master Servicer's sole discretion with
respect to any defaulted Mortgage Loan or REO Property as to either of the
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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.
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(d) The proceeds of any Cash Liquidation, REO Disposition or purchase or
repurchase of any Mortgage Loan pursuant to the terms of this Agreement, as well
as any recovery resulting from a collection of Liquidation Proceeds, Insurance
Proceeds or REO Proceeds, will be applied in the following order of priority:
first, to reimburse the Master Servicer or the related Subservicer in accordance
with Section 3.10(a)(ii); second, to the Certificateholders to the extent of
accrued and unpaid interest on the Mortgage Loan, and any related REO Imputed
Interest, at the Net Mortgage Rate (or the Modified Net Mortgage Rate in the
case of a Modified Mortgage Loan) to the Due Date prior to the Distribution Date
on which such amounts are to be distributed; third, to the Certificateholders as
a recovery of principal on the Mortgage Loan (or REO Property); fourth, to all
Subservicing Fees payable therefrom (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 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 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 Custodial 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.
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(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 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.
(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 Subservicing Fee considered
to be accrued but unpaid.
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(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 co-trustee (as provided in
Section 8.05) and the fees and expense of the Custodian) and shall not be
entitled to reimbursement therefor except as specifically provided in Sections
3.10 and 3.14.
(d) [Reserved.]
(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 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 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 the immediately
preceding Distribution Date as it relates to the Mortgage Loans and showing, for
the period covered by such statement, the aggregate of deposits in or
withdrawals from the Custodial Account in respect of the Mortgage Loans for each
category of deposit specified in Section 3.07 and each category of withdrawal
specified in Section 3.10.
Section 3.18 Annual Statement as to Compliance and Servicing Assessment.
The Master Servicer will deliver to the Company and the Trustee on or
before the earlier of (a) March 31 of each year or (b) with respect to any
calendar year during which the 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, (i) a servicing assessment as described in Section 4.03(f)(ii)
and (ii) a servicer compliance statement, signed by an authorized officer of the
Master Servicer, as described in Items 1122(a), 1122(b) and 1123 of Regulation
AB, to the effect that:
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(A) A review of the Master Servicer's activities during the reporting
period and of its performance under this Agreement has been made under such
officer's supervision.
(B) To the best of such officer's knowledge, based on such review, the
Master Servicer has fulfilled all of its obligations under this Agreement in all
material respects throughout the reporting period or, if there has been a
failure to fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status thereof.
The Master Servicer shall use commercially reasonable efforts to obtain
from all other parties participating in the servicing function any additional
certifications required under Item 1122 and 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.
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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
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Servicing Advances including Nonrecoverable Advances ("Servicing Advance
Reimbursement Amounts" and together with Advance Reimbursement Amounts,
"Reimbursement Amounts") (in each case to the extent such type of
Reimbursement Amount is included in the Advance Facility), as
applicable, pursuant to this Agreement, then the Master Servicer shall
identify such Reimbursement Amounts consistent with the reimbursement
rights set forth in Section 3.10(a)(ii) and (vii) and remit such
Reimbursement Amounts in accordance with this Section 3.22 or otherwise
in accordance with the documentation establishing the Advance Facility
to such Advancing Person or to a trustee, agent or custodian (an
"Advance Facility Trustee") designated by such Advancing Person in an
Advance Facility Notice described below in Section 3.22(b).
Notwithstanding the foregoing, if so required pursuant to the terms of
the Advance Facility, the Master Servicer may direct, and if so directed
in writing the Trustee is hereby authorized to and shall pay to the
Advance Facility Trustee the Reimbursement Amounts identified pursuant
to the preceding sentence. An Advancing Person whose obligations
hereunder are limited to the funding of Advances and/or Servicing
Advances shall not be required to meet the qualifications of a Master
Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof
and shall not be deemed to be a Subservicer under this Agreement.
Notwithstanding anything to the contrary herein, in no event shall
Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts
be included in the Available Distribution Amount or distributed to
Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes the
election set forth in Section 3.22(a), the Master Servicer and the
related Advancing Person shall deliver to the Certificate Insurer and
the Trustee a written notice and payment instruction (an "Advance
Facility Notice"), providing the Trustee with written payment
instructions as to where to remit Advance Reimbursement Amounts and/or
Servicing Advance Reimbursement Amounts (each to the extent such type of
Reimbursement Amount is included within the Advance Facility) on
subsequent Distribution Dates. The payment instruction shall require the
applicable Reimbursement Amounts to be distributed to the Advancing
Person or to an Advance Facility Trustee designated in the Advance
Facility Notice. An Advance Facility Notice may only be terminated by
the joint written direction of the Master Servicer and the related
Advancing Person (and any related Advance Facility Trustee). The Master
Servicer shall provide the Certificate Insurer, if any, with notice of
any termination of any Advance Facility pursuant to this Section
3.22(b).
(c) Reimbursement Amounts shall consist solely of amounts in respect of
Advances and/or Servicing Advances made with respect to the Mortgage
Loans for which the Master Servicer would be permitted to reimburse
itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming
the Master Servicer or the Advancing Person had made the related
Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing,
except with respect to reimbursement of Nonrecoverable Advances as set
forth in Section 3.10(c) of this Agreement, no Person shall be entitled
to reimbursement from funds held in the Collection Account for future
distribution to Certificateholders pursuant to this Agreement. Neither
the Company nor the Trustee shall have any duty or liability with
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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 or have any responsibility to
track, monitor or verify the payment of Reimbursement Amounts to the
related Advancing Person or Advance Facility Trustee. The Master
Servicer shall maintain and provide to any Successor Master Servicer a
detailed accounting on a loan-by-loan basis as to amounts advanced by,
sold, pledged or assigned to, and reimbursed to any Advancing Person.
The Successor Master Servicer shall be entitled to rely on any such
information provided by the Master Servicer and the Successor Master
Servicer shall not be liable for any errors in such information.
(d) Upon the direction of and at the expense of the Master Servicer, the
Trustee agrees to execute such acknowledgments, certificates and other
documents reasonably satisfactory to the Trustee provided by the Master
Servicer recognizing the interests of any Advancing Person or Advance
Facility Trustee in such Reimbursement Amounts as the Master Servicer
may cause to be made subject to Advance Facilities pursuant to this
Section 3.22.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan shall
be allocated to outstanding unreimbursed Advances or Servicing Advances
(as the case may be) made with respect to that Mortgage Loan on a
"first-in, first out" ("FIFO") basis, subject to the qualifications set
forth below:
(i) Any successor Master Servicer to Residential Funding
(a "Successor Master Servicer") and the Advancing Person or
Advance Facility Trustee shall be required to apply all amounts
available in accordance with this Section 3.22(e) to the
reimbursement of Advances and Servicing Advances in the manner
provided for herein; provided, however, that after the
succession of a Successor Master Servicer, (A) to the extent
that any Advances or Servicing Advances with respect to any
particular Mortgage Loan are reimbursed from payments or
recoveries, if any, from the related Mortgagor, and Liquidation
Proceeds or Insurance Proceeds, if any, with respect to that
Mortgage Loan, reimbursement shall be made, first, to the
Advancing Person or Advance Facility Trustee in respect of
Advances and/or Servicing Advances related to that Mortgage Loan
to the extent of the interest of the Advancing Person or Advance
Facility Trustee in such Advances and/or Servicing Advances,
second to the Master Servicer in respect of Advances and/or
Servicing Advances related to that Mortgage Loan in excess of
those in which the Advancing Person or Advance Facility Trustee
Person has an interest, and third, to the Successor Master
Servicer in respect of any other Advances and/or Servicing
Advances related to that Mortgage Loan, from such sources as and
when collected, and (B) reimbursements of Advances and Servicing
Advances that are Nonrecoverable Advances shall be made pro rata
to the Advancing Person or Advance Facility Trustee, on the one
hand, and any such Successor Master Servicer, on the other hand,
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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 Certificate Insurer, 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.
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(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, (iv) any amount
required to be paid pursuant to Section 9.01 and (v) all other amounts
constituting the Available Distribution Amount for the immediately succeeding
Distribution Date.
(b) The Trustee shall, upon written request from the Master Servicer, invest or
cause the institution maintaining the Certificate Account to invest the funds in
the Certificate Account in Permitted Investments designated in the name of the
Trustee for the benefit of the Certificateholders, which shall mature or be
payable on demand not later than the Business Day next preceding the
Distribution Date next following the date of such investment (except that (i)
any investment in the institution with which the Certificate Account is
maintained may mature or be payable on demand on such Distribution Date and (ii)
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any other investment may mature or be payable on demand on such Distribution
Date if the Trustee shall advance funds on such Distribution Date to the
Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
distributions on the Certificates) and shall not be sold or disposed of prior to
maturity. Subject to Section 3.16(e), all income and gain realized from any such
investment shall be for the benefit of the Master Servicer and shall be subject
to its withdrawal or order from time to time. The amount of any losses incurred
in respect of any such investments shall be deposited in the Certificate Account
by the Master Servicer out of its own funds immediately as realized without any
right of reimbursement. The Trustee or its Affiliates are permitted to receive
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser (with respect to investments made through
its Affiliates), administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments.
Section 4.02 Distributions.
As provided in Section 4.02 of the Series Supplement.
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies;
Exchange Act Reporting.
(a) Concurrently with each distribution charged to the Certificate Account
and with respect to each Distribution Date the Master 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.
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(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 a 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:
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(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, as soon as reasonably practicable 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 any
Certificate Insurer and Certificateholders by the Master Servicer on request)
setting forth (i) the Available Distribution Amount and (ii) the amounts
required to be withdrawn from the Custodial Account and deposited into the
Certificate Account on the immediately succeeding Certificate Account Deposit
Date pursuant to clause (iii) of Section 4.01(a). The determination by the
Master Servicer of such amounts shall, in the absence of obvious error, be
presumptively deemed to be correct for all purposes hereunder and the Trustee
shall be protected in relying upon the same without any independent check or
verification.
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(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.
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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 that 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.
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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 X, Class M, Class B, Class P, Class SB and Class R
Certificates shall be substantially in the forms set forth in Exhibits A, A-I,
B, C, C-I, C-II and D, respectively, or such other form or forms as shall be set
forth in the Series Supplement, 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 the
Custodian 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.
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(b) Except as provided below, registration of Book-Entry Certificates may not be
transferred by the Trustee except to another Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. The Holders of the Book-Entry Certificates shall hold their respective
Ownership Interests in and to each of such Certificates through the book-entry
facilities of the Depository and, except as provided below, shall not be
entitled to Definitive Certificates in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall transfer the Ownership
Interests only in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
If (i)(A) the Company advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository and (B) the Company is unable to locate a qualified successor or (ii)
the Company notifies the Depository and the Trustee of its intent to terminate
the book-entry system and, upon receipt of notice of such intent from the
Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to such termination through the Depository, the
Trustee shall notify all Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to Certificate Owners requesting the same. Upon surrender to the Trustee of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Trustee shall
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 a request,
such Certificate Owner shall, subject to the rules and procedures of the
Depository, provide the Depository or the related Depository Participant with
directions for the Certificate Registrar to exchange or cause the exchange of
the Certificate Owner's interest in such Class of Certificates for an equivalent
Percentage Interest in fully registered definitive form. Upon receipt by the
Certificate Registrar of instructions from the Depository directing the
Certificate Registrar to effect such exchange (such instructions shall contain
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information regarding the Class of Certificates and the Certificate Principal
Balance being exchanged, the Depository Participant account to be debited with
the decrease, the registered holder of and delivery instructions for the
Definitive Certificate, and any other information reasonably required by the
Certificate Registrar), (i) the Certificate Registrar shall instruct the
Depository to reduce the related Depository Participant's account by the
aggregate Certificate Principal Balance of the Definitive Certificate, (ii) the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in accordance with the registration and delivery instructions provided
by the Depository, a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in such Class of Certificates and (iii) the Trustee shall
execute and the Certificate Registrar shall authenticate a new Book-Entry
Certificate reflecting the reduction in the aggregate Certificate Principal
Balance of such Class of Certificates by the Certificate Principal Balance of
the Definitive Certificate.
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) If the Class A-V Certificates are Definitive Certificates, from time to time
Residential Funding, as the initial Holder of the Class A-V Certificates, may
exchange such Holder's Class A-V Certificates for Subclasses of Class A-V
Certificates to be issued under this Agreement by delivering a "Request for
Exchange" substantially in the form attached to this Agreement as Exhibit N
executed by an authorized officer, which Subclasses, in the aggregate, will
represent the Uncertificated REMIC Regular Interests Z corresponding to the
Class A-V Certificates so surrendered for exchange. Any Subclass so issued shall
bear a numerical designation commencing with Class A-V-1 and continuing
sequentially thereafter, and will evidence ownership of the Uncertificated REMIC
Regular Interest or Interests specified in writing by such initial Holder to the
Trustee. The Trustee may conclusively, without any independent verification,
rely on, and shall be protected in relying on, Residential Funding's
determinations of the Uncertificated REMIC Regular Interests Z 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 REMIC Regular Interest Z 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.
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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, Class P 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,
Class P Certificate or privately offered Class R Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended, 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, Class P Certificate
or privately offered Class R 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
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representation letters shall not be an expense of the Trustee, the Company or
the Master Servicer; provided, however, that such representation letters will
not be required in connection with any transfer of any such Certificate by the
Company or any Affiliate thereof to the Company or an Affiliate of the Company,
and the Trustee shall be entitled to conclusively rely upon a representation
(which, upon the request of the Trustee, shall be a written representation) from
the Company, of the status of such transferee as an Affiliate of the Company or
(ii) the prospective transferee of such a Certificate shall be required to
provide the Trustee, the Company and the Master Servicer with an investment
letter substantially in the form of Exhibit J attached hereto (or such other
form as the Company in its sole discretion deems acceptable), which investment
letter shall not be an expense of the Trustee, the Company or the Master
Servicer, and which investment letter states that, among other things, such
transferee (A) is a "qualified institutional buyer" as defined under Rule 144A,
acting for its own account or the accounts of other "qualified institutional
buyers" as defined under Rule 144A, and (B) is aware that the proposed
transferor intends to rely on the exemption from registration requirements under
the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any
such Certificate desiring to effect any such transfer, sale, pledge or other
disposition shall, and does hereby agree to, indemnify the Trustee, the Company,
the Master Servicer and the Certificate Registrar against any liability that may
result if the transfer, sale, pledge or other disposition is not so exempt or is
not made in accordance with such federal and state laws.
(e) (i) In the case of any Class B, Class P or Class R Certificate presented for
registration in the name of any Person, either (A) the Trustee shall require an
Opinion of Counsel addressed to the Trustee, the Company and the Master
Servicer, acceptable to and in form and substance satisfactory to the Trustee to
the effect that the purchase or holding of such Class B, Class P or Class R
Certificate is permissible under applicable law, will not constitute or result
in any non-exempt prohibited transaction under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), 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 Class P 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, as modified by Section 3(42) of
ERISA, 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").
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(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 2007-05, 72 Fed. Reg. 13130 (March 20, 2007) (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, Moody's, DBRS Limited, or DBRS,
Inc. 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 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 interest therein) was
effected in violation of the restrictions in this Section
5.02(e) shall indemnify and hold harmless the Company, the
Trustee, the Master Servicer, any Subservicer, the Underwriters
and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result
of such acquisition or holding.
(iv) Any Purchaser of an allowable combination of Exchangeable
Certificates or Exchanged Certificates will be deemed to have
represented by virtue of its purchase and holding of such Certificates
(or any interest therein) that either (a) it is not a Plan or a Plan
Investor or (b) it has acquired and is holding such Certificates in
reliance on the RFC Exemption and that it understands that there are
certain conditions to the availability of the RFC Exemption including
that such Certificates must be rated, at the time of the exchange, not
lower than "BBB-" (or its equivalent) by Standard & Poor's, Fitch,
Moody's, DBRS Limited or DBRS, Inc.
(v) Any Purchaser of a combination of Exchangeable Certificates
or Exchanged Certificates that is not eligible for exemptive relief
under the RFC Exemption will be deemed to have represented by virtue of
its purchase and holding of such Certificates (or any interest therein)
that either (a) it is not a Plan or a Plan Investor; (b) it is a
Complying Insurance Company; or (c) it has provided the Trustee 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 such Certificates by or on behalf of those
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entities are 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 and 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.
(f) (i) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee or its designee under clause (iii)(A) below
to deliver payments to a Person other than such Person and to negotiate the
terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any
Ownership Interest in a Class R Certificate shall be a
Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status
as a Permitted Transferee.
(B) In connection with any proposed Transfer of
any Ownership Interest in a Class R Certificate, the
Trustee shall require delivery to it, and shall not
register the Transfer of any Class R Certificate until
its receipt of, (I) an affidavit and agreement (a
"Transfer Affidavit and Agreement," in the form attached
hereto as Exhibit G-1) from the proposed Transferee, in
form and substance satisfactory to the Master Servicer,
representing and warranting, among other things, that it
is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Class R Certificate that is
the subject of the proposed Transfer as a nominee,
trustee or agent for any Person who is not a Permitted
Transferee, that for so long as it retains its Ownership
Interest in a Class R Certificate, it will endeavor to
remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(f) and agrees to be
bound by them, and (II) a certificate, in the form
attached hereto as Exhibit G-2, from the Holder wishing
to transfer the Class R Certificate, in form and
substance satisfactory to the Master Servicer,
representing and warranting, among other things, that no
purpose of the proposed Transfer is to impede the
assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under
clause (B) above, if a Responsible Officer of the
Trustee who is assigned to this Agreement has actual
knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership
Interest in a Class R Certificate to such proposed
Transferee shall be effected.
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(D) Each Person holding or acquiring any
Ownership Interest in a Class R Certificate shall agree
(x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to
transfer its Ownership Interest in a Class R Certificate
and (y) not to transfer its Ownership Interest unless it
provides a certificate to the Trustee in the form
attached hereto as Exhibit G-2.
(E) Each Person holding or acquiring an
Ownership Interest in a Class R Certificate, by
purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of
Temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Class R Certificate, if it is,
or is holding an Ownership Interest in a Class R
Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee shall register the Transfer of any Class R
Certificate only if it shall have received the Transfer Affidavit and
Agreement, a certificate of the Holder requesting such transfer in the
form attached hereto as Exhibit G-2 and all of such other documents as
shall have been reasonably required by the Trustee as a condition to
such registration. Transfers of the Class R Certificates to Non-United
States Persons and Disqualified Organizations (as defined in Section
860E(e)(5) of the Code) are prohibited.
(iii) (A) If any Disqualified Organization shall become a holder
of a Class R Certificate, then the last preceding Permitted Transferee
shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
such Transfer of such Class R Certificate. If a Non-United States Person
shall become a holder of a Class R Certificate, then the last preceding
United States Person shall be restored, to the extent permitted by law,
to all rights and obligations as Holder thereof retroactive to the date
of registration of such Transfer of such Class R Certificate. If a
transfer of a Class R Certificate is disregarded pursuant to the
provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Permitted Transferee shall be restored, to the
extent permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class R
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Class R Certificate that is in fact
not permitted by this Section 5.02(f) or for making any payments due on
such Certificate to the holder thereof or for taking any other action
with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of
a Class R Certificate in violation of the restrictions in this
Section 5.02(f) and to the extent that the retroactive
restoration of the rights of the Holder of such Class R
Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Master Servicer
shall have the right, without notice to the holder or any prior
holder of such Class R Certificate, to sell such Class R
Certificate to a purchaser selected by the Master Servicer on
such terms as the Master Servicer may choose. Such purported
Transferee shall promptly endorse and deliver each Class R
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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, shall be remitted by the Master Servicer to such
purported Transferee. The terms and conditions of any sale under
this clause (iii)(B) shall be determined in the sole discretion
of the Master Servicer, and the Master Servicer shall not be
liable to any Person having an Ownership Interest in a Class R
Certificate as a result of its exercise of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, all information
necessary to compute any tax imposed (A) as a result of the Transfer of
an Ownership Interest in a Class R Certificate to any Person who is a
Disqualified Organization, including the information regarding "excess
inclusions" of such Class R Certificates required to be provided to the
Internal Revenue Service and certain Persons as described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a
result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest
in a Class R Certificate having as among its record holders at any time
any Person who is a Disqualified Organization. Reasonable compensation
for providing such information may be required by the Master Servicer
from such Person.
(v) The provisions of this Section 5.02(f) set forth prior to
this clause (v) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee the following:
(A) written notification from each Rating Agency to the
effect that the modification, addition to or elimination of such
provisions will not cause such Rating Agency to downgrade its
then-current ratings, if any, of any Class of the Senior(in the
case of the Insured Certificates (as defined in the Series
Supplement), such determination shall be made without giving
effect to the Certificate Policy (as defined in the Series
Supplement)), Class M or Class B Certificates below the lower of
the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency; and
(B) subject to Section 10.01(f), an Officers'
Certificate of the Master Servicer stating that the Master
Servicer has received an Opinion of Counsel, in form and
substance satisfactory to the Master Servicer, to the effect
that such modification, addition to or absence of such
provisions will not cause any portion of any REMIC formed under
the Series Supplement to cease to qualify as a REMIC and will
not cause (x) any portion of any REMIC formed under the Series
Supplement to be subject to an entity-level tax caused by the
Transfer of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder or another
Person to be subject to a REMIC-related tax caused by the
Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
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(g) No service charge shall be made for any transfer or exchange of Certificates
of any Class, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be destroyed by
the Certificate Registrar.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Company, the Master Servicer, the Trustee, any Certificate Insurer, the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee, any Certificate Insurer or the Certificate Registrar may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.02
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder," and neither the Company, the Master
Servicer, the Trustee, any Certificate Insurer, the Certificate Registrar nor
any agent of the Company, the Master Servicer, the Trustee, any Certificate
Insurer or the Certificate Registrar shall be affected by notice to the contrary
except as provided in Section 5.02(f).
Section 5.05 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to the Certificateholders pursuant to Section 4.02. In the event
of any such appointment, on or prior to each Distribution Date the Master
Servicer on behalf of the Trustee shall deposit or cause to be deposited with
the Paying Agent a sum sufficient to make the payments to the Certificateholders
in the amounts and in the manner provided for in Section 4.02, such sum to be
held in trust for the benefit of the Certificateholders.
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The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent shall hold all sums held by it for the payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be distributed to such Certificateholders. Any
sums so held by such Paying Agent shall be held only in Eligible Accounts to the
extent such sums are not distributed to the Certificateholders on the date of
receipt by such Paying Agent.
Section 5.06 U.S.A. Patriot Act Compliance.
In order for it to comply with its duties under the U.S.A. Patriot Act,
the Trustee may obtain and verify certain information from the other parties
hereto, including but not limited to such parties' name, address and other
identifying information.
Section 5.07 Exchangeable Certificates
As provided in Section 5.07 of the Series Supplement.
Section 5.08 Tax Status and Reporting of Exhangeable Certificates.
As provided in Section 5.08 of the Series Supplement.
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Company and the Master Servicer.
The Company and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Company and the Master Servicer herein. By
way of illustration and not limitation, the Company is not liable for the
servicing and administration of the Mortgage Loans, nor is it obligated by
Section 7.01 or Section 10.01 to assume any obligations of the Master Servicer
or to appoint a designee to assume such obligations, nor is it liable for any
other obligation hereunder that it may, but is not obligated to, assume unless
it elects to assume such obligation in accordance herewith.
Section 6.02 Merger or Consolidation of the Company or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer.
(a) The Company and the Master Servicer shall each keep in full effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation and as a limited liability company under the laws of the state
of its organization, respectively, and shall each obtain and preserve its
qualification to do business as a foreign corporation or other Person 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.
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(b) Any Person into which the Company or the Master Servicer may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the 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 in this
Section 6.02(b) to the contrary notwithstanding; provided, however, that the
successor or surviving Person to the Master Servicer shall be qualified to
service mortgage loans on behalf of Xxxxxx Xxx or Freddie Mac; and provided
further that the Master Servicer (or the Company, as applicable) shall notify
each Rating Agency and the Trustee in writing of any such merger, conversion or
consolidation at least 30 days prior to the effective date of such event.
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04 to the
contrary, the Master Servicer may assign its rights and delegate its duties and
obligations under this Agreement; provided that the Person accepting such
assignment or delegation shall be a Person which is qualified to service
mortgage loans on behalf of Xxxxxx 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 (in the case of the Insured Certificates
(as defined in the Series Supplement), such determination shall be made without
giving effect to the Certificate Policy (as defined in the Series Supplement))
that have been rated in effect immediately prior to such assignment and
delegation will not be qualified, reduced or withdrawn as a result of such
assignment and delegation (as evidenced by a letter to such effect from each
Rating Agency). In the case of any such assignment and delegation, the Master
Servicer shall be released from its obligations under this Agreement, except
that the Master Servicer shall remain liable for all liabilities and obligations
incurred by it as Master Servicer hereunder prior to the satisfaction of the
conditions to such assignment and delegation set forth in the next preceding
sentence. Notwithstanding the foregoing, in the event of a pledge or assignment
by the Master Servicer solely of its rights to purchase all assets of the Trust
Fund under Section 9.01(a) (or, if so specified in Section 9.01(a), its rights
to purchase the Mortgage Loans and property acquired related to such Mortgage
Loans or its rights to purchase the Certificates related thereto), the provisos
of the first sentence of this paragraph will not apply.
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Section 6.03 Limitation on Liability of the Company, the Master Servicer and
Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Company, the Master Servicer or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Company, the Master Servicer and any
director, officer, employee or agent of the Company or the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company,
the Master Servicer and any director, officer, employee or agent of the Company
or the Master Servicer shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder.
Neither the Company nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Company or the Master Servicer
may in its discretion undertake any such action, proceeding, hearing or
examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Company and the Master Servicer shall be entitled to be reimbursed therefor out
of amounts attributable to the Mortgage Loans on deposit in the Custodial
Account as provided by Section 3.10 and, on the Distribution Date(s) following
such reimbursement, the aggregate of such expenses and costs shall be allocated
in reduction of the Accrued Certificate Interest on each Class entitled thereto
in the same manner as if such expenses and costs constituted a Prepayment
Interest Shortfall.
Section 6.04 Company and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Company nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities and
obligations in accordance with Section 7.02.
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ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to deposit or cause to be
deposited into the Certificate Account any amounts required to be so
deposited therein at the time required pursuant to Section 4.01 or
otherwise or the Master Servicer shall fail to distribute or cause to be
distributed to the Holders of Certificates of any Class any distribution
required to be made under the terms of the Certificates of such Class
and this Agreement and, in each case, such failure shall continue
unremedied for a period of 5 days after the date upon which written
notice of such failure, requiring such failure to be remedied, shall
have been given to the Master Servicer by the Trustee or the Company or
to the Master Servicer, the Company and the Trustee by the Holders of
Certificates of such Class evidencing Percentage Interests aggregating
not less than 25%; or
(ii) the Master Servicer shall fail to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer contained in the Certificates of any Class or in
this Agreement and such failure shall continue unremedied for a period
of 30 days (except that such number of days shall be 15 in the case of a
failure to pay the premium for any Required Insurance Policy) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee or
the Company, or to the Master Servicer, the Company and the Trustee by
the Holders of Certificates of any Class evidencing, in the case of any
such Class, Percentage Interests aggregating not less than 25%; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or appointing a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar proceedings of,
or relating to, the Master Servicer or of, or relating to, all or
substantially all of the property of the Master Servicer; or
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(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), (iv), (vi) and (vii) and Section 4.01(b), and
any other amounts payable to Residential Funding hereunder the entitlement to
which arose prior to the termination of its activities hereunder. Upon the
termination of Residential Funding as Master Servicer hereunder the Company
shall deliver to the Trustee a copy of the Program Guide.
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Section 7.02 Trustee or Company to Act; Appointment of Successor.
(a) On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.01 or resigns in accordance with Section 6.04, the Trustee
or, upon notice to the Company and with the Company's consent (which shall not
be unreasonably withheld) a designee (which meets the standards set forth below)
of the Trustee, shall be the successor in all respects to the Master Servicer in
its capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer (except for the
responsibilities, duties and liabilities contained in Sections 2.02 and 2.03(a),
excluding the duty to notify related Subservicers or Sellers as set forth in
such Sections, and its obligations to deposit amounts in respect of losses
incurred prior to such notice or termination on the investment of funds in the
Custodial Account or the Certificate Account pursuant to Sections 3.07(c) and
4.01(b) by the terms and provisions hereof); provided, however, that any failure
to perform such duties or responsibilities caused by the preceding Master
Servicer's failure to provide information required by Section 4.04 shall not be
considered a default by the Trustee hereunder. As compensation therefor, the
Trustee shall be entitled to all funds relating to the Mortgage Loans which the
Master Servicer would have been entitled to charge to the Custodial Account or
the Certificate Account if the Master Servicer had continued to act hereunder
and, in addition, shall be entitled to the income from any Permitted Investments
made with amounts attributable to the Mortgage Loans held in the Custodial
Account or the Certificate Account. If the Trustee has become the successor to
the Master Servicer in accordance with Section 6.04 or Section 7.01, then
notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution,
which is also a Xxxxxx Xxx- or 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 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
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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.
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(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;
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(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.
(e) Notwithstanding anything to the contrary contained herein or in any related
Custodial Agreement, in no event shall the Trustee have any liability in respect
of any actions or omissions of the Custodian herein or pursuant to any related
Custodial Agreement.
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;
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(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 or custodian or nominee, and the Trustee
shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent, attorney, custodian or
nominee appointed with due care by it hereunder; and
(vii) To the extent authorized under the Code and the
regulations promulgated thereunder, each Holder of a Class R Certificate
hereby irrevocably appoints and authorizes the Trustee to be its
attorney-in-fact for purposes of signing any Tax Returns required to be
filed on behalf of the Trust Fund. The Trustee shall sign on behalf of
the Trust Fund and deliver to the Master Servicer in a timely manner any
Tax Returns prepared by or on behalf of the Master Servicer that the
Trustee is required to sign as determined by the Master Servicer
pursuant to applicable federal, state or local tax laws, provided that
the Master Servicer shall indemnify the Trustee for signing any such Tax
Returns that contain errors or omissions.
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(b) Following the issuance of the Certificates, the Trustee shall not accept any
contribution of assets to the Trust Fund unless (subject to Section 10.01(f)) it
shall have obtained or been furnished with an Opinion of Counsel to the effect
that such contribution will not (i) cause any portion of any REMIC formed under
the Series Supplement to fail to qualify as a REMIC at any time that any
Certificates are outstanding or (ii) cause the Trust Fund to be subject to any
federal tax as a result of such contribution (including the imposition of any
federal tax on "prohibited transactions" imposed under Section 860F(a) of the
Code).
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Mortgage Loans) shall be taken as the statements of the Company or the Master
Servicer as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (except that the
Certificates shall be duly and validly executed and authenticated by it as
Certificate Registrar) or of any Mortgage Loan or related document, or of MERS
or the MERS(R) System. Except as otherwise provided herein, the Trustee shall
not be accountable for the use or application by the Company or the Master
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Company or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account or the Certificate Account by the Company or the Master
Servicer.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights it would have if it were not
Trustee.
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.
(a) The Master Servicer covenants and agrees to pay to the Trustee and any
co-trustee from time to time, and the Trustee and any co-trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by each of them in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee and any co-trustee, and the Master Servicer will pay or
reimburse the Trustee and any co-trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or any
co-trustee in accordance with any of the provisions of this Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ, and the expenses incurred by the
Trustee or any co-trustee in connection with the appointment of an office or
agency pursuant to Section 8.12) except any such expense, disbursement or
advance as may arise from its negligence or bad faith.
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(b) The Master Servicer agrees to indemnify the Trustee for, and to hold the
Trustee harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on the Trustee's part, arising out of, or in
connection with, the acceptance and administration of the Trust Fund, including
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against any claim in connection with the exercise or
performance of any of its powers or duties under this Agreement and the
Custodial Agreement, 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 the
second paragraph of Section 2.01(c) 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 this paragraph, provided
that:
(i) with respect to any such claim, the Trustee shall have given
the Master Servicer written notice thereof promptly after the Trustee
shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee
shall cooperate and consult fully with the Master Servicer in preparing
such defense; and
(iii) notwithstanding anything in this Agreement to the
contrary, the Master Servicer shall not be liable for settlement of any
claim by the Trustee entered into without the prior consent of the
Master Servicer which consent shall not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created by
this Section 8.05(b) of the Master Servicer to indemnify the Trustee under the
conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 8.05(b) shall not be available (A) for 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 or (B) where the Trustee is required to indemnify the
Master Servicer pursuant to Section 12.05(a).
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,
subject to supervision or examination by federal or state authority and the
short-term rating of such institution shall be A-1 in the case of Standard &
Poor's if Standard & Poor's is a Rating Agency. If such corporation or national
banking association publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.07.
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Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 and shall fail to resign after written request
therefor by the Company, or if at any time the Trustee shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Company may remove the
Trustee and appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee. In addition, in the event that the Company
determines that the Trustee has failed (i) to distribute or cause to be
distributed to the Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee or its Paying Agent (other than
the Master Servicer or the Company) for distribution or (ii) to otherwise
observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period
of 5 days (in respect of clause (i) above) or 30 days (in respect of clause (ii)
above) 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.
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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.
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
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8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 8.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee, and such separate trustee or co-trustee jointly,
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Master Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the Trustee,
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Appointment of the Custodian.
The Trustee may, with the consent of the Master Servicer and the
Company, or shall, at the direction of the Company and the Master Servicer,
appoint 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. Notwithstanding anything to the
contrary contained herein, the Company, Master Servicer and Trustee acknowledge
that the functions of the Trustee hereunder with respect to the acceptance,
custody, inspection and release of Custodial Files, and the preparation and
delivery of the Interim Certification required pursuant to Section 2.02, shall
be performed by the Custodian as and to the extent set forth in the Custodial
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Agreement. 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.
The Trustee will maintain an office or agency in the United States 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
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(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) to, but not including, the first day of the month in
which such repurchase price is distributed, provided, however, that in
no event shall the trust created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court
of St. Xxxxx, living on the date hereof and provided further that the
purchase price set forth above shall be increased as is necessary, as
determined by the Master Servicer, to avoid disqualification of any
portion of any REMIC formed under the Series Supplement as a REMIC. The
purchase price paid by the Master Servicer shall also include any
amounts owed by the Master Servicer pursuant to the last paragraph of
Section 45 of the Assignment Agreement in respect of any liability,
penalty or expense that resulted from a breach of the Compliance With
Laws Representation, that remain unpaid on the date of such purchase.
The right of the Master Servicer to purchase all the assets of the Trust
Fund pursuant to clause (ii) above is conditioned upon the Pool Stated Principal
Balance as of the Final Distribution Date, prior to giving effect to
distributions to be made on such Distribution Date, being less than ten percent
of the Cut-off Date Principal Balance of the Mortgage Loans.
If such right is exercised by the Master Servicer, the Master Servicer
shall be deemed to have been reimbursed for the full amount of any unreimbursed
Advances theretofore made by it with respect to the Mortgage Loans. In addition,
the Master Servicer shall provide to the Trustee the certification required by
Section 3.15 and the Trustee and the Custodian shall, promptly following payment
of the purchase price, release to the Master Servicer the Custodial Files
pertaining to the Mortgage Loans being purchased.
In addition to the foregoing, on any Distribution Date on which the Pool
Stated Principal Balance, prior to giving effect to distributions to be made on
such Distribution Date, is less than ten percent of the Cut-off Date Principal
Balance of the Mortgage Loans, the Master Servicer shall have the right, at its
option, to purchase the Certificates in whole, but not in part, at a price equal
to the outstanding Certificate Principal Balance of such Certificates plus the
sum of Accrued Certificate Interest thereon for the related Interest Accrual
Period and any previously unpaid Accrued Certificate Interest. If the Master
Servicer exercises this right to purchase the outstanding Certificates, the
Master Servicer will promptly terminate the respective obligations and
responsibilities created hereby in respect of the Certificates pursuant to this
Article IX.
(b) The Master Servicer shall give the Trustee not less than 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 the Master Servicer of its right to purchase the assets of
the Trust Fund or otherwise) or on which the Master Servicer anticipates that
the Certificates will be purchased (as a result of the exercise by the Master
Servicer of its right to purchase the outstanding Certificates). Notice of any
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termination specifying the anticipated Final Distribution Date (which shall be a
date that would otherwise be a Distribution Date) upon which the
Certificateholders may surrender their Certificates to the Trustee (if so
required by the terms hereof) for payment of the final distribution and
cancellation or notice of any purchase of the outstanding Certificates,
specifying the Distribution Date upon which the Holders may surrender their
Certificates to the Trustee for payment, shall be given promptly by the Master
Servicer (if it is exercising its right to purchase the assets of the Trust Fund
or to purchase the outstanding Certificates), or by the Trustee (in any other
case) by letter. Such notice shall be prepared by the Master Servicer (if it is
exercising its right to purchase the assets of the Trust Fund or to purchase the
outstanding Certificates), or by the Trustee (in any other case) and mailed by
the Trustee to the Certificateholders not earlier than the 15th day and not
later than the 25th day of the month next preceding the month of such final
distribution specifying:
(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 in the case of the Senior
Certificates, or in the case of all of the Certificates in connection
with the exercise by the Master Servicer of its right to purchase the
Certificates, that payment will be made only upon presentation and
surrender of the Certificates at the office or agency of the Trustee
therein specified.
If the Master Servicer is obligated to give notice to Certificateholders
as aforesaid, it shall give such notice to the Certificate Registrar at
the time such notice is given to Certificateholders and, if the Master
Servicer is exercising its rights to purchase the outstanding
Certificates, it shall give such notice to each Rating Agency at the
time such notice is given to Certificateholders. As a result of the
exercise by the Master Servicer of its right to purchase the assets of
the Trust Fund, the Master Servicer shall deposit in the Certificate
Account, before the Final Distribution Date in immediately available
funds an amount equal to the purchase price for the assets of the Trust
Fund, computed as provided above. As a result of the exercise by the
Master Servicer of its right to purchase the outstanding Certificates,
the Master Servicer shall deposit in an Eligible Account, established by
the Master Servicer on behalf of the Trustee and separate from the
Certificate Account in the name of the Trustee in trust for the
registered holders of the Certificates, before the Distribution Date on
which such purchase is to occur in immediately available funds an amount
equal to the purchase price for the Certificates, computed as above
provided, and provide notice of such deposit to the Trustee. The Trustee
will withdraw from such account the amount specified in subsection (c)
below.
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(c) In the case of the Senior Certificates, upon presentation and surrender of
the Certificates by the Certificateholders thereof, and in the case of the Class
M and Class B Certificates, upon presentation and surrender of the Certificates
by the Certificateholders thereof in connection with the exercise by the Master
Servicer of its right to purchase the Certificates, and otherwise in accordance
with Section 4.01(a), the Trustee shall distribute to the Certificateholders (i)
the amount otherwise distributable on such Distribution Date, if not in
connection with the Master Servicer's election to repurchase the assets of the
Trust Fund or the outstanding Certificates, or (ii) if the Master Servicer
elected to so repurchase the assets of the Trust Fund or the outstanding
Certificates, an amount determined as follows: (A) with respect to each
Certificate the outstanding Certificate Principal Balance thereof, plus Accrued
Certificate Interest for the related Interest Accrual Period thereon and any
previously unpaid Accrued Certificate Interest, subject to the priority set
forth in Section 4.02(a), and (B) with respect to the Class R Certificates, any
excess of the amounts available for distribution (including the repurchase price
specified in clause (ii) of subsection (a) of this Section) over the total
amount distributed under the immediately preceding clause (A). Notwithstanding
the reduction of the Certificate Principal Balance of any Class of Subordinate
Certificates to zero, such Class will be outstanding hereunder until the
termination of the respective obligations and responsibilities of the Company,
the Master Servicer and the Trustee hereunder in accordance with Article IX.
(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, which
may be non-interest bearing, for the benefit of such Certificateholders, and the
Master Servicer (if it exercised its right to purchase the assets of the Trust
Fund), or the Trustee (in any other case) shall give a second written notice to
the remaining Certificateholders to 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 Certificate
Account deposited therein by the Master Servicer pursuant to Section 9.01(b) to
be withdrawn therefrom and deposited in a separate escrow account, which may be
non-interest bearing, 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
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directed by the Master Servicer to contact the Holders of such Certificates
concerning surrender of their Certificates. The costs and expenses of
maintaining the escrow account and of contacting Certificateholders shall be
paid out of the assets which remain in the escrow account. If within nine months
after the second notice any Certificates shall not have been surrendered for
cancellation in accordance with this Section 9.01, the Trustee shall pay to the
Master Servicer all amounts distributable to the Holders thereof and the Master
Servicer shall thereafter hold such amounts until distributed to such Holders.
No interest shall accrue or be payable to any Certificateholder on any amount
held in the escrow account or by the Master Servicer as a result of such
Certificateholder's failure to surrender its Certificate(s) for payment in
accordance with this Section 9.01. Any Certificate that is not surrendered on
the Distribution Date on which a purchase pursuant to this Section 9.01 occurs
as provided above will be deemed to have been purchased and the Holder as of
such date will have no rights with respect thereto except to receive the
purchase price therefor minus any costs and expenses associated with such escrow
account and notices allocated thereto. Any Certificates so purchased or deemed
to have been purchased on such Distribution Date shall remain outstanding
hereunder until the Master Servicer has terminated the respective obligations
and responsibilities created hereby in respect of the Certificates pursuant to
this Article IX. The Master Servicer shall be for all purposes the Holder
thereof as of such date.
Section 9.02 Additional Termination Requirements.
(a) Each REMIC that comprises the Trust Fund shall be terminated in accordance
with the following additional requirements, unless (subject to Section 10.01(f))
the Trustee and the Master Servicer have received an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee) to the effect that
the failure of each such REMIC to comply with the requirements of this Section
9.02 will not (i) result in the imposition on the Trust Fund of taxes on
"prohibited transactions," as described in Section 860F of the Code, or (ii)
cause any such REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day liquidation
period for each such REMIC and specify the first day of such period in a
statement attached to the Trust Fund's final Tax Return pursuant to
Treasury regulations Section 1.860F-1. The Master Servicer also shall
satisfy all of the requirements of a qualified liquidation for a REMIC
under Section 860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the
commencement of such 90-day liquidation period and, at or prior to the
time of making of the final payment on the Certificates, the Trustee
shall sell or otherwise dispose of all of the remaining assets of the
Trust Fund in accordance with the terms hereof; and
(iii) If the Master Servicer or the Company is exercising its
right to purchase the assets of the Trust Fund, the Master Servicer
shall, during the 90-day liquidation period and at or prior to the Final
Distribution Date, purchase all of the assets of the Trust Fund for
cash.
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(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.
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(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
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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.
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(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 a Class A-V Certificate
would be reduced to zero is the Maturity Date for each such Certificate and
Interest.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" for each REMIC created hereunder.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of any REMIC created hereunder, (iii)
the termination of any such REMIC pursuant to Article IX of this Agreement or
(iv) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) nor acquire any assets for any such REMIC, nor sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain nor
accept any contributions to any such REMIC after the Closing Date unless it has
received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not (a) affect adversely the status of such REMIC as a REMIC or
(b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause such REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02 Master Servicer, REMIC Administrator and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company, the REMIC
Administrator and the Master Servicer for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Company or the Master Servicer, as a result of a breach of the
Trustee's covenants set forth in Article VIII or this Article X.
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(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.
Section 10.04 Distributions on the Uncertificated REMIC I and REMIC II Regular
Interests.
As provided in Section 10.04 of the Series Supplement.
Section 10.05 Compliance with Withholding Requirements.
As provided in Section 10.05 of the Series Supplement.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to time
by the Company, the Master Servicer and the Trustee, without the consent of any
of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or
to correct any error,
(iii) to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or desirable to maintain the
qualification of the Trust Fund as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund pursuant to the Code that would
be a claim against the Trust Fund, provided that the Trustee has
received an Opinion of Counsel to the effect that (A) such action is
necessary or desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax and (B) such action
will not adversely affect in any material respect the interests of any
Certificateholder,
(iv) to change the timing and/or nature of deposits into the
Custodial Account or the Certificate Account or to change the name in
which the Custodial Account is maintained, provided that (A) the
Certificate Account Deposit Date shall in no event be later than the
related Distribution Date, (B) such change shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder and (C) such change shall not result
in a reduction of the rating assigned to any Class of Certificates below
the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date (in the case of the Insured
Certificates (as defined in the Series Supplement), such determination
shall be made without giving effect to the Certificate Policy (as
defined in the Series Supplement)), as evidenced by a letter from each
Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section
5.02(f) or any other provision hereof restricting transfer of the Class
R Certificates, by virtue of their being the "residual interests" in a
REMIC, provided that (A) such change shall not result in reduction of
the rating assigned to any such Class of Certificates below the lower of
the then-current rating or the rating assigned to such Certificates as
of the Closing Date(in the case of the Insured Certificates (as defined
in the Series Supplement), such determination shall be made without
giving effect to the Certificate Policy (as defined in the Series
Supplement)), as evidenced by a letter from each Rating Agency to such
effect, and (B) such change shall not (subject to Section 10.01(f)), as
evidenced by an Opinion of Counsel (at the expense of the party seeking
so to modify, eliminate or add such provisions), cause any REMIC created
hereunder or any of the Certificateholders (other than the transferor)
to be subject to a federal tax caused by a transfer to a Person that is
not a Permitted Transferee,
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(vi) to make any other provisions with respect to matters or
questions arising under this Agreement or such Custodial Agreement which
shall not be materially inconsistent with the provisions of this
Agreement, provided that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder, or
(vii) to amend any provision herein or therein that is not
material to any of the Certificateholders.
(b) This Agreement or any Custodial Agreement may also be amended from time to
time by the Company, the Master Servicer and the Trustee with the consent of the
Holders of Certificates evidencing in the aggregate not less than 66% of the
Percentage Interests of each Class of Certificates with a Certificate Principal
Balance greater than zero affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or such Custodial Agreement or of modifying in any manner the
rights of the Holders of Certificates of such Class; provided, however, that no
such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate,
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (subject to Section 10.01(f) and at the expense
of the party seeking such amendment) to the effect that such amendment or the
exercise of any power granted to the Master Servicer, the Company or the Trustee
in accordance with such amendment 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.
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(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 GMAC LLC, the Company may elect that
the text of such amendment to this Agreement shall be substantially in the form
attached hereto as Exhibit K (in which case Residential Funding's Subordinate
Certificate Loss Obligation as described in such exhibit shall be established by
Residential Funding's consent to such amendment) and that the limited guaranty
shall be executed in the form attached hereto as Exhibit L, with such changes as
the Company shall deem to be appropriate; it being understood that the Trustee
has reviewed and approved the content of such forms and that the Trustee's
consent or approval to the use thereof is not required.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer and at its expense on direction by the Trustee (pursuant to the
request of Holders of Certificates entitled to at least 25% of the Voting
Rights), but only upon direction accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
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(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.
117
Section 11.05 Notices.
As provided in Section 11.05 of the Series Supplement.
Section 11.06 Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, (i)
shall notify each Rating Agency at such time as it is otherwise required
pursuant to this Agreement to give notice of the occurrence of any of the events
described in clause (a), (b), (c), (d), (g), (h), (i) or (j) below, (ii) shall
notify the Subservicer at such time as it is otherwise required pursuant to this
Agreement to give notice of the occurrence of, any of the events described in
clause (a), (b), (c)(1), (g)(1), or (i) below, or (iii) provide a copy to each
Rating Agency at such time as otherwise required to be delivered pursuant to
this Agreement of any of the statements described in clauses (e) and (f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) (1) the termination or appointment of a successor Master Servicer or (2) the
termination or appointment of a successor Trustee or a change in the majority
ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket fidelity bond
and the errors and omissions insurance policy required by Section 3.12 or the
cancellation or modification of coverage under any such instrument,
(e) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18 and 3.19,
(g) (1) a change in the location of the Custodial Account or (2) a change in the
location of the Certificate Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of any
Class of Certificates resulting from the failure by the Master Servicer to make
an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer, if applicable,
of any such event known to the Master Servicer.
118
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.
119
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01 Intent of the 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
reasonable 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 and warrant to the Company as of
the Closing Date 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
(as described in Item 1119(b) of Regulation AB) 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 (as contemplated by Item 1119(a) of Regulation AB)
of any Transaction Party. The Company shall notify the Trustee of any change in
the identity of a Transaction Party after the Closing Date.
120
(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 questioning the accuracy of any of the representations and warranties.
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 related Distribution Date with respect to each Report on Form 10-D with
respect to the Certificates filed by or on behalf of the Company, and as of
March 15 preceding the date each Report on Form 10-K with respect to the
Certificates is filed, the Trustee shall be deemed to represent and warrant that
any information previously provided by the Trustee 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 5 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 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
satisfying the requirements of Rule 2-01 of Regulation S-X under the Securities
Act and the Exchange Act 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.
121
Section 12.05 Indemnification; Remedies.
(a) The Trustee shall indemnify the Company, each affiliate of the Company, the
Master Servicer and each affiliate of the Master Servicer, 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;
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 (i) 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
by the Trustee as required 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 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.
(d) Notwithstanding any provision in this Section 12.05 to the contrary, the
parties agree that none of the Trustee, the Company or the Master Servicer shall
be liable to the other for any consequential or punitive damages whatsoever,
whether in contract, tort (including negligence and strict liability), or any
other legal or equitable principle; provided, however, that such limitation
shall not be applicable with respect to third party claims made against a party.
122
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.]
[THIS CERTIFICATE IS AN [EXCHANGEABLE] [EXCHANGED] CERTIFICATE AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND MAY BE EXCHANGED FOR THE
[EXCHANGEABLE] [EXCHANGED] CERTIFICATE OR CERTIFICATES IN THE RELATED
COMBINATION GROUP.]
EXHIBIT A-1
Certificate No. [____] [____]%[Adjustable][Variable] Pass-Through
Rate [based on a Notional Amount]
Class [A-___] Senior Percentage Interest: ____%
Date of Pooling and Servicing Aggregate Initial [Certificate Principal
Agreement 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 Company, LLC
[Assumed] [Scheduled]
Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES ________
evidencing a percentage interest in any distributions
allocable to the Class [A-___] 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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"),
EXHIBIT A-2
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 of________________, 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.] [The Subclass Notional Amount of
the [Interest Only/Class A-V]- Certificates as of any date of determination is
equal to the aggregate Stated Principal Balance of the Mortgage Loans
corresponding to the Uncertificated REMIC Regular Interests represented by such
[Interest Only/Class A-V]- Certificates immediately prior to such date.] [The
[Interest Only/Class A-V][- ] Certificates have no Certificate Principal
Balance.]
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose. The [Initial Certificate Principal Balance]
[Initial [Interest Only/Class A-V] Notional Amount] [initial Subclass Notional
Amount] of this Certificate is set forth above.] [The Certificate Principal
Balance hereof will be reduced to the extent of distributions allocable to
principal and any Realized Losses allocable hereto.]
EXHIBIT A-3
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Pass-Through Certificates of
the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Company and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66.6% 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
, 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.
EXHIBIT A-4
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
[This Certificate is an [Exchangeable] [Exchanged] Certificate as
described in the Pooling and Servicing Agreement and may be exchanged for the
[Exchangeable] [Exchanged] Certificate or Certificates in the related
Combination Group specified in the Pooling and Servicing Agreement, subject to
certain terms and conditions specified therein, including the payment to the
Trustee of a fee of $10,000 with respect to each exchange. This [Exchangeable]
[Exchanged] Certificate may be exchanged for the [Exchangeable] [Exchanged]
Certificate or Certificates in the related Combination Group only on the days of
each month specified in the Pooling and Servicing Agreement.]
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.
EXHIBIT A-5
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
EXHIBIT A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage 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 A-7
EXHIBIT A-1
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
EXHIBIT A-1-1
Certificate No. ____ Variable Pass-Through Rate
Class X Senior
Date of Pooling and Servicing
Agreement Percentage Interest: 100%
and Cut-off Date: __________ 1, ____
Master Servicer: Aggregate Initial Notional Amount of the
Residential Funding Company, LLC Class X Certificates: $__________
First Distribution Date: Initial Notional Amount of this
__________ 25, ____ Certificate:
$_____________
Assumed Final Distribution Date: CUSIP ________
_________________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES ____-____
Evidencing a percentage interest in any distributions allocable
to the Class X Certificates with respect to the Trust Fund
consisting primarily of a pool of [conventional one- to
four-family residential, payment-option, adjustable-rate first
lien 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 Notional Amount of this Certificate by the Aggregate Notional Amount of
all Class X 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 residential, payment-option, adjustable-rate
first lien mortgage loans ] (the "Mortgage Loans"), formed and sold by
Residential Funding Mortgage Securities I, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as specified above (the "Agreement") among the Company, the
Master Servicer and ________________________, as trustee (the
EXHIBIT A-1-2
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Class X Certificates on such Distribution Date. The
Class X Certificates have no Certificate Principal Balance.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose. The Initial Notional Amount of this Certificate
is set forth above.
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.
EXHIBIT A-1-3
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, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
EXHIBIT A-1-4
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
to (i) purchase at a price determined as provided in the Agreement all remaining
Mortgage Loans and all property acquired in respect of any Mortgage Loan or (ii)
purchase in whole, but not in part, all of the Certificates from the Holders
thereof; provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans as of the Distribution Date upon which
the proceeds of any such purchase are distributed is less than ten percent of
the Cut-off Date Principal Balance of the Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
EXHIBIT A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated: [________________________________],
as Trustee
By:________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the within-mentioned
Agreement.
[_________________________________],
as Certificate Registrar
By:_________________________________
Authorized Signatory
EXHIBIT A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_______________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT A-1-7
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, AS MODIFIED BY SECTION 3(42) OF ERISA, OF ANY PLAN (EACH,
A "PLAN INVESTOR") TO EFFECT SUCH ACQUISITION, (B) IT HAS ACQUIRED AND IS
EXHIBIT B-1
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 2007-05, 72 FED. REG. 13130 (MARCH 20, 2007) (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.
EXHIBIT B-2
Certificate No. [____] [____]%Pass-Through Rate
Class [M-___] Subordinate
Date of Pooling and
Servicing Agreement Aggregate Certificate Principal
and Cut-off Date: Balance of the Class M Certificates:
[______________] $[______________]
First Distribution Date: Initial Certificate Principal Balance
[______________] of this Certificate:
$[______________]
Master Servicer:
Residential Funding Company, LLC
[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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Balance of this Certificate by the aggregate Initial Certificate
Principal Balance of all Class M-___ Certificates, both as specified above) in
certain distributions with respect to a Trust 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 of ________________,
to the Standard Terms of Pooling and Servicing Agreement dated as of
________________ (together, the "Pooling and Servicing Agreement" or the
EXHIBIT B-3
"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. 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").
EXHIBIT B-4
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, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
EXHIBIT B-5
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.
EXHIBIT B-6
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 [M- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_________________________________________
Authorized Signatory
EXHIBIT B-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_______________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT B-8
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.
EXHIBIT C-1
Certificate No. [____] [____]%Pass-Through Rate
Class [B-___] Subordinate
Date of Pooling and Aggregate Certificate Principal
Servicing Agreement Balance of the Class B-___ Certificates
and Cut-off Date: as of the Cut-off Date:
[______________] $________
First Distribution Date: Initial Certificate Principal
[______________] Balance of this Certificate:
$[______________]
Master Servicer:
Residential Funding Company, LLC
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in any distributions allocable
to the Class B-___ Certificates with respect to the Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans formed and
sold by RESIDENTIAL 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 B-___ Certificates, both as specified above) in
certain distributions with respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed interest rate first mortgage
loans (the "Mortgage Loans"), formed and sold by Residential Funding 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 of ________________, 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
EXHIBIT C-2
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. 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
EXHIBIT C-3
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, as modified by Section
3(42) of ERISA, 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.
EXHIBIT C-4
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies appointed by the Trustee, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan [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 [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.
EXHIBIT C-5
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 [B- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_________________________________
Authorized Signatory
EXHIBIT C-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage 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-7
EXHIBIT C-I
FORM OF CLASS P CERTIFICATE
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.
EXHIBIT C-I-1
Certificate No. [____] [ ] Prepayment Charge
Class P Prepayment Charge [ ]
Date of Pooling and Aggregate Certificate Principal
Servicing Agreement Balance of the Class P Certificates
and Cut-off Date: as of the Cut-off Date:
[______________] $0.00
First Distribution Date: Initial Certificate Principal
[______________] Balance of this Certificate:
$[______________]
Master Servicer: Percentage Interest of this
Residential Funding Company, LLC Certificate: 100%
Assumed Final Distribution Date: CUSIP
[______________] [________________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in any distributions allocable
to the Class P Certificates with respect to the Trust Fund
consisting primarily of a pool of [conventional one- to
four-family fixed interest, payment-option, adjustable-rate
first lien 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
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 P Certificates, both as
specified above) in certain distributions with respect to a Trust Fund
consisting primarily of an interest in a pool of [conventional one- to
four-family fixed interest, payment-option, adjustable-rate first lien 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 of ________________, 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
EXHIBIT C-I-2
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 P 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.
No transfer of this Class P 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 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 account, an investment
manager, a named fiduciary or a trustee of any Plan) who is using plan assets,
EXHIBIT C-I-3
within the meaning of the U.S. Department of Labor regulation promulgated at 29
C.F.R. ss. 2510.3-101, as modified by Section 3(42) of ERISA, 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, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
EXHIBIT C-I-4
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 [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.
EXHIBIT C-I-5
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 P Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_________________________________
Authorized Signatory
EXHIBIT C-I-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_______________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT C-I-7
EXHIBIT C-II
FORM OF CLASS SB-[ ] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES, THE CLASS M-1, CLASS M-2, CLASS M-3, [CLASS M-4, CLASS M-5, CLASS
M-6, CLASS M-7, CLASS M-8, CLASS M-9 AND CLASS M-10] CERTIFICATES AS DESCRIBED
IN THE AGREEMENT (AS DEFINED HEREIN).
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED ("THE CODE").]
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT (THE "AGREEMENT").
NO TRANSFER OF THIS CERTIFICATE (OR ANY INTEREST 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.
EXHIBIT C-II-1
Class SB-[ ] Subordinate Certificate No. ___
Date of Pooling and
Servicing Agreement Percentage Interest: ________%
and Cut-off Date:
[_______ 1, _______]
First Distribution Date: Aggregate Initial Notional PrincipaL
[_______ 25, _______] Balance of the Class SB-[ ]
Certificates: $_________
Master Servicer: Initial Notional Balance of this
Residential Funding Company, LLC Class SB-2 Certificate: $________
Maturity Date: CUSIP
[______ 25, ________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in any distributions
allocable to the Class SB-[ ] Certificates with respect
to the Trust Fund consisting primarily of a pool of
[conventional one- to four-family residential, hybrid
adjustable-rate first lien 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, LLC 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, LLC or any of their
affiliates. None of the Depositor, the Master Servicer, GMAC Mortgage Group, LLC
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that [ ] is the registered owner of the Percentage
Interest evidenced by this Certificate in certain distributions with respect to
the Trust Fund consisting primarily of an interest in a pool of [conventional
one- to four-family fix interest rate first lien mortgage loans] (the "Mortgage
Loans"), sold by Residential Funding Mortgage Securities I, Inc. (hereinafter
called the "Depositor," which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as specified above (the "Agreement") among the
Depositor, the Master Servicer and _____________, 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.
EXHIBIT C-II-2
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month 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 SB-[ ]
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by the
Trustee in immediately available funds (by wire transfer or otherwise) for the
account of the Person entitled thereto if such Person shall have so notified the
Master Servicer or such Paying Agent, or by check mailed to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose. The Notional Amount of this Class SB-[ ]
Certificate as of any date of determination will be calculated as described in
the Agreement. This Class SB-[ ] Certificate will accrue interest at the
Pass-Through Rate on the Notional Amount as indicated in the definition of
Accrued Certificate Interest in the Agreement. This Class SB-[ ] Certificate
will not accrue interest on its Certificate Principal Balance.
No transfer of this Class SB-[ ] Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Depositor may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described by 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 Depositor, the Master Servicer and the Certificate Registrar acting
on behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with such Federal and state laws.
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 account, 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
EXHIBIT C-II-3
C.F.R. ss. 2510.3-101, as modified by Section 3(42) of ERISA, 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 Depositor and the Master Servicer of advances made, or
certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66.6% 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, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
EXHIBIT C-II-4
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and (ii) the purchase by the Master Servicer
from the Trust Fund of all remaining Mortgage Loans and all property acquired in
respect of such Mortgage Loans, thereby effecting early retirement of the
Certificates. The Agreement permits, but does not require, the Master Servicer
(i) to purchase, at a price determined as provided in the Agreement, all
remaining Mortgage Loans and all property acquired in respect of any Mortgage
Loan or (ii) to purchase in whole, but not in part, all of the Certificates from
the Holders thereof, provided, that any such option may only be exercised if the
Stated Principal Balance before giving effect to the distributions to be made on
such Distribution Date of the Mortgage Loans, as of the Distribution Date upon
which the proceeds of any such purchase are distributed is less than ten percent
of the Cut-off Date Principal Balance of the Mortgage Loans.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
[Signature Page Follows]
EXHIBIT C-II-5
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 SB-[ ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_________________________________
Authorized Signatory
EXHIBIT C-II-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________ (Please print or typewrite
name and address including postal zip code of assignee) a Percentage Interest
evidenced by the within Mortgage Pass-Through Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_______________________ _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT C-II-7
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[[FOR PRIVATELY OFFERED CLASS R CERTIFICATES ONLY] 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 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
EXHIBIT D-1
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.
EXHIBIT D-2
Certificate No. [____] [_____]%Pass-Through Rate
Class [R-___] Senior
Date of Pooling and Aggregate Initial Certificate
Servicing Agreement Principal Balance of the Class R-___
and Cut-off Date: Certificates: $100.00
[______________]
First Distribution Date: Initial Certificate Principal
[______________] Balance of this Certificate:
$[______________]
Master Servicer: Percentage Interest: _____%
Residential Funding Company, LLC
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in any distributions allocable
to the Class R[-__] Certificates with respect to the Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans formed and
sold by RESIDENTIAL 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, LLC 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, LLC or any of their
affiliates. None of the Company, the Master Servicer, GMAC Mortgage Group, LLC
or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Initial Certificate
Principal Balance of this Certificate by the aggregate Initial Certificate
Principal Balance of all Class R[-__] Certificates, both as specified above) in
certain distributions with respect to a Trust Fund consisting primarily of 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 of ________________,
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
EXHIBIT D-3
(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 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 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. 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.
[[FOR PRIVATELY OFFERED CLASS R CERTIFICATES ONLY] No transfer of
this Class SB-[ ] Certificate will be made unless such transfer is exempt from
the registration requirements of the Securities Act of 1933, as amended, and any
applicable state securities laws or is made in accordance with said Act and
laws. In the event that such a transfer is to be made, (i) the Trustee or the
Depositor may require an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee and the Depositor that such transfer is
EXHIBIT D-4
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 Depositor, the
Master Servicer and the Certificate Registrar acting on behalf of the Trustee
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such Federal and state laws.]
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 account, 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, as modified by Section 3(42) of ERISA, 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.
EXHIBIT D-5
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, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same Class and aggregate Percentage Interest will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan [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 [in the related Loan Group].
EXHIBIT D-6
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.
EXHIBIT D-7
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 [R- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_________________________________
Authorized Signatory
EXHIBIT D-8
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-9
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 Company, LLC, 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:
EXHIBIT E-1
(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, certificates of formation, limited liability company
agreement, 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.
EXHIBIT E-2
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.
EXHIBIT E-3
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.
EXHIBIT E-4
IN WITNESS WHEREOF, the duly authorized officers of the Seller/Servicer
and Residential Funding have executed this Seller/Servicer Contract as of the
date first above written.
ATTEST: SELLER/SERVICER
[Corporate Seal] (Name of Seller/Servicer)
By:________________________________ By:_______________________________
(Signature) (Signature)
By:________________________________ By:_______________________________
(Typed Name) (Typed Name)
Title:_____________________________ Title:____________________________
________________________________________________________________________________
ATTEST: RESIDENTIAL FUNDING COMPANY, LLC
[Corporate Seal]
By:________________________________ By:_______________________________
(Signature) (Signature)
By:________________________________ By:_______________________________
(Typed Name) (Typed Name)
Title:_____________________________ Title:____________________________
EXHIBIT E-5
EXHIBIT F
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Series Supplement, to the Standard Terms of Pooling and Servicing Agreement
Dated:___________________________
Series#:_________________________
Account#:________________________
Pool#:___________________________
Loan#:___________________________
MIN#:____________________________
Borrower Name(s):_____________________________________________
Reason for Document Request: (circle one)
Mortgage Loan Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
Residential Funding Company, LLC
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 F-1
EXHIBIT G-1-10
G-1-2
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.
EXHIBIT G-1-1
4. That the Owner is aware of the tax imposed on a "pass-through entity" holding
Class R[-__] Certificates if either the pass-through entity is an electing
large partnership under Section 775 of the Code or if at any time during the
taxable year of the pass-through entity a disqualified organization is the
record holder of an interest in such entity. (For this purpose, a "pass through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain
cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity treated as a corporation or a
partnership for U.S. federal income tax purposes and created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia (other than a partnership that is not treated as a United States
person under any applicable Treasury regulations), (iii) an estate that is
described in Section 7701(a)(30)(D) of the Code, or (iv) a trust that is
described in Section 7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the Class R[-__]
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of the Owner or
another United States taxpayer.
7. That the Owner is aware that the Trustee will not register the transfer of
any Class R[- __] Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner
expressly agrees that it will not consummate any such transfer if it knows or
believes that any of the representations contained in such affidavit and
agreement are false.
8. That the Owner has reviewed the restrictions set forth on the face of the
Class R[-__] Certificates and the provisions of Section 5.02(f) of the Pooling
and Servicing Agreement under which the Class R[-__] Certificates were issued
(in particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which authorize
the Trustee to deliver payments to a person other than the Owner and negotiate
a mandatory sale by the Trustee in the event the Owner holds such Certificates
in violation of Section 5.02(f)). The Owner expressly agrees to be bound by and
to comply with such restrictions and provisions.
9. That the Owner consents to any additional restrictions or arrangements that
shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R[-__] Certificates will only be owned,
directly or indirectly, by an Owner that is not a disqualified organization.
10. The Owner's Taxpayer Identification Number is ________________.
11. This affidavit and agreement relates only to the Class R[-__] Certificates
held by the Owner and not to any other holder of the Class R[-__] Certificates.
The Owner understands that the liabilities described herein relate only to the
Class R[-__] Certificates.
EXHIBIT G-1-2
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 account, 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, as
modified by Section 3(42) of ERISA, 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.
EXHIBIT G-1-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this day of _____,___ 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 G-1-4
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.
EXHIBIT G-1-5
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]]
EXHIBIT G-1-6
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
EXHIBIT G-1-7
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.
EXHIBIT G-1-8
[[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
EXHIBIT G-1-9
Paragraph 1. The authority citation for part 1 continues to read in part
as follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT G-1-10
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 Company, LLC 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
Company, LLC, 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.
EXHIBIT G-2-1
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R[-__]
Certificate may not be respected for United States income tax purposes (and the
Seller may continue to be liable for United States income taxes associated
therewith) unless the Seller has conducted such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee is not both a
United States Person and a Permitted Transferee.
Very truly yours,
____________________________________
(Seller)
By:_________________________________
Name:
Title:
EXHIBIT G-2-2
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 Company, LLC
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Residential Funding Company, LLC Series ________
RE: Mortgage Pass-Through Certificates,
Series ________, [Class B- ] [Class P- ] [Class R- ]
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 Company, LLC, 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.
EXHIBIT H-1
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.
EXHIBIT H-2
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 C.F.R. ss. 2510.3-101, as modified by
Section 3(42) of ERISA, 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 H-3
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 Company, LLC Series ________
Re: Mortgage Pass-Through Certificates,
Series ________, [Class B-][Class P-][Class R-]
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 Company, LLC, 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.
EXHIBIT I-1
Very truly yours,
____________________________________
(Seller)
By:_________________________________
Name:
Title:
EXHIBIT I-2
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
Company, LLC 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.
EXHIBIT J-1
(d) Neither the Buyer nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any interest
in the Rule 144A Securities or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under the 1933
Act or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any person
to act, in such manner with respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the 1933 Act and has completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. The Buyer
is aware that the sale to it is being made in reliance on Rule 144A. The Buyer
is acquiring the Rule 144A Securities for its own account or the accounts of
other qualified institutional buyers, understands that such Rule 144A
Securities may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (ii) pursuant to another exemption from registration under the
1933 Act.
3. The Buyer
(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 C.F.R. ss. 2510.3-101, as modified by
Section 3(42) of ERISA, of any Plan (each, a "Plan Investor"), to effect such
acquisition; or
(b) in the case of any Class B Certificate, 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.
EXHIBIT J-2
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:
EXHIBIT J-3
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.
EXHIBIT J-4
___ 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?
EXHIBIT J-5
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:_______________________________
EXHIBIT J-6
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.
EXHIBIT J-7
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 J-8
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.
EXHIBIT K-1
(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 GMAC LLC 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 GMAC LLC,
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 GMAC LLC 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 GMAC LLC as of the date of issuance
of the Limited Guaranty and (b) the rating of the long term debt obligations of
GMAC LLC at the date of such substitution and (C) the Company obtains written
EXHIBIT K-2
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 supercession (but not a reduction, cancellation or deletion of the Limited
Guaranty or the Subordinate Certificate Loss Obligation), an Opinion of Counsel
(which need not be an opinion of Independent counsel) to the effect that any
such amendment or supercession will not cause either (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code or
(b) the Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is outstanding. A copy of any such instrument shall be provided to
the Trustee and the Master Servicer together with an Opinion of Counsel that
such amendment complies with this Section 13.02.
EXHIBIT K-3
EXHIBIT L
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates
Series ________
___________, 20____
[Trustee]
Attention: Residential Funding Company, LLC Series ________
Ladies and Gentlemen:
WHEREAS, Residential Funding Company, LLC, a Delaware limited liability
company ("Residential Funding"), an indirect wholly-owned subsidiary of GMAC
LLC, a Delaware limited liability company ("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.
EXHIBIT L-1
(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.
EXHIBIT L-2
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be executed
and delivered by its respective officers thereunto duly authorized as of the day
and year first above written.
GMAC LLC
By:___________________________________
Name:
Title:
Acknowledged by:
[Trustee], as Trustee
By:________________________________
Name:
Title:
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
By:________________________________
Name:
Title:
EXHIBIT L-3
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 Company, LLC 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 Company, LLC, 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
(d) such assignment is at the request of the borrower under the related
Mortgage Loan.
EXHIBIT M-1
Very truly yours,
(Xxxxxx)
By:_________________________________
Name:
Title:
EXHIBIT M-2
EXHIBIT N
FORM OF REQUEST FOR EXCHANGE
[Date]
_______________________
_______________________
_______________________
Re: Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates, Series [________]
Residential Funding Company, LLC, as the Holder of a ____% Percentage
Interest of the [Interest Only/Class A-V][-__] Certificates, hereby requests the
Trustee to exchange the above-referenced Certificates for the Subclasses
referred to below:
1. [Interest Only/Class A-V][-__] Certificates, corresponding to the
following Uncertificated REMIC Regular Interests: [List numbers
corresponding to the related loans and Pool Strip Rates from the
Mortgage Loan Schedule]. The initial Subclass Notional Amount and
the Initial Pass-Through Rate on the [Interest Only/Class
A-V][-__] Certificates will be $___________ and _____%,
respectively.
[2. Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate all of
the Uncertificated REMIC Regular Interests represented by the [Interest
Only/Class A-V][-__] Certificates surrendered for exchange.
All capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement, dated as of _______,
among Residential Funding Mortgage Securities I, Inc., Residential Funding
Company, LLC and _____________________, as trustee.
RESIDENTIAL FUNDING
COMPANY, LLC
By:_________________________________
Name:
Title:
EXHIBIT N-1
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
Series Supplement, dated as of ______________, to the Standard Terms of Pooling
and Servicing Agreement dated as of __________ (together, the "P&S Agreement")
among Residential Funding Mortgage Securities I, Inc., Residential Funding
Company, LLC (the "Master Servicer") and [Name of Trustee] (the "Trustee");
2. Based on my knowledge, the 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 P&S
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 O-1
EXHIBIT P
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of ___________________ (the
"Trustee") certifies that:
1. The Trustee has performed all of the duties specifically required to be
performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated ____________ (the "Agreement") by and among Residential Funding
Mortgage Securities I, Inc. (the "Company"), as depositor, Residential Funding
Company, LLC (the "Master Servicer") and the Trustee in accordance with the
standards set forth therein.
2. Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is provided by
the Trustee pursuant to the Agreement is accurate as of the last day of the
20___ calendar year.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of
____________, 20___.
Name:_______________________________
Title:______________________________
EXHIBIT P-1
EXHIBIT Q
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING AGENCIES
RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Term (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
EXHIBIT Q-1
EXHIBIT R
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Trustee shall
address, at a minimum, the criteria identified 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 part's performance and compliance with such servicing
activities.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the pool assets are maintained.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Cash Collection and Administration
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate |X|(as to accounts
custodial bank accounts and related bank clearing accounts no more held by Trustee)
than two business days following receipt, or such other number of
days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to |X|(as to investors
an investor are made only by authorized personnel. only)
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with |X|(as to accounts
respect to commingling of cash)~as set forth in the transaction held by Trustee)
1122(d)(2)(iv) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction agreements.
For purposes of this criterion, "federally insured depository
institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule
13k-1(b)(1)~of the Securities Exchange Act.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including custodial
accounts and related bank clearing accounts. These reconciliations
are (A)~mathematically accurate; (B)~prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C)~reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D)~contain explanations for reconciling items.
These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
EXHIBIT R-1
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
Investor Remittances and Reporting
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A)~are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B)~provide
information calculated in accordance with the terms specified in
the transaction agreements; (C)~are filed with the Commission as
required by its rules and regulations; and (D)~agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of pool assets serviced by the
servicer.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance |X|
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made to an investor are posted within two business
days to the servicer's investor records, or such other number of |X|
1122(d)(3)(iii) days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank |X|
1122(d)(3)(iv) statements.
-------------------- --------------------------------------------------------------------- ----------------------
Pool Asset Administration
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(i) Collateral or security pool asset is maintained as required by the
transaction agreements or related asset pool documents.
-------------------- --------------------------------------------------------------------- ----------------------
Pool assets and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made in accordance
with the related pool asset documents are posted to the servicer's
obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items
(e.g., escrow)~in accordance with the related pool asset documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(v) The servicer's records regarding the pool assets agree with the
servicer's records with respect to an obligor's unpaid principal
balance.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's pool
asset (e.g., loan modifications or re-agings)~are made, reviewed
and approved by authorized personnel in accordance with the
transaction agreements and related pool asset documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable)~are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the
period a pool asset is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent pool assets including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool assets
with variable rates are computed based on the related pool asset
documents.
-------------------- --------------------------------------------------------------------- ----------------------
EXHIBIT R-2
------------------------------------------------------------------------------------------ ----------------------
Servicing Criteria Applicable Servicing
Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts): (A)~such funds are analyzed, in accordance with the
obligor's pool asset documents, on at least an annual basis, or
such other period specified in the transaction agreements;
(B)~interest on such funds is paid, or credited, to obligors in
accordance with applicable pool asset documents and state laws; and
(C)~such funds are returned to the obligor within 30 calendar days
of full repayment of the related pool asset, or such other number
of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance
payments)~are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the servicer's funds and
not charged to the obligor, unless the late payment was due to the
obligor's error or omission.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction
1122(d)(4)(xiii) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Any external enhancement or other support, identified in Item
1114(a)(1)through (3)~or Item 1115 of Regulation AB, is maintained |X|
1122(d)(4)(xv) as set forth in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
EXHIBIT R-3
EXHIBIT S
FORM OF EXCHANGE NOTICE
[CERTIFICATEHOLDER'S LETTERHEAD]
[DATE]
[TRUSTEE]
____________________________
____________________________
____________________________
Re:
Ladies and Gentlemen:
Pursuant to the terms of the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of [], between Residential Funding
Company, LLC, as master servicer, Residential Funding Mortgage Securities I,
Inc., as depositor, and _____________________, as trustee (the "Trustee"), we
hereby present and surrender the Exchangeable [Exchanged] Certificates specified
on Annex I attached hereto (the "Exchangeable [Exchanged] Certificates") and
transfer, assign, set over and otherwise convey to the Trustee, all of our
right, title and interest in and to the Exchangeable [Exchanged] Certificates,
including all payments of interest thereon received after [], in exchange for
the Exchanged [Exchangeable] Certificates specified on Schedule I attached
hereto (the "Exchanged [Exchangeable] Certificates").
We agree that upon such exchange the portions of the Exchangeable [Exchanged]
Certificates designated for exchange shall be deemed cancelled and replaced by
the Exchanged [Exchangeable] Certificates issued in exchange therefor. We
confirm that we have paid a fee to the Trustee in connection with such exchange
equal to $10,000.
Very truly yours,
[NAME OF TRANSFEREE]
By:__________________________
Authorized Officer
[MEDALLION STAMP GUARANTEE]
EXHIBIT S-1
EXHIBIT S-2
Acknowledged by:
_____________________________________,
as Trustee
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
EXHIBIT S-2
EXHIBIT S-3
ANNEX I TO EXHIBIT S
INITIAL EXCHANGEABLE CERTIFICATES
----------------------------------------------- ------------------------------------------ ------------------- ---------------
Exchangeable [Exchanged] Certificates Exchanged [Exchangeable] Certificates
----------------------------------------------- ------------------------------------------ ------------------- ---------------
Outstanding Initial
Certificate Certificate
Principal Principal
Balance or Balance or Certificateholder's
Notional Notional DTC Participant Proposed
Certificate(s) Amount CUSIP Number Certificate(s) Amount CUSIP Number Number Exchange Date
------------------- ------------- ------------- -------------- ------------- ------------- ------------------- ---------------
------------------- ------------- ------------- -------------- ------------- ------------- ------------------- ---------------
------------------- ------------- ------------- -------------- ------------- ------------- ------------------- ---------------
EXHIBIT S-3
EXHIBIT FIVE
EXCHANGEABLE COMBINATION GROUP
COMBINATION GROUP
Exchangeable Classes
Percentage
Initial of Current
Certificate Certificate Pass-
Principal Principal Through
Class Balance Balance Rate
------------------ --------------- -------------- ------------
Class II-A-1
Certificates $28,931,000 100% 5.50%
Class II-A-2
Certificates $1,230,000 100% 5.50%
------------------ --------------- -------------- ------------
Exchanged Classes
Percentage of
Initial Current
Certificate Certificate Pass-
Principal Principal Through
Class Balance Balance Rate
------------------ --------------- --------------- ------------
Class II-A-3
Certificates $30,161,000 100% 5.50%
------------------ --------------- --------------- ------------
EXHIBIT FIVE-1
