EXECUTION COPY
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, 2006
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
DATED AS OF NOVEMBER 1, 2006
Mortgage Pass-Through Certificates
Series 2006-S11
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...............................................................3
Section 1.01 Definitions.......................................................3
Section 1.02 Use of Words and Phrases.........................................12
ARTICLE II ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.............................................................13
Section 2.01 Conveyance of Mortgage Loans. (See Section 2.01 of the
Standard Terms)..................................................13
Section 2.02 Acceptance by Trustee. (See Section 2.02 of the Standard
Terms)...........................................................13
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer and the Company.........................................13
Section 2.04 Representations and Warranties of Residential Funding. (See
Section 2.04 of the Standard Terms)..............................15
Section 2.05 Execution and Authentication of Class R Certificates.............15
Section 2.06 [RESERVED].......................................................16
Section 2.07 [RESERVED].......................................................16
Section 2.08 Purposes and Powers of the Trust. (See Section 2.08 of the
Standard Terms)..................................................16
Section 2.09 Agreement Regarding Ability to Disclose..........................16
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...........................17
Section 3.01 Master Servicer to Act as Servicer. (See Section 3.01 of
the Standard Terms)..............................................17
Section 3.02 Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations......................................................17
Section 3.03 Successor Subservicers. (See Section 3.03 of the Standard
Terms)...........................................................18
Section 3.04 Liability of the Master Servicer. (See Section 3.04 of the
Standard Terms)..................................................18
Section 3.05 No Contractual Relationship Between Subservicer and Trustee
or Certificateholders. (See Section 3.05 of the Standard
Terms)...........................................................18
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee. (See Section 3.06 of the Standard Terms)...............18
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account. (See Section 3.07 of the Standard Terms).....18
Section 3.08 Subservicing Accounts; Servicing Accounts. (See Section
3.08 of the Standard Terms)......................................18
Section 3.09 Access to Certain Documentation and Information Regarding
the Mortgage Loans. (See Section 3.09 of the Standard Terms)....18
Section 3.10 Permitted Withdrawals from the Custodial Account. (See
Section 3.10 of the Standard Terms)..............................18
Section 3.11 Maintenance of the Primary Insurance Policies; Collections
Thereunder. (See Section 3.11 of the Standard Terms)............18
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity
Coverage. (See Section 3.12 of the Standard Terms)..............18
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments. (See Section
3.13 of the Standard Terms)......................................18
Section 3.14 Realization Upon Defaulted Mortgage Loans. (See Section
3.14 of the Standard Terms)......................................18
Section 3.15 Trustee to Cooperate; Release of Custodial Files. (See
Section 3.15 of the Standard Terms)..............................18
Section 3.16 Servicing and Other Compensation; Compensating Interest.
(See Section 3.16 of the Standard Terms).........................18
Section 3.17 Reports to the Trustee and the Company. (See Section 3.17
of the Standard Terms)...........................................18
Section 3.18 Annual Statement as to Compliance. (See Section 3.18 of the
Standard Terms)..................................................19
Section 3.19 Annual Independent Public Accountants' Servicing Report.
(See Section 3.19 of the Standard Terms).........................19
Section 3.20 Rights of the Company in Respect of the Master Servicer.
(See Section 3.20 of the Standard Terms).........................19
Section 3.21 Administration of Buydown Funds. (See Section 3.21 of the
Standard Terms)..................................................19
Section 3.22 Advance Facility. (See Section 3.22 of the Standard Terms)......19
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS...........................................20
Section 4.01 Certificate Account. (See Section 4.01 of the Standard
Terms)...........................................................20
Section 4.02 Distributions....................................................20
Section 4.03 Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting. (See Section 4.03 of the
Standard Terms and Exhibit Three hereto).........................28
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)..................................................28
Section 4.05 Allocation of Realized Losses....................................28
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged
Property. (See Section 4.06 of the Standard Terms)..............29
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See Section
4.07 of the Standard Terms)......................................29
Section 4.08 Surety Bond. (See Section 4.08 of the Standard Terms)...........29
ARTICLE V THE CERTIFICATES (SEE ARTICLE V OF THE STANDARD TERMS)...................30
ARTICLE VI THE COMPANY AND THE MASTER SERVICER (SEE ARTICLE VI OF THE STANDARD
TERMS)...................................................................31
ARTICLE VII DEFAULT (SEE ARTICLE VII OF THE STANDARD TERMS)..........................32
ARTICLE VIII CONCERNING THE TRUSTEE (SEE ARTICLE VIII OF THE STANDARD TERMS)..........33
ARTICLE IX TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES (SEE ARTICLE
IX OF THE STANDARD TERMS)................................................34
ARTICLE X REMIC PROVISIONS.........................................................35
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard
Terms)...........................................................35
Section 10.02 Master Servicer; REMIC Administrator and Trustee
Indemnification. (See Section 10.02 of the Standard Terms)......35
Section 10.03 Designation of REMIC(s)..........................................35
Section 10.04 Distributions on the Uncertificated Class A-V REMIC Regular
Interests........................................................35
Section 10.05 Compliance with Withholding Requirements.........................36
ARTICLE XI MISCELLANEOUS PROVISIONS.................................................37
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)............37
Section 11.02 Recordation of Agreement, Counterparts. (See Section 11.02
of the Standard Terms)...........................................37
Section 11.03 Limitation on Rights of Certificateholders. (See Section
11.03 of the Standard Terms).....................................37
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms).......37
Section 11.05 Notices..........................................................37
Section 11.06 Required Notices to Rating Agency and Subservicer. (See
Section 11.06 of the Standard Terms).............................38
Section 11.07 Severability of Provisions. (See Section 11.07 of the
Standard Terms)..................................................38
Section 11.08 Supplemental Provisions for Resecuritization. (See Section
11.08 of the Standard Terms).....................................38
Section 11.09 Allocation of Voting Rights......................................38
Section 11.10 No Petition. (See Section 11.10 of the Standard Terms)..........38
ARTICLE XII COMPLIANCE WITH REGULATION AB (SEE ARTICLE XII OF THE STANDARD
TERMS)...................................................................39
EXHIBITS
Exhibit One: Mortgage Loan Schedule (Available from the Company upon request.)
Exhibit Two: Schedule of Discount Fractions (Available from the Company upon request.)
Exhibit Three: Information to be Included in Monthly Distribution Date Statement
Exhibit Four: Standard Terms of Pooling and Servicing Agreement dated as of
November 1, 2006
This is a Series Supplement, dated as of November 1, 2006 (the "Series Supplement"),
to the Standard Terms of Pooling and Servicing Agreement, dated as of November 1, 2006 and
attached as Exhibit Four hereto (the "Standard Terms" and, together with this Series
Supplement, the "Pooling and Servicing Agreement" or "Agreement"), among RESIDENTIAL FUNDING
MORTGAGE SECURITIES I, INC., as the company (together with its permitted successors and
assigns, the "Company"), RESIDENTIAL FUNDING 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 Initial Monthly Payment Fund), as a real estate mortgage
investment conduit (the "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.
UGAGGREGATE
INITIAL
CERTIFICATE
DESIGNATION RATE BALANCE FEATURES(1) DATE S&P/FITCH DENOMINATIONS(2)
Class A-1 6.00% $563,000,000 Senior//Fixed Rate November 2036 AAA/AAA $100,000.00
Class A-2 6.00% $24,931,000 Senior/Fixed Rate November 2036 AAA/AAA $100,000.00
Class A-3 6.00% $4,643,000 Senior /Fixed Rate November 2036 AAA/AAA $100,000.00
Class A-4 6.00% $7,393,000 Senior/Lockout/Fixed Rate November 2036 AAA/AAA $100,000.00
Class A-P 0.00% $1,448,359 Senior/Principal Only November 2036 AAA/AAA $100,000.00
Class A-V Variable Notional Senior/Interest November 2036 AAA/AAA $2,000,000.00
Rate Only/Variable Rate
Class R 6.00% $100.00 Senior/Residual/Fixed Rate November 2036 AAA/AAA (3)
Class M-1 6.00% $11,841,000 Mezzanine/Fixed Rate November 2036 NA/AA $100,000.00
Class M-2 6.00% $3,739,300 Mezzanine/Fixed Rate November 2036 NA/A $250,000.00
Class M-3 6.00% $2,492,900 Mezzanine/Fixed Rate November 2036 NA/BBB $250,000.00
Class B-1 6.00% $1,246,500 Subordinate/Fixed Rate November 2036 NA/BB $250,000.00
Class B-2 6.00% $1,246,500 Subordinate/Fixed Rate November 2036 NA/B $250,000.00
Class B-3 6.00% $1,246,462 Subordinate/Fixed Rate November 2036 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 R Certificates shall be issuable in minimum denominations of not
less than a 20% Percentage Interest; provided, however, that one Class R
Certificate will be issuable to Residential Funding as "tax matters person"
pursuant to Section 10.01(c) and (e) in a minimum denomination representing
a Percentage Interest of not less than 0.01%
The Mortgage Loans have an aggregate principal balance as of the Cut-off Date of
$623,228,120.94.
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.
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) $226,138 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) $226,138; 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)
$226,138,
over
(2) the aggregate amount of Bankruptcy Losses allocated solely to one or
more specific Classes of Certificates in accordance with Section 4.05 since the
Relevant Anniversary.
The Bankruptcy Amount may be further reduced by the Master Servicer (including
accelerating the manner in which such coverage is reduced) provided that prior to any such
reduction, the Master Servicer shall (i) obtain written confirmation from each Rating Agency
that such reduction shall not reduce the rating assigned to any Class of Certificates by
such Rating Agency below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day on which
banking institutions in the State of New York, the State of Michigan, the State of
California, the State of Illinois or the City of St. ▇▇▇▇, 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 or Class R Certificate.
Certificate Account: The separate account or accounts created and maintained
pursuant to Section 4.01 of the Standard Terms, which shall be entitled "U.S. Bank National
Association, as trustee, in trust for the registered holders of Residential Funding Mortgage
Securities I, Inc., Mortgage Pass-Through Certificates, Series 2006-S11" and which must be
an Eligible Account.
Class A Certificate: Any one of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-P or Class A-V Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form annexed to the Standard Terms as Exhibit A.
Class A-P Principal Distribution Amount: As defined in Section 4.02(b)(i).
Class R Certificate: Any one of the Class R Certificates executed by the Trustee and
authenticated by the Certificate Registrar substantially in the form annexed to the Standard
Terms as Exhibit D and evidencing an interest designated as a "residual interest" in the
related REMIC for purposes of the REMIC Provisions.
Closing Date: November 29, 2006.
Corporate Trust Office: The principal office of the Trustee at which at any
particular time its corporate trust business with respect to this Agreement shall be
administered, which office at the date of the execution of this Agreement is located at U.S.
Bank National Association, EP-MN-WS3D, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Structured Finance/RFMSI 2006-S11.
Cut-off Date: November 1, 2006.
Determination Date: With respect to any Distribution Date, the second Business Day
prior to such Distribution Date.
Discount Net Mortgage Rate: 6.00% per annum.
Due Period: With respect to each Distribution Date and any Mortgage Loan, the
calendar month of such Distribution Date.
Eligible Funds: On any Distribution Date, the portion, if any, of the Available
Distribution Amount remaining after reduction by the sum of (i) the aggregate amount of
Accrued Certificate Interest on the Senior Certificates, (ii) the Senior Principal
Distribution Amount (determined without regard to Section 4.02(a)(ii)(Y)(D) of this Series
Supplement), (iii) the Class A-P Principal Distribution Amount (determined without regard to
Section 4.02(b)(i)(E) of this Series Supplement) and (iv) the aggregate amount of Accrued
Certificate Interest on the Class M, Class B-1 and Class B-2 Certificates.
Fraud Loss Amount: As of any date of determination after the Cut-off Date, an amount
equal to: (X) prior to the first anniversary of the Cut-off Date, an amount equal to 3.00%
of the aggregate outstanding principal balance of all of the Mortgage Loans as of the
Cut-off Date minus the aggregate amount of Fraud Losses allocated solely to one or more
specific Classes of Certificates in accordance with Section 4.05 of this Series Supplement
since the Cut-off Date up to such date of determination, (Y) prior to the second anniversary
of the Cut-off Date, an amount equal to 2.00% of the aggregate outstanding principal balance
of all of the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of Certificates in accordance with
Section 4.05 of this Series Supplement since the Cut-off Date up to such date of
determination and (Z) from the third to the fifth anniversary of the Cut-off Date, an amount
equal to (1) the lesser of (a) the Fraud Loss Amount as of the most recent anniversary of
the Cut-off Date and (b) 1.00% of the aggregate outstanding principal balance of all of the
Mortgage Loans as of the most recent anniversary of the Cut-off Date minus (2) the aggregate
amount of Fraud Losses allocated solely to one or more specific Classes of Certificates in
accordance with Section 4.05 of this Series Supplement since the most recent anniversary of
the Cut-off Date up to such date of determination. On and after the fifth anniversary of
the Cut-off Date, the Fraud Loss Amount shall be zero.
The Fraud Loss Amount may be further reduced by the Master Servicer (including
accelerating the manner in which such coverage is reduced) provided that prior to any such
reduction, the Master Servicer shall (i) obtain written confirmation from each Rating Agency
that such reduction shall not reduce the rating assigned to any Class of Certificates by
such Rating Agency below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Initial Monthly Payment Fund: $3,708,492 representing scheduled principal
amortization and interest at the Net Mortgage Rate during the month of November 2006, for
those Mortgage Loans for which the Trustee will not be entitled to receive such payment in
accordance with the definition of "Trust Fund". The Initial Monthly Payment Fund will not
be part of any REMIC.
Initial Notional Amount: With respect to any Class A-V Certificates or Subclass
thereof issued pursuant to Section 5.01(c), the aggregate Cut-off Date Principal Balance of
the Mortgage Loans relating to the Uncertificated Class A-V REMIC Regular Interests
corresponding to such Class or Subclass on such date.
Initial Subordinate Class Percentage: With respect to each Class of related
Subordinate Certificates, an amount which is equal to the initial aggregate Certificate
Principal Balance of such related 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: 1.90% Class B-1: 0.20%
Class M-2: 0.60% Class B-2: 0.20%
Class M-3: 0.40% Class B-3: 0.20%
Interest Accrual Period: With respect to any 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.
Lockout Amount: With respect to any Distribution Date, an amount equal to the
product of (i) the Lockout Percentage for that Distribution Date, (ii) the Lockout Priority
Percentage for that Distribution Date, and (iii) the portion of the Senior Principal
Distribution Amount available for distribution pursuant to Section 4.02(b)(ii)(B).
Lockout Percentage: With respect to any Distribution Date, a fraction, expressed as
a percentage, (i) the numerator of which is the Certificate Principal Balance of the Class
A-4 Certificates and (ii) the denominator of which is the aggregate Certificate Principal
Balance of the Class A-2, Class A-3 and Class A-4 Certificates.
Lockout Priority Percentage: For any Distribution Date occurring prior to the
Distribution Date in December 2011, 0%. For any Distribution Date occurring after the first
five years following the Closing Date, a percentage determined as follows: (i) for any
Distribution Date during the sixth year after the Closing Date, 30%; (ii) for any
Distribution Date during the seventh year after the Closing Date, 40%; (iii) for any
Distribution Date during the eighth year after the Closing Date, 60%; (iv) for any
Distribution Date during the ninth year after the Closing Date, 80%; and (v) for any
Distribution Date thereafter, 100%.
Maturity Date: With respect to each Class of Certificates, the Distribution Date in
November 2036, which is the Distribution Date in the month immediately following the latest
scheduled maturity date of any Mortgage Loan.
Mortgage Loan Schedule: The list or lists of the Mortgage Loans attached hereto as
Exhibit One (as amended from time to time to reflect the addition of Qualified Substitute
Mortgage Loans), which list or lists shall set forth the following information as to each
Mortgage Loan:
(a) the Mortgage Loan identifying number ("RFC LOAN #");
(b) the maturity of the Mortgage Note ("MATURITY DATE");
(c) the Mortgage Rate ("ORIG RATE");
(d) the Subservicer pass-through rate ("CURR NET");
(e) the Net Mortgage Rate ("NET MTG RT");
(f) the Pool Strip Rate ("STRIP");
(g) the initial scheduled monthly payment of principal, if any, and interest
("ORIGINAL P & I");
(h) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(i) the Loan-to-Value Ratio at origination ("LTV");
(j) the rate at which the Subservicing Fee accrues ("SUBSERV FEE") and at which
the Servicing Fee accrues ("MSTR SERV FEE");
(k) a code "T," "BT" or "CT" under the column "LN FEATURE," indicating that the
Mortgage Loan is secured by a second or vacation residence; and
(l) a code "N" under the column "OCCP CODE," indicating that the Mortgage Loan is
secured by a non-owner occupied residence.
Such schedule may consist of multiple reports that collectively set forth all of the
information required.
Non-Discount Mortgage Loan: The mortgage loans other than the Discount Mortgage Loans.
Notional Amount: As of any Distribution Date with respect to any Class A-V
Certificates, an amount equal to the aggregate Stated Principal Balance of the Mortgage
Loans as of the day immediately preceding such Distribution Date (or, with respect to the
initial Distribution Date, at the close of business on the Cut-off Date). For federal
income tax purposes, as of any Distribution Date, with respect to any Class A-V Certificates
or Subclass thereof issued pursuant to Section 5.01(c), the aggregate Stated Principal
Balance of the Mortgage Loans corresponding to the Uncertificated Class A-V REMIC Regular
Interests corresponding to such Class or Subclass as of the day immediately preceding such
Distribution Date (or, with respect to the initial Distribution Date, at the close of
business on the Cut-off Date).
Pass-Through Rate: With respect to the Class A Certificates (other than the Class A-V
Certificates and the Principal Only Certificates), Class M Certificates, Class B
Certificates and Class R Certificates and any Distribution Date, the per annum rates set
forth in the Preliminary Statement hereto. With respect to the Class A-V Certificates
(other than any Subclass thereof) and any Distribution Date other than the initial
Distribution Date, a rate equal to the weighted average, expressed as a percentage, of the
Pool Strip Rates of all Mortgage Loans as of the Due Date in the related Due Period,
weighted on the basis of the respective Stated Principal Balances of such Mortgage Loans as
of the day immediately preceding such Distribution Date. With respect to the Class A-V
Certificates and the initial Distribution Date, the Pass-Through Rate is equal to 0.2439%
per annum. With respect to any Subclass of Class A-V Certificates and any Distribution
Date, a rate equal to the weighted average, expressed as a percentage, of the Pool Strip
Rates of all Mortgage Loans corresponding to the Uncertificated Class A-V REMIC Regular
Interests represented by such Subclass as of the Due Date in the related Due Period,
weighted on the basis of the respective Stated Principal Balances of such Mortgage Loans as
of the day immediately preceding such Distribution Date (or with respect to the initial
Distribution Date, at the close of business on the Cut-Off Date). The Principal Only
Certificates have no Pass-Through Rate and are not entitled to Accrued Certificate Interest.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate equal to the
excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b) the Discount Net Mortgage
Rate (but not less than 0.00%) per annum.
Prepayment Assumption: A prepayment assumption of 350% of the prepayment speed
assumption, used for determining the accrual of original issue discount and market discount
and premium on the Certificates for federal income tax purposes. The prepayment speed
assumption assumes a constant rate of prepayment of Mortgage Loans of 0.2% per annum of the
then outstanding principal balance of such Mortgage Loans in the first month of the life of
the Mortgage Loans, increasing by an additional 0.2% per annum in each succeeding month
until the thirtieth month, and a constant 6% per annum rate of prepayment thereafter for the
life of the Mortgage Loans.
Prepayment Distribution Percentage: With respect to any Distribution Date and each
Class of Subordinate Certificates, under the applicable circumstances set forth below, the
respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date in December 2011
(unless the Certificate Principal Balances of the Senior Certificates (other
than the Class A-P Certificates) have been reduced to zero), 0%.
(ii) For any Distribution Date for which clause (i) above does not apply, and on
which any Class of Subordinate Certificates is outstanding with a Certificate
Principal Balance greater than zero:
(a) in the case of the Class of Subordinate Certificates then
outstanding with the Highest Priority and each other Class of Subordinate
Certificates for which the related Prepayment Distribution Trigger has been
satisfied, a fraction, expressed as a percentage, the numerator of which is
the Certificate Principal Balance of such Class immediately prior to such date
and the denominator of which is the sum of the Certificate Principal Balances
immediately prior to such date of (1) the Class of Subordinate Certificates
then outstanding with the Highest Priority and (2) all other Classes of
Subordinate Certificates for which the respective Prepayment Distribution
Triggers have been satisfied; and
(b) in the case of each other Class of Subordinate Certificates for
which the Prepayment Distribution Triggers have not been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of the foregoing percentages
on any Distribution Date as provided in Section 4.02 of this Series Supplement
(determined without regard to the proviso to the definition of "Subordinate
Principal Distribution Amount") would result in a distribution in respect of
principal of any Class or Classes of Subordinate Certificates in an amount
greater than the remaining Certificate Principal Balance thereof (any such
class, a "Maturing Class"), then: (a) the Prepayment Distribution Percentage
of each Maturing Class shall be reduced to a level that, when applied as
described above, would exactly reduce the Certificate Principal Balance of
such Class to zero; (b) the Prepayment Distribution Percentage of each other
Class of Subordinate Certificates (any such Class, a "Non-Maturing Class")
shall be recalculated in accordance with the provisions in paragraph (ii)
above, as if the Certificate Principal Balance of each Maturing Class had been
reduced to zero (such percentage as recalculated, the "Recalculated
Percentage"); (c) the total amount of the reductions in the Prepayment
Distribution Percentages of the Maturing Class or Classes pursuant to clause
(a) of this sentence, expressed as an aggregate percentage, shall be allocated
among the Non-Maturing Classes in proportion to their respective Recalculated
Percentages (the portion of such aggregate reduction so allocated to any
Non-Maturing Class, the "Adjustment Percentage"); and (d) for purposes of such
Distribution Date, the Prepayment Distribution Percentage of each Non-Maturing
Class shall be equal to the sum of (1) the Prepayment Distribution Percentage
thereof, calculated in accordance with the provisions in paragraph (ii) above
as if the Certificate Principal Balance of each Maturing Class had not been
reduced to zero, plus (2) the related Adjustment Percentage.
Principal Only Certificates: Any one of the Class A-P Certificates.
Record Date: With respect to each Distribution Date and each Class of Certificates,
the close of business on the last Business Day of the month next preceding the month in
which the related Distribution Date occurs.
Senior Certificate: Any one of the Class A Certificates or Class R Certificates,
executed by the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit A and Exhibit D, respectively.
Senior Percentage: As of any Distribution Date, the lesser of 100% and a fraction,
expressed as a percentage, the numerator of which is the aggregate Certificate Principal
Balance of the Senior Certificates (other than the Class A-P Certificates) immediately prior
to such Distribution Date and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans (or related REO Properties) (other than the related
Discount Fraction of each Discount Mortgage Loan) immediately prior to such Distribution
Date.
Senior Principal Distribution Amount: As to any Distribution Date, the lesser of (a)
the balance of the Available Distribution Amount remaining after the distribution of all
amounts required to be distributed pursuant to Section 4.02(a)(i) and Section 4.02(a)(ii)(X)
(excluding any amount distributable pursuant to Section 4.02(b)(i)(E)) (or, on or after the
Credit Support Depletion Date, the amount required to be distributed to the Class A-P
Certificateholders pursuant to Section 4.02(c)) and (b) the sum of the amounts required to
be distributed to the Senior Certificateholders on such Distribution Date pursuant to
Section 4.02(a)(ii)(Y).
Special Hazard Amount: As of any Distribution Date, an amount equal to $6,232,281
minus the sum of (i) the aggregate amount of Special Hazard Losses allocated solely to one
or more specific Classes of Certificates in accordance with Section 4.05 of this Series
Supplement and (ii) the Adjustment Amount (as defined below) as most recently calculated.
For each anniversary of the Cut-off Date, the Adjustment Amount shall be equal to the
amount, if any, by which the amount calculated in accordance with the preceding sentence
(without giving effect to the deduction of the Adjustment Amount for such anniversary)
exceeds the greater of (A) the greatest of (i) twice the outstanding principal balance of
the Mortgage Loan in the Trust Fund which has the largest outstanding principal balance on
the Distribution Date immediately preceding such anniversary, (ii) the product of 1.00%
multiplied by the outstanding principal balance of all Mortgage Loans on the Distribution
Date immediately preceding such anniversary and (iii) the aggregate outstanding principal
balance (as of the immediately preceding Distribution Date) of the Mortgage Loans in any
single five-digit California zip code area with the largest amount of Mortgage Loans by
aggregate principal balance as of such anniversary and (B) the greater of (i) the product of
0.50% multiplied by the outstanding principal balance of all Mortgage Loans on the
Distribution Date immediately preceding such anniversary multiplied by a fraction, the
numerator of which is equal to the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of all of the Mortgage Loans secured by Mortgaged
Properties located in the State of California divided by the aggregate outstanding principal
balance (as of the immediately preceding Distribution Date) of all of the Mortgage Loans,
expressed as a percentage, and the denominator of which is equal to 29.5% (which percentage
is equal to the percentage of Mortgage Loans initially secured by Mortgaged Properties
located in the State of California) and (ii) the aggregate outstanding principal balance (as
of the immediately preceding Distribution Date) of the largest Mortgage Loan secured by a
Mortgaged Property located in the State of California.
The Special Hazard Amount may be further reduced by the Master Servicer (including
accelerating the manner in which coverage is reduced) provided that prior to any such
reduction, the Master Servicer shall (i) obtain written confirmation from each Rating Agency
that such reduction shall not reduce the rating assigned to any Class of Certificates by
such Rating Agency below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Subordinate Principal Distribution Amount: With respect to any Distribution Date and
each Class of Subordinate Certificates, (a) the sum of (i) the product of (x) the related
Subordinate Class Percentage for such Class and (y) the aggregate of the amounts calculated
for such Distribution Date under clauses (1), (2) and (3) of Section 4.02(a)(ii)(Y)(A) of
this Series Supplement (without giving effect to the Senior Percentage) to the extent not
payable to the Senior Certificates; (ii) such Class's pro rata share, based on the
Certificate Principal Balance of each Class of Subordinate Certificates then outstanding, of
the principal collections described in Section 4.02(a)(ii)(Y)(B)(b) of this Series
Supplement (without giving effect to the Senior Accelerated Distribution Percentage) to the
extent such collections are not otherwise distributed to the Senior Certificates; (iii) the
product of (x) the related Prepayment Distribution Percentage and (y) the aggregate of all
Principal Prepayments in Full received in the related Prepayment Period and Curtailments
received in the preceding calendar month (other than the related Discount Fraction of such
Principal Prepayments in Full and Curtailments with respect to a Discount Mortgage Loan) to
the extent not payable to the Senior Certificates; (iv) if such Class is the Class of
Subordinate Certificates with the Highest Priority, any Excess Subordinate Principal Amount
for such Distribution Date; and (v) any amounts described in clauses (i), (ii) and (iii) as
determined for any previous Distribution Date, that remain undistributed to the extent that
such amounts are not attributable to Realized Losses which have been allocated to a Class of
Subordinate Certificates minus (b) the sum of (i) with respect to the Class of Subordinate
Certificates with the Lowest Priority, any Excess Subordinate Principal Amount for such
Distribution Date; and (ii) the Capitalization Reimbursement Amount for such Distribution
Date, other than the related Discount Fraction of any portion of that amount related to each
Discount Mortgage Loan, multiplied by a fraction, the numerator of which is the Subordinate
Principal Distribution Amount for such Class of Subordinate Certificates, without giving
effect to this clause (b)(ii), and the denominator of which is the sum of the principal
distribution amounts for all Classes of Certificates other than the Class A-P Certificates,
without giving effect to any reductions for the Capitalization Reimbursement Amount.
Trust Fund: The segregated pool of assets consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral securing such
Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans due after the
Cut-off Date (other than Monthly Payments due in the month of the Cut-off
Date) 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 (vi) above.
Uncertificated Accrued Interest: With respect to each Distribution Date, as to each
Uncertificated Class A-V REMIC Regular Interest, an amount equal to the aggregate amount of
Accrued Certificate Interest that would result under the terms of the definition thereof on
the related classes of Certificates if the Pass-Through Rate on such Classes were equal
to the related Uncertificated Class A-V REMIC Pass-Through Rate and the notional amount of
such uncertificated interest were equal to the related Uncertificated Class A-V REMIC
Notional Amount, and any reduction in the amount of Accrued Certificate Interest
resulting from the allocation of Prepayment Interest Shortfalls, Realized Losses or other
amounts to the Class A-V Certificateholders pursuant to Section 4.05 hereof shall be allocated
to the Uncertificated Class A-V REMIC Regular Interests pro rata in accordance with the
amount of interest accrued with respect to each related Uncertificated REMIC Notional Amount
and such Distribution Date.
Uncertificated Class A-V REMIC Notional Amount: With respect to each Uncertificated
Class A-V REMIC Regular Interest, the Stated Principal Balance of the related Mortgage Loan.
Uncertificated Class A-V REMIC Pass-Through Rate: With respect to each
Uncertificated Class A-V REMIC Regular Interest, a per annum rate equal to the Pool Strip
Rate with respect to the related Mortgage Loan.
Uncertificated Class A-V REMIC Regular Interest Distribution Amounts: With respect
to any Distribution Date, the sum of the amounts deemed to be distributed on the
Uncertificated Class A-V REMIC Regular Interests for such Distribution Date pursuant to
Section 4.08(a).
Uncertificated Class A-V REMIC Regular Interests: The 1161 uncertificated partial
undivided beneficial ownership interests in the Trust Fund, numbered sequentially from 1 to
1161, each relating to the particular Non-Discount Mortgage Loan identified by sequential
number on the Mortgage Loan Schedule, each having no principal balance, and each bearing
interest at the respective Pool Strip Rate on the Stated Principal Balance of the related
Mortgage Loan.
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.
ARTICLE II
ARTICLE II CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (See Section 2.01 of the Standard Terms)
Section 2.02 Acceptance by Trustee. (See Section 2.02 of the Standard Terms)
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the
Company.
(a) For representations, warranties and covenants of the Master Servicer, see
Section 2.03(a) of the Standard Terms.
(b) The Company hereby represents and warrants to the Trustee for the benefit of
Certificateholders that as of the Closing Date (or, if otherwise specified below, as of the
date so specified):
(i) No Mortgage Loan is 30 or more days Delinquent in payment of principal and interest
as of the Cut-off Date and no Mortgage Loan has been so Delinquent more than once in
the 12-month period prior to the Cut-off Date;
(ii) The information set forth in Exhibit One hereto with respect to each Mortgage Loan or
the Mortgage Loans, as the case may be, is true and correct in all material respects
at the date or dates respecting which such information is furnished;
(iii) The Mortgage Loans are fully-amortizing (subject to interest only periods, if
applicable), fixed-rate mortgage loans with level Monthly Payments due, with respect
to a majority of the Mortgage Loans, on the first day of each month and terms to
maturity at origination or modification of not more than 30 years;
(iv) To the best of the Company's knowledge, if a Mortgage Loan is secured by a Mortgaged
Property with a Loan-to-Value Ratio at origination in excess of 80%, such Mortgage
Loan is the subject of a Primary Insurance Policy that insures that (a) at least 30%
of the Stated Principal Balance of the Mortgage Loan at origination if the
Loan-to-Value Ratio is between 95.00% and 90.01%, (b) at least 25% of such balance if
the Loan-to-Value Ratio is between 90.00% and 85.01%, and (c) at least 12% of such
balance if the Loan-to-Value Ratio is between 85.00% and 80.01%. To the best of the
Company's knowledge, each such Primary Insurance Policy is in full force and effect
and the Trustee is entitled to the benefits thereunder;
(v) The issuers of the Primary Insurance Policies are insurance companies whose
claims-paying abilities are currently acceptable to each Rating Agency;
(vi) No more than 0.6% of the Mortgage Loans by aggregate Cut-off Date Principal Balance
are secured by Mortgaged Properties located in any one zip code area in the State of
Virginia and no more than 0.5% of the Mortgage Loans by aggregate Cut-off Date
Principal Balance are secured by Mortgaged Properties located in any one zip code
area outside the State of Virginia;
(vii) The improvements upon the Mortgaged Properties are insured against loss by fire and
other hazards as required by the Program Guide, including flood insurance if required
under the National Flood Insurance Act of 1968, as amended. The Mortgage requires
the Mortgagor to maintain such casualty insurance at the Mortgagor's expense, and on
the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefore from the Mortgagor;
(viii) Immediately prior to the assignment of the Mortgage Loans to the Trustee, the Company
had good title to, and was the sole owner of, each Mortgage Loan free and clear of
any pledge, lien, encumbrance or security interest (other than rights to servicing
and related compensation) and such assignment validly transfers ownership of the
Mortgage Loans to the Trustee free and clear of any pledge, lien, encumbrance or
security interest;
(ix) No more than 33.99% of the Mortgage Loans by aggregate Cut-off Date Principal Balance
were underwritten under a reduced loan documentation program;
(x) Each Mortgagor represented in its loan application with respect to the related
Mortgage Loan that the Mortgaged Property would be owner-occupied and therefore would
not be an investor property as of the date of origination of such Mortgage Loan. No
Mortgagor is a corporation or a partnership;
(xi) None of the Mortgage Loans are Buydown Mortgage Loans;
(xii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(xiii) A policy of title insurance was effective as of the closing of each Mortgage Loan and
is valid and binding and remains in full force and effect, unless the Mortgaged
Properties are located in the State of Iowa and an attorney's certificate has been
provided as described in the Program Guide;
(xiv) Except with respect to approximately 0.2% of the Mortgage Loans, none of the Mortgage
Loans are Cooperative Loans;
(xv) Except with respect to approximately 1.7% of the Mortgage Loans, none of the Mortgage
Loans were originated under a "streamlined" Mortgage Loan program (through which no
new or updated appraisals of Mortgaged Properties are obtained in connection with the
refinancing thereof), the related Seller has represented that either (a) the value of
the related Mortgaged Property as of the date the Mortgage Loan was originated was
not less than the appraised value of such property at the time of origination of the
refinanced Mortgage Loan or (b) the Loan-to-Value Ratio of the Mortgage Loan as of
the date of origination of the Mortgage Loan generally meets the Company's
underwriting guidelines;
(xvi) Interest on each Mortgage Loan is calculated on the basis of a 360-day year
consisting of twelve 30-day months;
(xvii) None of the Mortgage Loans contains in the related Mortgage File a Destroyed Mortgage
Note; and
(xviii) None of the Mortgage Loans are Pledged Asset Loans or Additional Collateral Loans.
It is understood and agreed that the representations and warranties set forth in this
Section 2.03(b) shall survive delivery of the respective Custodial Files to the Trustee or
the Custodian.
Upon discovery by any of the Company, the Master Servicer, the Trustee, or the
Custodian of a breach of any of the representations and warranties set forth in this Section
2.03(b) that materially and adversely affects the interests of the Certificateholders in any
Mortgage Loan, the party discovering such breach shall give prompt written notice to the
other parties (any Custodian being so obligated under a Custodial Agreement); provided,
however, that in the event of a breach of the representation and warranty set forth in
Section 2.03(b)(xii), the party discovering such breach shall give such notice within five
days of discovery. Within 90 days of its discovery or its receipt of notice of breach, the
Company shall either (i) cure such breach in all material respects or (ii) purchase such
Mortgage Loan from the Trust Fund at the Purchase Price and in the manner set forth in
Section 2.02; provided that the Company shall have the option to substitute a Qualified
Substitute Mortgage Loan or Loans for such Mortgage Loan if such substitution occurs within
two years following the Closing Date; provided that if the omission or defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3)
of the Code, any such cure or repurchase must occur within 90 days from the date such breach
was discovered. Any such substitution shall be effected by the Company under the same terms
and conditions as provided in Section 2.04 for substitutions by Residential Funding. It is
understood and agreed that the obligation of the Company to cure such breach or to so
purchase or substitute for any Mortgage Loan as to which such a breach has occurred and is
continuing shall constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of the Certificateholders. Notwithstanding the
foregoing, the Company shall not be required to cure breaches or purchase or substitute for
Mortgage Loans as provided in this Section 2.03(b) if the substance of the breach of a
representation set forth above also constitutes fraud in the origination of the Mortgage
Loan.
Section 2.04 Representations and Warranties of Residential Funding. (See Section 2.04 of
the Standard Terms)
Section 2.05 Execution and Authentication of Class R 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 Certificates in authorized denominations which evidence
ownership of the entire Trust Fund.
Section 2.06 [RESERVED].
Section 2.07 [RESERVED].
Section 2.08 Purposes and Powers of the Trust. (See Section 2.08 of the Standard Terms).
Section 2.09 Agreement Regarding Ability to Disclose.
The Company, the Master Servicer and the Trustee hereby agree, notwithstanding any
other express or implied agreement to the contrary, that any and all Persons, and any of
their respective employees, representatives, and other agents may disclose, immediately upon
commencement of discussions, to any and all Persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind (including
opinions or other tax analyses) that are provided to any of them relating to such tax
treatment and tax structure. For purposes of this paragraph, the terms "tax treatment" and
"tax structure" are defined under Treasury Regulationss.1.6011-4(c).
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicer to Act as Servicer. (See Section 3.01 of the Standard Terms)
Section 3.02 Subservicing Agreements Between Master Servicer and Subservicers; Enforcement
of Subservicers' and Sellers' Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements entered into by
Residential Funding and Subservicers prior to the execution and delivery of this Agreement,
and may enter into new Subservicing Agreements with Subservicers, for the servicing and
administration of all or some of the Mortgage Loans. Each Subservicer shall be either (i)
an institution the accounts of which are insured by the FDIC or (ii) another entity that
engages in the business of originating or servicing mortgage loans, and in either case shall
be authorized to transact business in the state or states in which the related Mortgaged
Properties it is to service are situated, if and to the extent required by applicable law to
enable the Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, and in either case shall be a Freddie Mac, ▇▇▇▇▇▇ ▇▇▇ or HUD approved mortgage
servicer. In addition, any Subservicer of a Mortgage Loan insured by the FHA must be an
FHA-approved servicer, and any Subservicer of a Mortgage Loan guaranteed by the VA must be a
VA-approved servicer. Each Subservicer of a Mortgage Loan shall be entitled to receive and
retain, as provided in the related Subservicing Agreement and in Section 3.07, the related
Subservicing Fee from payments of interest received on such Mortgage Loan after payment of
all amounts required to be remitted to the Master Servicer in respect of such Mortgage
Loan. For any Mortgage Loan that is a Nonsubserviced Mortgage Loan, the Master Servicer
shall be entitled to receive and retain an amount equal to the Subservicing Fee from
payments of interest. Unless the context otherwise requires, references in this Agreement
to actions taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master Servicer.
Each Subservicing Agreement will be upon such terms and conditions as are generally required
by, permitted by or consistent with the Program Guide and are not inconsistent with this
Agreement and as the Master Servicer and the Subservicer have agreed; provided that, the
Subservicing Agreement between the Master Servicer and ▇▇▇▇▇ Fargo, if any, will be upon
such terms and conditions as are consistent with this Agreement and as the Master Servicer
and the Subservicer have agreed, which may not be consistent with the Program Guide. With
the approval of the Master Servicer, a Subservicer may delegate its servicing obligations to
third-party servicers, but such Subservicer will remain obligated under the related
Subservicing Agreement. The Master Servicer and a Subservicer may enter into amendments
thereto or a different form of Subservicing Agreement, and the form referred to or included
in the Program Guide is merely provided for information and shall not be deemed to limit in
any respect the discretion of the Master Servicer to modify or enter into different
Subservicing Agreements; provided, however, that any such amendments or different forms
shall be consistent with and not violate the provisions of either this Agreement or the
Program Guide in a manner which would materially and adversely affect the interests of the
Certificateholders. The Program Guide and any other Subservicing Agreement entered into
between the Master Servicer and any Subservicer shall require the Subservicer to accurately
and fully report its borrower credit files to each of the Credit Repositories in a timely
manner.
(b) (See Section 3.02(b) of the Standard Terms)
Section 3.03 Successor Subservicers. (See Section 3.03 of the Standard Terms)
Section 3.04 Liability of the Master Servicer. (See Section 3.04 of the Standard Terms)
Section 3.05 No Contractual Relationship Between Subservicer and Trustee or
Certificateholders. (See Section 3.05 of the Standard Terms)
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee. (See Section
3.06 of the Standard Terms)
Section 3.07 Collection of Certain Mortgage Loan Payments; Deposits to Custodial Account.
(See Section 3.07 of the Standard Terms)
Section 3.08 Subservicing Accounts; Servicing Accounts. (See Section 3.08 of the Standard
Terms)
Section 3.09 Access to Certain Documentation and Information Regarding the Mortgage Loans.
(See Section 3.09 of the Standard Terms)
Section 3.10 Permitted Withdrawals from the Custodial Account. (See Section 3.10 of the
Standard Terms)
Section 3.11 Maintenance of the Primary Insurance Policies; Collections Thereunder. (See
Section 3.11 of the Standard Terms)
Section 3.12 Maintenance of Fire Insurance and Omissions and Fidelity Coverage. (See
Section 3.12 of the Standard Terms)
Section 3.13 Enforcement of Due-on-Sale Clauses; Assumption and Modification Agreements;
Certain Assignments. (See Section 3.13 of the Standard Terms)
Section 3.14 Realization Upon Defaulted Mortgage Loans. (See Section 3.14 of the Standard
Terms)
Section 3.15 Trustee to Cooperate; Release of Custodial Files. (See Section 3.15 of the
Standard Terms)
Section 3.16 Servicing and Other Compensation; Compensating Interest. (See Section 3.16 of
the Standard Terms)
Section 3.17 Reports to the Trustee and the Company. (See Section 3.17 of the Standard
Terms)
Section 3.18 Annual Statement as to Compliance. (See Section 3.18 of the Standard Terms)
Section 3.19 Annual Independent Public Accountants' Servicing Report. (See Section 3.19 of
the Standard Terms)
Section 3.20 Rights of the Company in Respect of the Master Servicer. (See Section 3.20 of
the Standard Terms)
Section 3.21 Administration of Buydown Funds. (See Section 3.21 of the Standard Terms)
Section 3.22 Advance Facility. (See Section 3.22 of the Standard Terms)
ARTICLE IV
PAYMENTS TO
CERTIFICATEHOLDERS
Section 4.01 Certificate Account. (See Section 4.01 of the Standard Terms)
Section 4.02 Distributions.
(a) On each Distribution Date, (x) the Master Servicer on behalf of the Trustee or (y)
the Paying Agent appointed by the Trustee, shall distribute (I) to the Master Servicer or a
sub-servicer, in the case of a distribution pursuant to Section 4.02(a)(iii) below, the
amount required to be distributed to the Master Servicer or a sub-servicer pursuant to
Section 4.02(a)(iii) below, and (II) to each Certificateholder of record on the next
preceding Record Date (other than as provided in Section 9.01 respecting the final
distribution), either (1) in immediately available funds (by wire transfer or otherwise) to
the account of such Certificateholder at a bank or other entity having appropriate
facilities 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) below), in each case to the extent of the Available
Distribution Amount:
(i) to the Senior Certificates (other than the Principal Only Certificates) on a pro rata
basis based on the Accrued Certificate Interest payable on such Certificates with
respect to such Distribution Date, Accrued Certificate Interest on such Classes of
Certificates (or Subclasses, if any, with respect to the Class A-V Certificates) for
such Distribution Date, plus any Accrued Certificate Interest thereon remaining
unpaid from any previous Distribution Date, except as provided in the last paragraph
of this Section 4.02(a);
(ii) (X) to the Class A-P Certificates, the Class A-P Principal Distribution
Amount (as defined in Section 4.02(b)(i) herein), until the Certificate Principal
Balance of the Class A-P Certificates has been reduced to zero; and
(Y) to the Senior Certificates (other than the Class A-P
Certificates), in the priorities and amounts set forth in Sections 4.02(b)(ii)
through 4.02(d), the sum of the following (applied to reduce the Certificate
Principal Balances of such Senior Certificates, as applicable):
(A) the Senior Percentage for such Distribution Date times the sum of the following:
(1) the principal portion of each Monthly Payment due during the related Due Period on
each Outstanding Mortgage Loan (other than the related
Discount Fraction of the principal portion of such
payment with respect to a Discount Mortgage Loan),
whether or not received on or prior to the related
Determination Date, minus the principal portion of any
Debt Service Reduction (other than the related Discount
Fraction of the principal portion of such Debt Service
Reductions with respect to each Discount Mortgage Loan)
which together with other Bankruptcy Losses exceeds the
Bankruptcy Amount;
(2) the Stated Principal Balance of any Mortgage Loan repurchased during the preceding
calendar month (or deemed to have been so repurchased in
accordance with Section 3.07(b) of the Standard Terms)
pursuant to Sections 2.02, 2.03, 2.04 or 4.07 and the
amount of any shortfall deposited in the Custodial
Account in connection with the substitution of a Deleted
Mortgage Loan pursuant to Section 2.03 or 2.04 during
the preceding calendar month (other than the related
Discount Fraction of such Stated Principal Balance or
shortfall with respect to each Discount Mortgage Loan);
and
(3) the principal portion of all other unscheduled collections (other than Principal
Prepayments in Full and Curtailments and amounts
received in connection with a Cash Liquidation or REO
Disposition of a Mortgage Loan described in Section
4.02(a)(ii)(Y)(2)(B) of this Series Supplement,
including without limitation Insurance Proceeds,
Liquidation Proceeds and REO Proceeds) including
Subsequent Recoveries received during the preceding
calendar month (or deemed to have been so received in
accordance with Section 3.07(b) of the Standard Terms)
to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan
pursuant to Section 3.14 of the Standard Terms (other
than the related Discount Fraction of the principal
portion of such unscheduled collections, with respect to
each Discount Mortgage Loan);
(B) with respect to each Mortgage Loan for which a Cash Liquidation or a REO Disposition
occurred during the preceding calendar month (or was deemed to
have occurred during such period in accordance with Section
3.07(b) of the Standard Terms) and did not result in any Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or Extraordinary Losses, an amount equal to the lesser
of (a) the Senior Percentage for such Distribution Date times
the Stated Principal Balance of such Mortgage Loan (other than
the related Discount Fraction of such Stated Principal Balance,
with respect to each Discount Mortgage Loan) and (b) the Senior
Accelerated Distribution Percentage for such Distribution Date
times the related unscheduled collections (including without
limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan pursuant
to Section 3.14 of the Standard Terms (in each case other than
the portion of such unscheduled collections, with respect to a
Discount Mortgage Loan, included in Section 4.02(b)(i)(C) of
this Series Supplement);
(C) the Senior Accelerated Distribution Percentage for such Distribution Date times the
aggregate of all Principal Prepayments in Full received in the
related Prepayment Period and Curtailments received in the
preceding calendar month (other than the related Discount
Fraction of such Principal Prepayments in Full and
Curtailments, with respect to each Discount Mortgage Loan);
(D) any Excess Subordinate Principal Amount for such Distribution Date;
(E) any amounts described in subsection (ii)(Y), clauses (A), (B) and (C) of this Section
4.02(a), as determined for any previous Distribution Date,
which remain unpaid after application of amounts previously
distributed pursuant to this clause (E) to the extent that such
amounts are not attributable to Realized Losses which have been
allocated to the Subordinate Certificates; minus
(F) the Capitalization Reimbursement Amount for such Distribution Date, other than the
related Discount Fraction of any portion of that amount related
to each Discount Mortgage Loan, multiplied by a fraction, the
numerator of which is the Senior Principal Distribution Amount,
without giving effect to this clause (F), and the denominator
of which is the sum of the principal distribution amounts for
all Classes of Certificates other than the Class A-P
Certificates, without giving effect to any reductions for the
Capitalization Reimbursement Amount;
(iii) if the Certificate Principal Balances of the Subordinate Certificates have not been
reduced to zero, to the Master Servicer or a Sub-Servicer, by remitting for deposit
to the Custodial Account, to the extent of and in reimbursement for any Advances or
Sub-Servicer Advances previously made with respect to any Mortgage Loan or REO
Property which remain unreimbursed in whole or in part following the Cash Liquidation
or REO Disposition of such Mortgage Loan or REO Property, minus any such Advances
that were made with respect to delinquencies that ultimately constituted Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary
Losses;
(iv) to the Holders of the Class M-1 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date, except as provided below;
(v) to the Holders of the Class M-1 Certificates, an amount equal to (x) the Subordinate
Principal Distribution Amount for such Class of Certificates for such Distribution
Date, minus (y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous Distribution Dates, to the
extent the amounts available pursuant to clause (x) of Sections 4.02(a)(vii), (ix),
(xi), (xiii), (xiv) and (xv) of this Series Supplement are insufficient 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 such Distribution
Date, minus (y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous Distribution Dates, to the
extent the amounts available pursuant to clause (x) of Sections 4.02(a)(ix), (xi),
(xiii), (xiv) and (xv) of this Series Supplement are insufficient 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 such Distribution
Date minus (y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous Distribution Dates, to the
extent the amounts available pursuant to clause (x) of Sections 4.02(a)(xi), (xiii),
(xiv) and (xv) of this Series Supplement are insufficient 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;
(xi) to the Holders of the Class B-1 Certificates, an amount equal to (x) the Subordinate
Principal Distribution Amount for such Class of Certificates for such Distribution
Date minus (y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous Distribution Dates, to the
extent the amounts available pursuant to clause (x) of Sections 4.02(a)(xiii), (xiv)
and (xv) of this Series Supplement are insufficient 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 such Distribution
Date minus (y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous Distribution Dates, to the
extent the amounts available pursuant to clause (x) of Sections 4.02(a)(xiv) and (xv)
of this Series Supplement are insufficient 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 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 such Distribution
Date minus (y) the amount of any Class A-P Collection Shortfalls for such
Distribution Date or remaining unpaid for all previous Distribution Dates, applied in
reduction of the Certificate Principal Balance of the Class B-3 Certificates;
(xvi) to the Senior Certificates, in the priority set forth in Section 4.02(b) of this
Series Supplement, the portion, if any, of the Available Distribution Amount
remaining after the foregoing distributions, applied to reduce the Certificate
Principal Balances of such Senior Certificates, but in no event more than the
aggregate of the outstanding Certificate Principal Balances of each such Class of
Senior Certificates, and thereafter, to each Class of Subordinate Certificates then
outstanding beginning with such Class with the Highest Priority, any portion of the
Available Distribution Amount remaining after the Senior Certificates have been
retired, applied to reduce the Certificate Principal Balance of each such Class of
Subordinate Certificates, but in no event more than the outstanding Certificate
Principal Balance of each such Class of Subordinate Certificates; and
(xvii) to the Class R Certificates, the balance, if any, of the Available Distribution
Amount.
Notwithstanding the foregoing, on any Distribution Date, with respect to the Class of
Subordinate Certificates outstanding on such Distribution Date with the Lowest Priority, or
in the event the Subordinate Certificates are no longer outstanding, the Senior
Certificates, Accrued Certificate Interest thereon remaining unpaid from any previous
Distribution Date will be distributable only to the extent that (1) a shortfall in the
amounts available to pay Accrued Certificate Interest on any Class of Certificates results
from an interest rate reduction in connection with a Servicing Modification, or (2) such
unpaid Accrued Certificate Interest was attributable to interest shortfalls relating to the
failure of the Master Servicer to make any required Advance, or the determination by the
Master Servicer that any proposed Advance would be a Nonrecoverable Advance with respect to
the related Mortgage Loan where such Mortgage Loan has not yet been the subject of a Cash
Liquidation or REO Disposition or the related Liquidation Proceeds, Insurance Proceeds and
REO Proceeds have not yet been distributed to the Certificateholders.
(b) Distributions of principal on the Senior Certificates on each Distribution Date
occurring prior to the Credit Support Depletion Date will be made as follows:
(i) to the Class A-P Certificates, until the Certificate Principal Balance thereof is
reduced to zero, an amount (the "Class A-P Principal Distribution Amount") equal to
the aggregate of:
(A) the related Discount Fraction of the principal portion of each Monthly Payment on
each Discount Mortgage Loan due during the related Due Period, whether or
not received on or prior to the related Determination Date, minus the
Discount Fraction of the principal portion of any related Debt Service
Reduction which together with other Bankruptcy Losses exceeds the
Bankruptcy Amount;
(B) the related Discount Fraction of the principal portion of all unscheduled collections
on each Discount Mortgage Loan received during the preceding calendar month
or, in the case of Principal Prepayments in Full, during the related
Prepayment Period (other than amounts received in connection with a Cash
Liquidation or REO Disposition of a Discount Mortgage Loan described in
clause (C) below), including Principal Prepayments in Full, Curtailments,
Subsequent Recoveries and repurchases (including deemed repurchases under
Section 3.07(b) of the Standard Terms) of Discount Mortgage Loans (or, in
the case of a substitution of a Deleted Mortgage Loan, the Discount
Fraction of the amount of any shortfall deposited in the Custodial Account
in connection with such substitution);
(C) in connection with the Cash Liquidation or REO Disposition of a Discount Mortgage
Loan that did not result in any Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses or Extraordinary Losses, an amount equal
to the lesser of (1) the applicable Discount Fraction of the Stated
Principal Balance of such Discount Mortgage Loan immediately prior to such
Distribution Date and (2) the aggregate amount of the collections on such
Discount Mortgage Loan to the extent applied as recoveries of principal;
(D) any amounts allocable to principal for any previous Distribution Date (calculated
pursuant to clauses (A) through (C) above) that remain undistributed; and
(E) the amount of any Class A-P Collection Shortfalls for such Distribution Date and the
amount of any Class A-P Collection Shortfalls remaining unpaid for all
previous Distribution Dates, but only to the extent of the Eligible Funds
for such Distribution Date; minus
(F) the related Discount Fraction of the portion of the Capitalization Reimbursement
Amount for such Distribution Date, if any, related to each Discount
Mortgage Loan; and
(ii) the Senior Principal Distribution Amount shall be distributed in the following manner
and priority:
(A) first, to the Class R Certificates, until the Certificate Principal Balance thereof
has been reduced to zero;
(B) second, the balance of the Senior Principal Distribution Amount remaining after the
distributions, if any, described in section 4.02(b)(ii)(A) above will be
distributed concurrently as follows:
(▇) ▇▇.▇▇▇▇▇▇▇▇▇▇% of the amount described in Section 4.02(b)(ii)(B) will be distributed
to the Class A-1 Certificates until the Certificate Principal Balance
thereto has been reduced to zero; and
(▇) ▇.▇▇▇▇▇▇▇▇▇▇% of the amount described in Section 4.02(b)(ii)(B) will be distributed
in the following manner and priority:
i. first, to the Class A-4 Certificates, an amount up to the Lockout Amount for that
Distribution Date, until the Certificate Principal
Balance thereof has been reduced to zero;
ii. second, to the Class A-2 and Class A-3 Certificates, sequentially, in that order,
until the Certificate Principal Balances thereof have
been reduced to zero; and
iii. third, to the Class A-4 Certificates, without regard to the Lockout Amount for that
distribution date, until the Certificate Principal
Balance thereof has been reduced to zero.
(c) On or after the occurrence of the Credit Support Depletion Date, all priorities
relating to distributions as described in Section 4.02(b) of this Series Supplement in
respect of principal among the Senior Certificates (other than the Class A-P Certificates)
will be disregarded, and (i) an amount equal to the Discount Fraction of the principal
portion of scheduled payments and unscheduled collections received or advanced in respect of
the Discount Mortgage Loans minus the Discount Fraction of the portion of the Capitalization
Reimbursement Amount for such Distribution Date will be distributed to the Class A-P
Certificates, (ii) the Senior Principal Distribution Amount will be distributed to the
remaining Senior Certificates (other than the Class A-P Certificates) pro rata in accordance
with their respective outstanding Certificate Principal Balances and (iii) the amount set
forth in Section 4.02(a)(i) herein will be distributed as set forth therein.
(d) After the reduction of the Certificate Principal Balances of the Senior Certificates
(other than the Class A-P Certificates) to zero but prior to the Credit Support Depletion
Date, the Senior Certificates (other than the Class A-P Certificates) will be entitled to no
further distributions of principal thereon and the Available Distribution Amount will be
paid solely to the holders of the Class A-P Certificates, Class A-V Certificates, Class M
Certificates and Class B Certificates, in each case as described herein.
(e) In addition to the foregoing distributions, with respect to any Subsequent
Recoveries, the Master Servicer shall deposit such funds into the Custodial Account pursuant
to Section 3.07(b)(iii). If, after taking into account such Subsequent Recoveries, the
amount of a Realized Loss is reduced, the amount of such Subsequent Recoveries will be
applied to increase the Certificate Principal Balance of the Class of Subordinate
Certificates with the Highest Priority to which Realized Losses, other than Excess
Bankruptcy Losses, Excess Fraud Losses, Excess Special Hazard Losses and Extraordinary
Losses, have been allocated, but not by more than the amount of Realized Losses previously
allocated to that Class of Certificates pursuant to Section 4.05. The amount of any
remaining Subsequent Recoveries will be applied to increase the Certificate Principal
Balance of the Class of Certificates with the next Lower Priority, up to the amount of such
Realized Losses previously allocated to that Class of Certificates pursuant to Section
4.05. Any remaining Subsequent Recoveries will in turn be applied to increase the
Certificate Principal Balance of the Class of Certificates with the next Lower Priority up
to the amount of such Realized Losses previously allocated to that Class of Certificates
pursuant to Section 4.05, and so on. Holders of such Certificates will not be entitled to
any payment in respect of Accrued Certificate Interest on the amount of such increases for
any Interest Accrual Period preceding the Distribution Date on which such increase occurs.
Any such increases shall be applied to the Certificate Principal Balance of each Certificate
of such Class in accordance with its respective Percentage Interest.
(f) 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.
(g) Except as otherwise provided in Section 9.01, if the Master Servicer anticipates that
a final distribution with respect to any Class of Certificates will be made on a future
Distribution Date, the Master Servicer shall, no later than 40 days prior to such final
distribution, notify the Trustee and the Trustee shall, not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of such final
distribution, distribute, or cause to be distributed to each Holder of such Class of
Certificates a notice to the effect that: (i) the Trustee anticipates that the final
distribution with respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the office of the
Trustee or as otherwise specified therein, and (ii) no interest shall accrue on such
Certificates from and after the end of the related Interest Accrual Period. In the event
that Certificateholders required to surrender their Certificates pursuant to Section 9.01(c)
do not surrender their Certificates for final cancellation, the Trustee shall cause funds
distributable with respect to such Certificates to be withdrawn from the Certificate Account
and credited to a separate escrow account for the benefit of such Certificateholders as
provided in Section 9.01(d).
Section 4.03 Statements to Certificateholders; Statements to Rating Agencies; Exchange Act
Reporting. (See Section 4.03 of the Standard Terms and Exhibit Three
hereto)
Section 4.04 Distribution of Reports to the Trustee and the Company; Advances by the Master
Servicer. (See Section 4.04 of the Standard Terms)
Section 4.05 Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine the total amount
of Realized Losses, if any, that resulted from any Cash Liquidation, Servicing Modification,
Debt Service Reduction, Deficient Valuation or REO Disposition that occurred during the
related Prepayment Period or, in the case of a Servicing Modification that constitutes a
reduction of the interest rate on a Mortgage Loan, the amount of the reduction in the
interest portion of the Monthly Payment due during the related Due Period. The amount of
each Realized Loss shall be evidenced by an Officers' Certificate. All Realized Losses,
other than Excess Special Hazard Losses, Extraordinary Losses, Excess Bankruptcy Losses or
Excess Fraud Losses, shall be allocated as follows: first, to the Class B-3 Certificates
until the Certificate Principal Balance thereof has been reduced to zero; second, to the
Class B-2 Certificates until the Certificate Principal Balance thereof has been reduced to
zero; third, to the Class B-1 Certificates until the Certificate Principal Balance thereof
has been reduced to zero; fourth, to the Class M-3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; fifth, to the Class M-2 Certificates
until the Certificate Principal Balance thereof has been reduced to zero; sixth, to the
Class M-1 Certificates until the Certificate Principal Balance thereof has been reduced to
zero; and, thereafter, if any such Realized Losses are on a Discount Mortgage Loan, to the
Class A-P Certificates in an amount equal to the Discount Fraction of the principal portion
thereof, and the remainder of such Realized Losses on the Discount Mortgage Loans and the
entire amount of such Realized Losses on Non-Discount Mortgage Loans will be allocated among
all the Senior Certificates (other than the Class A-V Certificates and Class A-P
Certificates) in the case of the principal portion of such loss on a pro rata basis and
among all of the Senior Certificates (other than the Class A-P Certificates) in the case of
the interest portion of such loss on a pro rata basis, as described below.
On any Distribution Date, Realized Losses will be allocated as set forth herein after
distributions of principal on the Certificates as set forth herein.
As used herein, an allocation of a Realized Loss on a "pro rata basis" among two or
more specified Classes of Certificates means an allocation on a pro rata basis, among the
various Classes so specified, to each such Class of Certificates on the basis of their then
outstanding Certificate Principal Balances prior to giving effect to distributions to be
made on such Distribution Date in the case of the principal portion of a Realized Loss or
based on the Accrued Certificate Interest thereon payable on such Distribution Date (without
regard to any Compensating Interest for such Distribution Date) in the case of an interest
portion of a Realized Loss. Except as provided in the following sentence, any allocation of
the principal portion of Realized Losses (other than Debt Service Reductions) to a Class of
Certificates shall be made by reducing the Certificate Principal Balance thereof by the
amount so allocated, which allocation shall be deemed to have occurred on such Distribution
Date; provided that no such reduction shall reduce the aggregate Certificate Principal
Balance of the Certificates below the aggregate Stated Principal Balance of the Mortgage
Loans. Any allocation of the principal portion of Realized Losses (other than Debt Service
Reductions) to the Subordinate Certificates then outstanding with the Lowest Priority shall
be made by operation of the definition of "Certificate Principal Balance" and by operation
of the provisions of Section 4.02(a). Allocations of the interest portions of Realized
Losses (other than any interest rate reduction resulting from a Servicing Modification)
shall be made in proportion to the amount of Accrued Certificate Interest and by operation
of the definition of "Accrued Certificate Interest" and by operation of the provisions of
Section 4.02(a). Allocations of the interest portion of a Realized Loss resulting from an
interest rate reduction in connection with a Servicing Modification shall be made by
operation of the provisions of Section 4.02(a). Allocations of the principal portion of
Debt Service Reductions shall be made by operation of the provisions of Section 4.02(a).
All Realized Losses and all other losses allocated to a Class of Certificates hereunder will
be allocated among the Certificates of such Class in proportion to the Percentage Interests
evidenced thereby; provided that if any Subclasses of the Class A-V Certificates have been
issued pursuant to Section 5.01(c), such Realized Losses and other losses allocated to the
Class A-V Certificates shall be allocated among such Subclasses in proportion to the
respective amounts of Accrued Certificate Interest payable on such Distribution Date that
would have resulted absent such reductions.
Section 4.06 Reports of Foreclosures and Abandonment of Mortgaged Property. (See Section
4.06 of the Standard Terms)
Section 4.07 Optional Purchase of Defaulted Mortgage Loans. (See Section 4.07 of the
Standard Terms)
Section 4.08 Surety Bond. (See Section 4.08 of the Standard Terms)
ARTICLE V
THE CERTIFICATES
(SEE ARTICLE V OF THE STANDARD TERMS)
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(SEE ARTICLE VI OF THE STANDARD TERMS)
ARTICLE VII
DEFAULT
(SEE ARTICLE VII OF THE STANDARD TERMS)
ARTICLE VIII
CONCERNING THE TRUSTEE
(SEE ARTICLE VIII OF THE STANDARD TERMS)
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
(SEE ARTICLE IX OF THE STANDARD TERMS)
ARTICLE X
REMIC PROVISIONS
Section 10.01 REMIC Administration. (See Section 10.01 of the Standard Terms).
Section 10.02 Master Servicer; REMIC Administrator and Trustee Indemnification. (See
Section 10.02 of the Standard Terms).
Section 10.03 Designation of REMIC(s).
The REMIC Administrator will make an election to treat the entire segregated pool of
assets (including the Mortgage Loans but excluding the Initial Monthly Payment Fund)
described in the definition of Trust Fund, and subject to this Agreement, as a REMIC for
federal income tax purposes.
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-P, Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3 Certificates and the Uncertificated Class A-V
REMIC Regular Interests, the rights in and to which will be represented by the Class A-V
Certificates, will be "regular interests" in the REMIC, and the Class R Certificates will be
the sole class of "residual interests" therein for purposes of the REMIC Provisions (as
defined in the Standard Terms) under federal income tax law. On and after the date of
issuance of any Subclass of Class A-V Certificates pursuant to Section 5.01(c) of the
Standard Terms, any such Subclass will represent the Uncertificated Class A-V REMIC Regular
Interest or Interests specified by the initial Holder of the Class A-V Certificates pursuant
to said Section.
Section 10.04 Distributions on the Uncertificated Class A-V REMIC Regular Interests.
(a) On each Distribution Date the Trustee shall be deemed to distribute to itself, as the
holder of the Uncertificated Class A-V REMIC Regular Interests, Uncertificated Accrued
Interest on the Uncertificated Class A-V REMIC Regular Interests for such Distribution Date,
plus any Uncertificated Accrued Interest thereon remaining unpaid from any previous
Distribution Date.
(b) In determining from time to time the Uncertificated Class A-V REMIC Regular Interest
Distribution Amounts, Realized Losses allocated to the Class A-V Certificates under Section
4.05 shall be deemed allocated to Uncertificated Class A-V REMIC Regular Interests on a pro
rata basis based on the Uncertificated Class A-V REMIC Accrued Interest for the related
Distribution Date.
(c) On each Distribution Date, the Trustee shall be deemed to distribute from the Trust
Fund, in the priority set forth in Section 4.02(a), to the Class A-V Certificates, the
amounts distributable thereon from the Uncertificated Class A-V REMIC Regular Interest
Distribution Amounts deemed to have been received by the Trustee from the Trust Fund under
this Section 10.04. The amount deemed distributable hereunder with respect to the Class A-V
Certificates shall equal 100% of the amounts payable with respect to the Uncertificated
Class A-V REMIC Regular Interests.
(d) Notwithstanding the deemed distributions on the Uncertificated Class A-V REMIC
Regular Interests described in this Section 10.04, distributions of funds from the
Certificate Account shall be made only in accordance with Section 4.02.
Section 10.05 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee or any Paying
Agent, as applicable, shall comply with all federal withholding requirements respecting
payments to Certificateholders, including interest or original issue discount payments or
advances thereof that the Trustee or any Paying Agent, as applicable, reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be required for
such withholding. In the event the Trustee or any Paying Agent, as applicable, does
withhold any amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Trustee or any
Paying Agent, as applicable, shall indicate the amount withheld to such Certificateholder
pursuant to the terms of such requirements.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (See Section 11.01 of the Standard Terms)
Section 11.02 Recordation of Agreement, Counterparts. (See Section 11.02 of the Standard
Terms)
Section 11.03 Limitation on Rights of Certificateholders. (See Section 11.03 of the
Standard Terms)
Section 11.04 Governing Laws. (See Section 11.04 of the Standard Terms)
Section 11.05 Notices.
All demands and notices hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage prepaid
(except for notices to the Trustee which shall be deemed to have been duly given only when
received), to the appropriate address for each recipient listed in the table below or, in
each case, such other address as may hereafter be furnished in writing to the Master
Servicer, the Trustee and the Company, as applicable:
Recipient Address
Company ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President
Master Servicer ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Managing Director/Master Servicing
Trustee U.S. Bank National Association
Mail Code: EP-MN-WS3D
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Structured Finance/RFMSI 2006-S11
Fitch Ratings ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Standard & Poor's ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Any notice required or permitted to be mailed to a Certificateholder shall be given by first
class mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 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.
98.0% of all Voting Rights shall be allocated among Holders of Certificates, other
than the Interest Only Certificates and the Class R Certificates, in proportion to the
outstanding Certificate Principal Balances of their respective Certificates, 1.0% of all
Voting Rights shall be allocated among the Holders of the Class A-V Certificates in
accordance with their respective Percentage Interests and 1.0% of all Voting Rights shall be
allocated among the Holders of the Class R Certificates, respectively, in accordance with
their respective Percentage Interests.
Section 11.10 No Petition. (See Section 11.10 of the Standard Terms).
ARTICLE XII
COMPLIANCE WITH REGULATION AB
(SEE ARTICLE XII OF THE STANDARD TERMS)
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly authorized and
their respective seals, duly attested, to be hereunto affixed, all as of the day and year
first above written.
[Seal] RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
Attest: By:______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President
[Seal] RESIDENTIAL FUNDING COMPANY, LLC
Attest: By: ______________________________
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate Title: Associate
[Seal] U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
Attest: By: ______________________________
Name: Name:
Title: Title:
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the _____ day of November, 2006 before me, a notary public in and for said
State, personally appeared ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, known to me to be a Vice President of
Residential Funding Mortgage Securities I, Inc., one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
Notary Public
____________________________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of November, 2006 before me, a notary public in and for said
State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an Associate of Residential
Funding Company, LLC, one of the corporations that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporation, and acknowledged
to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year in this certificate first above written.
Notary Public
______________________________
[Notarial Seal]
STATE OF MINNESOTA )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the ___ day of November, 2006 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
MORTGAGE LOAN SCHEDULE
(AVAILABLE FROM THE COMPANY UPON REQUEST)
EXHIBIT TWO
SCHEDULE OF DISCOUNT FRACTIONS
(AVAILABLE FROM THE COMPANY UPON REQUEST)
Schedule of Discount Fractions
Loan Number Current Balance Net Mortgage Rate Discount Fraction PO Balance
10141061 $984,171.38 5.595% 6.7500% $66,431.57
10648440 $422,209.50 5.595% 6.7500% $28,499.14
10648726 $539,429.82 5.845% 2.5833% $13,935.27
10682860 $748,850.00 5.845% 2.5833% $19,345.29
10694814 $269,843.72 5.970% .5000% $1,349.22
10718980 $920,000.00 5.595% 6.7500% $62,100.00
10719034 $744,258.34 5.720% 4.6667% $34,732.06
10720264 $1,027,024.59 5.970% .5000% $5,135.12
10720330 $1,078,975.25 5.970% .5000% $5,394.88
10720362 $999,028.06 5.845% 2.5833% $25,808.22
10720374 $609,420.29 5.970% .5000% $3,047.10
10720410 $799,240.93 5.970% .5000% $3,996.20
10730710 $399,620.46 5.970% .5000% $1,998.10
10730714 $670,363.33 5.970% .5000% $3,351.82
10730720 $437,000.00 5.595% 6.7500% $29,497.50
10731652 $540,000.00 5.470% 8.8333% $47,700.00
10749378 $465,000.00 5.470% 8.8333% $41,075.00
10759644 $480,000.00 5.845% 2.5833% $12,400.00
10762538 $475,000.00 5.970% .5000% $2,375.00
10779968 $569,446.00 5.845% 2.5833% $14,710.69
10780068 $750,000.00 5.970% .5000% $3,750.00
10917055 $450,591.05 5.970% .5000% $2,252.96
10933057 $503,422.05 5.595% 6.7500% $33,980.99
10944037 $1,591,567.06 5.470% 8.8333% $140,588.42
10956617 $84,821.42 5.970% .5000% $424.11
10974585 $646,000.00 5.970% .5000% $3,230.00
10984013 $499,048.69 5.970% .5000% $2,495.24
10984549 $593,280.00 5.845% 2.5833% $15,326.40
10998403 $999,031.17 5.970% .5000% $4,995.16
11002133 $588,850.17 5.845% 2.5833% $15,211.96
11002213 $619,382.78 5.720% 4.6667% $28,904.53
11002243 $468,992.72 5.345% 10.9167% $51,198.37
11002249 $657,375.66 5.970% .5000% $3,286.88
11002255 $547,467.37 5.845% 2.5833% $14,142.91
11002397 $448,641.21 5.970% .5000% $2,243.21
11002491 $649,368.24 5.845% 2.5833% $16,775.35
11002551 $545,933.99 5.845% 2.5833% $14,103.29
11002555 $446,864.57 5.845% 2.5833% $11,544.00
11022953 $597,704.94 5.970% .5000% $2,988.52
11023099 $975,000.00 5.970% .5000% $4,875.00
11023359 $559,715.94 5.845% 2.5833% $14,459.33
11023735 $220,000.00 5.970% .5000% $1,100.00
11025299 $747,083.75 5.970% .5000% $3,735.42
11025347 $699,335.81 5.970% .5000% $3,496.68
11026285 $423,000.00 5.970% .5000% $2,115.00
11031115 $509,504.32 5.845% 2.5833% $13,162.19
11031551 $500,000.00 5.970% .5000% $2,500.00
11033961 $618,500.00 5.970% .5000% $3,092.50
11034621 $439,582.51 5.970% .5000% $2,197.91
11034631 $617,627.87 5.970% .5000% $3,088.14
11037395 $542,871.84 5.845% 2.5833% $14,024.19
11037505 $550,000.00 5.845% 2.5833% $14,208.33
11037821 $311,604.06 5.970% .5000% $1,558.02
11042669 $529,484.87 5.845% 2.5833% $13,678.36
11042687 $511,514.20 5.970% .5000% $2,557.57
11042731 $475,932.75 5.970% .5000% $2,379.66
11042739 $459,563.53 5.970% .5000% $2,297.82
11044521 $339,200.00 5.970% .5000% $1,696.00
11044611 $294,000.00 5.970% .5000% $1,470.00
11044731 $256,000.00 5.970% .5000% $1,280.00
11044979 $75,000.00 5.970% .5000% $375.00
11048827 $447,000.00 5.970% .5000% $2,235.00
11049805 $912,000.00 5.720% 4.6667% $42,560.00
11049825 $455,000.00 5.970% .5000% $2,275.00
11050785 $477,546.45 5.970% .5000% $2,387.73
11050795 $570,000.00 5.970% .5000% $2,850.00
11050797 $644,357.89 5.720% 4.6667% $30,070.03
11050807 $455,535.08 5.595% 6.7500% $30,748.62
11050815 $998,052.10 5.970% .5000% $4,990.26
11050823 $524,501.85 5.970% .5000% $2,622.51
11050827 $524,477.35 5.720% 4.6667% $24,475.61
11050833 $552,000.00 5.845% 2.5833% $14,260.00
11050841 $628,403.18 5.970% .5000% $3,142.02
11051171 $480,000.00 5.970% .5000% $2,400.00
11051369 $460,000.00 5.970% .5000% $2,300.00
11052083 $799,240.93 5.970% .5000% $3,996.20
11054143 $900,000.00 5.970% .5000% $4,500.00
11054201 $136,000.00 5.845% 2.5833% $3,513.33
11054351 $620,000.00 5.720% 4.6667% $28,933.33
11054361 $223,200.00 5.970% .5000% $1,116.00
11055407 $441,180.99 5.970% .5000% $2,205.91
11056499 $213,750.00 5.970% .5000% $1,068.75
11056619 $712,000.00 5.970% .5000% $3,560.00
11056661 $500,000.00 5.970% .5000% $2,500.00
11056827 $465,000.00 5.845% 2.5833% $12,012.50
11058827 $685,000.00 5.970% .5000% $3,425.00
11060407 $479,200.00 5.970% .5000% $2,396.00
11061701 $550,000.00 5.970% .5000% $2,750.00
11062555 $626,500.00 5.970% .5000% $3,132.50
11062859 $191,000.00 5.970% .5000% $955.00
11063071 $366,000.00 5.970% .5000% $1,830.00
11063127 $300,000.00 5.970% .5000% $1,500.00
11068601 $801,000.00 5.720% 4.6667% $37,380.00
11068641 $615,600.00 5.970% .5000% $3,078.00
11070999 $539,387.05 5.720% 4.6667% $25,171.40
11071005 $800,000.00 5.720% 4.6667% $37,333.33
11071027 $504,000.00 5.970% .5000% $2,520.00
11071097 $566,400.00 5.970% .5000% $2,832.00
11071131 $539,487.62 5.970% .5000% $2,697.44
11071137 $590,397.45 5.595% 6.7500% $39,851.83
11071167 $848,693.96 5.970% .5000% $4,243.47
11071331 $749,288.37 5.970% .5000% $3,746.44
11071347 $723,296.32 5.845% 2.5833% $18,685.15
11071381 $519,506.60 5.970% .5000% $2,597.53
11073403 $404,000.00 5.970% .5000% $2,020.00
11073515 $140,000.00 5.970% .5000% $700.00
11073579 $460,000.00 5.845% 2.5833% $11,883.33
11073595 $336,000.00 5.970% .5000% $1,680.00
11073599 $700,000.00 5.970% .5000% $3,500.00
11073605 $189,000.00 5.970% .5000% $945.00
11073697 $145,000.00 5.720% 4.6667% $6,766.67
11073743 $205,000.00 5.970% .5000% $1,025.00
11074517 $899,999.50 5.970% .5067% $4,560.00
11077553 $650,000.00 5.970% .5000% $3,250.00
11077579 $810,000.00 5.970% .5000% $4,050.00
11077737 $830,000.00 5.970% .5000% $4,150.00
11077743 $199,950.00 5.970% .5000% $999.75
11077793 $263,000.00 5.970% .5000% $1,315.00
11077897 $390,000.00 5.970% .5000% $1,950.00
11077983 $458,000.00 5.720% 4.6667% $21,373.33
11078365 $1,100,000.00 5.970% .5000% $5,500.00
11079311 $515,000.00 5.970% .5000% $2,575.00
11079491 $568,000.00 5.970% .5000% $2,840.00
11079509 $700,000.00 5.970% .5000% $3,500.00
11079511 $480,000.00 5.970% .5000% $2,400.00
11079677 $358,000.00 5.970% .5000% $1,790.00
11081259 $510,000.00 5.970% .5000% $2,550.00
11084049 $800,000.00 5.970% .5000% $4,000.00
11086371 $310,000.00 5.970% .5000% $1,550.00
11094317 $800,000.00 5.845% 2.5833% $20,666.67
11096067 $860,000.00 5.970% .5000% $4,300.00
EXHIBIT THREE
INFORMATION TO BE INCLUDED IN
MONTHLY DISTRIBUTION DATE STATEMENT
(i) the applicable Record Date, Determination Date and Distribution Date;
(ii) the aggregate amount of payments received with respect to the Mortgage Loans,
including prepayment amounts;
(iii) the Servicing Fee and Subservicing Fee payable to the Master Servicer and the
Subservicer;
(iv) the amount of any other fees or expenses paid;
(v) (a) the amount of such distribution to the Certificateholders of such Class
applied to reduce the Certificate Principal Balance thereof, and (b) the aggregate amount
included therein representing Principal Prepayments;
(vi) the amount of such distribution to Holders of such Class of Certificates
allocable to interest;
(vii) if the distribution to the Holders of such Class of Certificates is less than
the full amount that would be distributable to such Holders if there were sufficient funds
available therefore, the amount of the shortfall;
(viii) the aggregate Certificate Principal Balance of each Class of Certificates and
the Senior Percentage, before and after giving effect to the amounts distributed on such
Distribution Date, separately identifying any reduction thereof due to Realized Losses other
than pursuant to an actual distribution of principal;
(ix) the weighted average remaining term to maturity of the Mortgage Loans after
giving effect to the amounts distributed on such Distribution Date;
(x) the weighted average Mortgage Rates of the Mortgage Loans after giving effect
to the amounts distributed on such Distribution Date;
(xi) if applicable, the Special Hazard Amount, Fraud Loss Amount and Bankruptcy
Amount as of the close of business on the applicable Distribution Date;
(xii) the number and Stated Principal Balance of the Mortgage Loans after giving
effect to the distribution of principal on such Distribution Date and the number of Mortgage
Loans at the beginning and end of the preceding Due Period;
(xiii) on the basis of the most recent reports furnished to it by Sub-Servicers, the
number and Stated Principal Balances of Mortgage Loans that are Delinquent (A) 30-59 days,
(B) 60-89 days and (C) 90 or more days and the number and Stated Principal Balance of
Mortgage Loans that are in foreclosure;
(xiv) the aggregate amount of Realized Losses for such Distribution Date;
(xv) the amount, terms and general purpose of any Advance by the Master Servicer
pursuant to Section 4.04;
(xvi) any material modifications, extensions or waivers to the terms of the Mortgage
Loans during the Due Period or that have cumulatively become material over time;
(xvii) any material breaches of Mortgage Loan representations or warranties or
covenants in the Agreement.
(xviii)the related Subordinate Principal Distribution Amount;
(xix) the number, Stated Principal Balance and actual principal balance of REO
Properties;
(xx) the aggregate Accrued Certificate Interest remaining unpaid, if any, for each
Class of Certificates, after giving effect to the distribution made on such Distribution
Date;
(xxi) the Pass-Through Rate with respect to the Class A-V Certificates;
(xxii) the Notional Amount with respect to each class of Interest Only Certificates;
(xxiii)the occurrence of the Credit Support Depletion Date;
(xxiv) the Senior Accelerated Distribution Percentage for applicable to such
distribution;
(xxv) the Senior Percentage for such Distribution Date; and
(xxvi) the aggregate amount of any recoveries on previously foreclosed loans from
Sellers.
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 ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇. To
receive this statement via first class mail, telephone the Trustee at ▇ (▇▇▇) ▇▇▇-▇▇▇▇.
EXHIBIT FOUR
STANDARD TERMS OF POOLING AND SERVICING
AGREEMENT DATED AS OF NOVEMBER 1, 2006
==============================================================================
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2006
Residential Funding Mortgage Securities I, Inc.
Mortgage Pass-Through Certificates
==============================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................1
Section 1.01. Definitions.............................................1
Section 1.02. Use of Words and Phrases...............................33
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.................................................33
Section 2.01. Conveyance of Mortgage Loans...........................33
Section 2.02. Acceptance by Trustee..................................40
Section 2.03. Representations, Warranties and Covenants of the
Master Servicer and the Company........................42
Section 2.04. Representations and Warranties of Residential
Funding................................................43
Section 2.05. Execution and Authentication of
Certificates/Issuance of Certificates Evidencing
Interests in REMIC I...................................45
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II
Regular Interests; Acceptance by the Trustee...........45
Section 2.07. Issuance of Certificates Evidencing Interests in
REMIC II...............................................45
Section 2.08. Purposes and Powers of the Trust.......................46
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...............46
Section 3.01. Master Servicer to Act as Servicer.....................46
Section 3.02. Subservicing Agreements Between Master Servicer
and Subservicers; Enforcement of Subservicers' and
Sellers' Obligations...................................48
Section 3.03. Successor Subservicers.................................49
Section 3.04. Liability of the Master Servicer.......................49
Section 3.05. No Contractual Relationship Between Subservicer
and Trustee or Certificateholders......................50
Section 3.06. Assumption or Termination of Subservicing
Agreements by Trustee..................................50
Section 3.07. Collection of Certain Mortgage Loan Payments;
Deposits to Custodial Account..........................50
Section 3.08. Subservicing Accounts; Servicing Accounts..............53
Section 3.09. Access to Certain Documentation and Information
Regarding the Mortgage Loans...........................54
Section 3.10. Permitted Withdrawals from the Custodial Account.......55
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...........59
Section 3.14. Realization Upon Defaulted Mortgage Loans..............61
Section 3.15. Trustee to Cooperate; Release of Custodial Files.......64
Section 3.16. Servicing and Other Compensation; Compensating
Interest...............................................66
Section 3.17. Reports to the Trustee and the Company.................67
Section 3.18. Annual Statement as to Compliance......................67
Section 3.19. Annual Independent Public Accountants' Servicing
Report.................................................67
Section 3.20. Rights of the Company in Respect of the Master
Servicer...............................................68
Section 3.21. Administration of Buydown Funds........................68
Section 3.22. Advance Facility.......................................69
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS...............................73
Section 4.01. Certificate Account....................................73
Section 4.02. Distributions..........................................73
Section 4.03. Statements to Certificateholders; Statements to
Rating Agencies; Exchange Act Reporting................73
Section 4.04. Distribution of Reports to the Trustee and the
Company; Advances by the Master Servicer...............76
Section 4.05. Allocation of Realized Losses..........................77
Section 4.06. Reports of Foreclosures and Abandonment of
Mortgaged Property.....................................77
Section 4.07. Optional Purchase of Defaulted Mortgage Loans..........77
Section 4.08. Surety Bond............................................78
ARTICLE V THE CERTIFICATES.............................................78
Section 5.01. The Certificates.......................................78
Section 5.02. Registration of Transfer and Exchange of
Certificates...........................................81
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates......86
Section 5.04. Persons Deemed Owners..................................87
Section 5.05. Appointment of Paying Agent............................87
ARTICLE VI THE COMPANY AND THE MASTER SERVICER..........................87
Section 6.01. Respective Liabilities of the Company and the
Master Servicer........................................88
Section 6.02. Merger or Consolidation of the Company or the
Master Servicer; Assignment of Rights and
Delegation of Duties by Master Servicer................88
Section 6.03. Limitation on Liability of the Company, the Master
Servicer and Others....................................89
Section 6.04. Company and Master Servicer Not to Resign..............89
ARTICLE VII DEFAULT......................................................90
Section 7.01. Events of Default......................................90
Section 7.02. Trustee or Company to Act; Appointment of Successor....92
Section 7.03. Notification to Certificateholders.....................93
Section 7.04. Waiver of Events of Default............................93
ARTICLE VIII CONCERNING THE TRUSTEE.......................................94
Section 8.01. Duties of Trustee......................................94
Section 8.02. Certain Matters Affecting the Trustee..................95
Section 8.03. Trustee Not Liable for Certificates or Mortgage
Loans..................................................97
Section 8.04. Trustee May Own Certificates...........................97
Section 8.05. Master Servicer to Pay Trustee's Fees and
Expenses; Indemnification..............................97
Section 8.06. Eligibility Requirements for Trustee...................98
Section 8.07. Resignation and Removal of the Trustee.................99
Section 8.08. Successor Trustee.....................................100
Section 8.09. Merger or Consolidation of Trustee....................100
Section 8.10. Appointment of Co-Trustee or Separate Trustee.........100
Section 8.11. Appointment of Custodians.............................101
Section 8.12. Appointment of Office or Agency.......................102
ARTICLE IX TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES........102
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.................................................102
Section 9.02. Additional Termination Requirements...................106
Section 9.03. Termination of Multiple REMICs........................106
ARTICLE X REMIC PROVISIONS............................................107
Section 10.01. REMIC Administration..................................107
Section 10.02. Master Servicer, REMIC Administrator and Trustee
Indemnification.......................................110
Section 10.03. Designation of REMIC(s)...............................111
ARTICLE XI MISCELLANEOUS PROVISIONS....................................111
Section 11.01. Amendment.............................................111
Section 11.02. Recordation of Agreement; Counterparts................113
Section 11.03. Limitation on Rights of Certificateholders............114
Section 11.04. Governing Law.........................................115
Section 11.05. Notices...............................................115
Section 11.06. Required Notices to Rating Agency and Subservicer.....115
Section 11.07. Severability of Provisions............................116
Section 11.08. Supplemental Provisions for Resecuritization..........116
Section 11.09. Allocation of Voting Rights...........................116
Section 11.10. No Petition ..........................................117
ARTICLE XII COMPLIANCE WITH REGULATION AB...............................117
Section 12.01. Intent of Parties; Reasonableness.....................117
Section 12.02. Additional Representations and Warranties of the
Trustee...............................................117
Section 12.03. Information to be Provided by the Trustee.............118
Section 12.04. Report on Assessment of Compliance and Attestation....118
Section 12.05. Indemnification; Remedies.............................119
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
This is the Standard Terms of Pooling and Servicing Agreement, dated as
of November 1, 2006 (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 each Agreement in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans.
In consideration of the mutual agreements herein contained, the
Company, the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in
this Article.
Accretion Termination Date: As defined in the Series Supplement.
Accrual Certificates: As defined in the Series Supplement.
Accrued Certificate Interest: With respect to each Distribution Date,
as to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or
Notional Amount thereof immediately prior to such Distribution Date. Accrued
Certificate Interest will be calculated on the basis of a 360-day year,
consisting of twelve 30-day months. In each case Accrued Certificate Interest
on any Class or Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (to the extent not
offset by the Master Servicer with a payment of Compensating
Interest as provided in Section 4.01),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan)) of Realized Losses on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (including Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses and Extraordinary Losses) not allocated solely to one or
more specific Classes of Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on all Mortgage
Loans or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group, which
remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property or (B) made
with respect to delinquencies that were ultimately determined to
be Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses 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
guarantees, and (A) all money, securities, security entitlements, accounts,
general intangibles, payment rights, instruments, documents, deposit
accounts, certificates of deposit, commodities contracts and other investment
property and other property of whatever kind or description now existing or
hereafter acquired which is pledged as collateral for such guarantee or
(B) any mortgaged property securing the performance of such guarantee, or
(iii) such other collateral as may be set forth in the Series Supplement.
Additional Collateral Loan: Each Mortgage Loan that is supported by
Additional Collateral.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date
of determination, the Mortgage Rate borne by the related Mortgage Note, less
the rate at which the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master
Servicer, pursuant to Section 4.04.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the
purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Ambac: Ambac Assurance Corporation (formerly known as AMBAC Indemnity
Corporation).
Amount Held for Future Distribution: As to any Distribution Date and,
with respect to any Mortgage Pool that is comprised of two or more Loan
Groups, each Loan Group, the total of the amounts held in the Custodial
Account at the close of business on the preceding Determination Date on
account of (i) Liquidation Proceeds, Subsequent Recoveries, Insurance
Proceeds, Curtailments, Mortgage Loan purchases made pursuant to
Section 2.02, 2.03, 2.04 or 4.07 and Mortgage Loan substitutions made
pursuant to Section 2.03 or 2.04 received or made in the month of such
Distribution Date (other than such Liquidation Proceeds, Insurance Proceeds
and purchases of Mortgage Loans that the Master Servicer has deemed to have
been received in the preceding month in accordance with Section 3.07(b)), and
Principal Prepayments in Full made after the related Prepayment Period, and
(ii) payments which represent early receipt of scheduled payments of
principal and interest due on a date or dates subsequent to the related Due
Date.
Appraised Value: As to any Mortgaged Property, the lesser of (i) the
appraised value of such Mortgaged Property based upon the appraisal made at
the time of the origination of the related Mortgage Loan, and (ii) the sales
price of the Mortgaged Property at such time of origination, except in the
case of a Mortgaged Property securing a refinanced or modified Mortgage Loan
as to which it is either the appraised value determined above or the
appraised value determined in an appraisal at the time of refinancing or
modification, as the case may be.
Assigned Contracts: With respect to any Pledged Asset Loan: the
Credit Support Pledge Agreement; the Funding and Pledge Agreement, among GMAC
Mortgage, 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) any amount deposited in the Certificate
Account pursuant to Section 4.07 and any amounts deposited in the Custodial
Account pursuant to Section 9.01, (v) any amount that the Master Servicer is
not permitted to withdraw from the Custodial Account or the Certificate
Account pursuant to Section 3.16(e), (vi) any amount received by the Trustee
pursuant to the Surety Bond in respect of such Distribution Date and
(vii) the proceeds of any Pledged Assets received by the Master Servicer,
reduced by (b) the sum as of the close of business on the immediately
preceding Determination Date of (x) the Amount Held for Future Distribution,
and (y) amounts permitted to be withdrawn by the Master Servicer from the
Custodial Account in respect of the Mortgage Loans pursuant to clauses
(ii)-(x), inclusive, of Section 3.10(a). Such amount shall be determined
separately for each Loan Group. Additionally, with respect to any Mortgage
Pool that is comprised of two or more Loan Groups, if on any Distribution
Date Compensating Interest provided pursuant to Section 3.16(e) is less than
Prepayment Interest Shortfalls incurred on the Mortgage Loans in connection
with Principal Prepayments in Full received during the related Prepayment
Period and Curtailments made in the prior calendar month, such Compensating
Interest shall be allocated on such Distribution Date to the Available
Distribution Amount for each Loan Group on a pro rata basis in accordance
with the respective amounts of such Prepayment Interest Shortfalls incurred
on the Mortgage Loans in such Loan Group in respect of such Distribution Date.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that neither a
Deficient Valuation nor a Debt Service Reduction shall be deemed a Bankruptcy
Loss hereunder so long as the Master Servicer has notified the Trustee in
writing that the Master Servicer is diligently pursuing any remedies that may
exist in connection with the representations and warranties made regarding
the related Mortgage Loan and either (A) the related Mortgage Loan is not in
default with regard to payments due thereunder or (B) delinquent payments of
principal and interest under the related Mortgage Loan and any premiums on
any applicable primary hazard insurance policy and any related escrow
payments in respect of such Mortgage Loan are being advanced on a current
basis by the Master Servicer or a Subservicer, in either case without giving
effect to any Debt Service Reduction.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, and designated as such in the Preliminary
Statement to the Series Supplement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York, the State of
Michigan, the State of California , the State of Illinois or the City of St.
▇▇▇▇, Minnesota (and such other state or states in which the Custodial
Account or the Certificate Account are at the time located) are required or
authorized by law or executive order to be closed.
Buydown Funds: Any amount contributed by the seller of a Mortgaged
Property, the Company or other source in order to enable the Mortgagor to
reduce the payments required to be made from the Mortgagor's funds in the
early years of a Mortgage Loan. Buydown Funds are not part of the Trust Fund
prior to deposit into the Custodial or Certificate Account.
Buydown Mortgage Loan: Any Mortgage Loan as to which a specified
amount of interest is paid out of related Buydown Funds in accordance with a
related buydown agreement.
Capitalization Reimbursement Amount: As to any Distribution Date 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 related Capitalization Reimbursement
Shortfall Amount remaining unreimbursed from any prior Distribution Date and
reimbursed to the Master Servicer or Subservicer on or prior to such
Distribution Date, provided, however, that the Capitalization Reimbursement
Amount shall at no time exceed five percent of the aggregate Cut-Off Date
Principal Balance of the Mortgage Loans (or, if the Mortgage Pool is
comprised of two or more Loan Groups, on the Mortgage Loans in the related
Loan Group), unless such limit is increased from time to time with the
consent of the Rating Agencies.
Capitalization Reimbursement Shortfall Amount: As 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.
Call Rights: As defined in Section 9.01(f).
Cash Liquidation: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with respect
to such Mortgage Loan.
Certificate Account Deposit Date: As to any Distribution Date, the
Business Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, and, in respect of any Insured
Certificates, the Certificate Insurer to the extent of Cumulative Insurance
Payments, except that neither a Disqualified Organization nor a Non-United
States Person shall be a holder of a Class R Certificate for purposes hereof
and, solely for the purpose of giving any consent or direction pursuant to
this Agreement, any Certificate, other than a Class R Certificate, registered
in the name of the Company, the Master Servicer or any Subservicer or any
Affiliate thereof shall be deemed not to be outstanding and the Percentage
Interest or Voting Rights evidenced thereby shall not be taken into account
in determining whether the requisite amount of Percentage Interests or Voting
Rights necessary to effect any such consent or direction has been obtained.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights
through the Depository and participating members thereof, except as otherwise
specified herein; provided, however, that the Trustee shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name
a Certificate is registered in the Certificate Register.
Certificate Insurer: As defined in the Series Supplement.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate, as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Certificate (other
than any Interest Only Certificate), on any date of determination, an amount
equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) any Subsequent Recoveries added to the Certificate Principal
Balance of such Certificate pursuant to Section 4.02, plus
(iii) in the case of each Accrual Certificate, an amount equal to the
aggregate Accrued Certificate Interest added to the Certificate
Principal Balance thereof prior to such date of determination,
minus
(iv) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(a) and (y) the aggregate
of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously
allocated to such Certificate (or any predecessor
Certificate) pursuant to Section 4.05;
provided, that the Certificate Principal Balance of the Class of Subordinate
Certificates with the Lowest Priority at any given time shall be further
reduced by an amount equal to the Percentage Interest evidenced by such
Certificate multiplied by the excess, if any, of (A) the then aggregate
Certificate Principal Balance of all Classes of Certificates then outstanding
over (B) the then aggregate Stated Principal Balance of the Mortgage Loans.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates bearing the same
designation. The initial Class A-V Certificates and any Subclass thereof
issued pursuant to Section 5.01(c) shall be a single Class for purposes of
this Agreement.
Class A-P Certificate: Any one of the Certificates designated as a
Class A-P Certificate.
Class A-P Collection Shortfall: With respect to the Cash Liquidation
or REO Disposition of a Discount Mortgage Loan, any Distribution Date and,
with respect to any Mortgage Pool comprised of two or more Loan Groups, any
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).
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 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, 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) the sum of the Servicing Fee and all
income and gain on amounts held in the Custodial Account and the Certificate
Account and payable to the Certificateholders with respect to 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; provided
that for purposes of this definition the amount of the Servicing Fee will not
be reduced pursuant to Section 7.02(a) except as may be required pursuant to
the last sentence of such paragraph.
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board
of directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment
occupied by the Mortgagor and relating to the related Cooperative Stock,
which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment of the Cooperative Lease, (iv) financing statements and (v) a
stock power (or other similar instrument), and ancillary thereto, a
recognition agreement between the Cooperative and the originator of the
Cooperative Loan, each of which was transferred and assigned to the Trustee
pursuant to Section 2.01 and are from time to time held as part of the Trust
Fund.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative
Stock.
Credit Repository: Equifax, Transunion and Experian, or their
successors in interest.
Credit Support Depletion Date: The first Distribution Date on which
the Certificate Principal Balances of the Subordinate Certificates have been
reduced to zero.
Credit Support Pledge Agreement: The Credit Support Pledge Agreement,
dated as of November 24, 1998, among the Master Servicer, GMAC Mortgage, 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 the holders of the Certificates, for the holders of certain
other interests in mortgage loans serviced or sold by the Master Servicer and
for the Master Servicer, into which the amounts set forth in Section 3.07
shall be deposited directly. Any such account or accounts shall be an
Eligible Account.
Custodial Agreement: An agreement that may be entered into among the
Company, the Master Servicer, the Trustee and a Custodian pursuant to which
the Custodian will hold certain documents relating to the Mortgage Loans on
behalf of the Trustee.
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.
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.
Distribution Date: The 25th day of any month beginning in the month
immediately following the month of the initial issuance of the Certificates
or, if such 25th day is not a Business Day, the Business Day immediately
following such 25th day.
Due Date: With respect to any Distribution Date and any Mortgage Loan,
the day during the related Due Period on which the Monthly Payment is due.
Due Period: With respect to any Distribution Date, the one-month
period set forth in the Series Supplement.
Eligible Account: An account that is any of the following:
(i) maintained with a depository institution the debt obligations of which
have been rated by each Rating Agency in its highest rating available, or
(ii) an account or accounts in a depository institution in which such
accounts are fully insured to the limits established by the FDIC, provided
that any deposits not so insured shall, to the extent acceptable to each
Rating Agency, as evidenced in writing, be maintained such that (as evidenced
by an Opinion of Counsel delivered to the Trustee and each Rating Agency) the
registered Holders of Certificates have a claim with respect to the funds in
such account or a perfected first security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution with which such account is maintained, or (iii) in the case of
the Custodial Account, a trust account or accounts maintained in the
corporate trust department of the Trustee, or (iv) in the case of the
Certificate Account, a trust account or accounts maintained in the corporate
trust department of the Trustee, or (v) an account or accounts of a
depository institution acceptable to each Rating Agency (as evidenced in
writing by each Rating Agency that use of any such account as the Custodial
Account or the Certificate Account will not reduce the rating assigned to any
Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency).
Event of Default: As defined in Section 7.01.
Excess Bankruptcy Loss: Any Bankruptcy Loss, or portion thereof, which
exceeds the then applicable Bankruptcy Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, which exceeds
the then applicable Fraud Loss Amount.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion
thereof, that exceeds the then applicable Special Hazard Amount.
Excess Subordinate Principal Amount: With respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Class of
Subordinate Certificates, then outstanding with the Lowest Priority is to be
reduced to zero and on which Realized Losses are to be allocated to such
class or classes, the excess, if any, of (i) the amount that would otherwise
be distributable in respect of principal on such class or classes of
Certificates on such Distribution Date over (ii) the excess, if any, of the
aggregate Certificate Principal Balance of such class or classes of
Certificates immediately prior to such Distribution Date over the aggregate
amount of Realized Losses to be allocated to such classes of Certificates on
such Distribution Date as reduced by any amount calculated pursuant to
Section 4.02(b)(i)(E). With respect to any Mortgage Pool that is comprised of
two or more Loan Groups, the Excess Subordinate Principal Amount will be
allocated between each Loan Group on a pro rata basis in accordance with the
amount of Realized Losses attributable to each Loan Group and allocated to
the Certificates on such Distribution Date.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Extraordinary Events: Any of the following conditions with respect to
a Mortgaged Property (or, with respect to a Cooperative Loan, the Cooperative
Apartment) or Mortgage Loan causing or resulting in a loss which causes the
liquidation of such Mortgage Loan:
(a)...losses that are of the type that would be covered by the fidelity
bond and the errors and omissions insurance policy required to be maintained
pursuant to Section 3.12(b) but are in excess of the coverage maintained
thereunder;
(b)...nuclear reaction or nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, and whether such loss
be direct or indirect, proximate or remote or be in whole or in part caused
by, contributed to or aggravated by a peril covered by the definition of the
term "Special Hazard Loss";
(c)...hostile or warlike action in time of peace or war, including
action in hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or
air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(d)...any weapon of war employing atomic fission or radioactive force
whether in time of peace or war; or
(e)...insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or
customs regulations, confiscation by order of any government or public
authority; or risks of contraband or illegal transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by
or resulting from an Extraordinary Event.
▇▇▇▇▇▇ ▇▇▇: Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to
Section 9.01, which Final Distribution Date shall in no event be later than
the end of the 90-day liquidation period described in Section 9.02.
Fitch: Fitch 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(f).
Fraud Losses: Losses on Mortgage Loans as to which there was fraud in
the origination of such Mortgage Loan.
Freddie Mac: Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Highest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with a Certificate Principal
Balance greater than zero, with the earliest priority for payments pursuant
to Section 4.02(a), in the following order: Class M-1, Class M-2, Class M-3,
Class B-1, Class B-2 and Class B-3 Certificates.
Independent: When used with respect to any specified Person, means
such a Person who (i) is in fact independent of the Company, the Master
Servicer and the Trustee, or any Affiliate thereof, (ii) does not have any
direct financial interest or any material indirect financial interest in the
Company, the Master Servicer or the Trustee or in an Affiliate thereof, and
(iii) is not connected with the Company, the Master Servicer or the Trustee
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Initial Certificate Principal Balance: With respect to each Class of
Certificates, the Certificate Principal Balance of such Class of Certificates
as of the Cut-off Date, as set forth in the Series Supplement.
Initial Monthly Payment Fund: An amount representing scheduled
principal amortization and interest at the Net Mortgage Rate for the Due Date
in the first Due Period commencing subsequent to the Cut-off Date for those
Mortgage Loans for which the Trustee will not be entitled to receive such
payment, and as more specifically defined in the Series Supplement.
Initial Notional Amount: With respect to any Class or Subclass of
Interest Only Certificates, the amount initially used as the principal basis
for the calculation of any interest payment amount, as more specifically
defined in the Series Supplement.
Initial Subordinate Class Percentage: As defined in the Series
Supplement.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance
policy covering a Mortgage Loan (excluding any Certificate Policy (as defined
in the Series Supplement)), to the extent such proceeds are payable to the
mortgagee under the Mortgage, any Subservicer, the Master Servicer or the
Trustee and are not applied to the restoration of the related Mortgaged
Property (or, with respect to a Cooperative Loan, the related Cooperative
Apartment) or released to the Mortgagor in accordance with the procedures
that the Master Servicer would follow in servicing mortgage loans held for
its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any
successor thereto or the named insurer in any replacement policy.
Interest Accrual Period: As defined in the Series Supplement.
Interest Only Certificates: A Class or Subclass of Certificates not
entitled to payments of principal, and designated as such in the Series
Supplement. The Interest Only Certificates will have no Certificate Principal
Balance.
Interim Certification: As defined in Section 2.02.
Junior Certificateholder: The Holder of not less than 95% of the
Percentage Interests of the Junior Class of Certificates.
Junior Class of Certificates: The Class of Subordinate Certificates
outstanding as of the date of the repurchase of a Mortgage Loan pursuant to
Section 4.07 herein that has the Lowest Priority.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments
or as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent
late payments or collections of Monthly Payments due but delinquent for a
previous Due Period and not previously recovered.
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received
by the Master Servicer in connection with the taking of an entire Mortgaged
Property by exercise of the power of eminent domain or condemnation or in
connection with the liquidation of a defaulted Mortgage Loan through
trustee's sale, foreclosure sale or otherwise, other than REO Proceeds.
Loan Group: Any group of Mortgage Loans designated as a separate loan
group in the Series Supplement. The Certificates relating to each Loan Group
will be designated in the Series Supplement. If the Mortgage Pool is
comprised of two or more Loan Groups, any of such Loan Groups.
Loan-to-Value Ratio: As of any date, the fraction, expressed as a
percentage, the numerator of which is the current principal balance of the
related Mortgage Loan at the date of determination and the denominator of
which is the Appraised Value of the related Mortgaged Property.
Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of Subordinate Certificates then
outstanding with a Certificate Principal Balance greater than zero, with
later priority for payments pursuant to Section 4.02(a).
Lowest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the latest priority for
payments pursuant to Section 4.02(a), in the following order: Class B-3,
Class B-2, Class B-1, Class M-3, Class M-2 and Class M-1 Certificates.
Maturity Date: The latest possible maturity date, solely for purposes
of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates which have no Certificate Principal Balance) and
each Uncertificated REMIC Regular Interest would be reduced to zero, as
designated in the Series Supplement.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of 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: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation, or its successor in interest.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of
a Servicing Modification.
Modified Mortgage Rate: As to any Mortgage Loan that is the subject of
a Servicing Modification, the Mortgage Rate minus the rate per annum by which
the Mortgage Rate on such Mortgage Loan was reduced.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the
subject of a Servicing Modification, the Net Mortgage Rate minus the rate per
annum by which the Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and any Due Date, the payment of principal and interest due thereon
in accordance with the amortization schedule at the time applicable thereto
(after adjustment, if any, for Curtailments and for Deficient Valuations
occurring prior to such Due Date but before any adjustment to such
amortization schedule by reason of any bankruptcy, other than a Deficient
Valuation, or similar proceeding or any moratorium or similar waiver or grace
period and before any Servicing Modification that constitutes a reduction of
the interest rate on such Mortgage Loan).
Moody's: ▇▇▇▇▇'▇ 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.
Net Mortgage Rate: As to each Mortgage Loan, a per annum rate of
interest equal to the Adjusted Mortgage Rate less the per annum rate at which
the Servicing Fee is calculated.
Non-Discount Mortgage Loan: A Mortgage Loan that is not a Discount
Mortgage Loan.
Non-Primary Residence Loans: The Mortgage Loans designated as secured
by second or vacation residences, or by non-owner occupied residences, on the
Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be
made by the Master Servicer or Subservicer in respect of a Mortgage Loan
(other than a Deleted Mortgage Loan) which, in the good faith judgment of the
Master Servicer, will not, or, in the case of a proposed Advance, would not,
be ultimately recoverable by the Master Servicer from related Late
Collections, Insurance Proceeds, Liquidation Proceeds, REO Proceeds or
amounts reimbursable to the Master Servicer pursuant to
Section 4.02(a) hereof. To the extent that any Mortgagor is not obligated
under the related Mortgage documents to pay or reimburse any portion of any
Servicing Advances that are outstanding with respect to the related Mortgage
Loan as a result of a modification of such Mortgage Loan by the Master
Servicer, which forgives amounts which the Master Servicer or Subservicer had
previously advanced, and the Master Servicer determines that no other source
of payment or reimbursement for such advances is available to it, such
Servicing Advances shall be deemed to be Nonrecoverable Advances. The
determination by the Master Servicer that it has made a Nonrecoverable
Advance or that any proposed Advance would constitute a Nonrecoverable
Advance, shall be evidenced by an Officers' Certificate delivered to the
Company, the Trustee and any Certificate Insurer.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Notional Amount: With respect to any Class or Subclass of Interest
Only Certificates, an amount used as the principal basis for the calculation
of any interest payment amount, as more specifically defined in the Series
Supplement.
Obligation to Pay: The originally executed obligation to pay or
similar agreement evidencing the obligation of the consumer under a Sharia
Mortgage Loan, together with any modification thereto.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the President or a Vice President or Assistant Vice President, or a
Director or Managing Director, and by the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Company or the
Master Servicer, as the case may be, and delivered to the Trustee, as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Master Servicer, who may be counsel for the Company or the
Master Servicer, provided that any opinion of counsel (i) referred to in the
definition of "Disqualified Organization" or (ii) relating to the
qualification of any REMIC formed under the Series Supplement or compliance
with the REMIC Provisions must, unless otherwise specified, be an opinion of
Independent counsel.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal
Prepayment in Full, Cash Liquidation or REO Disposition and which was not
purchased, deleted or substituted for prior to such Due Date pursuant to
Section 2.02, 2.03, 2.04 or 4.07.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as
the Holder thereof and any other interest therein, whether direct or
indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Rate: As defined in the Series Supplement.
Paying Agent: The Trustee or any successor Paying Agent appointed by
the Trustee.
Percentage Interest: With respect to any Certificate (other than a
Class R Certificate), the undivided percentage ownership interest in the
related Class evidenced by such Certificate, which percentage ownership
interest shall be equal to the Initial Certificate Principal Balance thereof
or Initial Notional Amount (in the case of any Interest Only
Certificate) thereof divided by the aggregate Initial Certificate Principal
Balance or the aggregate of the Initial Notional Amounts, as applicable, of
all the Certificates of the same Class. With respect to a Class R
Certificate, the interest in distributions to be made with respect to such
Class evidenced thereby, expressed as a percentage, as stated on the face of
each such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United
States;
(ii) repurchase agreements on obligations specified in
clause (i) maturing not more than one month from the date of
acquisition thereof, provided that the unsecured obligations of
the party agreeing to repurchase such obligations are at the time
rated by each Rating Agency in its highest short-term rating
available;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity
of more than 365 days or a remaining maturity of more than 30
days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a
foreign depository institution or trust company; provided that
the debt obligations of such depository institution or trust
company (or, if the only Rating Agency is Standard & Poor's, in
the case of the principal depository institution in a depository
institution holding company, debt obligations of the depository
institution holding company) at the date of acquisition thereof
have been rated by each Rating Agency in its highest short-term
rating available; and provided further that, if the only Rating
Agency is Standard & Poor's and if the depository or trust
company is a principal subsidiary of a bank holding company and
the debt obligations of such subsidiary are not separately rated,
the applicable rating shall be that of the bank holding company;
and, provided further that, if the original maturity of such
short-term obligations of a domestic branch of a foreign
depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be A-1+ in the case
of Standard & Poor's if Standard & Poor's is the Rating Agency;
(iv) commercial paper and demand notes (having original maturities of
not more than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof which on the date
of acquisition has been rated by each Rating Agency in its
highest short-term rating available; provided that such
commercial paper shall have a remaining maturity of not more than
30 days;
(v) a money market fund or a qualified investment fund rated by each
Rating Agency in its highest long-term rating available; and
(vi) other obligations or securities that are acceptable to each
Rating Agency as a Permitted Investment hereunder and will not
reduce the rating assigned to any Class of Certificates by such
Rating Agency below the lower of the then-current rating or the
rating assigned to such Certificates as of the Closing Date by
such Rating Agency, as evidenced in writing;
provided, however, no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with
respect to the underlying debt instrument or (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity greater than 120% of the yield to
maturity at par of such underlying obligations. References herein to the
highest rating available on unsecured long-term debt shall mean AAA in the
case of Standard & Poor's and Fitch and Aaa in the case of Moody's, and
references herein to the highest rating available on unsecured commercial
paper and short-term debt obligations shall mean A-1 in the case of Standard
& Poor's, P-1 in the case of Moody's and either A-1 by Standard & Poor's, P-1
by Moody's or F-1 by Fitch in the case of Fitch; provided, however, that any
Permitted Investment that is a short-term debt obligation rated A-1 by
Standard & Poor's must satisfy the following additional conditions: (i) the
total amount of debt from A-1 issuers must be limited to the investment of
monthly principal and interest payments (assuming fully amortizing
collateral); (ii) the total amount of A-1 investments must not represent more
than 20% of the aggregate outstanding Certificate Principal Balance of the
Certificates and each investment must not mature beyond 30 days;
(iii) investments in A-1 rated securities are not eligible for the Reserve
Fund; (iv) the terms of the debt must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary; and (v) if the
investments may be liquidated prior to their maturity or are being relied on
to meet a certain yield, interest must be tied to a single interest rate
index plus a single fixed spread (if any) and must move proportionately with
that index. 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.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Pledged Amount: With respect to any Pledged Asset Loan, the amount of
money remitted to Combined Collateral LLC, at the direction of or for the
benefit of the related Mortgagor.
Pledged Asset Loan: Any Mortgage Loan supported by Pledged Assets or
such other collateral, other than the related Mortgaged Property, set forth
in the Series Supplement.
Pledged Assets: With respect to any Mortgage Loan, all money,
securities, security entitlements, accounts, general intangibles,
instruments, documents, certificates of deposit, commodities contracts and
other investment property and other property of whatever kind or description
pledged by Combined Collateral LLC as security in respect of any Realized
Losses in connection with such Mortgage Loan up to the Pledged Amount for
such Mortgage Loan, and any related collateral, or such other collateral as
may be set forth in the Series Supplement.
Pledged Asset Mortgage Servicing Agreement: The Pledged Asset Mortgage
Servicing Agreement, dated as of February 28, 1996 between MLCC and the
Master Servicer.
Pooling and Servicing Agreement or Agreement: With respect to any
Series, this Standard Terms together with the related Series Supplement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of each Mortgage Loan.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over
(b) the Discount Net Mortgage Rate (but not less than 0.00%) per annum.
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such
Class and each Class of Subordinate Certificates with a Lower Priority than
such Class immediately prior to such Distribution Date divided by the
aggregate Stated Principal Balance of all of the Mortgage Loans (or related
REO Properties) immediately prior to such Distribution Date is greater than
or equal to the sum of the related Initial Subordinate Class Percentages of
such Classes of Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that
was the subject of (a) a Principal Prepayment in Full during the portion of
the related Prepayment Period that falls during the prior calendar month, an
amount equal to the excess of one month's interest at the Net Mortgage Rate
(or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) on
the Stated Principal Balance of such Mortgage Loan over the amount of
interest (adjusted to the Net Mortgage Rate (or Modified Net Mortgage Rate in
the case of a Modified Mortgage Loan)) paid by the Mortgagor for such month
to the date of such Principal Prepayment in Full or (b) a Curtailment during
the prior calendar month, an amount equal to one month's interest at the Net
Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan) on the amount of such Curtailment.
Prepayment Period: As to any Distribution Date and Principal
Prepayment in Full, the period commencing on the 16th day of the month prior
to the month in which that Distribution Date occurs and ending on the 15th
day of the month in which such Distribution Date occurs.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or any replacement policy therefor referred to in
Section 2.03(b)(iv) and (v).
Principal Only Certificates: A Class of Certificates not entitled to
payments of interest, and more specifically designated as such in the Series
Supplement.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation
Proceeds or Insurance Proceeds, which is received in advance of its scheduled
Due Date and is not accompanied by an amount as to interest representing
scheduled interest on such payment due on any date or dates in any month or
months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan that is made by the Mortgagor.
Program Guide: Collectively, the Client Guide and the Servicer Guide
for Residential Funding's mortgage loan purchase and conduit servicing
program and all supplements and amendments thereto published by Residential
Funding from time to time.
Purchase Price: With respect to any Mortgage Loan (or REO
Property) required to be or otherwise purchased on any date pursuant to
Section 2.02, 2.03, 2.04 or 4.07, an amount equal to the sum of (i) 100% of
the Stated Principal Balance thereof plus the principal portion of any
related unreimbursed Advances and (ii) unpaid accrued interest at the
Adjusted Mortgage Rate (or Modified Net Mortgage Rate plus the rate per annum
at which the Servicing Fee is calculated in the case of a Modified Mortgage
Loan) (or at the Net Mortgage Rate (or Modified Net Mortgage Rate in the case
of a Modified Mortgage Loan) in the case of a purchase made by the Master
Servicer) on the Stated Principal Balance thereof to the Due Date in the Due
Period related to the Distribution Date occurring in the month following the
month of purchase from the Due Date to which interest was last paid by the
Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
Residential Funding or the Company for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee, with a copy to the Custodian,
(i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall to be deposited by Residential
Funding in the Custodial Account in the month of substitution);
(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than and
not more than 1% per annum higher than the Mortgage Rate and Net
Mortgage Rate, respectively, of the Deleted Mortgage Loan as of
the date of substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no higher
than that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a remaining term to stated maturity not greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan;
(v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment
Agreement; and
(vi) have a Pool Strip Rate equal to or greater than that of the
Deleted Mortgage Loan.
Notwithstanding any other provisions herein, (x) with respect to any
Qualified Substitute Mortgage Loan substituted for a Deleted Mortgage Loan
which was a Discount Mortgage Loan, such Qualified Substitute Mortgage Loan
shall be deemed to be a Discount Mortgage Loan and to have a Discount
Fraction equal to the Discount Fraction of the Deleted Mortgage Loan and
(y) in the event that the "Pool Strip Rate" of any Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of "Pool Strip Rate"
is greater than the Pool Strip Rate of the related Deleted Mortgage Loan
(i) the Pool Strip Rate of such Qualified Substitute Mortgage Loan
shall be equal to the Pool Strip Rate of the related Deleted
Mortgage Loan for purposes of calculating the Pass-Through Rate
on the Class A-V Certificates and
(ii) the excess of the Pool Strip Rate on such Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of "Pool
Strip Rate" over the Pool Strip Rate on the related Deleted
Mortgage Loan shall be payable to the Class R Certificates
pursuant to Section 4.02 hereof.
Rating Agency: Each of the statistical credit rating agencies
specified in the Preliminary Statement of the Series Supplement. If any
agency or a successor is no longer in existence, "Rating Agency" shall be
such statistical credit rating agency, or other comparable Person, designated
by the Company, notice of which designation shall be given to the Trustee and
the Master Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property):
(a)...as to which a Cash Liquidation or REO Disposition has occurred,
an amount (not less than zero) equal to (i) the Stated Principal Balance of
the Mortgage Loan (or REO Property) as of the date of Cash Liquidation or REO
Disposition, plus (ii) interest (and REO Imputed Interest, if any) at the Net
Mortgage Rate from the Due Date as to which interest was last paid or
advanced to Certificateholders up to the Due Date in the Due Period related
to the Distribution Date on which such Realized Loss will be allocated
pursuant to Section 4.05 on the Stated Principal Balance of such Mortgage
Loan (or REO Property) outstanding during each Due Period that such interest
was not paid or advanced, minus (iii) the proceeds, if any, received during
the month in which such Cash Liquidation (or REO Disposition) occurred, to
the extent applied as recoveries of interest at the Net Mortgage Rate and to
principal of the Mortgage Loan, net of the portion thereof reimbursable to
the Master Servicer or any Subservicer with respect to related Advances,
Servicing Advances or other expenses as to which the Master Servicer or
Subservicer is entitled to reimbursement thereunder but which have not been
previously reimbursed,
(b)...which is the subject of a Servicing Modification, (i) (1) the
amount by which the interest portion of a Monthly Payment or the principal
balance of such Mortgage Loan was reduced or (2) the sum of any other amounts
owing under the Mortgage Loan that were forgiven and that constitute
Servicing Advances that are reimbursable to the Master Servicer or a
Subservicer, and (ii) any such amount with respect to a Monthly Payment that
was or would have been due in the month immediately following the month in
which a Principal Prepayment or the Purchase Price of such Mortgage Loan is
received or is deemed to have been received,
(c)...which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the Mortgage Loan as reduced by the Deficient Valuation, or
(d)...which has become the object of a Debt Service Reduction, the
amount of such Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a Debt Service
Reduction shall be deemed a Realized Loss hereunder so long as the Master
Servicer has notified the Trustee in writing that the Master Servicer is
diligently pursuing any remedies that may exist in connection with the
representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to
payments due thereunder or (B) delinquent payments of principal and interest
under the related Mortgage Loan and any premiums on any applicable primary
hazard insurance policy and any related escrow payments in respect of such
Mortgage Loan are being advanced on a current basis by the Master Servicer or
a Subservicer, in either case without giving effect to any Debt Service
Reduction.
To the extent the Master Servicer receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such recoveries are applied to
reduce the Certificate Principal Balance of any Class of Certificates on any
Distribution Date.
Record Date: With respect to each Distribution Date, the close of
business on the last Business Day of the month next preceding the month in
which the related Distribution Date occurs.
Regular Certificate: Any of the Certificates other than a Class R
Certificate.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R.ss.ss.229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by
the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
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.
Relief Act Shortfalls: Shortfalls in interest payable by a Mortgagor
that are not collectible from the Mortgagor pursuant to the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC Administrator: Residential Funding 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.
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 not in its capacity as Master Servicer, and any successor
thereto.
Responsible Officer: When used with respect to the Trustee, any
officer of the Corporate Trust Department of the Trustee, including any
Senior Vice President, any Vice President, any Assistant Vice President, any
Assistant Secretary, any Trust Officer or Assistant Trust Officer, or any
other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom, with respect
to a particular matter, such matter is referred, in each case with direct
responsibility for the administration of the Agreements.
Retail Certificates: A Senior Certificate, if any, offered in smaller
minimum denominations than other Senior Certificates, and designated as such
in the Series Supplement.
Schedule of Discount Fractions: The schedule setting forth the
Discount Fractions with respect to the Discount Mortgage Loans, attached as
an exhibit to the Series Supplement.
Securitization Transaction: Any transaction involving a sale or other
transfer of mortgage loans directly or indirectly to an issuing entity in
connection with an issuance of publicly offered or privately placed, rated or
unrated mortgage-backed securities.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Seller: As to any Mortgage Loan, a Person, including any Subservicer,
that executed a Seller's Agreement applicable to such Mortgage Loan.
Seller's Agreement: An agreement for the origination and sale of
Mortgage Loans generally in the form of the Seller Contract referred to or
contained in the Program Guide, or in such other form as has been approved by
the Master Servicer and the Company, each containing representations and
warranties in respect of one or more Mortgage Loans consistent in all
material respects with those set forth in the Program Guide.
Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date and,
with respect to any Mortgage Pool comprised of two or more Loan Groups, any
Loan Group, 100%. With respect to any Distribution Date thereafter and any
such Loan Group, if applicable, as follows:
(i) for any Distribution Date after the 60th Distribution Date but on
or prior to the 72nd Distribution Date, the related Senior
Percentage for such Distribution Date plus 70% of the related
Subordinate Percentage for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but on
or prior to the 84th Distribution Date, the related Senior
Percentage for such Distribution Date plus 60% of the related
Subordinate Percentage for such Distribution Date;
(iii) for any Distribution Date after the 84th Distribution Date but on
or prior to the 96th Distribution Date, the related Senior
Percentage for such Distribution Date plus 40% of the related
Subordinate Percentage for such Distribution Date;
(iv) for any Distribution Date after the 96th Distribution Date but on
or prior to the 108th Distribution Date, the related Senior
Percentage for such Distribution Date plus 20% of the related
Subordinate Percentage for such Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for
such Distribution Date;
provided, however,
(i) that any scheduled reduction to the Senior Accelerated
Distribution Percentage described above shall not occur as of any
Distribution Date unless either
(a)(1)(X) the outstanding principal balance of the Mortgage
Loans delinquent 60 days or more (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
(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, exceeds the weighted
average of the initial Senior Percentages (calculated on such
basis) for each Loan Group, each of the Senior Accelerated
Distribution Percentages for such Distribution Date will equal
100%.
Notwithstanding the foregoing, upon the reduction of the Certificate
Principal Balances of the related Senior Certificates (other than the Class
A-P Certificates, if any) to zero, the related Senior Accelerated
Distribution Percentage shall thereafter be 0%.
Senior Certificate: As defined in the Series Supplement.
Senior Percentage: As defined in the Series Supplement.
Senior Support Certificate: A Senior Certificate that provides
additional credit enhancement to certain other classes of Senior Certificates
and designated as such in the Preliminary Statement of the Series Supplement.
Series: All of the Certificates issued pursuant to a Pooling and
Servicing Agreement and bearing the same series designation.
Series Supplement: The agreement into which this Standard Terms is
incorporated and pursuant to which, together with this Standard Terms, a
Series of Certificates is issued.
Servicing Accounts: The account or accounts created and maintained
pursuant to Section 3.08.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency
or other unanticipated event by the Master Servicer or a Subservicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged
Property or, with respect to a Cooperative Loan, the related Cooperative
Apartment, (ii) any enforcement or judicial proceedings, including
foreclosures, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS
System, (iii) the management and liquidation of any REO Property, (iv) any
mitigation procedures implemented in accordance with Section 3.07, and
(v) compliance with the obligations under Sections 3.01, 3.08, 3.12(a) and
3.14, including, if the Master Servicer or any Affiliate of the Master
Servicer provides services such as appraisals and brokerage services that are
customarily provided by Persons other than servicers of mortgage loans,
reasonable compensation for such services.
Servicing 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 Fee: With respect to any Mortgage Loan and Distribution
Date, the fee payable monthly to the Master Servicer in respect of master
servicing compensation that accrues at an annual rate designated on the
Mortgage Loan Schedule as the "MSTR SERV FEE" for such Mortgage Loan, as may
be adjusted with respect to successor Master Servicers as provided in
Section 7.02.
Servicing Modification: Any reduction of the interest rate on or the
outstanding principal balance of a Mortgage Loan, any extension of the final
maturity date of a Mortgage Loan, and any increase to the outstanding
principal balance of a Mortgage Loan by adding to the Stated Principal
Balance unpaid principal and interest and other amounts owing under the
Mortgage Loan, in each case pursuant to a modification of a Mortgage Loan
that is in default, or for which, in the judgment of the Master Servicer,
default is reasonably foreseeable, in accordance with Section 3.07(a).
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer, as such list may from time to time be
amended.
Sharia Mortgage Loan: A declining balance co-ownership transaction,
structured so as to comply with Islamic religious law.
Sharia Mortgage Loan Co-Ownership Agreement: The agreement that
defines the relationship between the consumer and co-owner and the parties'
respective rights under a Sharia Mortgage Loan, including their respective
rights with respect to the indicia of ownership of the related Mortgaged
Property.
Sharia Mortgage Loan Security Instrument: The mortgage, security
instrument or other comparable instrument creating a first lien on an estate
in fee simple or leasehold interest in real property securing an Obligation
to Pay.
Special Hazard Loss: Any Realized Loss not in excess of the cost of
the lesser of repair or replacement of a Mortgaged Property (or, with respect
to a Cooperative Loan, the related Cooperative Apartment) suffered by such
Mortgaged Property (or Cooperative Apartment) on account of direct physical
loss, exclusive of (i) any loss of a type covered by a hazard policy or a
flood insurance policy required to be maintained in respect of such Mortgaged
Property pursuant to Section 3.12(a), except to the extent of the portion of
such loss not covered as a result of any coinsurance provision and (ii) any
Extraordinary Loss.
Standard & Poor's: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, at any given time, (i) the sum of (a) the Cut-off Date
Principal Balance of the Mortgage Loan plus (b) any amount by which the
Stated Principal Balance of the Mortgage Loan is increased pursuant to a
Servicing Modification, minus (ii) the sum of (a) the principal portion of
the Monthly Payments due with respect to such Mortgage Loan or REO Property
during each Due Period ending prior to the most recent Distribution Date
which were received or with respect to which an Advance was made, and (b) all
Principal Prepayments with respect to such Mortgage Loan or REO Property, and
all Insurance Proceeds, Liquidation Proceeds and REO Proceeds, to the extent
applied by the Master Servicer as recoveries of principal in accordance with
Section 3.14 with respect to such Mortgage Loan or REO Property, in each case
which were distributed pursuant to Section 4.02 on any previous Distribution
Date, and (c) any Realized Loss allocated to Certificateholders with respect
thereto for any previous Distribution Date.
Successor Master Servicer: As defined in Section 3.22.
Subclass: With respect to the Class A-V Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent
the Uncertificated Class A-V REMIC Regular Interest or Interests specified by
the initial Holder of the Class A-V Certificates pursuant to Section 5.01(c).
Subordinate Certificate: Any one of the Class M Certificates or Class
B Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed hereto as Exhibit B and Exhibit
C, respectively.
Subordinate Class Percentage: With respect to any Distribution Date
and any Class of Subordinate Certificates, a fraction, expressed as a
percentage, the numerator of which is the aggregate Certificate Principal
Balance of such Class of Subordinate Certificates immediately prior to such
date and the denominator of which is the aggregate Stated Principal Balance
of all of the Mortgage Loans (or related REO Properties) (other than the
related Discount Fraction of each Discount Mortgage Loan) immediately prior
to such Distribution Date.
Subordinate Percentage: As of any Distribution Date and, with respect
to any Mortgage Pool comprised of two or more Loan Groups, any Loan Group,
100% minus the related Senior Percentage as of such Distribution Date.
Subsequent Recoveries: As of any Distribution Date, amounts received
by the Master Servicer (net of any related expenses permitted to be
reimbursed pursuant to Section 3.10) or surplus amounts held by the Master
Servicer to cover estimated expenses (including, but not limited to,
recoveries in respect of the representations and warranties made by the
related Seller pursuant to the applicable Seller's Agreement and assigned to
the Trustee pursuant to Section 2.04) specifically related to a Mortgage Loan
that was the subject of a Cash Liquidation or an REO Disposition prior to the
related Prepayment Period that resulted in a Realized Loss.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is subject to a Subservicing Agreement.
Subservicer: Any Person with whom the Master Servicer has entered into
a Subservicing Agreement and who generally satisfied the requirements set
forth in the Program Guide in respect of the qualification of a Subservicer
as of the date of its approval as a Subservicer by the Master Servicer.
Subservicer Advance: Any delinquent installment of principal and
interest on a Mortgage Loan which is advanced by the related Subservicer (net
of its Subservicing Fee) pursuant to the Subservicing Agreement.
Subservicing Account: An account established by a Subservicer in
accordance with Section 3.08.
Subservicing Agreement: The written contract between the Master
Servicer and any Subservicer relating to servicing and administration of
certain Mortgage Loans as provided in Section 3.02, generally in the form of
the servicer contract referred to or contained in the Program Guide or in
such other form as has been approved by the Master Servicer and the Company.
With respect to Additional Collateral Loans subserviced by MLCC, the
Subservicing Agreement shall also include the Addendum and Assignment
Agreement and the Pledged Asset Mortgage Servicing Agreement. With respect to
any Pledged Asset Loan subserviced by GMAC Mortgage, 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.
Surety: Ambac, or its successors in interest, or such other surety as
may be identified in the Series Supplement.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996 in respect to Mortgage Loans originated by MLCC, or
the Surety Bond (Policy No. AB0240BE), dated March 17, 1999 in respect to
Mortgage Loans originated by Novus Financial Corporation, in each case issued
by Ambac for the benefit of certain beneficiaries, including the Trustee for
the benefit of the Holders of the Certificates, but only to the extent that
such Surety Bond covers any Additional Collateral Loans, or such other Surety
Bond as may be identified in the Series Supplement.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders
of REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be
filed on behalf of any REMIC formed under the Series Supplement and under the
REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax laws.
Transaction Party: As defined in Section 12.02(a).
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
Trust Fund: The segregated pool of assets consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral
securing such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans
due after the Cut-off Date (other than Monthly Payments due in
the month of the Cut-Off Date) as shall be on deposit in the
Custodial Account or in the Certificate Account and identified as
belonging to the Trust Fund, including the proceeds from the
liquidation of Additional Collateral for any Additional
Collateral Loan or Pledged Assets for any Pledged Asset Loan, but
not including amounts on deposit in the Initial Monthly Payment
Fund,
(iii) property that secured a Mortgage Loan and that has been acquired
for the benefit of the Certificateholders by foreclosure or deed
in lieu of foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if
any, the Pledged Assets with respect to each Pledged Asset Loan,
and the interest in the Surety Bond transferred to the Trustee
pursuant to Section 2.01,
(v) the Initial Monthly Payment Fund, and
(vi) all proceeds of clauses (i) through (v) above.
Trustee Information: As specified in Section 12.05(a)(i)(A).
Underwriter: As defined in the Series Supplement.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable
by the hazard insurance policies.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under
the laws of, the United States, provided that, for purposes solely of the
restrictions on the transfer of residual interests, no partnership or other
entity treated as a partnership for United States federal income tax purposes
shall be treated as a United States Person unless all persons that own an
interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are required
by the applicable operating agreement to be United States Persons, any state
thereof, or the District of Columbia (except in the case of a partnership, to
the extent provided in Treasury regulations) or any political subdivision
thereof, or an estate that is described in Section 7701(a)(30)(D) of the
Code, or a trust that is described in Section 7701(a)(30)(E) of the Code.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate, and more specifically
designated in Article XI of the Series Supplement.
Section 1.02. Use of Words and Phrases.
"Herein," "hereby," "hereunder," 'hereof," "hereinbefore,"
"hereinafter" and other equivalent words refer to the Pooling and Servicing
Agreement as a whole. All references herein to Articles, Sections or
Subsections shall mean the corresponding Articles, Sections and Subsections
in the Pooling and Servicing Agreement. The 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.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee without recourse all the right, title and
interest of the Company in and to the Mortgage Loans, including all interest
and principal received on or with respect to the Mortgage Loans after the
Cut-off Date (other than payments of principal and interest due on the
Mortgage Loans in the month of the Cut-off Date). In connection with such
transfer and assignment, the Company does hereby deliver to the Trustee the
Certificate Policy (as defined in the Series Supplement), if any. The
Company, the Master Servicer and the Trustee agree that it is not intended
that any mortgage loan be included in the Trust that is (i) a "High-Cost Home
Loan" as defined in the New Jersey Home Ownership Act effective November 27,
2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004, (iii) a "High Cost Home Mortgage
Loan" as defined in the Massachusetts Predatory Home Practices Act effective
November 7, 2004 or (iv) a "High-Cost Home Loan" as defined in the Indiana
House Enrolled Act No. 1229, effective as of January 1, 2005.
(b) In connection with such assignment, except as set forth in Section
2.01(c) and subject to Section 2.01(d) below, the Company does hereby:
(I) with respect to each Mortgage Loan so assigned (other than a
Cooperative Loan or a Sharia Mortgage Loan) (1) in the case of all such
Mortgage Loans, deliver to and deposit with the Master Servicer (or an
Affiliate of the Master Servicer) each of the documents or instruments
described in clause (ii) below (and the Master Servicer shall hold (or
cause such Affiliate to hold) such documents or instruments in trust
for the use and benefit of all present and future Certificateholders),
(2) with respect to each MOM Loan, deliver to, and deposit with, the
Trustee, or to and with one or more Custodians, as the duly appointed
agent or agents of the Trustee for such purpose, the documents or
instruments described in clauses (i) and (v) below, (3) with respect to
each Mortgage Loan that is not a MOM Loan but is registered on the
MERS(R)System, deliver to, and deposit with, the Trustee, or to and with
one or more Custodians, as the duly appointed agent or agents of the
Trustee for such purpose, the documents or instruments described in
clauses (i), (iv) and (v) below and (4) with respect to each Mortgage
Loan that is not a MOM Loan and is not registered on the MERS(R)System,
deliver to, and deposit with, the Trustee, or to and with one or more
Custodians, as the duly appointed agent or agents of the Trustee for
such purpose, the documents or instruments described in clauses (i),
(iii), (iv) and (v) below:
(i) The original Mortgage Note, endorsed without recourse to the order of
the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to the Trustee, or with
respect to any Destroyed Mortgage Note, an original lost note affidavit
from the related Seller or Residential Funding stating that the
original Mortgage Note was lost, misplaced or destroyed, together with
a copy of the related Mortgage Note.
(ii) The original Mortgage, noting the presence of the MIN of the Mortgage
Loan and language indicating that the Mortgage Loan is a MOM Loan if
the Mortgage Loan is a MOM Loan, with evidence of recording indicated
thereon or a copy of the Mortgage with evidence of recording indicated
thereon.
(iii) The original Assignment of the Mortgage to the Trustee with evidence of
recording indicated thereon or a copy of such assignment with evidence
of recording indicated thereon.
(iv) The original recorded assignment or assignments of the Mortgage showing
an unbroken chain of title from the originator thereof to the Person
assigning it to the Trustee (or to MERS, if the Mortgage Loan is
registered on the MERS(R)System and noting the presence of a MIN) with
evidence of recordation noted thereon or attached thereto, or a copy of
such assignment or assignments of the Mortgage with evidence of
recording indicated thereon.
(v) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Mortgage Loan or a copy of
each modification, assumption agreement or preferred loan agreement.
(II) with respect to each Cooperative Loan so assigned:
(i) The original Mortgage Note, endorsed without recourse to the order of
the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to the Trustee, or with
respect to any Destroyed Mortgage Note, an original lost note affidavit
from the related Seller or Residential Funding stating that the
original Mortgage Note was lost, misplaced or destroyed, together with
a copy of the related Mortgage Note.
(ii) A counterpart of the Cooperative Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan with
intervening assignments showing an unbroken chain of title from such
originator to the Trustee.
(iii) The related Cooperative Stock Certificate, representing the related
Cooperative Stock pledged with respect to such Cooperative Loan,
together with an undated stock power (or other similar
instrument) executed in blank.
(iv) The original recognition agreement by the Cooperative of the interests
of the mortgagee with respect to the related Cooperative Loan.
(v) The Security Agreement.
(vi) Copies of the original UCC-1 financing statement, and any continuation
statements, filed by the originator of such Cooperative Loan as secured
party, each with evidence of recording thereof, evidencing the interest
of the originator under the Security Agreement and the Assignment of
Proprietary Lease.
(vii) Copies of the filed UCC-3 assignments of the security interest
referenced in clause (vi) above showing an unbroken chain of title from
the originator to the Trustee, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement
and the Assignment of Proprietary Lease.
(viii) An executed assignment of the interest of the originator in the
Security Agreement, Assignment of Proprietary Lease and the recognition
agreement referenced in clause (iv) above, showing an unbroken chain of
title from the originator to the Trustee.
(ix) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Cooperative Loan.
(x) A duly completed UCC-1 financing statement showing the Master Servicer
as debtor, the Company as secured party and the Trustee as assignee and
a duly completed UCC-1 financing statement showing the Company as
debtor and the Trustee as secured party, each in a form sufficient for
filing, evidencing the interest of such debtors in the Cooperative
Loans.
and (III) with respect to each Sharia Mortgage Loan so assigned:
(xi) 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.
(xii) 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.
(xiii) 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.
(xiv) 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.
(xv) The original Sharia Mortgage Loan Co-Ownership Agreement with respect
to the related Sharia Mortgage Loan.
(xvi) The original of each modification or assumption agreement, if any,
relating to such Sharia Mortgage Loan or a copy of each modification or
assumption agreement.
(c) The Company may, in lieu of delivering the original of the documents
set forth in Sections 2.01(b)(I) (iii), (iv) and (v), Section (b)(II)(ii),
(iv), (vii), (ix) and (x) and Sections 2.01(b)(III)(ii), (iii), (iv), (v) and
(vi) (or copies thereof as permitted by Section 2.01(b)) to the Trustee or
the Custodian or Custodians, deliver such documents to the Master Servicer,
and the Master Servicer shall hold such documents in trust for the use and
benefit of all present and future Certificateholders until such time as is
set forth in the next sentence. Within thirty Business Days following the
earlier of (i) the receipt of the original of all of the documents or
instruments set forth in Sections 2.01(b)(I)(iii), (iv) and (v),
Sections (b)(II)(ii), (iv), (vii), (ix) and (x) and
Sections 2.01(b)(III)(ii), (iii), (iv), (v) and (vi) (or copies thereof) for
any Mortgage Loan and (ii) a written request by the Trustee to deliver those
documents with respect to any or all of the Mortgage Loans then being held by
the Master Servicer, the Master Servicer shall deliver a complete set of such
documents to the Trustee or the Custodian or Custodians that are the duly
appointed agent or agents of the Trustee.
(d) Notwithstanding the provisions of Section 2.01(c), in connection with
any Mortgage Loan, if the Company cannot deliver the original of the
Mortgage, any assignment, modification, assumption agreement or preferred
loan agreement (or copy thereof as permitted by Section 2.01(b)) with
evidence of recording thereon concurrently with the execution and delivery of
this Agreement because of (i) a delay caused by the public recording office
where such Mortgage, assignment, modification, assumption agreement or
preferred loan agreement as the case may be, has been delivered for
recordation, or (ii) a delay in the receipt of certain information necessary
to prepare the related assignments, the Company shall deliver or cause to be
delivered to the Trustee or the respective Custodian a copy of such Mortgage,
assignment, modification, assumption agreement or preferred loan agreement.
The Company (i) shall promptly cause to be recorded in the appropriate
public office for real property records the Assignment referred to in
clause (I)(iii) of Section 2.01(b), except (a) in states where, in the
opinion of counsel acceptable to the Master Servicer, such recording is not
required to protect the Trustee's interests in the Mortgage Loan against the
claim of any subsequent transferee or any successor to or creditor of the
Company or the originator of such Mortgage Loan or (b) if MERS is identified
on the Mortgage or on a properly recorded assignment of the Mortgage as the
mortgagee of record solely as nominee for the Seller and its successors and
assigns, (ii) shall promptly cause to be filed the Form UCC-3 assignment and
UCC-1 financing statement referred to in clauses (II)(vii) and (x),
respectively, of Section 2.01(b) and (iii) shall promptly cause to be
recorded in the appropriate public recording office for real property records
the Assignment Agreement and Amendment of Security Instrument referred to in
clause (III)(iii) of Section 2.01(b). If any Assignment, Assignment
Agreement and Amendment of Security Instrument, Form UCC-3 or Form UCC-1, as
applicable, is lost or returned unrecorded to the Company because of any
defect therein, the Company shall prepare a substitute Assignment, Assignment
Agreement and Amendment of Security Instrument, Form UCC-3 or Form UCC-1, as
applicable, or cure such defect, as the case may be, and cause such
Assignment or Assignment Agreement and Amendment of Security Instrument to be
recorded in accordance with this paragraph. The Company shall promptly
deliver or cause to be delivered to the applicable Person described in
Section 2.01(b) such Assignment or substitute Assignment or Assignment
Agreement and Amendment of Security Instrument or Form UCC-3 or Form UCC-1,
as applicable, (or copy thereof) recorded in connection with this paragraph,
with evidence of recording indicated thereon at the time specified in
Section 2.01(c). In connection with its servicing of Cooperative Loans, the
Master Servicer will use its best efforts to file timely continuation
statements with regard to each financing statement and assignment relating to
Cooperative Loans as to which the related Cooperative Apartment is located
outside of the State of New York.
If the Company delivers to the Trustee or Custodian any Mortgage Note,
Obligation to Pay, Assignment Agreement and Amendment of Security Instrument
or Assignment of Mortgage in blank, the Company shall, or shall cause the
Custodian to, complete the endorsement of the Mortgage Note, Obligation to
Pay, Assignment Agreement and Amendment of Security Instrument and the
Assignment of Mortgage in the name of the Trustee in conjunction with the
Interim Certification issued by the Custodian, as contemplated by
Section 2.02.
Any of the items set forth in Sections 2.01(b)(II)(vi) and (vii) and
Sections 2.01(b)(III)(ii), (iii), and (iv) that may be delivered as a copy
rather than the original may be delivered to the Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on
the MERS(R)System, the Company further agrees that it will cause, at the
Company's own expense, within 30 Business Days after the Closing Date, the
MERS(R)System to indicate that such Mortgage Loans have been assigned by the
Company to the Trustee in accordance with this Agreement for the benefit of
the Certificateholders by including (or deleting, in the case of Mortgage
Loans which are repurchased in accordance with this Agreement) in such
computer files (a) the code in the field which identifies the specific
Trustee and (b) the code in the field "Pool Field" which identifies the
series of the Certificates issued in connection with such Mortgage Loans.
The Company further agrees that it will not, and will not permit the Master
Servicer to, and the Master ▇▇▇▇▇▇▇▇ agrees that it will not, alter the codes
referenced in this paragraph with respect to any Mortgage Loan during the
term of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
(e) Residential Funding hereby assigns to the Trustee its security interest
in and to any Additional Collateral or Pledged Assets, its right to receive
amounts due or to become due in respect of any Additional Collateral or
Pledged Assets pursuant to the related Subservicing Agreement and its rights
as beneficiary under the Surety Bond in respect of any Additional Collateral
Loans. With respect to any Additional Collateral Loan or Pledged Asset Loan,
Residential Funding shall cause to be filed in the appropriate recording
office a UCC-3 statement giving notice of the assignment of the related
security interest to the Trust Fund and shall thereafter cause the timely
filing of all necessary continuation statements with regard to such financing
statements.
(f) It is intended that the conveyance by the Company to the Trustee of the
Mortgage Loans as provided for in this Section 2.01 be and the Uncertificated
REMIC Regular Interests, if any (as provided for in Section 2.06), be
construed as a sale by the Company to the Trustee of the Mortgage Loans and
any Uncertificated REMIC Regular Interests for the benefit of the
Certificateholders. Further, it is not intended that such conveyance be
deemed to be a pledge of the Mortgage Loans and any Uncertificated REMIC
Regular Interests by the Company to the Trustee to secure a debt or other
obligation of the Company. However, if the Mortgage Loans and any
Uncertificated REMIC Regular Interests are held to be property of the Company
or of Residential Funding, or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans and any
Uncertificated REMIC Regular Interests, then it is intended that (a) this
Agreement shall be a security agreement within the meaning of Articles 8 and
9 of the New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; (b) the conveyance provided for in
Section 2.01 shall be deemed to be, and hereby is, (1) a grant by the Company
to the Trustee of a security interest in all of the Company's right
(including the power to convey title thereto), title and interest, whether
now owned or hereafter acquired, in and to any and all general intangibles,
payment intangibles, accounts, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices
of credit and investment property and other property of whatever kind or
description now existing or hereafter acquired consisting of, arising from or
relating to any of the following: (A) the Mortgage Loans, including (i) with
respect to each Cooperative Loan, the related Mortgage Note, Security
Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate and
Cooperative Lease, (ii) with respect to each Sharia Mortgage Loan, the
related Sharia Mortgage Loan Security Instrument, Sharia Mortgage Loan
Co-Ownership Agreement, Obligation to Pay and Assignment Agreement and
Amendment of Security Instrument, (iii) with respect to each Mortgage Loan
other than a Cooperative Loan or a Sharia Mortgage Loan, the related Mortgage
Note and Mortgage, and (iv) any insurance policies and all other documents in
the related Mortgage File, (B) all amounts payable pursuant to the Mortgage
Loans in accordance with the terms thereof, (C) any Uncertificated REMIC
Regular Interests and (D) all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held or
invested in the Certificate Account or the Custodial Account, whether in the
form of cash, instruments, securities or other property and (2) an assignment
by the Company to the Trustee of any security interest in any and all of
Residential Funding's right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to the
property described in the foregoing clauses (1)(A), (B), (C) and (D) granted
by Residential Funding to the Company pursuant to the Assignment Agreement;
(c) the possession by the Trustee, the Custodian or any other agent of the
Trustee of Mortgage Notes or such other items of property as constitute
instruments, money, payment intangibles, negotiable documents, goods, deposit
accounts, letters of credit, advices of credit, investment property,
certificated securities or chattel paper shall be deemed to be "possession by
the secured party," or possession by a purchaser or a person designated by
such secured party, for purposes of perfecting the security interest pursuant
to the Minnesota Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction as in effect (including, without
limitation, Sections 8-106, 9-313 and 9-106 thereof); and (d) notifications
to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for (as
applicable) the Trustee for the purpose of perfecting such security interest
under applicable law.
The Company and, at the Company's direction, Residential Funding and
the Trustee shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
determined to create a security interest in the Mortgage Loans, any
Uncertificated REMIC Regular Interests and the other property described
above, such security interest would be determined to be a perfected security
interest of first priority under applicable law and will be maintained as
such throughout the term of this Agreement. Without limiting the generality
of the foregoing, the Company shall prepare and deliver to the Trustee not
less than 15 days prior to any filing date and, the Trustee shall forward for
filing, or shall cause to be forwarded for filing, at the expense of the
Company, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Trustee's security interest in or lien on the
Mortgage Loans and any Uncertificated REMIC Regular Interests, as evidenced
by an Officers' Certificate of the Company, including without limitation
(x) continuation statements, and (y) such other statements as may be
occasioned by (1) any change of name of Residential Funding, the Company or
the Trustee (such preparation and filing shall be at the expense of the
Trustee, if occasioned by a change in the Trustee's name), (2) any change of
location of the place of business or the chief executive office of
Residential Funding or the Company, (3) any transfer of any interest of
Residential Funding or the Company in any Mortgage Loan or (4) any transfer
of any interest of Residential Funding or the Company in any Uncertificated
REMIC Regular Interest.
(g) The Master Servicer hereby acknowledges the receipt by it of the
Initial Monthly Payment Fund. The Master Servicer shall hold such Initial
Monthly Payment Fund in the Custodial Account and shall include the related
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 all money, securities,
security entitlements, accounts, general intangibles, instruments, documents,
certificates of deposit, commodities contracts, and other investment property
and other property of whatever kind or description consisting of, arising
from or related to (i) the Assigned Contracts, (ii) all rights, powers and
remedies of the Company as owner of such Mortgage Loan under or in connection
with the Assigned Contracts, whether arising under the terms of such Assigned
Contracts, by statute, at law or in equity, or otherwise arising out of any
default by the Mortgagor under or in connection with the Assigned Contracts,
including all rights to exercise any election or option or to make any
decision or determination or to give or receive any notice, consent, approval
or waiver thereunder, (iii) all security interests in and lien of the Company
as owner of such Mortgage Loan in the Pledged Amounts and all money,
securities, security entitlements, accounts, general intangibles,
instruments, documents, certificates of deposit, commodities contracts, and
other investment property and other property of whatever kind or description
and all cash and non-cash proceeds of the sale, exchange, or redemption of,
and all stock or conversion rights, rights to subscribe, liquidation
dividends or preferences, stock dividends, rights to interest, dividends,
earnings, income, rents, issues, profits, interest payments or other
distributions of cash or other property that is credited to the Custodial
Account, (iv) all documents, books and records concerning the foregoing
(including all computer programs, tapes, disks and related items containing
any such information) and (v) all insurance proceeds (including proceeds from
the Federal Deposit Insurance Corporation or the Securities Investor
Protection Corporation or any other insurance company) of any of the
foregoing or replacements thereof or substitutions therefor, proceeds of
proceeds and the conversion, voluntary or involuntary, of any thereof. The
foregoing transfer, sale, assignment and conveyance does not constitute and
is not intended to result in the creation, or an assumption by the Trustee,
of any obligation of the Company, or any other person in connection with the
Pledged Assets or under any agreement or instrument relating thereto,
including any obligation to the Mortgagor, other than as owner of the
Mortgage Loan.
Section 2.02. Acceptance by Trustee.
The Trustee acknowledges receipt (or, with respect to Mortgage Loans
subject to a Custodial Agreement, and based solely upon a receipt or
certification executed by the Custodian, receipt by the respective Custodian
as the duly appointed agent of the Trustee) of the documents referred to in
Section 2.01(b)(I)(i) and Section 2.01(b)(II)(i), (iii), (v), (vi) and
(viii) above (except that for purposes of such acknowledgment only, a
Mortgage Note may be endorsed in blank) and declares that it, or a Custodian
as its agent, holds and will hold such documents and the other documents
constituting a part of the 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 (such Custodian being so
obligated under a Custodial Agreement) agrees, for the benefit of
Certificateholders, to review each Custodial File delivered to it pursuant to
Section 2.01(b) within 45 days after the Closing Date to ascertain that all
required documents (specifically as set forth in Section 2.01(b)), have been
executed and received, and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule, as supplemented, that have been
conveyed to it, and to deliver to the Trustee a certificate (the "Interim
Certification") to the effect that all documents required to be delivered
pursuant to Section 2.01(b) above have been executed and received and that
such documents relate to the Mortgage Loans identified on the Mortgage Loan
Schedule, except for any exceptions listed on Schedule A attached to such
Interim Certification. Upon delivery of the Custodial Files by the Company or
the Master Servicer, the Trustee shall acknowledge receipt (or, with respect
to Mortgage Loans subject to a Custodial Agreement, and based solely upon a
receipt or certification executed by the Custodian, receipt by the respective
Custodian as the duly appointed agent of the Trustee) of the documents
referred to in Section 2.01(c) above.
If the Custodian, as the Trustee's agent, finds any document or
documents constituting a part of a Custodial File to be missing or defective,
the Trustee shall promptly so notify the Master Servicer and the Company.
Pursuant to Section 2.3 of the Custodial Agreement, the Custodian will notify
the Master Servicer, the Company and the Trustee of any such omission or
defect found by it in respect of any Custodial File held by it in respect of
the items reviewed by it pursuant to the Custodial Agreement. If such
omission or defect materially and adversely affects the interests of the
Certificateholders, the Master Servicer shall promptly notify Residential
Funding of such omission or defect and request that Residential Funding
correct or cure such omission or defect within 60 days from the date the
Master Servicer was notified of such omission or defect and, if Residential
Funding does not correct or cure such omission or defect within such period,
the Master Servicer shall require Residential Funding to purchase such
Mortgage Loan from the Trust Fund at its Purchase Price within 90 days from
the date the Master Servicer was notified of such omission or defect;
provided that if the omission or defect would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or repurchase must occur within 90 days from the date
such breach was discovered. The Purchase Price for any such Mortgage Loan
shall be deposited by the Master Servicer in the Custodial Account maintained
by it pursuant to Section 3.07 and, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, the Master
Servicer, the Trustee or any Custodian, as the case may be, shall release the
contents of any related Mortgage File in its possession to the owner of such
Mortgage Loan (or such owner's designee) and the Trustee shall execute and
deliver such instruments of transfer or assignment prepared by the Master
Servicer, in each case without recourse, as shall be necessary to vest in
Residential Funding or its designee any Mortgage Loan released pursuant
hereto and thereafter such Mortgage Loan shall not be part of the Trust
Fund. It is understood and agreed that the obligation of Residential Funding
to so cure or purchase any Mortgage Loan as to which a material and adverse
defect in or omission of a constituent document exists shall constitute the
sole remedy respecting such defect or omission available to
Certificateholders or the Trustee on behalf of the Certificateholders.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Company.
(a) The Master Servicer hereby represents and warrants to the Trustee for
the benefit of the Certificateholders that:
(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;
(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 any Custodian.
Upon discovery by either the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any representation or warranty set forth in
this Section 2.03(a) which materially and adversely affects the interests of
the Certificateholders in any Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement). Within 90 days of its
discovery or its receipt of notice of such breach, the Master Servicer shall
either (i) cure such breach in all material respects or (ii) to the extent
that such breach is with respect to a Mortgage Loan or a related document,
purchase such Mortgage Loan from the Trust Fund at the Purchase Price and in
the manner set forth in Section 2.02; provided that if the omission or defect
would cause the Mortgage Loan to be other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code, any such cure or repurchase must
occur within 90 days from the date such breach was discovered. The obligation
of the Master Servicer to cure such breach or to so purchase such Mortgage
Loan shall constitute the sole remedy in respect of a breach of a
representation and warranty set forth in this Section 2.03(a) available to
the Certificateholders or the Trustee on behalf of the Certificateholders.
(b) Representations and warranties relating to the Mortgage Loans are set
forth in Section 2.03(b) of the Series Supplement.
Section 2.04. Representations and Warranties of Residential Funding.
The Company, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of
Certificateholders all of its right, title and interest in respect of the
Assignment Agreement (to the extent assigned to the Company pursuant to the
Assignment Agreement) applicable to a Mortgage Loan. Insofar as the
Assignment Agreement relates to the representations and warranties made by
Residential Funding or the related Seller in respect of such Mortgage Loan
and any remedies provided thereunder for any breach of such representations
and warranties, such right, title and interest may be enforced by the Master
Servicer on behalf of the Trustee and the Certificateholders. Upon the
discovery by the Company, the Master Servicer, the Trustee or any Custodian
of a breach of any of the representations and warranties made in the
Assignment Agreement (which, for purposes hereof, will be deemed to include
any other cause giving rise to a repurchase obligation under the Assignment
Agreement) in respect of any Mortgage Loan which materially and adversely
affects the interests of the Certificateholders in such Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties (any Custodian being so obligated under a Custodial Agreement). The
Master Servicer shall promptly notify Residential Funding of such breach and
request that Residential Funding either (i) cure such breach in all material
respects within 90 days from the date the Master Servicer was notified of
such breach or (ii) purchase such Mortgage Loan from the Trust Fund at the
Purchase Price and in the manner set forth in Section 2.02; provided that
Residential Funding shall have the option to substitute a Qualified
Substitute Mortgage Loan or Loans for such Mortgage Loan if such substitution
occurs within two years following the Closing Date; provided that if the
breach would cause the Mortgage Loan to be other than a "qualified mortgage"
as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or
substitution must occur within 90 days from the date the breach was
discovered. If the breach of representation and warranty that gave rise to
the obligation to repurchase or substitute a Mortgage Loan pursuant to
Section 4 of the Assignment Agreement was the representation and warranty set
forth in clause (xii) or (xxxviii) of Section 4 thereof, then the Master
Servicer shall request that Residential Funding pay to the Trust Fund,
concurrently with and in addition to the remedies provided in the preceding
sentence, an amount equal to any liability, penalty or expense that was
actually incurred and paid out of or on behalf of the Trust Fund, and that
directly resulted from such breach, or if incurred and paid by the Trust Fund
thereafter, concurrently with such payment. In the event that Residential
Funding elects to substitute a Qualified Substitute Mortgage Loan or Loans
for a Deleted Mortgage Loan pursuant to this Section 2.04, Residential
Funding shall deliver to the Trustee or the Custodian for the benefit of the
Certificateholders with respect to such Qualified Substitute Mortgage Loan or
Loans, the original Mortgage Note, the Mortgage, an Assignment of the
Mortgage in recordable form if required pursuant to Section 2.01, and such
other documents and agreements as are required by Section 2.01, with the
Mortgage Note endorsed as required by Section 2.01. No substitution will be
made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and will be
retained by the Master Servicer and remitted by the Master Servicer to
Residential Funding on the next succeeding Distribution Date. For the month
of substitution, distributions to the Certificateholders will include the
Monthly Payment due on a Deleted Mortgage Loan for such month and thereafter
Residential Funding shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan. The Master Servicer shall amend or
cause to be amended the Mortgage Loan Schedule, and, if the Deleted Mortgage
Loan was a Discount Mortgage Loan, the Schedule of Discount Fractions, for
the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Qualified Substitute Mortgage Loan
or Loans and the Master Servicer shall deliver the amended Mortgage Loan
Schedule, and, if the Deleted Mortgage Loan was a Discount Mortgage Loan, the
amended Schedule of Discount Fractions, to the Trustee. Upon such
substitution, the Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement and the related Subservicing Agreement
in all respects, Residential Funding shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute
Mortgage Loan contained in the related Assignment Agreement, and the Company
and the Master Servicer shall be deemed to have made with respect to any
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the covenants, representations and warranties set forth in this Section 2.04,
in Section 2.03 hereof and in Section 4 of the Assignment Agreement, and the
Master Servicer shall be obligated to repurchase or substitute for any
Qualified Substitute Mortgage Loan as to which a Repurchase Event (as defined
in the Assignment Agreement) has occurred pursuant to Section 4 of the
Assignment Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount (if any) by which the aggregate principal balance
of all such Qualified Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (in each case after application of the principal
portion of the Monthly Payments due in the month of substitution that are to
be distributed to the Certificateholders in the month of substitution).
Residential Funding shall deposit the amount of such shortfall into the
Custodial Account on the day of substitution, without any reimbursement
therefor. Residential Funding shall give notice in writing to the Trustee of
such event, which notice shall be accompanied by an Officers' Certificate as
to the calculation of such shortfall and (subject to Section 10.01(f)) by an
Opinion of Counsel to the effect that such substitution will not cause
(a) any federal tax to be imposed on the Trust Fund, including without
limitation, any federal tax imposed on "prohibited transactions" under
Section 860F(a)(1) of the Code or on "contributions after the startup date"
under Section 860G(d)(1) of the Code or (b) any portion of any REMIC to fail
to qualify as such at any time that any Certificate is outstanding.
It is understood and agreed that the obligation of Residential Funding
to cure such breach or purchase or to substitute for, such Mortgage Loan as
to which such a breach has occurred and is continuing and to make any
additional payments required under the Assignment Agreement in connection
with a breach of the representation and warranty in clause (xii) or
(xxxviii) of Section 4 thereof shall constitute the sole remedy respecting
such breach available to the Certificateholders or the Trustee on behalf of
Certificateholders. If the Master Servicer is Residential Funding, then the
Trustee shall also have the right to give the notification and require the
purchase or substitution provided for in the second preceding paragraph in
the event of such a breach of a representation or warranty made by
Residential Funding in the Assignment Agreement. In connection with the
purchase of or substitution for any such Mortgage Loan by Residential
Funding, the Trustee shall assign to Residential Funding all of the Trustee's
right, title and interest in respect of the Assignment Agreement applicable
to such Mortgage Loan.
Section 2.05. Execution and Authentication of Certificates/Issuance of
Certificates Evidencing Interests in REMIC I.
As provided in Section 2.05 of the Series Supplement.
Section 2.06. Conveyance of Uncertificated REMIC I and REMIC II Regular
Interests; Acceptance by the Trustee.
As provided in Section 2.06 of the Series Supplement.
Section 2.07. Issuance of Certificates Evidencing Interests in REMIC II.
As provided in Section 2.07 of the Series Supplement.
Section 2.08. Purposes and Powers of the Trust.
The purpose of the trust, as created hereunder, is to engage in the
following activities:
(a) to sell the Certificates to the Company in exchange for the Mortgage
Loans;
(b) to enter into and perform its obligations under this Agreement;
(c) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(d) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust
Fund and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Notwithstanding the provisions of Section 11.01, the trust shall not engage
in any activity other than in connection with the foregoing or other than as
required or authorized by the terms of this Agreement while any Certificate
is outstanding, and this Section 2.08 may not be amended, without the consent
of the Certificateholders evidencing a majority of the aggregate Voting
Rights of the Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans in
accordance with the terms of this Agreement and the respective Mortgage Loans
, following such procedures as it would employ in its good faith business
judgment and which are normal and usual in its general mortgage servicing
activities, and in the case of the Mortgage Loans being subserviced by ▇▇▇▇▇
Fargo, if any, such procedures that comply with applicable federal, state and
local law and that are in accordance with accepted mortgage servicing
practices of prudent mortgage lending institutions which service loans of the
same type as the Mortgage Loans in the jurisdiction in which the related
Mortgaged Property is located, and shall have full power and authority,
acting alone or through Subservicers as provided in Section 3.02, to do any
and all things which it may deem necessary or desirable in connection with
such servicing and administration. Without limiting the generality of the
foregoing, the Master Servicer in its own name or in the name of a
Subservicer is hereby authorized and empowered by the Trustee when the Master
Servicer or the Subservicer, as the case may be, believes it appropriate in
its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or
of consent to assumption or modification in connection with a proposed
conveyance, or of assignment of any Mortgage and Mortgage Note in connection
with the repurchase of a Mortgage Loan and all other comparable instruments,
or with respect to the modification or re-recording of a Mortgage for the
purpose of correcting the Mortgage, the subordination of the lien of the
Mortgage in favor of a public utility company or government agency or unit
with powers of eminent domain, the taking of a deed in lieu of foreclosure,
the commencement, prosecution or completion of judicial or non-judicial
foreclosure, the conveyance of a Mortgaged Property to the related Insurer,
the acquisition of any property acquired by foreclosure or deed in lieu of
foreclosure, or the management, marketing and conveyance of any property
acquired by foreclosure or deed in lieu of foreclosure with respect to the
Mortgage Loans and with respect to the Mortgaged Properties. The Master
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Subservicer, when the Master Servicer or the Subservicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on the MERS(R)System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R)System, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment
or re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. Any expenses incurred in connection
with the actions described in the preceding sentence shall be borne by the
Master Servicer in accordance with Section 3.16(c), with no right of
reimbursement; provided, that if, as a result of MERS discontinuing or
becoming unable to continue operations in connection with the MERS System, it
becomes necessary to remove any Mortgage Loan from registration on the MERS
System and to arrange for the assignment of the related Mortgages to the
Trustee, then any related expenses shall be reimbursable to the Master
Servicer. Notwithstanding the foregoing, subject to Section 3.07(a), the
Master Servicer shall not permit any modification with respect to any
Mortgage Loan that would both constitute a sale or exchange of such Mortgage
Loan within the meaning of Section 1001 of the Code and any proposed,
temporary or final regulations promulgated thereunder (other than in
connection with a proposed conveyance or assumption of such Mortgage Loan
that is treated as a Principal Prepayment in Full pursuant to
Section 3.13(d) hereof) and cause any REMIC formed under the Series
Supplement to fail to qualify as a REMIC under the Code. The Trustee shall
furnish the Master Servicer with any powers of attorney and other documents
necessary or appropriate to enable the Master Servicer to service and
administer the Mortgage Loans. The Trustee shall not be liable for any
action taken by the Master Servicer or any Subservicer pursuant to such
powers of attorney. In servicing and administering any Nonsubserviced
Mortgage Loan, the Master Servicer shall, to the extent not inconsistent with
this Agreement, comply with the Program Guide as if it were the originator of
such Mortgage Loan and had retained the servicing rights and obligations in
respect thereof. In connection with servicing and administering the Mortgage
Loans, the Master Servicer and any Affiliate of the Master Servicer (i) may
perform services such as appraisals and brokerage services that are not
customarily provided by servicers of mortgage loans, and shall be entitled to
reasonable compensation therefor in accordance with Section 3.10 and
(ii) may, at its own discretion and on behalf of the Trustee, obtain credit
information in the form of a "credit score" from a credit repository.
(b) All costs incurred by the Master Servicer or by Subservicers in
effecting the timely payment of taxes and assessments on the properties
subject to the Mortgage Loans shall not, for the purpose of calculating
monthly distributions to the Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loan so permit, and such costs shall be recoverable to the extent
permitted by Section 3.10(a)(ii).
(c) The Master Servicer may enter into one or more agreements in connection
with the offering of pass-through certificates evidencing interests in one or
more of the Certificates providing for the payment by the Master Servicer of
amounts received by the Master Servicer as servicing compensation hereunder
and required to cover certain Prepayment Interest Shortfalls on the Mortgage
Loans, which payment obligation will thereafter be an obligation of the
Master Servicer hereunder.
Section 3.02. Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements
entered into by Residential Funding and Subservicers prior to the execution
and delivery of this Agreement, and may enter into new Subservicing
Agreements with Subservicers, for the servicing and administration of all or
some of the Mortgage Loans. Each Subservicer of a Mortgage Loan shall be
entitled to receive and retain, as provided in the related Subservicing
Agreement and in Section 3.07, the related Subservicing Fee from payments of
interest received on such Mortgage Loan after payment of all amounts required
to be remitted to the Master Servicer in respect of such Mortgage Loan. For
any Mortgage Loan that is a Nonsubserviced Mortgage Loan, the Master Servicer
shall be entitled to receive and retain an amount equal to the Subservicing
Fee from payments of interest. Unless the context otherwise requires,
references in this Agreement to actions taken or to be taken by the Master
Servicer in servicing the Mortgage Loans include actions taken or to be taken
by a Subservicer on behalf of the Master Servicer. Each Subservicing
Agreement will be upon such terms and conditions as are generally required or
permitted by the Program Guide and are not inconsistent with this Agreement
and as the Master Servicer and the Subservicer have agreed. A representative
form of Subservicing Agreement is attached to this Agreement as Exhibit E.
With the approval of the Master Servicer, a Subservicer may delegate its
servicing obligations to third-party servicers, but such Subservicer will
remain obligated under the related Subservicing Agreement. The Master
Servicer and a Subservicer may enter into amendments thereto or a different
form of Subservicing Agreement, and the form referred to or included in the
Program Guide is merely provided for information and shall not be deemed to
limit in any respect the discretion of the Master Servicer to modify or enter
into different Subservicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of either this Agreement or the Program Guide in a manner which
would materially and adversely affect the interests of the
Certificateholders. The Program Guide and any other Subservicing Agreement
entered into between the Master Servicer and any Subservicer shall require
the Subservicer to accurately and fully report its borrower credit files to
each of the Credit Repositories in a timely manner.
(b) As part of its servicing activities hereunder, the Master Servicer, for
the benefit of the Trustee and the Certificateholders, shall use its best
reasonable efforts to enforce the obligations of each Subservicer under the
related Subservicing Agreement and of each Seller under the related Seller's
Agreement insofar as the Company's rights with respect to such obligation has
been assigned to the Trustee hereunder, to the extent that the
non-performance of any such Seller's obligation would have a material and
adverse effect on a Mortgage Loan, including, without limitation, the
obligation to purchase a Mortgage Loan on account of defective documentation,
as described in Section 2.02, or on account of a breach of a representation
or warranty, as described in Section 2.04. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of
Subservicing Agreements or Seller's Agreements, as appropriate, and the
pursuit of other appropriate remedies, shall be in such form and carried out
to such an extent and at such time as the Master Servicer would employ in its
good faith business judgment and which are normal and usual in its general
mortgage servicing activities. The Master Servicer shall pay the costs of
such enforcement at its own expense, and shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement to the extent, if
any, that such recovery exceeds all amounts due in respect of the related
Mortgage Loan or (ii) from a specific recovery of costs, expenses or
attorneys fees against the party against whom such enforcement is directed.
For purposes of clarification only, the parties agree that the foregoing is
not intended to, and does not, limit the ability of the Master Servicer to be
reimbursed for expenses that are incurred in connection with the enforcement
of a Seller's obligations (insofar as the Company's rights with respect to
such Seller's obligations have been assigned to the Trustee hereunder) and
are reimbursable pursuant to Section 3.10(a)(viii).
Section 3.03. Successor Subservicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this
Agreement; provided, however, that in the event of termination of any
Subservicing Agreement by the Master Servicer or the Subservicer, the Master
Servicer shall either act as servicer of the related Mortgage Loan or enter
into a Subservicing Agreement with a successor Subservicer which will be
bound by the terms of the related Subservicing Agreement. If the Master
Servicer or any Affiliate of Residential Funding acts as servicer, it will
not assume liability for the representations and warranties of the
Subservicer which it replaces. If the Master Servicer enters into a
Subservicing Agreement with a successor Subservicer, the Master Servicer
shall use reasonable efforts to have the successor Subservicer assume
liability for the representations and warranties made by the terminated
Subservicer in respect of the related Mortgage Loans and, in the event of any
such assumption by the successor Subservicer, the Master Servicer may, in the
exercise of its business judgment, release the terminated Subservicer from
liability for such representations and warranties.
Section 3.04. Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or reference to actions taken through a Subservicer
or otherwise, the Master Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of Section 3.01 without
diminution of such obligation or liability by virtue of such Subservicing
Agreements or arrangements or by virtue of indemnification from the
Subservicer or the Company and to the same extent and under the same terms
and conditions as if the Master Servicer alone were servicing and
administering the Mortgage Loans. The Master Servicer shall be entitled to
enter into any agreement with a Subservicer or Seller for indemnification of
the Master Servicer and nothing contained in this Agreement shall be deemed
to limit or modify such indemnification.
Section 3.05. No Contractual Relationship Between Subservicer and Trustee
or Certificateholders.
Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such and not as an originator shall be deemed
to be between the Subservicer and the Master Servicer alone and the Trustee
and the Certificateholders shall not be deemed parties thereto and shall have
no claims, rights, obligations, duties or liabilities with respect to the
Subservicer in its capacity as such except as set forth in Section 3.06. The
foregoing provision shall not in any way limit a Subservicer's obligation to
cure an omission or defect or to repurchase a Mortgage Loan as referred to in
Section 2.02 hereof.
Section 3.06. Assumption or Termination of Subservicing Agreements by
Trustee.
(a) If the Master Servicer shall for any reason no longer be the master
servicer (including by reason of an Event of Default), the Trustee, its
designee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer under each Subservicing Agreement that may
have been entered into. The Trustee, its designee or the successor servicer
for the Trustee shall be deemed to have assumed all of the Master Servicer's
interest therein and to have replaced the Master Servicer as a party to the
Subservicing Agreement to the same extent as if the Subservicing Agreement
had been assigned to the assuming party except that the Master Servicer shall
not thereby be relieved of any liability or obligations under the
Subservicing Agreement.
(b) The Master Servicer shall, upon request of the Trustee but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each Subservicing Agreement and the Mortgage Loans
then being serviced and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of each Subservicing Agreement to the assuming party.
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account.
(a) The Master Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any related Primary Insurance Policy, follow
such collection procedures as it would employ in its good faith business
judgment and which are normal and usual in its general mortgage servicing
activities. Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive any late payment charge or any prepayment charge or
penalty interest in connection with the prepayment of a Mortgage Loan and
(ii) extend the Due Date for payments due on a Mortgage Loan in accordance
with the Program Guide; provided, however, that the Master Servicer shall
first determine that any such waiver or extension will not impair the
coverage of any related Primary Insurance Policy or materially adversely
affect the lien of the related Mortgage. Notwithstanding anything in this
Section to the contrary, the Master Servicer or any Subservicer shall not
enforce any prepayment charge to the extent that such enforcement would
violate any applicable law. In the event of any such arrangement, the Master
Servicer shall make timely advances on the related Mortgage Loan during the
scheduled period in accordance with the amortization schedule of such
Mortgage Loan without modification thereof by reason of such arrangements
unless otherwise agreed to by the Holders of the Classes of Certificates
affected thereby; provided, however, that no such extension shall be made if
any such advance would be a Nonrecoverable Advance. Consistent with the terms
of this Agreement, the Master Servicer may also waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if in
the Master Servicer's determination such waiver, modification, postponement
or indulgence is not materially adverse to the interests of the
Certificateholders (taking into account any estimated Realized Loss that
might result absent such action); provided, however, that the Master Servicer
may not modify materially or permit any Subservicer to modify any Mortgage
Loan, including without limitation any modification that would change the
Mortgage Rate, forgive the payment of any principal or interest (unless in
connection with the liquidation of the related Mortgage Loan or except in
connection with prepayments to the extent that such reamortization is not
inconsistent with the terms of the Mortgage Loan), capitalize any amounts
owing on the Mortgage Loan by adding such amount to the outstanding principal
balance of the Mortgage Loan, or extend the final maturity date of such
Mortgage Loan, unless such Mortgage Loan is in default or, in the judgment of
the Master Servicer, such default is reasonably foreseeable; provided,
further, that (1) no such modification shall reduce the interest rate on a
Mortgage Loan below one-half of the Mortgage Rate as in effect on the Cut-Off
Date, but not less than the sum of the rates at which the Servicing Fee and
the Subservicing Fee with respect to such Mortgage Loan accrues plus the rate
at which the premium paid to the Certificate Insurer, if any, accrues,
(2) the final maturity date for any Mortgage Loan shall not be extended
beyond the Maturity Date, (3) the Stated Principal Balance of all Reportable
Modified Mortgage Loans subject to Servicing Modifications (measured at the
time of the Servicing Modification and after giving effect to any Servicing
Modification) can be no more than five percent of the aggregate principal
balance of the Mortgage Loans as of the Cut-off Date, unless such limit is
increased from time to time with the consent of the Rating Agencies and the
Certificate Insurer, if any. In addition, any amounts owing on a Mortgage
Loan added to the outstanding principal balance of such Mortgage Loan must be
fully amortized over the remaining term of such Mortgage Loan, and such
amounts may be added to the outstanding principal balance of a Mortgage Loan
only once during the life of such Mortgage Loan. Also, the addition of such
amounts described in the preceding sentence shall be implemented in
accordance with the Program Guide and may be implemented only by Subservicers
that have been approved by the Master Servicer for such purpose. In
connection with any Curtailment of a Mortgage Loan, the Master Servicer, to
the extent not inconsistent with the terms of the Mortgage Note and local law
and practice, may permit the Mortgage Loan to be reamortized such that the
Monthly Payment is recalculated as an amount that will fully amortize the
remaining Stated Principal Balance thereof by the original Maturity Date
based on the original Mortgage Rate; provided, that such re-amortization
shall not be permitted if it would constitute a reissuance of the Mortgage
Loan for federal income tax purposes, except if such reissuance is described
in Treasury Regulation Section 1.860G-2(b)(3).
(b) The Master Servicer shall establish and maintain a Custodial Account in
which the Master Servicer shall deposit or cause to be deposited on a daily
basis, except as otherwise specifically provided herein, the following
payments and collections remitted by Subservicers or received by it in
respect of the Mortgage Loans subsequent to the Cut-off Date (other than in
respect of principal and interest on the Mortgage Loans due on or before the
Cut-off Date):
(i) All payments on account of principal, including Principal Prepayments
made by Mortgagors on the Mortgage Loans and the principal component of
any Subservicer Advance or of any REO Proceeds received in connection
with an REO Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate on
the Mortgage Loans, including Buydown Funds, if any, and the interest
component of any Subservicer Advance or of any REO Proceeds received in
connection with an REO Property for which an REO Disposition has
occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds (net
of any related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section 2.02,
2.03, 2.04, 4.07 or 9.01 and all amounts required to be deposited in
connection with the substitution of a Qualified Substitute Mortgage
Loan pursuant to Section 2.03 or 2.04;
(v) Any amounts required to be deposited pursuant to Section 3.07(c) or
3.21;
(vi) All amounts transferred from the Certificate Account to the Custodial
Account in accordance with Section 4.02(a);
(vii) Any amounts realized by the Subservicer and received by the Master
Servicer in respect of any Additional Collateral; and
(viii) Any amounts received by the Master Servicer in respect of Pledged
Assets.
The foregoing requirements for deposit in the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments on the Mortgage Loans which are not
part of the Trust Fund (consisting of payments in respect of principal and
interest on the Mortgage Loans due on or before the Cut-off Date) and
payments or collections in the nature of prepayment charges or late payment
charges or assumption fees may but need not be deposited by the Master
Servicer in the Custodial Account. In the event any amount not required to
be deposited in the Custodial Account is so deposited, the Master Servicer
may at any time withdraw such amount from the Custodial Account, any
provision herein to the contrary notwithstanding. The Custodial Account may
contain funds that belong to one or more trust funds created for mortgage
pass-through certificates of other series and may contain other funds
respecting payments on mortgage loans belonging to the Master Servicer or
serviced or master serviced by it on behalf of others. Notwithstanding such
commingling of funds, the Master Servicer shall keep records that accurately
reflect the funds on deposit in the Custodial Account that have been
identified by it as being attributable to the Mortgage Loans.
With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds
and the proceeds of the purchase of any Mortgage Loan pursuant to Sections
2.02, 2.03, 2.04 and 4.07 received in any calendar month, the Master Servicer
may elect to treat such amounts as included in the Available Distribution
Amount for the Distribution Date in the month of receipt, but is not
obligated to do so. If the Master Servicer so elects, such amounts will be
deemed to have been received (and any related Realized Loss shall be deemed
to have occurred) on the last day of the month prior to the receipt thereof.
(c) The Master Servicer shall use its best efforts to cause the institution
maintaining the Custodial Account to invest the funds in the Custodial
Account attributable to the Mortgage Loans in Permitted Investments which
shall mature not later than the Certificate Account Deposit Date next
following the date of such investment (with the exception of the Amount Held
for Future Distribution) and which shall not be sold or disposed of prior to
their maturities. All income and gain realized from any such investment shall
be for the benefit of the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal or order from time to
time. The amount of any losses incurred in respect of any such investments
attributable to the investment of amounts in respect of the Mortgage Loans
shall be deposited in the Custodial Account by the Master Servicer out of its
own funds immediately as realized without any right of reimbursement.
(d) The Master Servicer shall give notice to the Trustee and the Company of
any change in the location of the Custodial Account and the location of the
Certificate Account prior to the use thereof.
Section 3.08. Subservicing Accounts; Servicing Accounts.
(a) In those cases where a Subservicer is servicing a Mortgage Loan
pursuant to a Subservicing Agreement, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to establish and
maintain one or more Subservicing Accounts which shall be an Eligible Account
or, if such account is not an Eligible Account, shall generally satisfy the
requirements of the Program Guide and be otherwise acceptable to the Master
Servicer and each Rating Agency. The Subservicer will be required thereby to
deposit into the Subservicing Account on a daily basis , or with respect to
the Mortgage Loans, subserviced by ▇▇▇▇▇ Fargo, if any, within two
(2) Business Days of receipt, all proceeds of Mortgage Loans received by the
Subservicer, less its Subservicing Fees and unreimbursed advances and
expenses, to the extent permitted by the Subservicing Agreement. If the
Subservicing Account is not an Eligible Account, the Master Servicer shall be
deemed to have received such monies upon receipt thereof by the Subservicer.
The Subservicer shall not be required to deposit in the Subservicing Account
payments or collections in the nature of prepayment charges or late charges
or assumption fees. On or before the date specified in the Program Guide,
but in no event later than the Determination Date, the Master Servicer shall
cause the Subservicer, pursuant to the Subservicing Agreement, to remit to
the Master Servicer for deposit in the Custodial Account all funds held in
the Subservicing Account with respect to each Mortgage Loan serviced by such
Subservicer that are required to be remitted to the Master Servicer. The
Subservicer will also be required, pursuant to the Subservicing Agreement, to
advance on such scheduled date of remittance amounts equal to any scheduled
monthly installments of principal and interest less its Subservicing Fees on
any Mortgage Loans for which payment was not received by the Subservicer.
This obligation to advance with respect to each Mortgage Loan will continue
up to and including the first of the month following the date on which the
related Mortgaged Property is sold at a foreclosure sale or is acquired by
the Trust Fund by deed in lieu of foreclosure or otherwise. All such
advances received by the Master Servicer shall be deposited promptly by it in
the Custodial Account.
(b) The Subservicer may also be required, pursuant to the Subservicing
Agreement, to remit to the Master Servicer for deposit in the Custodial
Account interest at the Adjusted Mortgage Rate (or Modified Net Mortgage Rate
plus the rate per annum at which the Servicing Fee accrues in the case of a
Modified Mortgage Loan) on any Curtailment received by such Subservicer in
respect of a Mortgage Loan from the related Mortgagor during any month that
is to be applied by the Subservicer to reduce the unpaid principal balance of
the related Mortgage Loan as of the first day of such month, from the date of
application of such Curtailment to the first day of the following month. Any
amounts paid by a Subservicer pursuant to the preceding sentence shall be for
the benefit of the Master Servicer as additional servicing compensation and
shall be subject to its withdrawal or order from time to time pursuant to
Sections 3.10(a)(iv) and (v).
(c) In addition to the Custodial Account and the Certificate Account, the
Master Servicer shall for any Nonsubserviced Mortgage Loan, and shall cause
the Subservicers for Subserviced Mortgage Loans to, establish and maintain
one or more Servicing Accounts and deposit and retain therein all collections
from the Mortgagors (or advances from Subservicers) for the payment of taxes,
assessments, hazard insurance premiums, Primary Insurance Policy premiums, if
applicable, or comparable items for the account of the Mortgagors. Each
Servicing Account shall satisfy the requirements for a Subservicing Account
and, to the extent permitted by the Program Guide or as is otherwise
acceptable to the Master Servicer, may also function as a Subservicing
Account. Withdrawals of amounts related to the Mortgage Loans from the
Servicing Accounts may be made only to effect timely payment of taxes,
assessments, hazard insurance premiums, Primary Insurance Policy premiums, if
applicable, or comparable items, to reimburse the Master Servicer or
Subservicer out of related collections for any payments made pursuant to
Sections 3.11 (with respect to the Primary Insurance Policy) and
3.12(a) (with respect to hazard insurance), to refund to any Mortgagors any
sums as may be determined to be overages, to pay interest, if required, to
Mortgagors on balances in the Servicing Account or to clear and terminate the
Servicing Account at the termination of this Agreement in accordance with
Section 9.01 or in accordance with the Program Guide. As part of its
servicing duties, the Master Servicer shall, and the Subservicers will,
pursuant to the Subservicing Agreements, be required to pay to the Mortgagors
interest on funds in this account to the extent required by law.
(d) The Master Servicer shall advance the payments referred to in the
preceding subSection that are not timely paid by the Mortgagors or advanced
by the Subservicers on the date when the tax, premium or other cost for which
such payment is intended is due, but the Master Servicer shall be required so
to advance only to the extent that such advances, in the good faith judgment
of the Master Servicer, will be recoverable by the Master Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.09. Access to Certain Documentation and Information Regarding
the Mortgage Loans.
If compliance with this Section 3.09 shall make any Class of
Certificates legal for investment by federally insured savings and loan
associations, the Master Servicer shall provide, or cause the Subservicers to
provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation
regarding the Mortgage Loans required by applicable regulations of the Office
of Thrift Supervision, such access being afforded without charge but only
upon reasonable request and during normal business hours at the offices
designated by the Master Servicer. The Master Servicer shall permit such
representatives to photocopy any such documentation and shall provide
equipment for that purpose at a charge reasonably approximating the cost of
such photocopying to the Master Servicer.
Section 3.10. Permitted Withdrawals from the Custodial Account.
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant
to Section 3.07 that are attributable to the Mortgage Loans for the following
purposes:
(i) to make deposits into the Certificate Account in the amounts and in the
manner provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer for previously
unreimbursed Advances, Servicing Advances or other expenses made
pursuant to Sections 3.01, 3.07(a), 3.08, 3.11, 3.12(a), 3.14 and 4.04
or otherwise reimbursable pursuant to the terms of this Agreement, such
withdrawal right being limited to amounts received on the related
Mortgage Loans (including, for this purpose, REO Proceeds, Insurance
Proceeds, Liquidation Proceeds and proceeds from the purchase of a
Mortgage Loan pursuant to Section 2.02, 2.03, 2.04, 4.07 or 9.01) which
represent (A) Late Collections of Monthly Payments for which any such
advance was made in the case of Subservicer Advances or Advances
pursuant to Section 4.04 and (B) recoveries of amounts in respect of
which such advances were made in the case of Servicing Advances;
(iii) to pay to itself or the related Subservicer (if not previously retained
by such Subservicer) out of each payment received by the Master
Servicer on account of interest on a Mortgage Loan as contemplated by
Sections 3.14 and 3.16, an amount equal to that remaining portion of
any such payment as to interest (but not in excess of the Servicing Fee
and the Subservicing Fee, if not previously retained) which, when
deducted, will result in the remaining amount of such interest being
interest at the Net Mortgage Rate (or Modified Net Mortgage Rate in the
case of a Modified Mortgage Loan) on the amount specified in the
amortization schedule of the related Mortgage Loan as the principal
balance thereof at the beginning of the period respecting which such
interest was paid after giving effect to any previous Curtailments;
(iv) to pay to itself as additional servicing compensation any interest or
investment income earned on funds and other property deposited in or
credited to the Custodial Account that it is entitled to withdraw
pursuant to Section 3.07(c);
(v) to pay to itself as additional servicing compensation any Foreclosure
Profits, any amounts remitted by Subservicers as interest in respect of
Curtailments pursuant to Section 3.08(b), and any amounts paid by a
Mortgagor in connection with a Principal Prepayment in Full in respect
of interest for any period during the calendar month in which such
Principal Prepayment in Full is to be distributed to the
Certificateholders;
(vi) to pay to itself, a Subservicer, a Seller, Residential Funding, the
Company or any other appropriate Person, as the case may be, with
respect to each Mortgage Loan or property acquired in respect thereof
that has been purchased or otherwise transferred pursuant to
Section 2.02, 2.03, 2.04, 4.07 or 9.01, all amounts received thereon
and not required to be distributed to the Certificateholders as of the
date on which the related Stated Principal Balance or Purchase Price is
determined;
(vii) to reimburse itself or the related Subservicer for any Nonrecoverable
Advance or Advances in the manner and to the extent provided in
subSection (c) below, and any Advance or Servicing Advance made in
connection with a modified Mortgage Loan that is in default or, in the
judgment of the Master Servicer, default is reasonably foreseeable
pursuant to Section 3.07(a), to the extent the amount of the Advance
or Servicing Advance was added to the Stated Principal Balance of the
Mortgage Loan in a prior calendar month, or any Advance reimbursable to
the Master Servicer pursuant to Section 4.02(a);
(viii) to reimburse itself or the Company for expenses incurred by and
reimbursable to it or the Company pursuant to Sections 3.01(a), 3.11,
3.13, 3.14(c), 6.03, 10.01 or otherwise, or in connection with
enforcing, in accordance with this Agreement, any repurchase,
substitution or indemnification obligation of any Seller (other than an
Affiliate of the Company) pursuant to the related Seller's Agreement;
(ix) to reimburse itself for Servicing Advances expended by it (a) pursuant
to Section 3.14 in good faith in connection with the restoration of
property damaged by an Uninsured Cause, and (b) in connection with the
liquidation of a Mortgage Loan or disposition of an REO Property to the
extent not otherwise reimbursed pursuant to clause (ii) or
(viii) above; and
(x) to withdraw any amount deposited in the Custodial Account that was not
required to be deposited therein pursuant to Section 3.07; and
(xi) to reimburse or pay any Subservicer any such amounts as are due thereto
under the applicable Subservicing Agreement and have not been retained
by or paid to the Subservicer, to the extent provided in the related
Subservicing Agreement.
(b) Since, in connection with withdrawals pursuant to clauses (ii), (iii),
(v) and (vi), the Master Servicer's entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, the Master
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such clauses.
(c) The Master Servicer shall be entitled to reimburse itself or the
related Subservicer for any advance made in respect of a Mortgage Loan that
the Master Servicer determines to be a Nonrecoverable Advance by withdrawal
from the Custodial Account of amounts on deposit therein attributable to the
Mortgage Loans on any Certificate Account Deposit Date succeeding the date of
such determination. Such right of reimbursement in respect of a
Nonrecoverable Advance relating to an Advance pursuant to Section 4.04 on any
such Certificate Account Deposit Date shall be limited to an amount not
exceeding the portion of such advance previously paid to Certificateholders
(and not theretofore reimbursed to the Master Servicer or the related
Subservicer).
Section 3.11. Maintenance of the Primary Insurance Policies; Collections
Thereunder.
(a) The Master Servicer shall not take, or permit any Subservicer to take,
any action which would result in non-coverage under any applicable Primary
Insurance Policy of any loss which, but for the actions of the Master
Servicer or Subservicer, would have been covered thereunder. To the extent
coverage is available, the Master Servicer shall keep or cause to be kept in
full force and effect each such Primary Insurance Policy until the principal
balance of the related Mortgage Loan secured by a Mortgaged Property is
reduced to 80% or less of the Appraised Value in the case of such a Mortgage
Loan having a Loan-to-Value Ratio at origination in excess of 80%, provided
that such Primary Insurance Policy was in place as of the Cut-off Date and
the Company had knowledge of such Primary Insurance Policy. The Master
Servicer shall be entitled to cancel or permit the discontinuation of any
Primary Insurance Policy as to any Mortgage Loan, if the Stated Principal
Balance of the Mortgage Loan is reduced below an amount equal to 80% of the
appraised value of the related Mortgaged Property as determined in any
appraisal thereof after the Closing Date, or if the Loan-to-Value Ratio is
reduced below 80% as a result of principal payments on the Mortgage Loan
after the Closing Date. In the event that the Company gains knowledge that
as of the Closing Date, a Mortgage Loan had a Loan-to-Value Ratio at
origination in excess of 80% and is not the subject of a Primary Insurance
Policy (and was not included in any exception to the representation in
Section 2.03(b)(iv)) and that such Mortgage Loan has a current Loan-to-Value
Ratio in excess of 80% then the Master Servicer shall use its reasonable
efforts to obtain and maintain a Primary Insurance Policy to the extent that
such a policy is obtainable at a reasonable price. The Master Servicer shall
not cancel or refuse to renew any such Primary Insurance Policy applicable to
a Nonsubserviced Mortgage Loan, or consent to any Subservicer canceling or
refusing to renew any such Primary Insurance Policy applicable to a Mortgage
Loan subserviced by it, that is in effect at the date of the initial issuance
of the Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy
is maintained with an insurer whose claims-paying ability is acceptable to
each Rating Agency for mortgage pass-through certificates having a rating
equal to or better than the lower of the then-current rating or the rating
assigned to the Certificates as of the Closing Date by such Rating Agency.
(b) In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present or to cause the related
Subservicer to present, on behalf of the Master Servicer, the Subservicer, if
any, the Trustee and Certificateholders, claims to the related Insurer under
any Primary Insurance Policies, in a timely manner in accordance with such
policies, and, in this regard, to take or cause to be taken such reasonable
action as shall be necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Section 3.07, any
Insurance Proceeds collected by or remitted to the Master Servicer under any
Primary Insurance Policies shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 3.10.
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity
Coverage.
(a) The Master Servicer shall cause to be maintained for each Mortgage Loan
(other than a Cooperative Loan) fire insurance with extended coverage in an
amount which is equal to the lesser of the principal balance owing on such
Mortgage Loan or 100 percent of the insurable value of the improvements;
provided, however, that such coverage may not be less than the minimum amount
required to fully compensate for any loss or damage on a replacement cost
basis. To the extent it may do so without breaching the related Subservicing
Agreement, the Master Servicer shall replace any Subservicer that does not
cause such insurance, to the extent it is available, to be maintained. The
Master Servicer shall also cause to be maintained on property acquired upon
foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan (other than
a Cooperative Loan), fire insurance with extended coverage in an amount which
is at least equal to the amount necessary to avoid the application of any
co-insurance clause contained in the related hazard insurance policy.
Pursuant to Section 3.07, any amounts collected by the Master Servicer under
any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or property thus acquired or amounts
released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures) shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.10. Any cost incurred by the Master
Servicer in maintaining any such insurance shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
amount owing under the Mortgage Loan, notwithstanding that the terms of the
Mortgage Loan so permit. Such costs shall be recoverable by the Master
Servicer out of related late payments by the Mortgagor or out of Insurance
Proceeds and Liquidation Proceeds to the extent permitted by Section 3.10.
It is understood and agreed that no earthquake or other additional insurance
is to be required of any Mortgagor or maintained on property acquired in
respect of a Mortgage Loan other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. Whenever the improvements securing a Mortgage Loan
(other than a Cooperative Loan) are located at the time of origination of
such Mortgage Loan in a federally designated special flood hazard area, the
Master Servicer shall cause flood insurance (to the extent available) to be
maintained in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the amount required to compensate for any loss or
damage to the Mortgaged Property on a replacement cost basis and (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program (assuming that the area in which
such Mortgaged Property is located is participating in such program).
If the Master Servicer shall obtain and maintain a blanket fire
insurance policy with extended coverage insuring against hazard losses on all
of the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.12(a), it
being understood and agreed that such policy may contain a deductible clause,
in which case the Master Servicer shall, in the event that there shall not
have been maintained on the related Mortgaged Property a policy complying
with the first sentence of this Section 3.12(a) and there shall have been a
loss which would have been covered by such policy, deposit in the Certificate
Account the amount not otherwise payable under the blanket policy because of
such deductible clause. Any such deposit by the Master Servicer shall be made
on the Certificate Account Deposit Date next preceding the Distribution Date
which occurs in the month following the month in which payments under any
such policy would have been deposited in the Custodial Account. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
Master Servicer agrees to present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy.
The Master Servicer shall obtain and maintain at its own expense and keep in
full force and effect throughout the term of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy covering the
Master Servicer's officers and employees and other persons acting on behalf
of the Master Servicer in connection with its activities under this
Agreement. The amount of coverage shall be at least equal to the coverage
that would be required by ▇▇▇▇▇▇ ▇▇▇ or Freddie Mac, whichever is greater,
with respect to the Master Servicer if the Master Servicer were servicing and
administering the Mortgage Loans for ▇▇▇▇▇▇ ▇▇▇ or Freddie Mac. In the event
that any such bond or policy ceases to be in effect, the Master Servicer
shall obtain a comparable replacement bond or policy from an issuer or
insurer, as the case may be, meeting the requirements, if any, of the Program
Guide and acceptable to the Company. Coverage of the Master Servicer under a
policy or bond obtained by an Affiliate of the Master Servicer and providing
the coverage required by this Section 3.12(b) shall satisfy the requirements
of this Section 3.12(b).
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Master
Servicer or Subservicer, to the extent it has knowledge of such conveyance,
shall enforce any due-on-sale clause contained in any Mortgage Note or
Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing:
(i) the Master Servicer shall not be deemed to be in default under this
Section 3.13(a) by reason of any transfer or assumption which the
Master Servicer is restricted by law from preventing; and
(ii) if the Master Servicer determines that it is reasonably likely that any
Mortgagor will bring, or if any Mortgagor does bring, legal action to
declare invalid or otherwise avoid enforcement of a due-on-sale
clause contained in any Mortgage Note or Mortgage, the Master Servicer
shall not be required to enforce the due-on-sale clause or to contest
such action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.13(a), in any case in which a
Mortgaged Property is to be conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption or modification agreement or supplement
to the Mortgage Note or Mortgage which requires the signature of the Trustee,
or if an instrument of release signed by the Trustee is required releasing
the Mortgagor from liability on the Mortgage Loan, the Master Servicer is
authorized, subject to the requirements of the sentence next following, to
execute and deliver, on behalf of the Trustee, the assumption agreement with
the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or
other instruments as are reasonable or necessary to carry out the terms of
the Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such
Person; provided, however, none of such terms and requirements shall either
(i) both (A) constitute a "significant modification" effecting an exchange or
reissuance of such Mortgage Loan under the REMIC Provisions and (B) cause any
portion of any REMIC formed under the Series Supplement to fail to qualify as
a REMIC under the Code or (subject to Section 10.01(f)), result in the
imposition of any tax on "prohibited transactions" or (ii) constitute
"contributions" after the start-up date under the REMIC Provisions. The
Master Servicer shall execute and deliver such documents only if it
reasonably determines that (i) its execution and delivery thereof will not
conflict with or violate any terms of this Agreement or cause the unpaid
balance and interest on the Mortgage Loan to be uncollectible in whole or in
part, (ii) any required consents of insurers under any Required Insurance
Policies have been obtained and (iii) subsequent to the closing of the
transaction involving the assumption or transfer (A) the Mortgage Loan will
continue to be secured by a first mortgage lien pursuant to the terms of the
Mortgage, (B) such transaction will not adversely affect the coverage under
any Required Insurance Policies, (C) the Mortgage Loan will fully amortize
over the remaining term thereof, (D) no material term of the Mortgage Loan
(including the interest rate on the Mortgage Loan) will be altered nor will
the term of the Mortgage Loan be changed and (E) if the seller/transferor of
the Mortgaged Property is to be released from liability on the Mortgage Loan,
such release will not (based on the Master Servicer's or Subservicer's good
faith determination) adversely affect the collectability of the Mortgage
Loan. Upon receipt of appropriate instructions from the Master Servicer in
accordance with the foregoing, the Trustee shall execute any necessary
instruments for such assumption or substitution of liability as directed in
writing by the Master Servicer. Upon the closing of the transactions
contemplated by such documents, the Master Servicer shall cause the originals
or true and correct copies of the assumption agreement, the release (if any),
or the modification or supplement to the Mortgage Note or Mortgage to be
delivered to the Trustee or the Custodian and deposited with the Mortgage
File for such Mortgage Loan. Any fee collected by the Master Servicer or
such related Subservicer for entering into an assumption or substitution of
liability agreement will be retained by the Master Servicer or such
Subservicer as additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for a partial release
of the related Mortgaged Property, the granting of an easement thereon in
favor of another Person, any alteration or demolition of the related
Mortgaged Property (or, with respect to a Cooperative Loan, the related
Cooperative Apartment) without any right of reimbursement or other similar
matters if it has determined, exercising its good faith business judgment in
the same manner as it would if it were the owner of the related Mortgage
Loan, that the security for, and the timely and full collectability of, such
Mortgage Loan would not be adversely affected thereby and that any portion of
any REMIC formed under the Series Supplement would not fail to continue to
qualify as a REMIC under the Code as a result thereof and (subject to
Section 10.01(f)) that no tax on "prohibited transactions" or "contributions"
after the startup day would be imposed on any such REMIC as a result thereof.
Any fee collected by the Master Servicer or the related Subservicer for
processing such a request will be retained by the Master Servicer or such
Subservicer as additional servicing compensation.
(d) Subject to any other applicable terms and conditions of this Agreement,
the Trustee and Master Servicer shall be entitled to approve an assignment in
lieu of satisfaction with respect to any Mortgage Loan, provided the obligee
with respect to such Mortgage Loan following such proposed assignment
provides the Trustee and Master Servicer with a "Lender Certification for
Assignment of Mortgage Loan" in the form attached hereto as Exhibit M, in
form and substance satisfactory to the Trustee and Master Servicer, providing
the following: (i) that the substance of the assignment is, and is intended
to be, a refinancing of such Mortgage; (ii) that the Mortgage Loan following
the proposed assignment will have a rate of interest at least 0.25 percent
below or above the rate of interest on such Mortgage Loan prior to such
proposed assignment; and (iii) that such assignment is at the request of the
borrower under the related Mortgage Loan. Upon approval of an assignment in
lieu of satisfaction with respect to any Mortgage Loan, the Master Servicer
shall receive cash in an amount equal to the unpaid principal balance of and
accrued interest on such Mortgage Loan and the Master Servicer shall treat
such amount as a Principal Prepayment in Full with respect to such Mortgage
Loan for all purposes hereof.
Section 3.14. Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall foreclose upon or otherwise comparably
convert (which may include an REO Acquisition) the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and
as to which no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 3.07. Alternatively, the Master
Servicer may take other actions in respect of a defaulted Mortgage Loan,
which may include (i) accepting a short sale (a payoff of the Mortgage Loan
for an amount less than the total amount contractually owed in order to
facilitate a sale of the Mortgaged Property by the Mortgagor) or permitting a
short refinancing (a payoff of the Mortgage Loan for an amount less than the
total amount contractually owed in order to facilitate refinancing
transactions by the Mortgagor not involving a sale of the Mortgaged
Property), (ii) arranging for a repayment plan or (iii) agreeing to a
modification in accordance with Section 3.07. In connection with such
foreclosure or other conversion or action, the Master Servicer shall,
consistent with Section 3.11, follow such practices and procedures as it
shall deem necessary or advisable, as shall be normal and usual in its
general mortgage servicing activities and as shall be required or permitted
by the Program Guide, as applicable; provided that the Master Servicer shall
not be liable in any respect hereunder if the Master Servicer is acting in
connection with any such foreclosure or other conversion in a manner that is
consistent with the provisions of this Agreement. The Master Servicer,
however, shall not be required to expend its own funds or incur other
reimbursable charges in connection with any foreclosure, or attempted
foreclosure which is not completed, or towards the restoration of any
property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan to
Holders of Certificates of one or more Classes after reimbursement to itself
for such expenses or charges and (ii) that such expenses or charges will be
recoverable to it through Liquidation Proceeds, Insurance Proceeds, or REO
Proceeds (respecting which it shall have priority for purposes of withdrawals
from the Custodial Account pursuant to Section 3.10, whether or not such
expenses and charges are actually recoverable from related Liquidation
Proceeds, Insurance Proceeds or REO Proceeds). In the event of such a
determination by the Master Servicer pursuant to this Section 3.14(a), the
Master Servicer shall be entitled to reimbursement of such amounts pursuant
to Section 3.10.
In addition to the foregoing, the Master Servicer shall use its best
reasonable efforts to realize upon any Additional Collateral for such of the
Additional Collateral Loans as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07; provided that the Master Servicer shall
not, on behalf of the Trustee, obtain title to any such Additional Collateral
as a result of or in lieu of the disposition thereof or otherwise; and
provided further that (i) the Master Servicer shall not proceed with respect
to such Additional Collateral in any manner that would impair the ability to
recover against the related Mortgaged Property, and (ii) the Master Servicer
shall proceed with any REO Acquisition in a manner that preserves the ability
to apply the proceeds of such Additional Collateral against amounts owed
under the defaulted Mortgage Loan. Any proceeds realized from such
Additional Collateral (other than amounts to be released to the Mortgagor or
the related guarantor in accordance with procedures that the Master Servicer
would follow in servicing loans held for its own account, subject to the
terms and conditions of the related Mortgage and Mortgage Note and to the
terms and conditions of any security agreement, guarantee agreement, mortgage
or other agreement governing the disposition of the proceeds of such
Additional Collateral) shall be deposited in the Custodial Account, subject
to withdrawal pursuant to Section 3.10. Any other payment received by the
Master Servicer in respect of such Additional Collateral shall be deposited
in the Custodial Account subject to withdrawal pursuant to Section 3.10.
For so long as the Master Servicer is the Master Servicer under the
Credit Support Pledge Agreement and any of the Mortgage Loans and Pledged
Asset Loans, the Master Servicer shall perform its obligations under the
Credit Support Pledge Agreement in accordance with such agreement and in a
manner that is in the best interests of the Certificateholders. Further, the
Master Servicer shall use its best reasonable efforts to realize upon any
Pledged Assets for such of the Pledged Asset Loans as come into and continue
in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 3.07; provided that the
Master Servicer shall not, on behalf of the Trustee, obtain title to any such
Pledged Assets as a result of or in lieu of the disposition thereof or
otherwise; and provided further that (i) the Master Servicer shall not
proceed with respect to such Pledged Assets in any manner that would impair
the ability to recover against the related Mortgaged Property, and (ii) the
Master Servicer shall proceed with any REO Acquisition in a manner that
preserves the ability to apply the proceeds of such Pledged Assets against
amounts owed under the defaulted Mortgage Loan. Any proceeds realized from
such Pledged Assets (other than amounts to be released to the Mortgagor or
the related guarantor in accordance with procedures that the Master Servicer
would follow in servicing loans held for its own account, subject to the
terms and conditions of the related Mortgage and Mortgage Note and to the
terms and conditions of any security agreement, guarantee agreement, mortgage
or other agreement governing the disposition of the proceeds of such Pledged
Assets) shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 3.10. Any other payment received by the Master Servicer
in respect of such Pledged Assets shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 3.10.
Concurrently with the foregoing, the Master Servicer may pursue any
remedies that may be available in connection with a breach of a
representation and warranty with respect to any such Mortgage Loan in
accordance with Sections 2.03 and 2.04. However, the Master Servicer is not
required to continue to pursue both foreclosure (or similar remedies) with
respect to the Mortgage Loans and remedies in connection with a breach of a
representation and warranty if the Master Servicer determines in its
reasonable discretion that one such remedy is more likely to result in a
greater recovery as to the Mortgage Loan. Upon the occurrence of a Cash
Liquidation or REO Disposition, following the deposit in the Custodial
Account of all Insurance Proceeds, Liquidation Proceeds and other payments
and recoveries referred to in the definition of "Cash Liquidation" or "REO
Disposition," as applicable, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, the Trustee or
any Custodian, as the case may be, shall release to the Master Servicer the
related 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 following provisions, (i) a Cash
Liquidation or REO Disposition may be deemed to have occurred if
substantially all amounts expected by the Master Servicer to be received in
connection with the related defaulted Mortgage Loan or REO Property have been
received, and (ii) for purposes of determining the amount of any Liquidation
Proceeds, Insurance Proceeds, REO Proceeds or any other unscheduled
collections or the amount of any Realized Loss, the Master Servicer may take
into account minimal amounts of additional receipts expected to be received
or any estimated additional liquidation expenses expected to be incurred in
connection with the related defaulted Mortgage Loan or REO Property.
(b) If title to any Mortgaged Property is acquired by the Trust Fund as an
REO Property by foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee or to its nominee on
behalf of Certificateholders. Notwithstanding any such acquisition of title
and cancellation of the related Mortgage Loan, such REO Property shall
(except as otherwise expressly provided herein) be considered to be an
Outstanding Mortgage Loan held in the Trust Fund until such time as the REO
Property shall be sold. Consistent with the foregoing for purposes of all
calculations hereunder so long as such REO Property shall be considered to be
an Outstanding Mortgage Loan it shall be assumed that, notwithstanding that
the indebtedness evidenced by the related Mortgage Note shall have been
discharged, such Mortgage Note and the related amortization schedule in
effect at the time of any such acquisition of title (after giving effect to
any previous Curtailments and before any adjustment thereto by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period) remain in effect.
(c) If the Trust Fund acquires any REO Property as aforesaid or otherwise
in connection with a default or imminent default on a Mortgage Loan, the
Master Servicer on behalf of the Trust Fund shall dispose of such REO
Property as soon as practicable, giving due consideration to the interests of
the Certificateholders, but in all cases within three full years after the
taxable year of its acquisition by the Trust Fund for purposes of
Section 860G(a)(8) of the Code (or such shorter period as may be necessary
under applicable state (including any state in which such property is
located) law to maintain the status of any portion of any REMIC formed under
the Series Supplement as a REMIC under applicable state law and avoid taxes
resulting from such property failing to be foreclosure property under
applicable state law) or, at the expense of the Trust Fund, request, more
than 60 days before the day on which such grace period would otherwise
expire, an extension of such grace period unless the Master Servicer (subject
to Section 10.01(f)) obtains for the Trustee an Opinion of Counsel, addressed
to the Trustee and the Master Servicer, to the effect that the holding by the
Trust Fund of such REO Property subsequent to such period will not result in
the imposition of taxes on "prohibited transactions" as defined in
Section 860F of the Code or cause any REMIC formed under the Series
Supplement to fail to qualify as a REMIC (for federal (or any applicable
State or local) income tax purposes) at any time that any Certificates are
outstanding, in which case the Trust Fund may continue to hold such REO
Property (subject to any conditions contained in such Opinion of Counsel).
The Master Servicer shall be entitled to be reimbursed from the Custodial
Account for any costs incurred in obtaining such Opinion of Counsel, as
provided in Section 3.10. Notwithstanding any other provision of this
Agreement, no REO Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on behalf of the
Trust Fund in such a manner or pursuant to any terms that would (i) cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or (ii) subject the Trust Fund to
the imposition of any federal income taxes on the income earned from such REO
Property, including any taxes imposed by reason of Section 860G(c) of the
Code, unless the Master Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such taxes.
(d) The proceeds of any Cash Liquidation, REO Disposition or purchase or
repurchase of any Mortgage Loan pursuant to the terms of this Agreement, as
well as any recovery (other than Subsequent Recoveries) resulting from a
collection of Liquidation Proceeds, Insurance Proceeds or REO Proceeds, will
be applied in the following order of priority: first, to reimburse the Master
Servicer or the related Subservicer in accordance with
Section 3.10(a)(ii) and, in the case of ▇▇▇▇▇ Fargo as a Subservicer, if
applicable, to reimburse such Subservicer for any Subservicing Fees payable
therefrom; second, to the Certificateholders to the extent of accrued and
unpaid interest on the Mortgage Loan, and any related REO Imputed Interest,
at the Net Mortgage Rate (or the Modified Net Mortgage Rate in the case of a
Modified Mortgage Loan), to the Due Date in the related Due Period prior to
the Distribution Date on which such amounts are to be distributed; third, to
the Certificateholders as a recovery of principal on the Mortgage Loan (or
REO Property); fourth, to all Servicing Fees and Subservicing Fees payable
therefrom (and the Master Servicer and the Subservicer shall have no claims
for any deficiencies with respect to such fees which result from the
foregoing allocation); and fifth, to Foreclosure Profits.
(e) In the event of a default on a Mortgage Loan one or more of whose
obligors is not a United States Person, in connection with any foreclosure or
acquisition of a deed in lieu of foreclosure (together, "foreclosure") in
respect of such Mortgage Loan, the Master Servicer will cause compliance with
the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any
successor thereto) necessary to assure that no withholding tax obligation
arises with respect to the proceeds of such foreclosure except to the extent,
if any, that proceeds of such foreclosure are required to be remitted to the
obligors on such Mortgage Loan.
Section 3.15. Trustee to Cooperate; Release of 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.
(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
Servicing Fee or Subservicing Fee considered to be accrued but unpaid.
(b) Additional servicing compensation in the form of prepayment charges,
assumption fees, late payment charges, investment income on amounts in the
Custodial Account or the Certificate Account or otherwise shall be retained
by the Master Servicer or the Subservicer to the extent provided herein,
subject to clause (e) below.
(c) The Master Servicer shall be required to pay, or cause to be paid, all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of premiums for the Primary Insurance Policies, if any, to
the extent such premiums are not required to be paid by the related
Mortgagors, and the fees and expenses of the Trustee and any Custodian) and
shall not be entitled to reimbursement therefor except as specifically
provided in Sections 3.10 and 3.14.
(d) The Master Servicer's right to receive servicing compensation may not
be transferred in whole or in part except in connection with the transfer of
all of its responsibilities and obligations of the Master Servicer under this
Agreement.
(e) Notwithstanding any other provision herein, the amount of servicing
compensation that the Master Servicer shall be entitled to receive for its
activities hereunder for the period ending on each Distribution Date shall be
reduced (but not below zero) by an amount equal to Compensating Interest (if
any) for such Distribution Date. Such reduction shall be applied during such
period as follows: first, to any Servicing Fee or Subservicing Fee to which
the Master Servicer is entitled pursuant to Section 3.10(a)(iii) and second,
to any income or gain realized from any investment of funds held in the
Custodial Account or the Certificate Account to which the Master Servicer is
entitled pursuant to Sections 3.07(c) or 4.01(b), respectively. In making
such reduction, the Master Servicer (i) will not withdraw from the Custodial
Account any such amount representing all or a portion of the Servicing Fee to
which it is entitled pursuant to Section 3.10(a)(iii) and (ii) will not
withdraw from the Custodial Account or Certificate Account any such amount to
which it is entitled pursuant to Section 3.07(c) or 4.01(b).
Section 3.17. Reports to the Trustee and the Company.
Not later than fifteen days after it receives a written request from
the Trustee or the Company, the Master Servicer shall forward to the Trustee
and the Company a statement, certified by a Servicing Officer, setting forth
the status of the Custodial Account as of the close of business on such
Distribution Date as it relates to the Mortgage Loans and showing, for the
period covered by such statement, the aggregate of deposits in or withdrawals
from the Custodial Account in respect of the Mortgage Loans for each category
of deposit specified in Section 3.07 and each category of withdrawal
specified in Section 3.10.
Section 3.18. Annual Statement as to Compliance.
The Master Servicer will deliver to the Company, the Trustee and any
Certificate Insurer on or before the earlier of (a) March 31 of each year or
(b) with respect to any calendar year during which the Company's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission, the date on which the
annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, a servicer
compliance certificate, signed by an authorized officer of the Master
Servicer, as described in Items 1122(a), 1122(b) and 1123 of Regulation AB,
to the effect that:
(i) A review of the Master Servicer's activities during the reporting
period and of its performance under this Agreement has been made under such
officer's supervision.
(ii) To the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all of its obligations under this
Agreement in all material respects throughout the reporting period or, if
there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature
and status thereof.
The Master Servicer shall use commercially reasonable efforts to obtain
from all other parties participating in the servicing function any additional
certifications required under Item 1123 of Regulation AB to the extent
required to be included in a Report on Form 10-K; provided, however, that a
failure to obtain such certifications shall not be a breach of the Master
Servicer's duties hereunder if any such party fails to deliver such a
certification.
Section 3.19. Annual Independent Public Accountants' Servicing Report.
On or before the earlier of (a) March 31 of each year or (b) with
respect to any calendar year during which the Company's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, the date on which the annual report
on Form 10-K is required to be filed in accordance with the Exchange Act and
the rules and regulations of the Commission, the Master Servicer at its
expense shall cause a firm of independent public accountants, which shall be
members of the American Institute of Certified Public Accountants, to furnish
to the Company and the Trustee the attestation required under Item 1122(b) of
Regulation AB. In rendering such statement, such firm may rely, as to
matters relating to the direct servicing of mortgage loans by Subservicers,
upon comparable statements for examinations conducted by independent public
accountants substantially in accordance with standards established by the
American Institute of Certified Public Accountants (rendered within one year
of such statement) with respect to such Subservicers.
Section 3.20. Rights of the Company in Respect of the Master Servicer.
The Master Servicer shall afford the Company, upon reasonable notice,
during normal business hours access to all records maintained by the Master
Servicer in respect of its rights and obligations hereunder and access to
officers of the Master Servicer responsible for such obligations. Upon
request, the Master Servicer shall furnish the Company with its most recent
financial statements and such other information as the Master Servicer
possesses regarding its business, affairs, property and condition, financial
or otherwise. The Master Servicer shall also cooperate with all reasonable
requests for information including, but not limited to, notices, tapes and
copies of files, regarding itself, the Mortgage Loans or the Certificates
from any Person or Persons identified by the Company or Residential Funding.
The Company may, but is not obligated to, enforce the obligations of the
Master Servicer hereunder and may, but is not obligated to, perform, or cause
a designee to perform, any defaulted obligation of the Master Servicer
hereunder or exercise the rights of the Master Servicer hereunder; provided
that the Master Servicer shall not be relieved of any of its obligations
hereunder by virtue of such performance by the Company or its designee. The
Company shall not have any responsibility or liability for any action or
failure to act by the Master Servicer and is not obligated to supervise the
performance of the Master Servicer under this Agreement or otherwise.
Section 3.21. Administration of Buydown Funds.
(a) With respect to any Buydown Mortgage Loan, the Subservicer has
deposited Buydown Funds in an account that satisfies the requirements for a
Subservicing Account (the "Buydown Account"). The Master Servicer shall cause
the Subservicing Agreement to require that upon receipt from the Mortgagor of
the amount due on a Due Date for each Buydown Mortgage Loan, the Subservicer
will withdraw from the Buydown Account the predetermined amount that, when
added to the amount due on such date from the Mortgagor, equals the full
Monthly Payment and transmit that amount in accordance with the terms of the
Subservicing Agreement to the Master Servicer together with the related
payment made by the Mortgagor or advanced by the Subservicer.
(b) If the Mortgagor on a Buydown Mortgage Loan prepays such loan in its
entirety during the period (the "Buydown Period") when Buydown Funds are
required to be applied to such Buydown Mortgage Loan, the Subservicer shall
be required to withdraw from the Buydown Account and remit any Buydown Funds
remaining in the Buydown Account in accordance with the related buydown
agreement. The amount of Buydown Funds which may be remitted in accordance
with the related buydown agreement may reduce the amount required to be paid
by the Mortgagor to fully prepay the related Mortgage Loan. If the Mortgagor
on a Buydown Mortgage Loan defaults on such Mortgage Loan during the Buydown
Period and the property securing such Buydown Mortgage Loan is sold in the
liquidation thereof (either by the Master Servicer or the insurer under any
related Primary Insurance Policy), the Subservicer shall be required to
withdraw from the Buydown Account the Buydown Funds for such Buydown Mortgage
Loan still held in the Buydown Account and remit the same to the Master
Servicer in accordance with the terms of the Subservicing Agreement for
deposit in the Custodial Account or, if instructed by the Master Servicer,
pay to the insurer under any related Primary Insurance Policy if the
Mortgaged Property is transferred to such insurer and such insurer pays all
of the loss incurred in respect of such default. Any amount so remitted
pursuant to the preceding sentence will be deemed to reduce the amount owed
on the Mortgage Loan.
Section 3.22. Advance Facility.
(a) The Master Servicer is hereby authorized to enter into a financing or
other facility (any such arrangement, an "Advance Facility") under which
(1) the Master Servicer sells, assigns or pledges to another Person (an
"Advancing Person") the Master Servicer's rights under this Agreement to be
reimbursed for any Advances or Servicing Advances and/or (2) an Advancing
Person agrees to fund some or all Advances and/or Servicing Advances required
to be made by the Master Servicer pursuant to this Agreement. No consent of
the Company, the Trustee, the Certificateholders or any other party shall be
required before the Master Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an
Advancing Person agrees to fund Advances and/or Servicing Advances on the
Master Servicer's behalf, the Master Servicer shall remain obligated
pursuant to this Agreement to make Advances and Servicing Advances pursuant
to and as required by this Agreement. If the Master Servicer enters into an
Advance Facility, and for so long as an Advancing Person remains entitled to
receive reimbursement for any Advances including Nonrecoverable Advances
("Advance Reimbursement Amounts") and/or Servicing Advances including
Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and
together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in
each case to the extent such type of Reimbursement Amount is included in the
Advance Facility), as applicable, pursuant to this Agreement, then the Master
Servicer shall identify such Reimbursement Amounts consistent with the
reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit
such Reimbursement Amounts in accordance with this Section 3.22 or otherwise
in accordance with the documentation establishing the Advance Facility to
such Advancing Person or to a trustee, agent or custodian (an "Advance
Facility Trustee") designated by such Advancing Person in an Advance Facility
Notice described below in Section 3.22(b). Notwithstanding the foregoing, if
so required pursuant to the terms of the Advance Facility, the Master
Servicer may direct, and if so directed in writing the Trustee is hereby
authorized to and shall pay to the Advance Facility Trustee the Reimbursement
Amounts identified pursuant to the preceding sentence. An Advancing Person
whose obligations hereunder are limited to the funding of Advances and/or
Servicing Advances shall not be required to meet the qualifications of a
Master Servicer or a Subservicer pursuant to Section 3.02(a) or
6.02(c) hereof and shall not be deemed to be a Subservicer under this
Agreement. Notwithstanding anything to the contrary herein, in no event
shall Advance Reimbursement Amounts or Servicing Advance Reimbursement
Amounts be included in the Available Distribution Amount or distributed to
Certificateholders.
(b) If the Master Servicer enters into an Advance Facility and makes the
election set forth in Section 3.22(a), the Master Servicer and the related
Advancing Person shall deliver to the Trustee a written notice and payment
instruction (an "Advance Facility Notice"), providing the Trustee with
written payment instructions as to where to remit Advance Reimbursement
Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent
such type of Reimbursement Amount is included within the Advance Facility) on
subsequent Distribution Dates. The payment instruction shall require the
applicable Reimbursement Amounts to be distributed to the Advancing Person or
to an Advance Facility Trustee designated in the Advance Facility Notice. An
Advance Facility Notice may only be terminated by the joint written direction
of the Master Servicer and the related Advancing Person (and any related
Advance Facility Trustee).
(c) Reimbursement Amounts shall consist solely of amounts in respect of
Advances and/or Servicing Advances made with respect to the Mortgage Loans
for which the Master Servicer would be permitted to reimburse itself in
accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master
Servicer or the Advancing Person had made the related Advance(s) and/or
Servicing Advance(s). Notwithstanding the foregoing, except with respect to
reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of
this Agreement, no Person shall be entitled to reimbursement from funds held
in the Collection Account for future distribution to Certificateholders
pursuant to this Agreement. Neither the Company nor the Trustee shall have
any duty or liability with respect to the calculation of any Reimbursement
Amount, nor shall the Company or the Trustee have any responsibility to track
or monitor the administration of the Advance Facility and the Company shall
not have any responsibility to track, monitor or verify the payment of
Reimbursement Amounts to the related Advancing Person or Advance Facility
Trustee. The Master Servicer shall maintain and provide to any Successor
Master Servicer a detailed accounting on a loan-by-loan basis as to amounts
advanced by, sold, pledged or assigned to, and reimbursed to any Advancing
Person. The Successor Master Servicer shall be entitled to rely on any such
information provided by the Master Servicer and the Successor Master Servicer
shall not be liable for any errors in such information.
(d) Upon the direction of and at the expense of the Master Servicer, the
Trustee agrees to execute such acknowledgments, certificates, and other
documents provided by the Master Servicer and reasonably satisfactory to the
Trustee recognizing the interests of any Advancing Person or Advance Facility
Trustee in such Reimbursement Amounts as the Master Servicer may cause to be
made subject to Advance Facilities pursuant to this Section 3.22, and such
other documents in connection with such Advance Facility as may be reasonably
requested from time to time by any Advancing Person or Advance Facility
Trustee and reasonably satisfactory to the Trustee.
(e) Reimbursement Amounts collected with respect to each Mortgage Loan
shall be allocated to outstanding unreimbursed Advances or Servicing Advances
(as the case may be) made with respect to that Mortgage Loan on a "first-in,
first out" ("FIFO") basis, subject to the qualifications set forth below:
(i) Any successor Master Servicer to Residential Funding (a "Successor
Master Servicer") and the Advancing Person or Advance Facility Trustee
shall be required to apply all amounts available in accordance with
this Section 3.22(e) to the reimbursement of Advances and Servicing
Advances in the manner provided for herein; provided, however, that
after the succession of a Successor Master Servicer, (A) to the extent
that any Advances or Servicing Advances with respect to any particular
Mortgage Loan are reimbursed from payments or recoveries, if any, from
the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds,
if any, with respect to that Mortgage Loan, reimbursement shall be
made, first, to the Advancing Person or Advance Facility Trustee in
respect of Advances and/or Servicing Advances related to that Mortgage
Loan to the extent of the interest of the Advancing Person or Advance
Facility Trustee in such Advances and/or Servicing Advances, second to
the Master Servicer in respect of Advances and/or Servicing Advances
related to that Mortgage Loan in excess of those in which the Advancing
Person or Advance Facility Trustee Person has an interest, and third,
to the Successor Master Servicer in respect of any other Advances
and/or Servicing Advances related to that Mortgage Loan, from such
sources as and when collected, and (B) reimbursements of Advances and
Servicing Advances that are Nonrecoverable Advances shall be made pro
rata to the Advancing Person or Advance Facility Trustee, on the one
hand, and any such Successor Master Servicer, on the other hand, on the
basis of the respective aggregate outstanding unreimbursed Advances and
Servicing Advances that are Nonrecoverable Advances owed to the
Advancing Person, Advance Facility Trustee or Master Servicer pursuant
to this Agreement, on the one hand, and any such Successor Master
Servicer, on the other hand, and without regard to the date on which
any such Advances or Servicing Advances shall have been made. In the
event that, as a result of the FIFO allocation made pursuant to this
Section 3.22(e), some or all of a Reimbursement Amount paid to the
Advancing Person or Advance Facility Trustee relates to Advances or
Servicing Advances that were made by a Person other than Residential
Funding or the Advancing Person or Advance Facility Trustee, then the
Advancing Person or Advance Facility Trustee shall be required to remit
any portion of such Reimbursement Amount to the Person entitled to such
portion of such Reimbursement Amount. Without limiting the generality
of the foregoing, Residential Funding shall remain entitled to be
reimbursed by the Advancing Person or Advance Facility Trustee for all
Advances and Servicing Advances funded by Residential Funding to the
extent the related Reimbursement Amount(s) have not been assigned or
pledged to an Advancing Person or Advance Facility Trustee. The
documentation establishing any Advance Facility shall require
Residential Funding to provide to the related Advancing Person or
Advance Facility Trustee loan by loan information with respect to each
Reimbursement Amount distributed to such Advancing Person or Advance
Facility Trustee on each date of remittance thereof to such Advancing
Person or Advance Facility Trustee, to enable the Advancing Person or
Advance Facility Trustee to make the FIFO allocation of each
Reimbursement Amount with respect to each Mortgage Loan.
(ii) By way of illustration, and not by way of limiting the generality of
the foregoing, if the Master Servicer resigns or is terminated at a
time when the Master Servicer is a party to an Advance Facility, and is
replaced by a Successor Master Servicer, and the Successor Master
Servicer directly funds Advances or Servicing Advances with respect to
a Mortgage Loan and does not assign or pledge the related Reimbursement
Amounts to the related Advancing Person or Advance Facility Trustee,
then all payments and recoveries received from the related Mortgagor or
received in the form of Liquidation Proceeds with respect to such
Mortgage Loan (including Insurance Proceeds collected in connection
with a liquidation of such Mortgage Loan) will be allocated first to
the Advancing Person or Advance Facility Trustee until the related
Reimbursement Amounts attributable to such Mortgage Loan that are owed
to the Master Servicer and the Advancing Person, which were made prior
to any Advances or Servicing Advances made by the Successor Master
Servicer, have been reimbursed in full, at which point the Successor
Master Servicer shall be entitled to retain all related Reimbursement
Amounts subsequently collected with respect to that Mortgage Loan
pursuant to Section 3.10 of this Agreement. To the extent that the
Advances or Servicing Advances are Nonrecoverable Advances to be
reimbursed on an aggregate basis pursuant to Section 3.10 of this
Agreement, the reimbursement paid in this manner will be made pro rata
to the Advancing Person or Advance Facility Trustee, on the one hand,
and the Successor Master Servicer, on the other hand, as described in
clause (i)(B) above.
(f) The Master Servicer shall remain entitled to be reimbursed for all
Advances and ▇▇▇▇▇▇▇▇▇ Advances funded by the Master Servicer to the extent
the related rights to be reimbursed therefor have not been sold, assigned or
pledged to an Advancing Person.
(g) Any amendment to this Section 3.22 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 3.22, including
amendments to add provisions relating to a successor Master Servicer, may be
entered into by the Trustee, the Company and the Master Servicer without the
consent of any Certificateholder, with written confirmation from each Rating
Agency that the amendment will not result in the reduction of the ratings on
any class of the Certificates below the lesser of the then current or
original ratings on such Certificates, and an opinion of counsel as required
by Section 11.01(c) notwithstanding anything to the contrary in Section 11.01
of or elsewhere in this Agreement.
(h) Any rights of set-off that the Trust Fund, the Trustee, the Company,
any Successor Master Servicer or any other Person might otherwise have
against the Master Servicer under this Agreement shall not attach to any
rights to be reimbursed for Advances or Servicing Advances that have been
sold, transferred, pledged, conveyed or assigned to any Advancing Person.
(i) At any time when an Advancing Person shall have ceased funding Advances
and/or Servicing Advances (as the case may be) and the Advancing Person or
related Advance Facility Trustee shall have received Reimbursement Amounts
sufficient in the aggregate to reimburse all Advances and/or Servicing
Advances (as the case may be) the right to reimbursement for which were
assigned to the Advancing Person, then upon the delivery of a written notice
signed by the Advancing Person and the Master Servicer or its successor or
assign) to the Trustee terminating the Advance Facility Notice (the "Notice
of Facility Termination"), the Master Servicer or its Successor Master
Servicer shall again be entitled to withdraw and retain the related
Reimbursement Amounts from the Custodial Account pursuant to Section 3.10.
(j) After delivery of any Advance Facility Notice, and until any such
Advance Facility Notice has been terminated by a Notice of Facility
Termination, this Section 3.22 may not be amended or otherwise modified
without the prior written consent of the related Advancing Person.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account.
(a) The Master Servicer on behalf of the Trustee shall establish and
maintain a Certificate Account in which the Master Servicer shall cause to be
deposited on behalf of the Trustee on or before 2:00 P.M. New York time on
each Certificate Account Deposit Date by wire transfer of immediately
available funds an amount equal to the sum of (i) any Advance for the
immediately succeeding Distribution Date, (ii) any amount required to be
deposited in the Certificate Account pursuant to Section 3.12(a), (iii) any
amount required to be deposited in the Certificate Account pursuant to
Section 3.16(e) or Section 4.07 and (iv) all other amounts constituting the
Available Distribution Amount for the immediately succeeding Distribution
Date.
(b) The Trustee shall, upon written request from the Master Servicer,
invest or cause the institution maintaining the Certificate Account to invest
the funds in the Certificate Account in Permitted Investments designated in
the name of the Trustee for the benefit of the Certificateholders, which
shall mature or be payable on demand not later than the Business Day next
preceding the Distribution Date next following the date of such investment
(except that (i) any investment in the institution with which the Certificate
Account is maintained may mature or be payable on demand on such Distribution
Date and (ii) any other investment may mature or be payable on demand on such
Distribution Date if the Trustee shall advance funds on such Distribution
Date to the Certificate Account in the amount payable on such investment on
such Distribution Date, pending receipt thereof to the extent necessary to
make distributions on the Certificates) and shall not be sold or disposed of
prior to maturity. Subject to Section 3.16(e), all income and gain realized
from any such investment shall be for the benefit of the Master Servicer and
shall be subject to its withdrawal or order from time to time. The amount of
any losses incurred in respect of any such investments shall be deposited in
the Certificate Account by the Master Servicer out of its own funds
immediately as realized without any right of reimbursement.
Section 4.02. Distributions.
As provided in Section 4.02 of the Series Supplement.
Section 4.03. Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting.
(a) Concurrently with each distribution charged to the Certificate Account
and with respect to each Distribution Date the Master Servicer shall forward
to the Trustee and the Trustee shall either forward by mail or make available
to each Holder and the Company, via the Trustee's internet website, a
statement (and at its option, any additional files containing the same
information in an alternative format) setting forth information as to each
Class of Certificates, the Mortgage Pool and, if the Mortgage Pool is
comprised of two or more Loan Groups, each Loan Group, to the extent
applicable. This statement will include the information set forth in an
exhibit to the Series Supplement. Such exhibit shall set forth the Trustee's
internet website address together with a phone number. The Trustee shall
mail to each Holder that requests a paper copy by telephone a paper copy via
first class mail. The Trustee may modify the distribution procedures set
forth in this Section provided that such procedures are no less convenient
for the Certificateholders. The Trustee shall provide prior notification to
the Company, the Master Servicer and the Certificateholders regarding any
such modification. In addition, the Master Servicer shall provide to any
manager of a trust fund consisting of some or all of the Certificates, upon
reasonable request, such additional information as is reasonably obtainable
by the Master Servicer at no additional expense to the Master Servicer.
Also, at the request of a Rating Agency, the Master Servicer shall provide
the information relating to the Reportable Modified Mortgage Loans
substantially in the form attached hereto as Exhibit Q to such Rating Agency
within a reasonable period of time; provided, however, that the Master
Servicer shall not be required to provide such information more than four
times in a calendar year to any Rating Agency.
(b) Within a reasonable period of time after it receives a written request
from a Holder of a Certificate, other than a Class R Certificate, the Master
Servicer shall prepare, or cause to be prepared, and shall forward, or cause
to be forwarded, to each Person who at any time during the calendar year was
the Holder of a Certificate, other than a Class R Certificate, a statement
containing the information set forth in clauses (v) and (vi) of the exhibit
to the Series Supplement referred to in subSection (a) above aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Master Servicer shall be deemed
to have been satisfied to the extent that substantially comparable
information shall be provided by the Master Servicer pursuant to any
requirements of the Code.
(c) Within a reasonable period of time after it receives a written request
from any Holder of a Class R Certificate, the Master Servicer shall prepare,
or cause to be prepared, and shall forward, or cause to be forwarded, to each
Person who at any time during the calendar year was the Holder of a Class R
Certificate, a statement containing the applicable distribution information
provided pursuant to this Section 4.03 aggregated for such calendar year or
applicable portion thereof during which such Person was the Holder of a Class
R Certificate. Such obligation of the Master Servicer shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Master Servicer pursuant to any requirements of the
Code.
(d) Upon the written request of any Certificateholder, the Master Servicer,
as soon as reasonably practicable, shall provide the requesting
Certificateholder with such information as is necessary and appropriate, in
the Master Servicer's sole discretion, for purposes of satisfying applicable
reporting requirements under Rule 144A.
(e) The Master Servicer shall, on behalf of the Company and in respect of
the Trust Fund, sign and cause to be filed with the Commission any periodic
reports required to be filed under the provisions of the Exchange Act, and
the rules and regulations of the Commission thereunder including, without
limitation, reports on Form 10-K, Form 10-D and Form 8-K. In connection with
the preparation and filing of such periodic reports, the Trustee shall timely
provide to the Master Servicer (I) a list of Certificateholders as shown on
the Certificate Register as of the end of each calendar year, (II) copies of
all pleadings, other legal process and any other documents relating to any
claims, charges or complaints involving the Trustee, as trustee hereunder, or
the Trust Fund that are received by a Responsible Officer of the Trustee,
(III) notice of all matters that, to the actual knowledge of a Responsible
Officer of the Trustee, have been submitted to a vote of the
Certificateholders, other than those matters that have been submitted to a
vote of the Certificateholders at the request of the Company or the Master
Servicer, and (IV) notice of any failure of the Trustee to make any
distribution to the Certificateholders as required pursuant to the Series
Supplement. Neither the Master Servicer nor the Trustee shall have any
liability with respect to the Master Servicer's failure to properly prepare
or file such periodic reports resulting from or relating to the Master
Servicer's inability or failure to obtain any information not resulting from
the Master Servicer's own negligence or willful misconduct.
(f) Any Form 10-K filed with the Commission in connection with this
Section 4.03 shall include, with respect to the Certificates relating to such
10-K:
(i) A certification, signed by the senior officer in charge of the
servicing functions of the Master Servicer, in the form attached as
Exhibit O hereto or such other form as may be required or permitted by
the Commission (the "Form 10-K Certification"), in compliance with
Rules 13a-14 and 15d-14 under the Exchange Act and any additional
directives of the Commission.
(ii) A report regarding its assessment of compliance during the preceding
calendar year with all applicable servicing criteria set forth in
relevant Commission regulations with respect to mortgage-backed
securities transactions taken as a whole involving the Master Servicer
that are backed by the same types of assets as those backing the
certificates, as well as similar reports on assessment of compliance
received from other parties participating in the servicing function as
required by relevant Commission regulations, as described in Item
1122(a) of Regulation AB. The Master Servicer shall obtain from all
other parties participating in the servicing function any required
assessments.
(iii) With respect to each assessment report described immediately above, a
report by a registered public accounting firm that attests to, and
reports on, the assessment made by the asserting party, as set forth in
relevant Commission regulations, as described in Regulation 1122(b) of
Regulation AB and Section 3.19
(iv) The servicer compliance certificate required to be delivered pursuant
Section 3.18.
(g) In connection with the Form 10-K Certification, the Trustee shall
provide the Master Servicer with a back-up certification substantially in the
form attached hereto as Exhibit P.
(h) This Section 4.03 may be amended in accordance with this Agreement
without the consent of the Certificateholders.
(i) The Trustee shall make available on the Trustee's internet website each
of the reports filed with the Commission by or on behalf of the Company under
the Exchange Act upon delivery of such reports to the Trustee.
Section 4.04. Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer.
(a) Prior to the close of business on the Determination Date, the Master
Servicer shall furnish a written statement to the Trustee, any Paying Agent
and the Company (the information in such statement to be made available to
Certificateholders and any Certificate Insurer by the Master Servicer on
request) setting forth (i) the Available Distribution Amount and (ii) the
amounts required to be withdrawn from the Custodial Account and deposited
into the Certificate Account on the immediately succeeding Certificate
Account Deposit Date pursuant to clause (iii) of Section 4.01(a). The
determination by the Master Servicer of such amounts shall, in the absence of
obvious error, be presumptively deemed to be correct for all purposes
hereunder and the Trustee shall be protected in relying upon the same without
any independent check or verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account
Deposit Date, the Master Servicer shall either (i) deposit in the Certificate
Account from its own funds, or funds received therefor from the Subservicers,
an amount equal to the Advances to be made by the Master Servicer in respect
of the related Distribution Date, which shall be in an aggregate amount equal
to the aggregate amount of Monthly Payments (with each interest portion
thereof adjusted to the Net Mortgage Rate), less the amount of any related
Servicing Modifications, Debt Service Reductions or reductions in the amount
of interest collectable from the Mortgagor pursuant to the Relief Act, on the
Outstanding Mortgage Loans as of the related Due Date, which Monthly Payments
were not received as of the close of business as of the related Determination
Date; provided that no Advance shall be made if it would be a Nonrecoverable
Advance, (ii) withdraw from amounts on deposit in the Custodial Account and
deposit in the Certificate Account all or a portion of the Amount Held for
Future Distribution in discharge of any such Advance, or (iii) make advances
in the form of any combination of (i) and (ii) aggregating the amount of such
Advance. Any portion of the Amount Held for Future Distribution so used
shall be replaced by the Master Servicer by deposit in the Certificate
Account on or before 11:00 A.M. New York time on any future Certificate
Account Deposit Date to the extent that funds attributable to the Mortgage
Loans that are available in the Custodial Account for deposit in the
Certificate Account on such Certificate Account Deposit Date shall be less
than payments to Certificateholders required to be made on the following
Distribution Date. The Master Servicer shall be entitled to use any Advance
made by a Subservicer as described in Section 3.07(b) that has been deposited
in the Custodial Account on or before such Distribution Date as part of the
Advance made by the Master Servicer pursuant to this Section 4.04. The
amount of any reimbursement pursuant to Section 4.02(a) in respect of
outstanding Advances on any Distribution Date shall be allocated to specific
Monthly Payments due but delinquent for previous Due Periods, which
allocation shall be made, to the extent practicable, to Monthly Payments
which have been delinquent for the longest period of time. Such allocations
shall be conclusive for purposes of reimbursement to the Master Servicer from
recoveries on related Mortgage Loans pursuant to Section 3.10.
The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by an Officers'
Certificate of the Master Servicer delivered to the Company and the Trustee.
If the Master Servicer determines as of the Business Day preceding any
Certificate Account Deposit Date that it will be unable to deposit in the
Certificate Account an amount equal to the Advance required to be made for
the immediately succeeding Distribution Date, it shall give notice to the
Trustee of its inability to advance (such notice may be given by telecopy),
not later than 3:00 P.M., New York time, on such Business Day, specifying the
portion of such amount that it will be unable to deposit. Not later than
3:00 P.M., New York time, on the Certificate Account Deposit Date the Trustee
shall, unless by 12:00 Noon, New York time, on such day the Trustee shall
have been notified in writing (by telecopy) that the Master Servicer shall
have directly or indirectly deposited in the Certificate Account such portion
of the amount of the Advance as to which the Master Servicer shall have given
notice pursuant to the preceding sentence, pursuant to Section 7.01,
(a) terminate all of the rights and obligations of the Master Servicer under
this Agreement in accordance with Section 7.01 and (b) assume the rights and
obligations of the Master Servicer hereunder, including the obligation to
deposit in the Certificate Account an amount equal to the Advance for the
immediately succeeding Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this
Section 4.04 into the Certificate Account.
Section 4.05. Allocation of Realized Losses.
As provided in Section 4.05 of the Series Supplement.
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged
Property.
The Master Servicer or the Subservicers shall file information returns
with respect to the receipt of mortgage interests received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged
Property and the information returns relating to cancellation of indebtedness
income with respect to any Mortgaged Property required by Sections 6050H,
6050J and 6050P, respectively, of the Code, and deliver to the Trustee an
Officers' Certificate on or before March 31 of each year stating that such
reports have been filed. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by Sections 6050H,
6050J and 6050P of the Code.
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.
(a) With respect to any Mortgage Loan which is delinquent in payment by 90
days or more, the Master Servicer may, at its option, purchase such Mortgage
Loan from the Trustee at the Purchase Price therefor; provided, that such
Mortgage Loan that becomes 90 days or more delinquent during any given
calendar quarter shall only be eligible for purchase pursuant to this
Section during the period beginning on the first Business Day of the
following calendar quarter, and ending at the close of business on the
second-to-last Business Day of such following calendar quarter; and provided,
further, that such Mortgage Loan is 90 days or more delinquent at the time of
repurchase. Such option if not exercised shall not thereafter be reinstated
as to any Mortgage Loan, unless the delinquency is cured and the Mortgage
Loan thereafter again becomes delinquent in payment by 90 days or more in a
subsequent calendar quarter.
(b) If at any time the Master Servicer makes a payment to the Certificate
Account covering the amount of the Purchase Price for such a Mortgage Loan as
provided in clause (a) above, and the Master Servicer provides to the Trustee
a certification signed by a Servicing Officer stating that the amount of such
payment has been deposited in the Certificate Account, then the Trustee shall
execute the assignment of such Mortgage Loan at the request of the Master
Servicer without recourse to the Master Servicer which shall succeed to all
the Trustee's right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an
assignment outright and not for security. The Master Servicer will thereupon
own such Mortgage, and all such security and documents, free of any further
obligation to the Trustee or the Certificateholders with respect thereto.
If, however, the Master Servicer shall have exercised its right to
repurchase a Mortgage Loan pursuant to this Section 4.07 upon the written
request of and with funds provided by the Junior Certificateholder and
thereupon transferred such Mortgage Loan to the Junior Certificateholder, the
Master Servicer shall so notify the Trustee in writing.
Section 4.08. Surety Bond.
(a) If a Required Surety Payment is payable pursuant to the Surety Bond
with respect to any Additional Collateral Loan, the Master Servicer shall so
notify the Trustee as soon as reasonably practicable and the Trustee shall
promptly complete the notice in the form of Attachment 1 to the Surety Bond
and shall promptly submit such notice to the Surety as a claim for a Required
Surety. The Master Servicer shall upon request assist the Trustee in
completing such notice and shall provide any information requested by the
Trustee in connection therewith.
(b) Upon receipt of a Required Surety Payment from the Surety on behalf of
the Holders of Certificates, the Trustee shall deposit such Required Surety
Payment in the Certificate Account and shall distribute such Required Surety
Payment, or the proceeds thereof, in accordance with the provisions of
Section 4.02.
(c) The Trustee shall (i) receive as attorney-in-fact of each Holder of a
Certificate any Required Surety Payment from the Surety and (ii) disburse the
same to the Holders of such Certificates as set forth in Section 4.02.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Senior, Class 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 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.
(b) Except as provided below, registration of Book-Entry Certificates may
not be transferred by the Trustee except to another Depository that agrees to
hold such Certificates for the respective Certificate Owners with Ownership
Interests therein. The Holders of the Book-Entry Certificates shall hold
their respective Ownership Interests in and to each of such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to Definitive Certificates in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository
Participant shall transfer the Ownership Interests only in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of
the Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners.
Multiple requests and directions from, and votes of, the Depository as Holder
of any Class of Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record
date.
If with respect to any Book-Entry Certificate (i)(A) the Company
advises the Trustee in writing that the Depository is no longer willing or
able to properly discharge its responsibilities as Depository with respect
to such Book-Entry Certificate and (B) the Company is unable to locate a
qualified successor, or (ii)(A) the Depositor at its option advises the
Trustee in writing that it elects to terminate the book-entry system for such
Book-Entry Certificate through the Depositary and (B) upon receipt of notice
from the Depository of the Depositor's election to terminate the book-entry
system for such Book-Entry Certificate, the Depository Participants holding
beneficial interests in such Book-Entry Certificates agree to initiate such
termination, the Trustee shall notify all Certificate Owner of such
Book-Entry Certificate, through the Depository, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall execute,
authenticate and deliver the Definitive Certificates.
In addition, if an Event of Default has occurred and is continuing,
each Certificate Owner materially adversely affected thereby may at its
option request a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in the related Class of Certificates. In order to make
such request, such Certificate Owner shall, subject to the rules and
procedures of the Depository, provide the Depository or the related
Depository Participant with directions for the Trustee to exchange or cause
the exchange of the Certificate Owner's interest in such Class of
Certificates for an equivalent Percentage Interest in fully registered
definitive form. Upon receipt by the Trustee of instruction from the
Depository directing the Trustee to effect such exchange (such instructions
to contain information regarding the Class of Certificates and the
Certificate Balance being exchanged, the Depository Participant account to be
debited with the decrease, the registered holder of and delivery instructions
for the Definitive Certificates and any other information reasonably required
by the Trustee), (i) the Trustee shall instruct the Depository to reduce the
related Depository Participant's account by the aggregate Certificate
Principal Balance of the Definitive Certificates, (ii) the Trustee shall
execute, authenticate and deliver, in accordance with the registration and
delivery instructions provided by the Depository, a Definitive Certificate
evidencing such Certificate Owner's Percentage Interest in such Class of
Certificates and (iii) the Trustee shall execute and authenticate a new
Book-Entry Certificate reflecting the reduction in the aggregate Certificate
Principal Balance of such Class of Certificates by the amount of the
Definitive Certificates.
None of the Company, the Master Servicer or the Trustee shall be liable
for any actions taken by the Depository or its nominee, including, without
limitation, any delay in delivery of any instructions required under
Section 5.01 and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates the
Trustee and the Master Servicer shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(c) 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 hereto
as Exhibit N executed by an authorized officer, which Subclasses, in the
aggregate, will represent the Uncertificated Class A-V REMIC Regular
Interests corresponding to the Class A-V Certificates so surrendered for
exchange. Any Subclass so issued shall bear a numerical designation
commencing with Class A-V-1 and continuing sequentially thereafter, and will
evidence ownership of the Uncertificated Class A-V REMIC Regular Interest or
Interests specified in writing by such initial Holder to the Trustee. The
Trustee may conclusively, without any independent verification, rely on, and
shall be protected in relying on, Residential Funding's determinations of the
Uncertificated Class A-V REMIC Regular Interests corresponding to any
Subclass, the Initial Notional Amount and the initial Pass-Through Rate on a
Subclass as set forth in such Request for Exchange and the Trustee shall have
no duty to determine if any Uncertificated Class A-V REMIC Regular Interest
designated on a Request for Exchange corresponds to a Subclass which has
previously been issued. Each Subclass so issued shall be substantially in the
form set forth in Exhibit A and shall, on original issue, be executed and
delivered by the Trustee to the Certificate Registrar for authentication and
delivery in accordance with Section 5.01(a). Every Certificate presented or
surrendered for exchange by the initial Holder shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied
by a written instrument of transfer attached to such Certificate and shall be
completed to the satisfaction of the Trustee and the Certificate Registrar
duly executed by, the initial Holder thereof or his attorney duly authorized
in writing. The Certificates of any Subclass of Class A-V Certificates may
be transferred in whole, but not in part, in accordance with the provisions
of Section 5.02.
Section 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or agencies to
be appointed by the Trustee in accordance with the provisions of Section 8.12
a Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. The
Trustee is initially appointed Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as
herein provided. The Certificate Registrar, or the Trustee, shall provide
the Master Servicer with a certified list of Certificateholders as of each
Record Date prior to the related Determination Date.
(b) Upon surrender for registration of transfer of any Certificate at any
office or agency of the Trustee maintained for such purpose pursuant to
Section 8.12 and, in the case of any Class M, Class B, 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
or Class P 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 or Class P 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 (with respect
to any Class B Certificate) or Exhibit G-1 (with respect to any Class P
Certificate) hereto, and the Trustee shall require the transferor to execute
a representation letter, substantially in the form of Exhibit I hereto, each
acceptable to and in form and substance satisfactory to the Company and the
Trustee certifying to the Company and the Trustee the facts surrounding such
transfer, which representation letters shall not be an expense of the
Trustee, the Company or the Master Servicer; provided, however, that such
representation letters will not be required in connection with any transfer
of any such Certificate by the Company or any Affiliate thereof to the
Company or an Affiliate of the Company, and the Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the
Trustee, shall be a written representation) from the Company, of the status
of such transferee as an Affiliate of the Company or (ii) the prospective
transferee of such a Certificate shall be required to provide the Trustee,
the Company and the Master Servicer with an investment letter substantially
in the form of Exhibit J attached hereto (or such other form as the Company
in its sole discretion deems acceptable), which investment letter shall not
be an expense of the Trustee, the Company or the Master Servicer, and which
investment letter states that, among other things, such transferee (A) is a
"qualified institutional buyer" as defined under Rule 144A, acting for its
own account or the accounts of other "qualified institutional buyers" as
defined under Rule 144A, and (B) is aware that the proposed transferor
intends to rely on the exemption from registration requirements under the
Securities Act provided by Rule 144A. The Holder of any such Certificate
desiring to effect any such transfer, sale, pledge or other disposition
shall, and does hereby agree to, indemnify the Trustee, the Company, the
Master Servicer and the Certificate Registrar against any liability that may
result if the transfer, sale, pledge or other disposition is not so exempt or
is not made in accordance with such federal and state laws.
(e) (i) In the case of any Class B, Class P, Class SB or Class R
Certificate presented for registration in the name of any Person, either
(A) the Trustee shall require an Opinion of Counsel acceptable to and in form
and substance satisfactory to the Trustee, the Company and the Master
Servicer to the effect that the purchase and holding of such Class B, Class
P, Class SB or Class R Certificate are permissible under applicable law, will
not constitute or result in any non-exempt prohibited transaction under
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Code (or comparable provisions of
any subsequent enactments), and will not subject the Trustee, the Company or
the Master Servicer to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Company or the Master Servicer or (B) the
prospective Transferee shall be required to provide the Trustee, the Company
and the Master Servicer with a certification to the effect set forth in
paragraph six of Exhibit H (with respect to any Class B Certificate) or
paragraph fifteen of Exhibit G-1 (with respect to any Class R, Class SB or
Class P 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").
(ii) Any Transferee of a Class M Certificate will be deemed to have
represented by virtue of its purchase or holding of such Certificate
(or any interest therein) that either (a) such Transferee is not a Plan
or a Plan Investor, (b) it has acquired and is holding such Certificate
in reliance on Prohibited Transaction Exemption ("PTE") 94-29, 59 Fed.
Reg. 14674 (March 29, 1994), as most recently amended by PTE 2002-41,
67 Fed. Reg. 54487 (August 22, 2002) (the "RFC Exemption"), and that it
understands that there are certain conditions to the availability of
the RFC Exemption including that such Certificate must be rated, at the
time of purchase, not lower than "BBB-" (or its equivalent) by Standard
& Poor's, Fitch or ▇▇▇▇▇'▇ or (c) such Transferee is a Complying
Insurance Company.
(iii) (A) If any Class M Certificate (or any interest therein) is
acquired or held by any Person that does not satisfy the conditions
described in paragraph (ii) above, then the last preceding Transferee
that either (i) is not a Plan or a Plan Investor, (ii) acquired such
Certificate in compliance with the RFC Exemption, or (iii) is a
Complying Insurance Company shall be restored, to the extent permitted
by law, to all rights and obligations as Certificate Owner thereof
retroactive to the date of such Transfer of such Class M Certificate.
The Trustee shall be under no liability to any Person for making any
payments due on such Certificate to such preceding Transferee.
(B) Any purported Certificate Owner whose acquisition or holding of any
Class M Certificate (or any interest therein) was effected in
violation of the restrictions in this Section 5.02(e) shall
indemnify and hold harmless the Company, the Trustee, the Master
Servicer, any Subservicer, each Underwriter and the Trust Fund
from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition
or holding.
(f) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably authorized the Trustee or its designee under
clause (iii)(A) below to deliver payments to a Person other than such Person
and to negotiate the terms of any mandatory sale under clause (iii)(B) below
and to execute all instruments of transfer and to do all other things
necessary in connection with any such sale. The rights of each Person
acquiring any Ownership Interest in a Class R Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R
Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a
Class R Certificate, the Trustee shall require delivery to it,
and shall not register the Transfer of any Class R Certificate
until its receipt of, (I) an affidavit and agreement (a "Transfer
Affidavit and Agreement," in the form attached hereto as Exhibit
G-1) from the proposed Transferee, in form and substance
satisfactory to the Master Servicer, representing and warranting,
among other things, that it is a Permitted Transferee, that it is
not acquiring its Ownership Interest in the Class R Certificate
that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person who is not a Permitted
Transferee, that for so long as it retains its Ownership Interest
in a Class R Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this
Section 5.02(f) and agrees to be bound by them, and (II) a
certificate, in the form attached hereto as Exhibit G-2, from the
Holder wishing to transfer the Class R Certificate, in form and
substance satisfactory to the Master Servicer, representing and
warranting, among other things, that no purpose of the proposed
Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a
proposed Transferee under clause (B) above, if a Responsible
Officer of the Trustee who is assigned to this Agreement has
actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Class R
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R
Certificate shall agree (x) to require a Transfer Affidavit and
Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest in a Class R Certificate and
(y) not to transfer its Ownership Interest unless it provides a
certificate to the Trustee in the form attached hereto as Exhibit
G-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R
Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of Temporary
Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Class R Certificate, if it
is, or is holding an Ownership Interest in a Class R Certificate
on behalf of, a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only
if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Holder requesting such transfer in the form attached
hereto as Exhibit G-2 and all of such other documents as shall have
been reasonably required by the Trustee as a condition to such
registration. Transfers of the Class R Certificates to Non-United
States Persons and Disqualified Organizations (as defined in
Section 860E(e)(5) of the Code) are prohibited.
(iii) (A) If any Disqualified Organization shall become a holder of a
Class R Certificate, then the last preceding Permitted Transferee shall
be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration
of such Transfer of such Class R Certificate. If a Non-United States
Person shall become a holder of a Class R Certificate, then the last
preceding United States Person shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Class
R Certificate. If a transfer of a Class R Certificate is disregarded
pursuant to the provisions of Treasury Regulations Section 1.860E-1 or
Section 1.860G-3, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of such
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by this Section 5.02(f) or
for making any payments due on such Certificate to the holder thereof
or for taking any other action with respect to such holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this
Section 5.02(f) and to the extent that the retroactive
restoration of the rights of the Holder of such Class R
Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Master Servicer shall
have the right, without notice to the holder or any prior holder
of such Class R Certificate, to sell such Class R Certificate to
a purchaser selected by the Master Servicer on such terms as the
Master Servicer may choose. Such purported Transferee shall
promptly endorse and deliver each Class R Certificate in
accordance with the instructions of the Master Servicer. Such
purchaser may be the Master Servicer itself or any Affiliate of
the Master Servicer. The proceeds of such sale, net of the
commissions (which may include commissions payable to the Master
Servicer or its Affiliates), expenses and taxes due, if any, will
be remitted by the Master Servicer to such purported Transferee.
The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of the
Master Servicer, and the Master Servicer shall not be liable to
any Person having an Ownership Interest in a Class R Certificate
as a result of its exercise of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make available,
upon written request from the Trustee, all information necessary to
compute any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Class R Certificate to any Person who is a Disqualified
Organization, including the information regarding "excess inclusions"
of such Class R Certificates required to be provided to the Internal
Revenue Service and certain Persons as described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a
result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest
in a Class R Certificate having as among its record holders at any time
any Person who is a Disqualified Organization. Reasonable compensation
for providing such information may be required by the Master Servicer
from such Person.
(v) The provisions of this Section 5.02(f) set forth prior to this
clause (v) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee the following:
(A) written notification from each Rating Agency to the effect that the
modification, addition to or elimination of such provisions will
not cause such Rating Agency to downgrade its then-current
ratings, if any, of any Class of the Senior, Class M or Class B
Certificates below the lower of the then-current rating or the
rating assigned to such Certificates as of the Closing Date by
such Rating Agency; and
(B) subject to Section 10.01(f), an Officers' Certificate of the Master
Servicer stating that the Master Servicer has received an Opinion
of Counsel, in form and substance satisfactory to the Master
Servicer, to the effect that such modification, addition to or
absence of such provisions will not cause any portion of any
REMIC formed under the Series Supplement to cease to qualify as a
REMIC and will not cause (x) any portion of any REMIC formed
under the Series Supplement to be subject to an entity-level tax
caused by the Transfer of any Class R Certificate to a Person
that is a Disqualified Organization or (y) a Certificateholder or
another Person to be subject to a REMIC-related tax caused by the
Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
(g) No service charge shall be made for any transfer or exchange of
Certificates of any Class, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the Trustee shall execute and the Certificate Registrar shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Certificate, a new Certificate of like tenor, Class and
Percentage Interest but bearing a number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section, the Trustee may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership
in the Trust Fund, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 5.04. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Company, the Master Servicer, the Trustee, any Certificate
Insurer, the Certificate Registrar and any agent of the Company, the Master
Servicer, the Trustee, any Certificate Insurer or the Certificate Registrar
may treat the Person in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 4.02 and for all other purposes whatsoever, except as and to the
extent provided in the definition of "Certificateholder," and neither the
Company, the Master Servicer, the Trustee, any Certificate Insurer, the
Certificate Registrar nor any agent of the Company, the Master Servicer, the
Trustee, any Certificate Insurer or the Certificate Registrar shall be
affected by notice to the contrary except as provided in Section 5.02(f).
Section 5.05. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to the Certificateholders pursuant to Section 4.02. In the
event of any such appointment, on or prior to each Distribution Date the
Master Servicer on behalf of the Trustee shall deposit or cause to be
deposited with the Paying Agent a sum sufficient to make the payments to the
Certificateholders in the amounts and in the manner provided for in
Section 4.02, such sum to be held in trust for the benefit of the
Certificateholders.
The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to the
Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
Any sums so held by such Paying Agent shall be held only in Eligible Accounts
to the extent such sums are not distributed to the Certificateholders on the
date of receipt by such Paying Agent.
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Company and the Master
Servicer.
The Company and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Company and the Master Servicer herein.
By way of illustration and not limitation, the Company is not liable for the
servicing and administration of the Mortgage Loans, nor is it obligated by
Section 7.01 or Section 10.01 to assume any obligations of the Master
Servicer or to appoint a designee to assume such obligations, nor is it
liable for any other obligation hereunder that it may, but is not obligated
to, assume unless it elects to assume such obligation in accordance herewith.
Section 6.02. Merger or Consolidation of the Company or the Master
Servicer; Assignment of Rights and Delegation of Duties by
Master Servicer.
(a) The Company and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation or limited liability
company, respectively, under the laws of the state of its incorporation or
formation, as applicable, and will each obtain and preserve its qualification
to do business as a foreign company in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
(b) Any Person into which the Company or the Master Servicer may be merged
or 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 ▇▇▇▇▇▇ ▇▇▇
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 ▇▇▇▇▇▇ ▇▇▇ or Freddie Mac, is
reasonably satisfactory to the Trustee and the Company, is willing to service
the Mortgage Loans and executes and delivers to the Company and the Trustee
an agreement, in form and substance reasonably satisfactory to the Company
and the Trustee, which contains an assumption by such Person of the due and
punctual performance and observance of each covenant and condition to be
performed or observed by the Master Servicer under this Agreement; provided
further that each Rating Agency's rating of the Classes of Certificates that
have been rated in effect immediately prior to such assignment and delegation
will not be qualified, reduced or withdrawn as a result of such assignment
and delegation (as evidenced by a letter to such effect from each Rating
Agency). In the case of any such assignment and delegation, the Master
Servicer shall be released from its obligations under this Agreement, except
that the Master Servicer shall remain liable for all liabilities and
obligations incurred by it as Master Servicer hereunder prior to the
satisfaction of the conditions to such assignment and delegation set forth in
the next preceding sentence. This Section 6.02 shall not apply to any sale,
transfer, pledge or assignment by Residential Funding of the Call Rights.
Section 6.03. Limitation on Liability of the Company, the Master Servicer
and Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Company, the Master Servicer or any
such Person against any breach of warranties or representations or covenants
made herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties
hereunder. The Company, the Master Servicer and any director, officer,
employee or agent of the Company or the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Company, the
Master Servicer and any director, officer, employee or agent of the Company
or the Master Servicer shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any legal action relating to this Agreement or the Certificates, other than
any loss, liability or expense related to any specific Mortgage Loan or
Mortgage Loans (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder.
Neither the Company nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal or administrative
action, proceeding, hearing or examination that is not incidental to its
respective duties under this Agreement and which in its opinion may involve
it in any expense or liability; provided, however, that the Company or the
Master Servicer may in its discretion undertake any such action, proceeding,
hearing or examination that it may deem necessary or desirable in respect to
this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, proceeding, hearing or examination and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Company and the Master Servicer shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on
deposit in the Custodial Account as provided by Section 3.10 and, on the
Distribution Date(s) following such reimbursement, the aggregate of such
expenses and costs shall be allocated in reduction of the Accrued Certificate
Interest on each Class entitled thereto in the same manner as if such
expenses and costs constituted a Prepayment Interest Shortfall.
Section 6.04. Company and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Company nor the
Master Servicer shall resign from its respective obligations and duties
hereby imposed on it except upon determination that its duties hereunder are
no longer permissible under applicable law. Any such determination
permitting the resignation of the Company or the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation by the Master Servicer shall become effective until the
Trustee or a successor servicer shall have assumed the Master Servicer's
responsibilities and obligations in accordance with Section 7.02.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be distributed
to the Holders of Certificates of any Class any distribution required
to be made under the terms of the Certificates of such Class and this
Agreement and, in either case, such failure shall continue unremedied
for a period of 5 days after the date upon which written notice of such
failure, requiring such failure to be remedied, shall have been given
to the Master Servicer by the Trustee or the Company or to the Master
Servicer, the Company and the Trustee by the Holders of Certificates of
such Class evidencing Percentage Interests aggregating not less than
25%; or
(ii) the Master Servicer shall fail to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Master Servicer contained in the Certificates of any Class or in this
Agreement and such failure shall continue unremedied for a period of 30
days (except that such number of days shall be 15 in the case of a
failure to pay the premium for any Required Insurance Policy) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee
or the Company, or to the Master Servicer, the Company and the Trustee
by the Holders of Certificates of any Class evidencing, in the case of
any such Class, Percentage Interests aggregating not less than 25%; or
(iii) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or
appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of
60 days; or
(iv) the Master Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of, or
relating to, the Master Servicer or of, or relating to, all or
substantially all of the property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) the Master Servicer shall notify the Trustee pursuant to
Section 4.04(b) that it is unable to deposit in the Certificate Account
an amount equal to the Advance.
If an Event of Default described in clauses (i)-(v) of this
Section shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, either the Company or the
Trustee may, and at the direction of Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee shall, by notice in writing to
the Master Servicer (and to the Company if given by the Trustee or to the
Trustee if given by the Company), terminate all of the rights and obligations
of the Master Servicer under this Agreement and in and to the Mortgage Loans
and the proceeds thereof, other than its rights as a Certificateholder
hereunder. If an Event of Default described in clause (vi) hereof shall
occur, the Trustee shall, by notice to the Master Servicer and the Company,
immediately terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than its rights as a Certificateholder hereunder as
provided in Section 4.04(b). On or after the receipt by the Master Servicer
of such written notice, all authority and power of the Master Servicer under
this Agreement, whether with respect to the Certificates (other than as a
Holder thereof) or the Mortgage Loans or otherwise, shall subject to
Section 7.02 pass to and be vested in the Trustee or the Trustee's designee
appointed pursuant to Section 7.02; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents, or otherwise. The Master Servicer agrees to cooperate
with the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee or its designee for administration by it of all cash
amounts which shall at the time be credited to the Custodial Account or the
Certificate Account or thereafter be received with respect to the Mortgage
Loans. No such termination shall release the Master Servicer for any
liability that it would otherwise have hereunder for any act or omission
prior to the effective time of such termination.
Notwithstanding any termination of the activities of Residential
Funding in its capacity as Master Servicer hereunder, Residential Funding
shall be entitled to receive, out of any late collection of a Monthly Payment
on a Mortgage Loan which was due prior to the notice terminating Residential
Funding's rights and obligations as Master Servicer hereunder and received
after such notice, that portion to which Residential Funding would have been
entitled pursuant to Sections 3.10(a)(ii), (vi) and (vii) as well as its
Servicing Fee in respect thereof, and any other amounts payable to
Residential Funding hereunder the entitlement to which arose prior to the
termination of its activities hereunder. Upon the termination of Residential
Funding as Master Servicer hereunder the Company shall deliver to the Trustee
a copy of the Program Guide.
Section 7.02. Trustee or Company to Act; Appointment of Successor.
(a) On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 or resigns in accordance with
Section 6.04, the Trustee or, upon notice to the Company and with the
Company's consent (which shall not be unreasonably withheld) a designee
(which meets the standards set forth below) of the Trustee, shall be the
successor in all respects to the Master Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein
and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer (except for the
responsibilities, duties and liabilities contained in Sections 2.02 and
2.03(a), excluding the duty to notify related Subservicers or Sellers as set
forth in such Sections, and its obligations to deposit amounts in respect of
losses incurred prior to such notice or termination on the investment of
funds in the Custodial Account or the Certificate Account pursuant to
Sections 3.07(c) and 4.01(b) by the terms and provisions hereof); provided,
however, that any failure to perform such duties or responsibilities caused
by the preceding Master Servicer's failure to provide information required by
Section 4.04 shall not be considered a default by the Trustee hereunder. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to
charge to the Custodial Account or the Certificate Account if the Master
Servicer had continued to act hereunder and, in addition, shall be entitled
to the income from any Permitted Investments made with amounts attributable
to the Mortgage Loans held in the Custodial Account or the Certificate
Account. If the Trustee has become the successor to the Master Servicer in
accordance with Section 6.04 or Section 7.01, then notwithstanding the above,
the Trustee may, if it shall be unwilling to so act, or shall, if it is
unable to so act, appoint, or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution, which is also
a ▇▇▇▇▇▇ ▇▇▇- or Freddie Mac-approved mortgage servicing institution, having
a net worth of not less than $10,000,000 as the successor to the Master
Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the
Trustee shall become successor to the Master Servicer and shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess
of that permitted the initial Master Servicer hereunder. The Company, the
Trustee, the Custodian and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such
succession. The Servicing Fee for any successor Master Servicer appointed
pursuant to this Section 7.02 will be lowered with respect to those Mortgage
Loans, if any, where the Subservicing Fee accrues at a rate of less than
0.20% per annum in the event that the successor Master Servicer is not
servicing such Mortgage Loans directly and it is necessary to raise the
related Subservicing Fee to a rate of 0.20% per annum in order to hire a
Subservicer with respect to such Mortgage Loans. The Master Servicer shall
pay the reasonable expenses of the Trustee in connection with any servicing
transition hereunder.
(b) In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the Mortgage Loans that are
registered with MERS, in which case the predecessor Master Servicer shall
cooperate with the successor Master Servicer in causing MERS to revise its
records to reflect the transfer of servicing to the successor Master Servicer
as necessary under MERS' rules and regulations, or (ii) the predecessor
Master Servicer shall cooperate with the successor Master Servicer in causing
MERS to execute and deliver an assignment of Mortgage in recordable form to
transfer the Mortgage from MERS to the Trustee and to execute and deliver
such other notices, documents and other instruments as may be necessary or
desirable to effect a transfer of such Mortgage Loan or servicing of such
Mortgage Loan on the MERS(R)System to the successor Master Servicer. The
predecessor Master Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The predecessor Master
Servicer shall bear any and all fees of MERS, costs of preparing any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this subSection (b). The successor Master
Servicer shall cause such assignment to be delivered to the Trustee or the
Custodian promptly upon receipt of the original with evidence of recording
thereon or a copy certified by the public recording office in which such
assignment was recorded.
Section 7.03. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights affected by
a default or Event of Default hereunder may waive such default or Event of
Default; provided, however, that (a) a default or Event of Default under
clause (i) of Section 7.01 may be waived only by all of the Holders of
Certificates affected by such default or Event of Default and (b) no waiver
pursuant to this Section 7.04 shall affect the Holders of Certificates in the
manner set forth in Section 11.01(b)(i) or (ii). Upon any such waiver of a
default or Event of Default by the Holders representing the requisite
percentage of Voting Rights affected by such default or Event of Default,
such default or Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon except to the extent expressly so waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement. In case an Event of Default has occurred (which
has not been cured or waived), the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care
and skill in their exercise as a prudent investor would exercise or use under
the circumstances in the conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to
the requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 4.03, 4.06, 7.03 and 10.01. The Trustee shall furnish in
a timely fashion to the Master Servicer such information as the Master
Servicer may reasonably request from time to time for the Master Servicer to
fulfill its duties as set forth in this Agreement. The Trustee covenants and
agrees that it shall perform its obligations hereunder in a manner so as to
maintain the status of any portion of any REMIC formed under the Series
Supplement as a REMIC under the REMIC Provisions and (subject to
Section 10.01(f)) to prevent the imposition of any federal, state or local
income, prohibited transaction, contribution or other tax on the Trust Fund
to the extent that maintaining such status and avoiding such taxes are
reasonably within the control of the Trustee and are reasonably within the
scope of its duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or
waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee by the Company or the Master Servicer
and which on their face, do not contradict the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Certificateholders of any Class
holding Certificates which evidence, as to such Class, Percentage
Interests aggregating not less than 25% as to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any default (other
than a default in payment to the Trustee) specified in clauses (i) and
(ii) of Section 7.01 or an Event of Default under clauses (iii),
(iv) and (v) of Section 7.01 unless a Responsible Officer of the
Trustee assigned to and working in the Corporate Trust Office obtains
actual knowledge of such failure or event or the Trustee receives
written notice of such failure or event at its Corporate Trust Office
from the Master Servicer, the Company or any Certificateholder; and
(v) Except to the extent provided in Section 7.02, no provision in this
Agreement shall require the Trustee to expend or risk its own funds
(including, without limitation, the making of any Advance) or otherwise
incur any personal financial liability in the performance of any of its
duties as Trustee hereunder, or in the exercise of any of its rights or
powers, if the Trustee shall have reasonable grounds for believing that
repayment of funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) The Trustee shall timely pay, from its own funds, the amount of any and
all federal, state and local taxes imposed on the Trust Fund or its assets or
transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the
same shall be due and payable, (B) any tax on contributions to a REMIC after
the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful
misconduct of the Trustee.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and
in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Agreement or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default (which
has not been cured or waived), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent investor would exercise
or use under the circumstances in the conduct of such investor's own
affairs;
(iv) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by
Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests, aggregating not less than 50%; provided, however,
that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Master Servicer, if an Event of Default shall have occurred and is
continuing, and otherwise by the Certificateholder requesting the
investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys provided that the Trustee shall remain liable for any acts of
such agents or attorneys; and
(vii) To the extent authorized under the Code and the regulations promulgated
thereunder, each Holder of a Class R Certificate hereby irrevocably
appoints and authorizes the Trustee to be its attorney-in-fact for
purposes of signing any Tax Returns required to be filed on behalf of
the Trust Fund. The Trustee shall sign on behalf of the Trust Fund and
deliver to the Master Servicer in a timely manner any Tax Returns
prepared by or on behalf of the Master Servicer that the Trustee is
required to sign as determined by the Master Servicer pursuant to
applicable federal, state or local tax laws, provided that the Master
Servicer shall indemnify the Trustee for signing any such Tax Returns
that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not
accept any contribution of assets to the Trust Fund unless (subject to
Section 10.01(f)) it shall have obtained or been furnished with an Opinion of
Counsel to the effect that such contribution will not (i) cause any portion
of any REMIC formed under the Series Supplement to fail to qualify as a REMIC
at any time that any Certificates are outstanding or (ii) cause the Trust
Fund to be subject to any federal tax as a result of such contribution
(including the imposition of any federal tax on "prohibited transactions"
imposed under Section 860F(a) of the Code).
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of
the Mortgage Loans) shall be taken as the statements of the Company or the
Master Servicer as the case may be, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates (except that
the Certificates shall be duly and validly executed and authenticated by it
as Certificate Registrar) or of any Mortgage Loan or related document, or of
MERS or the MERS(R)System. Except as otherwise provided herein, the Trustee
shall not be accountable for the use or application by the Company or the
Master Servicer of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Company
or the Master Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Custodial Account or the Certificate Account by the
Company or the Master Servicer.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it
were not Trustee.
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification.
(a) The Master Servicer covenants and agrees to pay to the Trustee and any
co-trustee from time to time, and the Trustee and any co-trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by each of them in the execution of the
trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee and any co-trustee, and the Master
Servicer will pay or reimburse the Trustee and any co-trustee upon request
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee or any co-trustee in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ,
and the expenses incurred by the Trustee or any co-trustee in connection with
the appointment of an office or agency pursuant to Section 8.12) except any
such expense, disbursement or advance as may arise from its negligence or bad
faith.
(b) The Master Servicer agrees to indemnify the Trustee for, and to hold
the Trustee harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on its part, arising out of, or in
connection with, the acceptance and administration of the Trust Fund,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against any claim in connection with the
exercise or performance of any of its powers or duties under this Agreement,
and the Custodial Agreement and the Master Servicer further agrees to
indemnify the Trustee for, and to hold the Trustee harmless against, any
loss, liability or expense arising out of, or in connection with, the
provisions set forth in Section 2.01(a) hereof, including, without
limitation, all costs, liabilities and expenses (including reasonable legal
fees and expenses) of investigating and defending itself against any claim,
action or proceeding, pending or threatened, relating to the provisions of
such paragraph, provided that:
(i) with respect to any such claim, the Trustee shall have given the Master
Servicer written notice thereof promptly after the Trustee shall have
actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Master Servicer in preparing such
defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for settlement of any claim by the Trustee
entered into without the prior consent of the Master Servicer which
consent shall not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created
by this Section 8.05(b) of the Master Servicer to indemnify the Trustee under
the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 8.05(b) shall not pertain to any loss,
liability or expense of the Trustee, including the costs and expenses of
defending itself against any claim, incurred in connection with any actions
taken by the Trustee at the direction of the Certificateholders pursuant to
the terms of this Agreement.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a national
banking association having its principal office in a state and city
acceptable to the Company and organized and doing business under the laws of
such state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07.
Section 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Company and the Master
Servicer. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Company, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the Company may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee. In addition,
in the event that the Company determines that the Trustee has failed (i) to
distribute or cause to be distributed to the Certificateholders any amount
required to be distributed hereunder, if such amount is held by the Trustee
or its Paying Agent (other than the Master Servicer or the Company) for
distribution or (ii) to otherwise observe or perform in any material respect
any of its covenants, agreements or obligations hereunder, and such failure
shall continue unremedied for a period of 5 days (in respect of
clause (i) above) or 30 days (in respect of clause (ii) above), other than
any failure to comply with the provisions of Article XII, in which case no
notice or grace period shall be applicable) after the date on which written
notice of such failure, requiring that the same be remedied, shall have been
given to the Trustee by the Company, then the Company may remove the Trustee
and appoint a successor trustee by written instrument delivered as provided
in the preceding sentence. In connection with the appointment of a successor
trustee pursuant to the preceding sentence, the Company shall, on or before
the date on which any such appointment becomes effective, obtain from each
Rating Agency written confirmation that the appointment of any such successor
trustee will not result in the reduction of the ratings on any class of the
Certificates below the lesser of the then current or original ratings on such
Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Company, one complete set to the
Trustee so removed and one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all 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 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider
necessary or desirable. If the Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or
in case an Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice
to Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee, and such separate trustee or
co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer and the
Company, or shall, at the direction of the Company and the Master Servicer,
appoint one or more Custodians who are not Affiliates of the Company, the
Master Servicer or any Seller to hold all or a portion of the Custodial Files
as agent for the Trustee, by entering into a Custodial Agreement. Subject to
Article VIII, the Trustee agrees to comply with the terms of each Custodial
Agreement with respect to the Custodial Files and to enforce the terms and
provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject
to supervision by federal or state authority, shall have a combined capital
and surplus of at least $15,000,000 and shall be qualified to do business in
the jurisdiction in which it holds any 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 at the address designated
in Section 11.05 of the Series Supplement where Certificates may be
surrendered for registration of transfer or exchange. The Trustee will
maintain an office at the address stated in Section 11.05 of the Series
Supplement where notices and demands to or upon the Trustee in respect of
this Agreement may be served.
ARTICLE IX
TERMINATION OR OPTIONAL PURCHASE OF ALL CERTIFICATES
Section 9.01. Optional Purchase by the Master Servicer of All
Certificates; Termination Upon Purchase by the Master
Servicer or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Company, the Master Servicer and the Trustee created
hereby in respect of the Certificates (other than the obligation of the
Trustee to make certain payments after the Final Distribution Date to
Certificateholders and the obligation of the Company to send certain notices
as hereinafter set forth) shall terminate upon the last action required to be
taken by the Trustee on the Final Distribution Date pursuant to this Article
IX following the earlier of:
(i) the later of the final payment or other liquidation (or any Advance
with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund or the disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan, or
(ii) the purchase by the Master Servicer of all Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the
Trust Fund at a price equal to 100% of the unpaid principal balance of
each Mortgage Loan or, if less than such unpaid principal balance, the
fair market value of the related underlying property of such Mortgage
Loan with respect to Mortgage Loans as to which title has been acquired
if such fair market value is less than such unpaid principal balance on
the day of repurchase plus accrued interest thereon at the Mortgage
Rate (or Modified Mortgage Rate in the case of any Modified Mortgage
Loan) from the Due Date to which interest was last paid by the
Mortgagor to, but not including, the first day of the month in which
such repurchase price is distributed, provided, however, that in no
event shall the trust created hereby continue beyond (i) the Maturity
Date or (ii) the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador
of the United States to the Court of St. ▇▇▇▇▇, living on the date
hereof and provided further that the purchase price set forth above
shall be increased as is necessary, as determined by the Master
Servicer, to avoid disqualification of any portion of any REMIC formed
under the Series Supplement as a REMIC. The purchase price paid by the
Master Servicer shall also include any amounts owed by the Master
Servicer pursuant to Section 4 of the Assignment Agreement in respect
of any liability, penalty or expense that resulted from a breach of the
representation and warranty set forth in clause (xii) or (xxxviii) of
such Section that remain unpaid on the date of such purchase.
The right of the Master Servicer to purchase all the assets of the
Trust Fund pursuant to clause (ii) above is conditioned upon the Pool Stated
Principal Balance as of the Final Distribution Date, prior to giving effect
to distributions to be made on such Distribution Date, being less than ten
percent of the Cut-off Date Principal Balance of the Mortgage Loans. If such
right is exercised by the Master Servicer, the Master Servicer shall be
entitled to reimbursement for the full amount of any unreimbursed Advances
theretofore made by it with respect to the Mortgage Loans pursuant to
Section 3.10. In addition, the Master Servicer shall provide to the Trustee
the certification required by Section 3.15 and the Trustee and any Custodian
shall, promptly following payment of the purchase price, release to the
Master Servicer the Custodial Files pertaining to the Mortgage Loans being
purchased.
In addition to the foregoing, on any Distribution Date on which the
Pool Stated Principal Balance, prior to giving effect to distributions to be
made on such Distribution Date, is less than ten percent of the Cut off Date
Principal Balance of the Mortgage Loans, the Master Servicer shall have the
right, at its option, to purchase the Certificates in whole, but not in part,
at a price equal to the outstanding Certificate Principal Balance of such
Certificates plus the sum of Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate
Interest.
(b) The Master Servicer shall give the Trustee not less than 40 days' prior
notice of the Distribution Date on which the Master Servicer anticipates that
the final distribution will be made to Certificateholders (whether as a
result of the exercise by Residential Funding of its right to purchase the
assets of the Trust Fund or otherwise) or on which the Master Servicer
anticipates that the Certificates will be purchased (as a result of the
exercise by Residential Funding of its right to purchase the outstanding
Certificates). Notice of any termination, specifying the anticipated Final
Distribution Date (which shall be a date that would otherwise be a
Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Trustee (if so required by the terms hereof) for payment
of the final distribution and cancellation or notice of any purchase of the
outstanding Certificates shall be given promptly by the Master Servicer (if
Residential Funding is exercising its right to purchase the assets of the
Trust Fund or to purchase the outstanding Certificates), or by the Trustee
(in any other case) by letter. Such notice shall be prepared by the Master
Servicer (in the case of Residential Funding exercising its right to purchase
the assets of the Trust Fund or to purchase the outstanding Certificates) or
the Trustee (in any other case) and mailed by the Trustee to the
Certificateholders not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of such final distribution
specifying:
(i) the anticipated Final Distribution Date upon which final payment of the
Certificates is anticipated to be made upon presentation and surrender
of Certificates at the office or agency of the Trustee therein
designated where required pursuant to this Agreement or, in the case of
the purchase by the Master Servicer of the outstanding Certificates,
the Distribution Date on which such purchase is to be made,
(ii) the amount of any such final payment, or in the case of the purchase of
the outstanding Certificates, the purchase price, in either case, if
known, and
(iii) that the Record Date otherwise applicable to such Distribution Date is
not applicable and that payment will be made only upon presentation and
surrender of the Certificates at the office or agency of the Trustee
therein specified.
If the Master Servicer is obligated to give notice to
Certificateholders as aforesaid, it shall give such notice to the Certificate
Registrar at the time such notice is given to Certificateholders and, if
Residential Funding is exercising its rights to purchase the outstanding
Certificates, Residential Funding shall give such notice to each Rating
Agency at the time such notice is given to Certificateholders. As a result of
the exercise by Residential Funding of its right to purchase the assets of
the Trust Fund or the outstanding Certificates, Residential Funding shall
deposit in the Custodial Account before the Final Distribution Date in
immediately available funds an amount equal to the purchase price for the
assets of the Trust Fund, computed as provided above.
(c) Upon presentation and surrender of the Certificates by the
Certificateholders thereof in connection with the exercise by Residential
Funding of its right to purchase the Certificates, the Trustee shall
distribute to the Certificateholders on the Final Distribution Date the
respective amounts determined in accordance with Section 4.02.
Notwithstanding the reduction of the Certificate Principal Balance of any
Class of Subordinate Certificates to zero, such Class will be outstanding
hereunder until the termination of the respective obligations and
responsibilities of the Company, the Master Servicer and the Trustee
hereunder in accordance with Article IX.
(d) If any Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before the Final Distribution Date (if
so required by the terms hereof), the Trustee shall on such date cause all
funds in the Certificate Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for
the benefit of such Certificateholders, and the Master Servicer (if
Residential Funding exercised its right to purchase the assets of the Trust
Fund), or the Trustee (in any other case) shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within six months after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee shall take appropriate steps as
directed by the Master Servicer to contact the remaining Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining the escrow account and of contacting Certificateholders shall be
paid out of the assets which remain in the escrow account. If within nine
months after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall pay to the Master Servicer
all amounts distributable to the holders thereof and the Master Servicer
shall thereafter hold such amounts until distributed to such Holders. No
interest shall accrue or be payable to any Certificateholder on any amount
held in the escrow account or by the Master Servicer as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
(e) If any Certificateholders do not surrender their Certificates on or
before the Distribution Date on which a purchase of the outstanding
Certificates is to be made, the Trustee shall on such date cause all funds in
the Custodial Account deposited therein by Residential Funding pursuant to
Section 9.01(b) to be withdrawn therefrom and deposited in a separate escrow
account for the benefit of such Certificateholders, and the Master Servicer
shall give a second written notice to such Certificateholders to surrender
their Certificates for payment of the purchase price therefor. If within six
months after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee shall take appropriate steps as
directed by the Master Servicer to contact the Holders of such Certificates
concerning surrender of their Certificates. The costs and expenses of
maintaining the escrow account and of contacting Certificateholders shall be
paid out of the assets which remain in the escrow account. If within nine
months after the second notice any Certificates shall not have been
surrendered for cancellation in accordance with this Section 9.01, the
Trustee shall pay to the Master Servicer all amounts distributable to the
Holders thereof and the Master Servicer shall thereafter hold such amounts
until distributed to such Holders. No interest shall accrue or be payable to
any Certificateholder on any amount held in the escrow account or by the
Master Servicer as a result of such Certificateholder's failure to surrender
its Certificate(s) for payment in accordance with this Section 9.01. Any
Certificate that is not surrendered on the Distribution Date on which a
purchase pursuant to this Section 9.01 occurs as provided above will be
deemed to have been purchased and the Holder as of such date will have no
rights with respect thereto except to receive the purchase price therefor
minus any costs and expenses associated with such escrow account and notices
allocated thereto.
(f) All rights of Residential Funding to purchase the assets of the Trust
Fund, or to purchase specified classes of Certificates, as set forth in
Section 9.01(a) are referred to in this Agreement as the "Call Rights".
Notwithstanding any other provision of this Agreement, Residential Funding
shall have the right to sell, transfer, pledge or otherwise assign the Call
Rights at any time to any Person. Upon written notice by Residential Funding
to the Trustee and the Master Servicer of any such assignment of the Call
Rights to any assignee, the Trustee and the Master Servicer shall be
obligated to recognize such assignee as the holder of the Call Rights. Such
entity, if not Residential Funding or an affiliate, shall be deemed to
represent, at the time of such sale, transfer, pledge or other assignment,
that one of the following will be, and at the time the Call Right is
exercised is, true and correct: (i) the exercise of such Call Right shall
not result in a non-exempt prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code (including by reason of U.S. Department of Labor
("DOL") Prohibited Transaction Class Exemption ("PTCE") 75-1 (Part I), 84-14,
90-1, 91-38, 95-60 or 96-23 or other applicable exemption) or (ii) such
entity is (A) not a party in interest under Section 3(14) of ERISA or a
disqualified person under Section 4975(e)(2) of the Code with respect to any
employee benefit plan subject to Section 406 of ERISA or any plan subject to
Section 4975 of the Code (other than an employee benefit plan or plan
sponsored or maintained by the entity, provided that no assets of such
employee benefit plan or plan are invested or deemed to be invested in the
Certificates) and (B) not a "benefit plan investor" as described in DOL
regulation Section 2510.3-101(f)(2) and as modified by Section 3(42) of
ERISA. If any such assignee of the Call Right is unable to exercise such
Call Right by reason of the preceding sentence, then the Call Right shall
revert to the immediately preceding assignor of such Call Right subject to
the rights of any secured party therein.
Section 9.02. Additional Termination Requirements.
(a) Each REMIC that comprises the Trust Fund shall be terminated in
accordance with the following additional requirements, unless (subject to
Section 10.01(f)) the Trustee and the Master Servicer have received an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee) to the effect that the failure of each such REMIC to comply with the
requirements of this Section 9.02 will not (i) result in the imposition on
the Trust of taxes on "prohibited transactions," as described in Section 860F
of the Code, or (ii) cause any such REMIC to fail to qualify as a REMIC at
any time that any Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period for
each such REMIC and specify the first day of such period in a statement
attached to the Trust Fund's final Tax Return pursuant to Treasury
regulations Section 1.860F-1. The Master Servicer also shall satisfy
all of the requirements of a qualified liquidation for a REMIC under
Section 860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the commencement of
such 90-day liquidation period and, at or prior to the time of making
of the final payment on the Certificates, the Trustee shall sell or
otherwise dispose of all of the remaining assets of the Trust Fund in
accordance with the terms hereof; and
(iii) If Residential Funding or the Company is exercising its right to
purchase the assets of the Trust Fund, Residential Funding shall,
during the 90-day liquidation period and at or prior to the Final
Distribution Date, purchase all of the assets of the Trust Fund for
cash.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably
approves and appoints the Master Servicer as its attorney-in-fact to adopt a
plan of complete liquidation for each REMIC at the expense of the Trust Fund
in accordance with the terms and conditions of this Agreement.
Section 9.03. Termination of Multiple REMICs.
If the REMIC Administrator makes two or more separate REMIC elections,
the applicable REMIC shall be terminated on the earlier of the Final
Distribution Date and the date on which it is deemed to receive the last
deemed distributions on the related Uncertificated REMIC Regular Interests
and the last distribution due on the Certificates is made.
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The REMIC Administrator shall make an election to treat the Trust Fund
as one or more REMICs under the Code and, if necessary, under applicable
state law. The assets of each such REMIC will be set forth in the Series
Supplement. Such election will be made on Form 1066 or other appropriate
federal tax or information return (including Form 8811) or any appropriate
state return for the taxable year ending on the last day of the calendar year
in which the Certificates are issued. For the purposes of each REMIC election
in respect of the Trust Fund, Certificates and interests to be designated as
the "regular interests" and the sole class of "residual interests" in the
REMIC will be set forth in Section 10.03 of the Series Supplement. The REMIC
Administrator and the Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any REMIC
elected in respect of the Trust Fund other than the "regular interests" and
"residual interests" so designated.
(b) The Closing Date is hereby designated as the "startup day" of the Trust
Fund within the meaning of Section 860G(a)(9) of the Code.
(c) The REMIC Administrator shall hold a Class R Certificate representing a
0.01% Percentage Interest each Class of the Class R Certificates and shall be
designated as "the tax matters person" with respect to each REMIC in the
manner provided under Treasury regulations Section 1.860F-4(d) and Treasury
regulations Section 301.6231(a)(7)-1. The REMIC Administrator, as tax matters
person, shall (i) act on behalf of each REMIC in relation to any tax matter
or controversy involving the Trust Fund and (ii) represent the Trust Fund in
any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the REMIC Administrator shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans on
deposit in the Custodial Account as provided by Section 3.10 unless such
legal expenses and costs are incurred by reason of the REMIC Administrator's
willful misfeasance, bad faith or gross negligence. If the REMIC
Administrator is no longer the Master Servicer hereunder, at its option the
REMIC Administrator may continue its duties as REMIC Administrator and shall
be paid reasonable compensation not to exceed $3,000 per year by any
successor Master Servicer hereunder for so acting as the REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all of
the Tax Returns that it determines are required with respect to each REMIC
created hereunder and deliver such Tax Returns in a timely manner to the
Trustee and the Trustee shall sign and file such Tax Returns in a timely
manner. The expenses of preparing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor. The REMIC
Administrator agrees to indemnify and hold harmless the Trustee with respect
to any tax or liability arising from the Trustee's signing of Tax Returns
that contain errors or omissions. The Trustee and Master Servicer shall
promptly provide the REMIC Administrator with such information as the REMIC
Administrator may from time to time request for the purpose of enabling the
REMIC Administrator to prepare Tax Returns.
(e) The REMIC Administrator shall provide (i) to any Transferor of a Class
R Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee, and the Trustee shall forward to
the Certificateholders, such information or reports as are required by the
Code or the REMIC Provisions including reports relating to interest, original
issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service the name, title,
address and telephone number of the person who will serve as the
representative of each REMIC.
(f) The Master Servicer and the REMIC Administrator shall take such actions
and shall cause each REMIC created hereunder to take such actions as are
reasonably within the Master Servicer's or the REMIC Administrator's control
and the scope of its duties more specifically set forth herein as shall be
necessary or desirable to maintain the status of each REMIC as a REMIC under
the REMIC Provisions (and the Trustee shall assist the Master Servicer and
the REMIC Administrator, to the extent reasonably requested by the Master
Servicer and the REMIC Administrator to do so). The Master Servicer and the
REMIC Administrator shall not knowingly or intentionally take any action,
cause the Trust Fund to take any action or fail to take (or fail to cause to
be taken) any action reasonably within their respective control that, under
the REMIC Provisions, if taken or not taken, as the case may be, could
(i) endanger the status of any portion of any REMIC formed under the Series
Supplement as a REMIC or (ii) result in the imposition of a tax upon any such
REMIC (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code) (either such event, in the
absence of an Opinion of Counsel or the indemnification referred to in this
sentence, an "Adverse REMIC Event") unless the Master Servicer or the REMIC
Administrator, as applicable, has received an Opinion of Counsel (at the
expense of the party seeking to take such action or, if such party fails to
pay such expense, and the Master Servicer or the REMIC Administrator, as
applicable, determines that taking such action is in the best interest of the
Trust Fund and the Certificateholders, at the expense of the Trust Fund, but
in no event at the expense of the Master Servicer, the REMIC Administrator or
the Trustee) to the effect that the contemplated action will not, with
respect to each REMIC created hereunder, endanger such status or, unless the
Master Servicer, the REMIC Administrator or both, as applicable, determine in
its or their sole discretion to indemnify the Trust Fund against the
imposition of such a tax, result in the imposition of such a tax. Wherever in
this Agreement a contemplated action may not be taken because the timing of
such action might result in the imposition of a tax on the Trust Fund, or may
only be taken pursuant to an Opinion of Counsel that such action would not
impose a tax on the Trust Fund, such action may nonetheless be taken provided
that the indemnity given in the preceding sentence with respect to any taxes
that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized
hereunder) as to which the Master Servicer or the REMIC Administrator, as
applicable, has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. In addition, prior to taking any action with respect to any
REMIC created hereunder or any related assets thereof, or causing any such
REMIC to take any action, which is not expressly permitted under the terms of
this Agreement, the Trustee will consult with the Master Servicer or the
REMIC Administrator, as applicable, or its designee, in writing, with respect
to whether such action could cause an Adverse REMIC Event to occur with
respect to any such REMIC, and the Trustee shall not take any such action or
cause any such REMIC to take any such action as to which the Master Servicer
or the REMIC Administrator, as applicable, has advised it in writing that an
Adverse REMIC Event could occur. The Master Servicer or the REMIC
Administrator, as applicable, may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not expressly permitted by this Agreement, but in no event at the
expense of the Master Servicer or the REMIC Administrator. At all times as
may be required by the Code, the Master Servicer will to the extent within
its control and the scope of its duties more specifically set forth herein,
maintain substantially all of the assets of each REMIC created hereunder as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of
any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of any such REMIC as defined in
Section 860G(c) of the Code, on any contributions to any such REMIC after the
Startup Day therefor pursuant to Section 860G(d) of the Code, or any other
tax is imposed by the Code or any applicable provisions of state or local tax
laws, such tax shall be charged (i) to the Master Servicer, if such tax
arises out of or results from a breach by the Master Servicer of any of its
obligations under this Agreement or the Master Servicer has in its sole
discretion determined to indemnify the Trust Fund against such tax, (ii) to
the Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under this Article X, or (iii) otherwise
against amounts on deposit in the Custodial Account as provided by
Section 3.10 and on the Distribution Date(s) following such reimbursement the
aggregate of such taxes shall be allocated in reduction of the Accrued
Certificate Interest on each Class entitled thereto in the same manner as if
such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Master Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
(i) Following the Startup Day, neither the Master Servicer nor the Trustee
shall accept any contributions of assets to any REMIC created hereunder
unless (subject to Section 10.01(f)) the Master Servicer and the Trustee
shall have received an Opinion of Counsel (at the expense of the party
seeking to make such contribution) to the effect that the inclusion of such
assets in such REMIC will not cause the REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding or subject the REMIC to any
tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Master Servicer nor the Trustee shall (subject to
Section 10.01(f)) enter into any arrangement by which any REMIC created
hereunder will receive a fee or other compensation for services nor permit
any such REMIC to receive any income from assets other than "qualified
mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Principal Balance of each Class of Certificates (other than the Interest Only
Certificates) representing a regular interest in the applicable REMIC and the
Uncertificated Principal Balance of each Uncertificated REMIC Regular
Interest (other than each Uncertificated REMIC Regular Interest represented
by a Class A-V Certificate, if any) and the rights to the Interest Only
Certificates and Uncertificated REMIC Regular Interest represented by any
Class A-V Certificate would be reduced to zero is the Maturity Date for each
such Certificate and Interest.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for each REMIC created hereunder.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of any REMIC created
hereunder, (iii) the termination of any such REMIC pursuant to Article IX of
this Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or
III of this Agreement) nor acquire any assets for any such REMIC, nor sell or
dispose of any investments in the Custodial Account or the Certificate
Account for gain nor accept any contributions to any such REMIC after the
Closing Date unless it has received an Opinion of Counsel that such sale,
disposition, substitution or acquisition will not (a) affect adversely the
status of such REMIC as a REMIC or (b) unless the Master Servicer has
determined in its sole discretion to indemnify the Trust Fund against such
tax, cause such REMIC to be subject to a tax on "prohibited transactions" or
"contributions" pursuant to the REMIC Provisions.
Section 10.02. Master Servicer, REMIC Administrator and Trustee
Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company, the REMIC
Administrator and the Master Servicer for any taxes and costs including,
without limitation, any reasonable attorneys fees imposed on or incurred by
the Trust Fund, the Company or the Master Servicer, as a result of a breach
of the Trustee's covenants set forth in Article VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the
Company, the Master Servicer and the Trustee for any taxes and costs
(including, without limitation, any reasonable attorneys' fees) imposed on or
incurred by the Trust Fund, the Company, the Master Servicer or the Trustee,
as a result of a breach of the REMIC Administrator's covenants set forth in
this Article X with respect to compliance with the REMIC Provisions,
including without limitation, any penalties arising from the Trustee's
execution of Tax Returns prepared by the REMIC Administrator that contain
errors or omissions; provided, however, that such liability will not be
imposed to the extent such breach is a result of an error or omission in
information provided to the REMIC Administrator by the Master Servicer in
which case Section 10.02(c) will apply.
(c) The Master Servicer agrees to indemnify the Trust Fund, the Company,
the REMIC Administrator and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the REMIC Administrator or the Trustee, as a
result of a breach of the Master Servicer's covenants set forth in this
Article X or in Article III with respect to compliance with the REMIC
Provisions, including without limitation, any penalties arising from the
Trustee's execution of Tax Returns prepared by the Master Servicer that
contain errors or omissions.
Section 10.03. Designation of REMIC(s).
As provided in Section 10.03 of the Series Supplement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to
time by the Company, the Master Servicer and the Trustee, without the consent
of any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be
inconsistent with any other provisions herein or therein or to correct
any error,
(iii) to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or desirable to maintain the qualification of the
Trust Fund as a REMIC at all times that any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim against the Trust
Fund, provided that the Trustee has received an Opinion of Counsel to
the effect that (A) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition
of any such tax and (B) such action will not adversely affect in any
material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Custodial
Account or the Certificate Account or to change the name in which the
Custodial Account is maintained, provided that (A) the Certificate
Account Deposit Date shall in no event be later than the related
Distribution Date, (B) such change shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder and (C) such change shall not result
in a reduction of the rating assigned to any Class of Certificates
below the lower of the then-current rating or the rating assigned to
such Certificates as of the Closing Date, as evidenced by a letter from
each Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(f) or any
other provision hereof restricting transfer of the Class R
Certificates, by virtue of their being the "residual interests" in a
REMIC, provided that (A) such change shall not result in reduction of
the rating assigned to any such Class of Certificates below the lower
of the then-current rating or the rating assigned to such Certificates
as of the Closing Date, as evidenced by a letter from each Rating
Agency to such effect, and (B) such change shall not (subject to
Section 10.01(f)), as evidenced by an Opinion of Counsel (at the
expense of the party seeking so to modify, eliminate or add such
provisions), cause any REMIC created hereunder or any of the
Certificateholders (other than the transferor) to be subject to a
federal tax caused by a transfer to a Person that is not a Permitted
Transferee,
(vi) to make any other provisions with respect to matters or questions
arising under this Agreement or such Custodial Agreement which shall
not be materially inconsistent with the provisions of this Agreement,
provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, or
(vii) to amend any provision herein or therein that is not material to any of
the Certificateholders.
(b) This Agreement or any Custodial Agreement may also be amended from time
to time by the Company, the Master Servicer and the Trustee with the consent
of the Holders of Certificates evidencing in the aggregate not less than 66%
of the Percentage Interests of each Class of Certificates with a Certificate
Principal Balance greater than zero affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or such Custodial Agreement or of modifying in
any manner the rights of the Holders of Certificates of such Class; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate,
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of
such Class then outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel (subject to Section 10.01(f) and at the
expense of the party seeking such amendment) to the effect that such
amendment or the exercise of any power granted to the Master Servicer, the
Company or the Trustee in accordance with such amendment is permitted
hereunder and will not result in the imposition of a federal tax on the Trust
Fund or cause any REMIC created under the Series Supplement to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(d) Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to the
Custodian and each Certificateholder. It shall not be necessary for the
consent of Certificateholders under this Section 11.01 to approve the
particular form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) The Company shall have the option, in its sole discretion, to obtain
and deliver to the Trustee any corporate guaranty, payment obligation,
irrevocable letter of credit, surety bond, insurance policy or similar
instrument or a reserve fund, or any combination of the foregoing, for the
purpose of protecting the Holders of the Class B Certificates against any or
all Realized Losses or other shortfalls. Any such instrument or fund shall be
held by the Trustee for the benefit of the Class B Certificateholders, but
shall not be and shall not be deemed to be under any circumstances included
in the Trust Fund. To the extent that any such instrument or fund
constitutes a reserve fund for federal income tax purposes, (i) any reserve
fund so established shall be an outside reserve fund and not an asset of the
Trust Fund, (ii) any such reserve fund shall be owned by the Company, and
(iii) amounts transferred by the Trust Fund to any such reserve fund shall be
treated as amounts distributed by the Trust Fund to the Company or any
successor, all within the meaning of Treasury Regulations
Section 1.860G-2(h) as it reads as of the Cut-off Date. In connection with
the provision of any such instrument or fund, this Agreement and any
provision hereof may be modified, added to, deleted or otherwise amended in
any manner that is related or incidental to such instrument or fund or the
establishment or administration thereof, such amendment to be made by written
instrument executed or consented to by the Company but without the consent of
any Certificateholder and without the consent of the Master Servicer or the
Trustee being required unless any such amendment would impose any additional
obligation on, or otherwise adversely affect the interests of the Senior
Certificateholders, the Class M Certificateholders, the Master Servicer or
the Trustee, as applicable; provided that the Company obtains (subject to
Section 10.01(f)) an Opinion of Counsel (which need not be an opinion of
Independent counsel) to the effect that any such amendment will not cause
(a) any federal tax to be imposed on the Trust Fund, including without
limitation, any federal tax imposed on "prohibited transactions" under
Section 860F(a)(1) of the Code or on "contributions after the startup date"
under Section 860G(d)(1) of the Code and (b) any REMIC created hereunder to
fail to qualify as a REMIC at any time that any Certificate is outstanding.
In the event that the Company elects to provide such coverage in the form of
a limited guaranty provided by 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 K, with
such changes as the Company shall deem to be appropriate; it being understood
that the Trustee has reviewed and approved the content of such forms and that
the Trustee's consent or approval to the use thereof is not required.
Section 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer and at its expense on direction by the
Trustee (pursuant to the request of Holders of Certificates entitled to at
least 25% of the Voting Rights), but only upon direction accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
Section 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up
of the Trust Fund, nor otherwise affect the rights, obligations and
liabilities of any of the parties hereto.
(b) No Certificateholder shall have any right to vote (except as expressly
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates of any Class evidencing in the aggregate not less
than 25% of the related Percentage Interests of such Class, shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates of any Class shall have any right in any
manner whatever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates of such Class or any other Class, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the common
benefit of Certificateholders of such Class or all Classes, as the case may
be. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04. Governing Law.
This agreement and the Certificates shall be governed by and construed
in accordance with the laws of the State of New York and the obligations,
rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 11.05. Notices.
As provided in Section 11.05 of the Series Supplement.
Section 11.06. Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, shall
(i) notify each Rating Agency and the Subservicer at such time as it is
otherwise required pursuant to this Agreement to give notice of the
occurrence of any of the events described in clause (a), (b), (c), (d), (g),
(h), (i) or (j) below or (ii) provide a copy to each Rating Agency and
Subservicer at such time as otherwise required to be delivered pursuant to
this Agreement of any of the statements described in clauses (e) and
(f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) the termination or appointment of a successor Master Servicer or
Trustee or a change in the majority ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket fidelity
bond and the errors and omissions insurance policy required by Section 3.12
or the cancellation or modification of coverage under any such instrument,
(e) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18 and
3.19,
(g) a change in the location of the Custodial Account or the Certificate
Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of any
Class of Certificates resulting from the failure by the Master Servicer to
make an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the
events described in clauses (d), (g) or (h) above, the Master Servicer shall
provide prompt written notice to each Rating Agency and the Subservicer of
any such event known to the Master Servicer.
Section 11.07. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.08. Supplemental Provisions for Resecuritization.
This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Certificates issued hereunder, under the following
circumstances. With respect to any Class or Classes of Certificates issued
hereunder, or any portion of any such Class, as to which the Company or any
of its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Company may deposit such Resecuritized
Certificates into a new REMIC, grantor trust or custodial arrangement (a
"Restructuring Vehicle") to be held by the Trustee pursuant to a Supplemental
Article. The instrument adopting such Supplemental Article shall be executed
by the Company, the Master Servicer and the Trustee; provided, that neither
the Master Servicer nor the Trustee shall withhold their consent thereto if
their respective interests would not be materially adversely affected
thereby. To the extent that the terms of the Supplemental Article do not in
any way affect any provisions of this Agreement as to any of the Certificates
initially issued hereunder, the adoption of the Supplemental Article shall
not constitute an "amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions
relating to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions to be
made thereon, and any other provisions necessary for the purposes thereof.
In connection with each Supplemental Article, the Company shall deliver to
the Trustee an Opinion of Counsel to the effect that (i) the Restructuring
Vehicle will qualify as a REMIC, grantor trust or other entity not subject to
taxation for federal income tax purposes and (ii) the adoption of the
Supplemental Article will not endanger the status of the Trust Fund as a
REMIC or (subject to Section 10.01(f)) result in the imposition of a tax upon
the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC as set forth in Section 860G(d) of the Code).
Section 11.09. Allocation of Voting Rights.
As provided in Section 11.09 of the Series Supplement.
SECTION 11.10 No Petition.
The Company, Master Servicer and the Trustee, by entering into this
Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenant and agree that they will not at any time institute against the Trust
Fund, or join in any institution against the Trust Fund, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar
law in connection with any obligation with respect to the Certificates or
this Agreement.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of Parties; Reasonableness.
The Company, the Trustee and the Master Servicer acknowledge and agree
that the purpose of this Article XII is to facilitate compliance by the
Company with the provisions of Regulation AB and related rules and
regulations of the Commission. The Company shall not exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the
Commission under the Securities Act and the Exchange Act. Each of the Master
Servicer and the Trustee acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus
among participants in the mortgage-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Company
in good faith for delivery of information under these provisions on the basis
of evolving interpretations of Regulation AB. Each of the Master Servicer
and the Trustee shall cooperate reasonably with the Company to deliver to the
Company (including any of its assignees or designees), any and all
disclosure, statements, reports, certifications, records and any other
information necessary in the reasonable, good faith determination of the
Company to permit the Company to comply with the provisions of Regulation AB.
Section 12.02. Additional Representations and Warranties of the Trustee.
(a) The Trustee shall be deemed to represent to the Company as of the date
hereof and on each date on which information is provided to the Company under
Sections 12.01, 12.02(b) or 12.03 that, except as disclosed in writing to the
Company prior to such date: (i) it is not aware and has not received notice
that any default, early amortization or other performance triggering event
has occurred as to any other Securitization Transaction due to any default of
the Trustee; (ii) there are no aspects of its financial condition that could
have a material adverse effect on the performance by it of its trustee
obligations under this Agreement or any other Securitization Transaction as
to which it is the trustee; (iii) there are no material legal or governmental
proceedings pending (or known to be contemplated) against it that would be
material to Certificateholders; (iv) there are no relationships or
transactions relating to the Trustee with respect to the Company or any
sponsor, issuing entity, servicer, trustee, originator, significant obligor,
enhancement or support provider or other material transaction party (as each
of such terms are used in Regulation AB) relating to the Securitization
Transaction contemplated by the Agreement, as identified by the Company to
the Trustee in writing as of the Closing Date (each, a "Transaction
Party") that are outside the ordinary course of business or on terms other
than would be obtained in an arm's length transaction with an unrelated third
party, apart from the Securitization Transaction, and that are material to
the investors' understanding of the Certificates; and (v) the Trustee is not
an affiliate of any Transaction Party. The Company shall notify the Trustee
of any change in the identity of a Transaction Party after the Closing Date.
(b) If so requested by the Company on any date following the Closing Date,
the Trustee shall, within five Business Days following such request, confirm
in writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is
not accurate as of the date of such confirmation, provide the pertinent
facts, in writing, to the Company. Any such request from the Company shall
not be given more than once each calendar quarter, unless the Company shall
have a reasonable basis for a determination that any of the representations
and warranties may not be accurate.
Section 12.03. Information to be Provided by the Trustee.
For so long as the Certificates are outstanding, for the purpose of
satisfying the Company's reporting obligation under the Exchange Act with
respect to any class of Certificates, the Trustee shall provide to the
Company a written description of (a) any litigation or governmental
proceedings pending against the Trustee as of the last day of each calendar
month that would be material to Certificateholders, and (b) any affiliations
or relationships (as described in Item 1119 of Regulation AB) that develop
following the Closing Date between the Trustee and any Transaction Party of
the type described in Section 12.02(a)(iv) or 12.02(a)(v) as of the last day
of each calendar year. Any descriptions required with respect to legal
proceedings, as well as updates to previously provided descriptions, under
this Section 12.03 shall be given no later than five Business Days prior to
the Determination Date following the month in which the relevant event
occurs, and any notices and descriptions required with respect to
affiliations, as well as updates to previously provided descriptions, under
this Section 12.03 shall be given no later than January 31 of the calendar
year following the year in which the relevant event occurs. As of the date
the Company or Master Servicer files each Report on Form 10-D and Report on
Form 10-K with respect to the Certificates, the Trustee will be deemed to
represent that any information previously provided under this Article XII is
materially correct and does not have any material omissions unless the
Trustee has provided an update to such information. The Company will allow
the Trustee to review any disclosure relating to material litigation against
the Trustee prior to filing such disclosure with the Commission to the extent
the Company changes the information provided by the Trustee.
Section 12.04. Report on Assessment of Compliance and Attestation.
On or before March 15 of each calendar year, the Trustee shall:
(a) deliver to the Company a report (in form and substance reasonably
satisfactory to the Company) regarding the Trustee's assessment of compliance
with the applicable Servicing Criteria during the immediately preceding
calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB. Such report shall be addressed to the
Company and signed by an authorized officer of the Trustee, and shall address
each of the Servicing Criteria specified on Exhibit R hereto; and
(b) deliver to the Company a report of a registered public accounting firm
reasonably acceptable to the Company that attests to, and reports on, the
assessment of compliance made by the Trustee and delivered pursuant to the
preceding paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act.
Section 12.05. Indemnification; Remedies.
(a) The Trustee shall indemnify the Company, each affiliate of the Company,
the Master Servicer and each broker dealer acting as underwriter, placement
agent or initial purchaser of the Certificates or each Person who controls
any of such parties (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged to be
contained in any information, report, certification, accountants'
attestation or other material provided under this Article XII by or on
behalf of the Trustee (collectively, the "Trustee Information"), or
(B) the omission or alleged omission to state in the Trustee
Information a material fact required to be stated in the Trustee
Information or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Trustee
Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the
Trustee Information or any portion thereof is presented together with
or separately from such other information; or
(ii) any failure by the Trustee to deliver any information, report,
certification or other material when and as required under this Article
XII, other than a failure by the Trustee to deliver an accountants'
attestation.
(b) In the case of any failure of performance described in clause (ii) of
Section 12.05(a), the Trustee shall promptly reimburse the Company for all
costs reasonably incurred by the Company in order to obtain the information,
report, certification, accountants' attestation or other material not
delivered as required by the Trustee and (ii) cooperate with the Company to
mitigate any damages that may result from such failure.
(c) The Company and the Master Servicer shall indemnify the Trustee, each
affiliate of the Trustee or each Person who controls the Trustee (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act); and the respective present and former directors, officers, employees
and agents of the Trustee, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon (i) any untrue
statement of a material fact contained or alleged to be contained in any
information provided under this Agreement by or on behalf of the Company or
Master Servicer for inclusion in any report filed with Commission under the
Exchange Act (collectively, the "RFC Information"), or (ii) the omission or
alleged omission to state in the RFC Information a material fact required to
be stated in the RFC Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (ii) of this
paragraph shall be construed solely by reference to the RFC Information and
not to any other information communicated in connection with a sale or
purchase of securities, without regard to whether the RFC Information or any
portion thereof is presented together with or separately from such other
information.
EXHIBIT A
FORM OF CLASS A CERTIFICATE, [PRINCIPAL ONLY/CLASS A-P] CERTIFICATE
AND [INTEREST ONLY/CLASS A-V] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Certificate No. [____] Pass-Through Rate [based on a
Notional Amount]
Class [A-___] Senior Percentage Interest: ____%
Date of Pooling and Servicing Agreement Aggregate Initial [Certificate
and Cut-off Date: Principal 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 the distributions
allocable to the Class [A-___] Certificates with
respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed
interest rate first mortgage loans formed and sold by
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to
below or GMAC Mortgage Group, 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"),
formed and sold by Residential Funding Mortgage Securities I, Inc.
(hereinafter called the "Company," which term includes any successor entity
under the Agreement referred to below). The Trust Fund was created pursuant
to a Series Supplement, dated as specified above, to the Standard Terms of
Pooling and Servicing Agreement dated as of ________________ (together, the
"Pooling and Servicing Agreement" or the "Agreement") among the Company, the
Master Servicer and _______________, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of
the month immediately preceding the month of such distribution (the "Record
Date"), from the [related] Available Distribution Amount in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the amount [(of interest and principal, if any)] required to be distributed
to Holders of Class A- Certificates on such Distribution Date. [the
[Interest Only/Class A-V] Notional Amount of the [Interest Only/Class A-V]
Certificates as of any date of determination is equal to the aggregate stated
Principal Balance of the Mortgage Loans corresponding to the uncertificated
REMIC regular interests represented by such [Interest Only/Class A-V]
Certificates.]
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by
the Trustee in immediately available funds (by wire transfer or
otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Master Servicer or such Paying Agent, or by check
mailed to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose. [The [Initial Certificate
Principal Balance] [Initial [Interest Only/Class A-V] Notional Amount] of
this Certificate is set forth above.] [The Certificate Principal Balance
hereof will be reduced to the extent of distributions allocable to principal
and any Realized Losses allocable hereto.]
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Pass-Through Certificates of
the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set
forth herein and in the Agreement. In the event Master Servicer funds are
advanced with respect to any Mortgage Loan, such advance is reimbursable to
the Master Servicer, to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders
may be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without
limitation reimbursement to the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations
of the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66.6% of the Percentage Interests
of each Class of Certificates affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Agreement
also permits the amendment thereof in certain circumstances without the
consent of the Holders of any of the Certificates and, in certain additional
circumstances, without the consent of the Holders of certain Classes of
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies appointed by the Trustee
, 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
▇▇▇▇▇▇'s attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Company,
the Master Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan [in the
related Loan Group] subject thereto or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan
and (ii) the purchase by the Master Servicer from the Trust Fund of all
remaining Mortgage Loans [in the related Loan Group] and all property
acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the Master Servicer to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans [in the related Loan Group] and all
property acquired in respect of any Mortgage Loan or (ii) purchase in whole,
but not in part, all of the [related] Certificates from the Holders thereof;
provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans [in the related Loan Group] as of the
Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans Group [in the related Loan Group].
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:____________________ [TRUSTEE],
as Trustee
By:__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_________________ ________________________________
Signature by or on behalf of
assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT 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.
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
Residential Funding Company, LLC the Class X Certificates: $__________
First Distribution Date: Initial Notional Amount of this
__________ 25, ____ Certificate: $_____________
Assumed Final Distribution Date: CUSIP ________
_____________
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES ____-____
Evidencing a percentage interest in the distributions allocable
to the Class X Certificates with respect to a Trust Fund
consisting primarily of a pool of [conventional one- to
four-family residential, 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,
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
"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 Asset-Backed Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set
forth herein and in the Agreement. In the event Master Servicer funds are
advanced with respect to any Mortgage Loan, such advance is reimbursable to
the Master Servicer, to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders
may be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without
limitation reimbursement to the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations
of the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon
all future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon the Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional
circumstances, without the consent of the Holders of certain Classes of
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies appointed by the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest
will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Company,
the Master Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan and (ii) the purchase by the
Master Servicer from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the Master Servicer to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect
of any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may
only be exercised if the Pool Stated Principal Balance of the Mortgage Loans
as of the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:____________________ [TRUSTEE],
as Trustee
By:__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [X- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_________________ ________________________________
Signature by or on behalf of
assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT B
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE [RELATED]
SENIOR CERTIFICATES [CLASS M-1 CERTIFICATES] [AND CLASS M-2 CERTIFICATES] AS
DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED
BY VIRTUE OF ITS PURCHASE OR HOLDING OF SUCH CERTIFICATE (OR ANY INTEREST
HEREIN) THAT EITHER (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR
OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE CODE (EACH, A "PLAN"), OR ANY PERSON (INCLUDING, WITHOUT LIMITATION,
AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY PLAN) WHO IS
USING PLAN ASSETS, WITHIN THE MEANING OF THE U.S. DEPARTMENT OF LABOR
REGULATION PROMULGATED AT 29 ▇.▇.▇.▇▇. 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 HOLDING THIS CERTIFICATE IN RELIANCE
ON U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION ("PTE") 94-29,
59 FED. REG. 14674 (MARCH 29, 1994), AS MOST RECENTLY AMENDED BY PTE 2002-41,
67 FED. REG. 54487 (AUGUST 22, 2002) (THE "RFC EXEMPTION"), AND THAT IT
UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE AVAILABILITY OF THE RFC
EXEMPTION INCLUDING THAT SUCH CERTIFICATE MUST BE RATED, AT THE TIME OF
PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY STANDARD & POOR'S,
FITCH OR ▇▇▇▇▇'▇ OR (C)(I) THE TRANSFEREE IS AN INSURANCE COMPANY, (II) THE
SOURCE OF FUNDS USED TO PURCHASE OR HOLD THE CERTIFICATE (OR ANY INTEREST
HEREIN) IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS DEFINED IN U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60),
AND (III) THE CONDITIONS SET FORTH IN SECTIONS I AND III OF PTCE 95-60 HAVE
BEEN SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (C), A "COMPLYING
INSURANCE COMPANY").
IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST
PRECEDING TRANSFEREE THAT EITHER (A) IS NOT A PLAN OR A PLAN INVESTOR,
(B) ACQUIRED SUCH CERTIFICATE IN COMPLIANCE WITH THE RFC EXEMPTION OR (C) IS
A COMPLYING INSURANCE COMPANY SHALL BE RESTORED, TO THE EXTENT PERMITTED BY
LAW, TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE
TO THE DATE OF SUCH TRANSFER OF THIS CERTIFICATE. THE TRUSTEE SHALL BE UNDER
NO LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS CERTIFICATE TO
SUCH PRECEDING TRANSFEREE.
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR ANY INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE
RESTRICTIONS IN SECTION 5.02(e) OF THE POOLING AND SERVICING AGREEMENT SHALL
INDEMNIFY AND HOLD HARMLESS THE COMPANY, THE TRUSTEE, THE MASTER SERVICER,
ANY SUBSERVICER, AND THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES,
CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH
ACQUISITION OR HOLDING.
Certificate No. [____]
Class [M-___] Subordinate
Date of Pooling and Servicing Agreement Principal Balance of the Class M
and Cut-off Date: Certificates: $_______________
[______________]
First Distribution Date: Initial Certificate Principal Balance
[______________] of this Certificate:
$[______________]
Master Servicer:
Residential Funding 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 Certificate Principal
Balance of this Certificate by the aggregate Certificate Principal Balance of
all Class M-___ Certificates, both as specified above) in certain
distributions with respect to a Trust Fund consisting primarily of a pool of
conventional one- to four-family fixed interest rate first mortgage loans
(the "Mortgage Loans"), formed and sold by Residential Funding Mortgage
Securities I, Inc. (hereinafter called the "Company," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Series Supplement, dated as specified above, to the
Standard Terms of Pooling and Servicing Agreement dated as of
________________ (together, the "Pooling and Servicing Agreement" or the
"Agreement") among the Company, the Master Servicer and ___________, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of
the month immediately preceding the month of such distribution (the "Record
Date"), from the [related] Available Distribution Amount in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the amount (of interest and principal, if any) required to be distributed to
Holders of Class M-___ Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by
the Trustee in immediately available funds (by wire transfer or
otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Master Servicer or such Paying Agent, or by check
mailed to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose. 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 ▇▇▇▇▇'▇ or (c) the transferee
is a Complying Insurance Company. In addition, any purported Certificate
Owner whose acquisition or holding of this Certificate (or any interest
herein) was effected in violation of the restrictions in Section 5.02(e) of
the Agreement shall indemnify and hold harmless the Company, the Trustee, the
Master Servicer, any Subservicer, and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by such parties as a
result of such acquisition or holding.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Mortgage Pass-Through Certificates of
the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set
forth herein and in the Agreement. In the event Master Servicer funds are
advanced with respect to any Mortgage Loan, such advance is reimbursable to
the Master Servicer, to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders
may be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without
limitation reimbursement to the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations
of the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66.6% of the Percentage Interests
of each Class of Certificates affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Agreement
also permits the amendment thereof in certain circumstances without the
consent of the Holders of any of the Certificates and, in certain additional
circumstances, without the consent of the Holders of certain Classes of
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies appointed by the Trustee, 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 Group [in the related Loan Group].
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:____________________ [TRUSTEE],
as Trustee
By:__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [M- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_________________ ________________________________
Signature by or on behalf of
assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT C
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE RELATED
SENIOR CERTIFICATES AND THE RELATED CLASS M CERTIFICATES [AND CLASS B-1]
[CLASS B-2 CERTIFICATES] DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE (OR ANY INTEREST HEREIN) MAY BE MADE TO
ANY PERSON, UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE
MASTER SERVICER WITH EITHER (A) A CERTIFICATION PURSUANT TO
SECTION 5.02(e) OF THE AGREEMENT OR (B) AN OPINION OF COUNSEL ACCEPTABLE TO
AND IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE, THE COMPANY AND THE
MASTER SERVICER TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW,WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (OR COMPARABLE
PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT SUBJECT THE TRUSTEE,
THE COMPANY OR THE MASTER SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS AND LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL
NOT BE AN EXPENSE OF THE TRUSTEE, THE COMPANY OR THE MASTER SERVICER.
Certificate No. [____]
Class [B-___] Subordinate
Date of Pooling and Servicing Agreement Principal Balance of the Class B-___
and Cut-off Date: Certificates as of the Cut-off Date:
[______________] $________
First Distribution Date: Initial Certificate Principal Balance
[______________] of this Certificate:
$[______________]
Master Servicer:
Residential Funding Company, LLC
Assumed Final Distribution Date: CUSIP
[______________] [______________]
MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES _______
evidencing a percentage interest in the distributions
allocable to the Class B-___ Certificates with
respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed
interest rate first mortgage loans formed and sold by
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to
below or GMAC Mortgage Group, 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 B-___
Certificates, both as specified above) in certain distributions with respect
to the Trust Fund consisting primarily of an interest in a pool of
conventional one- to four-family fixed interest rate first mortgage loans
(the "Mortgage Loans"), formed and sold by Residential Funding Mortgage
Securities I, Inc. (hereinafter called the "Company," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Series Supplement, dated as specified above, to the
Standard Terms of Pooling and Servicing Agreement dated as of
________________ (together, the "Pooling and Servicing Agreement" or the
"Agreement") among the Company, the Master Servicer and ___________, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if
such last day is not a Business Day, the Business Day immediately preceding
such last day) of the month next preceding the month of such distribution
(the "Record Date"), from the [related] Available Distribution Amount in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to be
distributed to Holders of Class B Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by
the Trustee in immediately available funds (by wire transfer or
otherwise) for the account of the Person entitled thereto if such Person
shall have so notified the Master Servicer or such Paying Agent, or by check
mailed to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose. The Initial Certificate Principal
Balance of this Certificate is set forth above. The Certificate Principal
Balance hereof will be reduced to the extent of the distributions allocable
to principal and any Realized Losses allocable hereto.
No transfer of this Class B Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act
of 1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to
be made, (i) the Trustee or the Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Company that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment
letter in the form described by Section 5.02(e) of the Agreement. The Holder
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Company, the Master Servicer and the Certificate
Registrar acting on behalf of the Trustee against any liability that may
result if the transfer is not so exempt or is not made in accordance with
such Federal and state laws.
As described above, no transfer of this Certificate (or any interest
herein) shall be made unless the transferee provides the Trustee, the Company
and the Master Servicer with either (a) a certification pursuant to
Section 5.02(e) of the Agreement stating that either (i) the transferee is
not an employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (each, a "Plan"), or any
Person (including, without limitation, an investment manager, a named
fiduciary or a trustee of any Plan) who is using plan assets, within the
meaning of the U.S. Department of Labor regulation promulgated at 29 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.
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 Group [in the related Loan Group].
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:____________________ [TRUSTEE],
as Trustee
By:__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_________________ ________________________________
Signature by or on behalf of
assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT C-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 CODE (OR
COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) AND WILL NOT SUBJECT THE
TRUSTEE, THE COMPANY OR THE MASTER SERVICER TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS AND LIABILITIES UNDER ERISA OR SECTION 4975 OF THE
CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, WHICH OPINION OF
COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE COMPANY OR THE MASTER
SERVICER.
Certificate No. [____]
Class P Prepayment Charge [ ]
Date of Pooling and Servicing Agreement Aggregate Certificate Principal
and Cut-off Date: Balance of the Class P Certificates
[______________] 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 the distributions
allocable to the Class P Certificates with respect to
a Trust Fund consisting primarily of a pool of
conventional one- to four-family fixed interest rate
first mortgage loans formed and sold by RESIDENTIAL
FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to
below or GMAC Mortgage Group, 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 the Trust
Fund consisting primarily of an interest in a pool of conventional one- to
four-family fixed interest rate first mortgage loans (the "Mortgage Loans"),
formed and sold by Residential Funding Mortgage Securities I, Inc.
(hereinafter called the "Company," which term includes any successor entity
under the Agreement referred to below). The Trust Fund was created pursuant
to a Series Supplement, dated as specified above, to the Standard Terms of
Pooling and Servicing Agreement dated as of ________________ (together, the
"Pooling and Servicing Agreement" or the "Agreement") among the Company, the
Master Servicer and ___________, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if
such last day is not a Business Day, the Business Day immediately preceding
such last day) of the month next preceding the month of such distribution
(the "Record Date"), from the [related] Available Distribution Amount in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to be
distributed to Holders of Class 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 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, 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.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Company,
the Master Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan [in the
related Loan Group] subject thereto or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan
and (ii) the purchase by the Master Servicer from the Trust Fund of all
remaining Mortgage Loans [in the related Loan Group] and all property
acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the Master Servicer to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans [in the related Loan Group] and all
property acquired in respect of any Mortgage Loan or (ii) purchase in whole,
but not in part, all of the [related] Certificates from the Holders thereof;
provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans [in the related Loan Group] as of the
Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans Group [in the related Loan Group].
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:____________________ [TRUSTEE],
as Trustee
By:__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [P- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_________________ ________________________________
Signature by or on behalf of
assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
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. COUPLED WITH INTERESTS IN THE SWAP AGREEMENT AND THE
SB-AM SWAP AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE 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.
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 the distributions
allocable to the Class SB-[ ] Certificates with
respect to a Trust Fund consisting primarily of a
pool of [one- to four-family residential, hybrid
adjustable-rate first lien mortgage loans with a
negative amortization feature] 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 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 "Company," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as specified
above (the "Agreement") among the Company, the Master Servicer and
_____________, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not
defined 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 Business Day of the month
immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of
the Percentage Interest evidenced by this Certificate and the amount of
interest and principal, if any, required to be distributed to Holders of
Class 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 Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Company that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment
letter in the form described by the Agreement. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Company, the Master Servicer and the Certificate Registrar acting on
behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with such Federal and state
laws.
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 from time to time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Certificates affected thereby. 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, the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Company,
the Master Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan, and (ii) the purchase by the
Master Servicer from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the Master Servicer (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]
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
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_________________ ________________________________
Signature by or on behalf of
assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE (OR ANY INTEREST HEREIN) MAY BE MADE TO
ANY PERSON, UNLESS THE TRANSFEREE PROVIDES THE TRUSTEE, THE COMPANY AND THE
MASTER SERVICER WITH EITHER (A) A CERTIFICATION PURSUANT TO
SECTION 5.02(e) OF THE AGREEMENT OR (B) AN OPINION OF COUNSEL ACCEPTABLE TO
AND IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE, THE COMPANY AND THE
MASTER SERVICER TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT
ENACTMENTS) AND WILL NOT SUBJECT THE TRUSTEE, THE COMPANY OR THE MASTER
SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS AND
LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE
OF THE TRUSTEE, THE COMPANY OR THE MASTER SERVICER.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
MASTER SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF
THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR FREDDIE MAC, A MAJORITY OF ITS
BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY
OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE
TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO
THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY
SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL
ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(A)(2)(C) OF THE
CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(A) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR
(E) BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (F) AN
AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
Certificate No. [____]
Class [R-___] Senior
Date of Pooling and Servicing Agreement Aggregate Initial Certificate
and Cut-off Date: Principal Balance of the Class R-___
[______________] 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 the distributions
allocable to the Class R[-__] Certificates with
respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed
interest rate first mortgage loans formed and sold by
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Funding
Mortgage Securities I, Inc., the Master Servicer, the Trustee referred to
below or GMAC Mortgage Group, 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 the Trust Fund consisting
primarily of an interest in a pool of conventional one- to four-family fixed
interest rate first mortgage loans (the "Mortgage Loans"), formed and sold by
Residential Funding Mortgage Securities I, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement
referred to below). The Trust Fund was created pursuant to a Series
Supplement, dated as specified above, to the Standard Terms of Pooling and
Servicing Agreement dated as of ________________ (together, the "Pooling and
Servicing Agreement" or the "Agreement") among the Company, the Master
Servicer and ___________, as trustee (the "Trustee"), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of
the month immediately preceding the month of such distribution (the "Record
Date"), from the [related] Available Distribution Amount in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and
the amount (of interest and principal, if any) required to be distributed to
Holders of Class R Certificates on such Distribution Date.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this
Certificate must be a United States Person and a Permitted Transferee,
(ii) the transfer of any Ownership Interest in this Certificate will be
conditioned upon the delivery to the Trustee of, among other things, an
affidavit to the effect that it is a United States Person and Permitted
Transferee, (iii) any attempted or purported transfer of any Ownership
Interest in this Certificate in violation of such restrictions will be
absolutely null and void and will vest no rights in the purported transferee,
and (iv) if any person other than a United States Person and a Permitted
Transferee acquires any Ownership Interest in this Certificate in violation
of such restrictions, then the Company will have the right, in its sole
discretion and without notice to the Holder of this Certificate, to sell this
Certificate to a purchaser selected by the Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose. The Initial Certificate Principal
Balance of this Certificate is set forth above. The Certificate Principal
Balance hereof will be reduced to the extent of distributions allocable to
principal and any Realized Losses allocable hereto. Notwithstanding the
reduction of the Certificate Principal Balance hereof to zero, this
Certificate will remain outstanding under the Agreement and the Holder hereof
may have additional obligations with respect to this Certificate, including
tax liabilities, and may be entitled to certain additional distributions
hereon, in accordance with the terms and provisions of the Agreement.
As described above, no transfer of this Certificate (or any interest
herein) shall be made unless the transferee provides the Trustee, the Company
and the Master Servicer with either (a) a certification pursuant to
Section 5.02(e) of the Agreement stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (each, a "Plan"), or any
Person (including, without limitation, an insurance company investing its
general 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 ▇.▇.▇.▇▇. 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.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Company,
the Master Servicer, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan [in the
related Loan Group] subject thereto or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan
and (ii) the purchase by the Master Servicer from the Trust Fund of all
remaining Mortgage Loans [in the related Loan Group] and all property
acquired in respect of such Mortgage Loans, thereby effecting early
retirement of the Certificates. The Agreement permits, but does not require,
the Master Servicer to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans [in the related Loan Group] and all
property acquired in respect of any Mortgage Loan or (ii) purchase in whole,
but not in part, all of the [related] Certificates from the Holders thereof;
provided, that any such option may only be exercised if the Pool Stated
Principal Balance of the Mortgage Loans [in the related Loan Group] as of the
Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans Group [in the related Loan Group].
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:____________________ [TRUSTEE],
as Trustee
By:__________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R- ] Certificates referred to in the
within-mentioned Agreement.
[TRUSTEE],
as Certificate Registrar
By:_______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto (Please print or typewrite name and address including postal
zip code of assignee) a Percentage Interest evidenced by the within Mortgage
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:_________________ ________________________________
Signature by or on behalf of
assignor
________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________for the account of
__________________ account number ______________-, or, if mailed by check, to
____________________________. Applicable statements should be mailed to
________________________.
This information is provided by _____________________, the assignee
named above, or ________________, as its agent.
EXHIBIT E
FORM OF SELLER/SERVICER CONTRACT
This Seller/Servicer Contract (as may be amended, supplemented or
otherwise modified from time to time, this "Contract") is made this day of
_____________, 20__, by and between Residential Funding 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:
(1) Each party is duly organized, validly existing, and in good standing
under the laws of its jurisdiction of organization, is qualified, if
necessary, to do business and in good standing in each jurisdiction in which
it is required to be so qualified, and has the requisite power and authority
to enter into this Contract and all other agreements which are contemplated
by this Contract and to carry out its obligations hereunder and under the
Guides and under such other agreements.
(2) This Contract has been duly authorized, executed and delivered by each
party and constitutes a valid and legally binding agreement of each party
enforceable in accordance with its terms.
(3) There is no action, proceeding or investigation pending or threatened,
and no basis therefor is known to either party, that could affect the
validity or prospective validity of this Contract.
(4) Insofar as its capacity to carry out any obligation under this Contract
is concerned, neither party is in violation of any charter, articles of
incorporation, bylaws, mortgage, indenture, indebtedness, agreement,
instrument, judgment, decree, order, statute, rule or regulation and none of
the foregoing adversely affects its capacity to fulfill any of its
obligations under this Contract. Its execution of, and performance pursuant
to, this Contract will not result in a violation of any of the foregoing.
B. Seller/Servicer's Representations, Warranties and Covenants.
In addition to the representations, warranties and covenants made by
the Seller/Servicer pursuant to subparagraph (a) of this paragraph 3, the
Seller/Servicer makes the representations, warranties and covenants set forth
in the Guides and, upon request, agrees to deliver to Residential Funding the
certified Resolution of Board of Directors which authorizes the execution and
delivery of this Contract.
REMEDIES OF RESIDENTIAL FUNDING.
If an Event of Seller Default or an Event of Servicer Default shall
occur, Residential Funding may, at its option, exercise one or more of those
remedies set forth in the Guides.
SELLER/SERVICER'S STATUS AS INDEPENDENT CONTRACTOR.
At no time shall the Seller/Servicer represent that it is acting as an
agent of Residential Funding. The Seller/Servicer shall, at all times, act
as an independent contractor.
PRIOR AGREEMENTS SUPERSEDED.
This Contract restates, amends and supersedes any and all prior Seller
Contracts or Servicer Contracts between the parties except that any
subservicing agreement executed by the Seller/Servicer in connection with any
loan-security exchange transaction shall not be affected.
ASSIGNMENT.
This Contract may not be assigned or transferred, in whole or in part,
by the Seller/Servicer without the prior written consent of Residential
Funding. Residential Funding may sell, assign, convey, hypothecate, pledge
or in any other way transfer, in whole or in part, without restriction, its
rights under this Contract and the Guides with respect to any Commitment or
Loan.
NOTICES.
All notices, requests, demands or other communications that are to be
given under this Contract shall be in writing, addressed to the appropriate
parties and sent by telefacsimile or by overnight courier or by United States
mail, postage prepaid, to the addresses and telefacsimile numbers specified
below. However, another name, address and/or telefacsimile number may be
substituted by the Seller/Servicer pursuant to the requirements of this
paragraph 8, or Residential Funding pursuant to an amendment to the Guides.
If to Residential Funding, notices must be sent to the appropriate address or
telefacsimile number specified in the Guides.
If to the Seller/Servicer, notice must be sent to:
Attention:
Telefacsimile Number: (_____) _____-_________
JURISDICTION AND VENUE.
Each of the parties irrevocably submits to the jurisdiction of any
state or federal court located in Hennepin County, Minnesota, over any
action, suit or proceeding to enforce or defend any right under this Contract
or otherwise arising from any loan sale or servicing relationship existing in
connection with this Contract, and each of the parties irrevocably agrees
that all claims in respect of any such action or proceeding may be heard or
determined in such state or federal court. Each of the parties irrevocably
waives the defense of an inconvenient forum to the maintenance of any such
action or proceeding and any other substantive or procedural rights or
remedies it may have with respect to the maintenance of any such action or
proceeding in any such forum. Each of the parties agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law. Each of the parties further agrees not to institute
any legal actions or proceedings against the other party or any director,
officer, employee, attorney, agent or property of the other party, arising
out of or relating to this Contract in any court other than as hereinabove
specified in this paragraph 9.
MISCELLANEOUS.
This Contract, including all documents incorporated by reference
herein, constitutes the entire understanding between the parties hereto and
supersedes all other agreements, covenants, representations, warranties,
understandings and communications between the parties, whether written or
oral, with respect to the transactions contemplated by this Contract. All
paragraph headings contained herein are for convenience only and shall not be
construed as part of this Contract. Any provision of this Contract that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction, and, to this end, the provisions hereof are severable. This
Contract shall be governed by, and construed and enforced in accordance with,
applicable federal laws and the laws of the State of Minnesota.
IN WITNESS WHEREOF, the duly authorized officers of the Seller/Servicer
and Residential Funding have executed this Seller/Servicer Contract as of the
date first above written.
ATTEST: SELLER/SERVICER
[Corporate Seal] (Name of Seller/Servicer)
By: By:
(Signature) (Signature)
By: By:
(Typed Name) (Typed Name)
Title: Title:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
ATTEST: RESIDENTIAL FUNDING COMPANY, LLC
[Corporate Seal]
By: By:
(Signature) (Signature)
By: By:
Title: Title:
EXHIBIT F
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by
you for the referenced pool, we request the release of the Mortgage Loan File
described below.
Series Supplement, to the Standard Terms of Pooling and Servicing Agreement,
Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (circle one)
Mortgage Loan Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
Residential Funding 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 G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or beneficial
owner of the Mortgage Pass-Through Certificates, Series _______, Class
R[-__] (the "Owner")), a [savings institution] [corporation] duly organized
and existing under the laws of [the State of ] [the United States], on
behalf of which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified organization"
or an electing large partnership as of [date of transfer] within the meaning
of Sections 860E(e)(5) and 775, respectively, of the Internal Revenue Code
of 1986, as amended (the "Code") or an electing large partnership under
Section 775(a) of the Code, (ii) will endeavor to remain other than a
disqualified organization for so long as it retains its ownership interest
in the Class R[-__] Certificates, and (iii) is acquiring the Class R[-__]
Certificates for its own account or for the account of another Owner from
which it has received an affidavit and agreement in substantially the same
form as this affidavit and agreement. (For this purpose, a "disqualified
organization" means an electing large partnership under Section 775 of the
Code, the United States, any state or political subdivision thereof, any
agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and,
except for the Federal Home Loan Mortgage Corporation, a majority of whose
board of directors is not selected by any such governmental entity) or any
foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural
electric or telephone cooperative, or any organization (other than certain
farmers' cooperatives) that is generally exempt from federal income tax
unless such organization is subject to the tax on unrelated business taxable
income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of Class R[-__] Certificates to disqualified organizations or
electing large partnerships, under the Code, that applies to all transfers
of Class R[-__] Certificates after March 31, 1988; (ii) that such tax would
be on the transferor (or, with respect to transfers to electing large
partnerships, on each such partnership), or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a
disqualified organization, on the agent; (iii) that the person (other than
with respect to transfers to electing large partnerships) otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is not a
disqualified organization and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that the Class
R[-__] Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that
the transferor of a noneconomic residual interest will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer was to impede the assessment or
collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through entity"
holding Class R[-__] Certificates if either the pass-through entity is an
electing large partnership under Section 775 of the Code or if at any time
during the taxable year of the pass-through entity a disqualified
organization is the record holder of an interest in such entity. (For this
purpose, a "pass through entity" includes a regulated investment company, a
real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.)
5. The Owner is either (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity treated as a corporation or
a partnership for U.S. federal income tax purposes and created or organized
in or under the laws of the United States, any state thereof or the District
of Columbia (other than a partnership that is not treated as a United States
person under any applicable Treasury regulations), (iii) an estate that is
described in Section 7701(a)(30)(D) of the Code, or (iv) a trust that is
described in Section 7701(a)(30)(E) of the Code.
6. The Owner hereby agrees that it will not cause income from the Class
R[-__] Certificates to be attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of the
Owner of another United States taxpayer.
7. That the Owner is aware that the Trustee will not register the transfer
of any Class R[- __] Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner
expressly agrees that it will not consummate any such transfer if it knows
or believes that any of the representations contained in such affidavit and
agreement are false.
8. That the Owner has reviewed the restrictions set forth on the face of
the Class R[-__] Certificates and the provisions of Section 5.02(f) of the
Pooling and Servicing Agreement under which the Class R[-__] Certificates
were issued (in particular, clause (iii)(A) and (iii)(B) of
Section 5.02(f) which authorize the Trustee to deliver payments to a person
other than the Owner and negotiate a mandatory sale by the Trustee in the
event the Owner holds such Certificates in violation of Section 5.02(f)).
The Owner expressly agrees to be bound by and to comply with such
restrictions and provisions.
9. That the Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Class R[-__] Certificates will
only be owned, directly or indirectly, by an Owner that is not a
disqualified organization.
10. The Owner's Taxpayer Identification Number is ________________.
11. This affidavit and agreement relates only to the Class R[-__]
Certificates held by the Owner and not to any other holder of the Class
R[-__] Certificates. The Owner understands that the liabilities described
herein relate only to the Class R[-__] Certificates.
12. That no purpose of the Owner relating to the transfer of any of the
Class R[-__] Certificates by the Owner is or will be to impede the
assessment or collection of any tax; in making this representation, the
Owner warrants that the Owner is familiar with (i) Treasury Regulation
Section 1.860E-1(c) and recent amendments thereto, effective as of July 19,
2002, and (ii) the preamble describing the adoption of the amendments to
such regulation, which is attached hereto as Exhibit 1.
13. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the person from whom it acquired the
Class R[-__] Certificate that the Owner intends to pay taxes associated with
holding such Class R[- __] Certificate as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Class R[-__] Certificate.
14. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of
the Class R[-__] Certificates remain outstanding.
15. (a) The Owner is not an employee benefit plan or other plan subject
to the prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
(each, a "Plan"), or any Person (including, without limitation, an insurance
company investing its general 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.
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this day of _____,___ 200__.
[NAME OF OWNER]
By:_______________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument
and to be the [Title of Officer] of the Owner, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Owner.
Subscribed and sworn before me this ___ day of ________, 200 __.
NOTARY PUBLIC
COUNTY OF_________________________________
STATE OF__________________________________
My Commission expires the __ day of
_____, 20__.
EXHIBIT 1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage
investment conduits (REMICs). The final regulations provide additional
limitations on the circumstances under which transferors may claim safe
harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed
and, pending receipt and evaluation of public comments, approved by the
Office of Management and Budget (OMB) under 44 U.S.C. 3507 and assigned
control number 1545-1675.
The collection of information in this regulation is in Sec. 1.860E
-1(c)(5)(ii). This information is required to enable the IRS to verify that
a taxpayer is complying with the conditions of this regulation. The
collection of information is mandatory and is required. Otherwise, the
taxpayer will not receive the benefit of safe harbor treatment as provided in
the regulation. The likely respondents are businesses and other for-profit
institutions.
Comments on the collection of information should be sent to the Office
of Management and Budget, Attn: Desk Officer for the Department of the
Treasury, Office of Information and Regulatory Affairs, Washington, DC,
20503, with copies to the Internal Revenue Service, Attn: IRS Reports
Clearance Officer, W:CAR:MP:FP:S, Washington, DC 20224. Comments on the
collection of information should be received by September 17, 2002. Comments
are specifically requested concerning:
Whether the collection of information is necessary for the proper
performance of the functions of the Internal Revenue Service, including
whether the information will have practical utility;
The accuracy of the estimated burden associated with the collection of
information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the collection of information may be
minimized, including through the application of automated collection
techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid control
number assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an
estimated number of respondents of 470 and an estimated average annual burden
hours per respondent of one hour.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the administration
of any internal revenue law. Generally, tax returns and tax return
information are confidential, as required by 26 U.S.C. 6103.
Background
This document contains final regulations regarding the proposed
amendments to 26 CFR part 1 under Section 860E of the Internal Revenue Code
(Code). The regulations provide the circumstances under which a transferor
of a noneconomic REMIC residual interest meeting the investigation and
representation requirements may avail itself of the safe harbor by satisfying
either the formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules
governing the transfer of noneconomic REMIC residual interests. In general,
a transfer of a noneconomic residual interest is disregarded for all tax
purposes if a significant purpose of the transfer is to
[[Page 47452]]
enable the transferor to impede the assessment or collection of tax. A
purpose to impede the assessment or collection of tax (a wrongful
purpose) exists if the transferor, at the time of the transfer, either knew
or should have known that the transferee would be unwilling or unable to pay
taxes due on its share of the REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual
interest is presumed not to have a wrongful purpose if two requirements are
satisfied: (1) the transferor conducts a reasonable investigation of the
transferee's financial condition (the investigation requirement); and (2) the
transferor secures a representation from the transferee to the effect that
the transferee understands the tax obligations associated with holding a
residual interest and intends to pay those taxes (the representation
requirement).
The IRS and Treasury have been concerned that some transferors of
noneconomic residual interests claim they satisfy the safe harbor even in
situations where the economics of the transfer clearly indicate the
transferee is unwilling or unable to pay the tax associated with holding the
interest. For this reason, on February 7, 2000, the IRS published in the
Federal Register (65 FR 5807) a notice of proposed rulemaking (REG-100276-97;
REG-122450-98) designed to clarify the safe harbor by adding the "formula
test," an economic test. The proposed regulation provides that the safe
harbor is unavailable unless the present value of the anticipated tax
liabilities associated with holding the residual interest does not exceed the
sum of: (1) The present value of any consideration given to the transferee to
acquire the interest; (2) the present value of the expected future
distributions on the interest; and (3) the present value of the anticipated
tax savings associated with holding the interest as the REMIC generates
losses.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B.
335) to set forth an alternative safe harbor that taxpayers could use while
the IRS and the Treasury considered comments on the proposed regulations.
Under the alternative safe harbor, if a transferor meets the investigation
requirement and the representation requirement but the transfer fails to meet
the formula test, the transferor may invoke the safe harbor if the transferee
meets a two-prong test (the asset test). A transferee generally meets the
first prong of this test if, at the time of the transfer, and in each of the
two years preceding the year of transfer, the transferee's gross assets
exceed $100 million and its net assets exceed $10 million. A transferee
generally meets the second prong of this test if it is a domestic, taxable
corporation and agrees in writing not to transfer the interest to any person
other than another domestic, taxable corporation that also satisfies the
requirements of the asset test. A transferor cannot rely on the asset test
if the transferor knows, or has reason to know, that the transferee will not
comply with its written agreement to limit the restrictions on subsequent
transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied
in the case of a transfer or assignment of a noneconomic residual interest to
a foreign branch of an otherwise eligible transferee. If such a transfer or
assignment were permitted, a corporate taxpayer might seek to claim that the
provisions of an applicable income tax treaty would resource excess inclusion
income as foreign source income, and that, as a consequence, any U.S. tax
liability attributable to the excess inclusion income could be offset by
foreign tax credits. Such a claim would impede the assessment or collection
of U.S. tax on excess inclusion income, contrary to the congressional purpose
of assuring that such income will be taxable in all events. See, e.g.,
sections 860E(a)(1), (b), (e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers
transferring noneconomic residual interests to foreign branches have
attempted to rely on the formula test to obtain safe harbor treatment in an
effort to impede the assessment or collection of U.S. tax on excess inclusion
income. Accordingly, the final regulations provide that if a noneconomic
residual interest is transferred to a foreign permanent establishment or
fixed base of a U.S. taxpayer, the transfer is not eligible for safe harbor
treatment under either the asset test or the formula test. The final
regulations also require a transferee to represent that it will not cause
income from the noneconomic residual interest to be attributable to a foreign
permanent establishment or fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer
may use to qualify for safe harbor status under the formula test.
Section 1.860E-1(c)(8)(i) provides that the transferee is presumed to pay tax
at a rate equal to the highest rate of tax specified in Section 11(b). Some
commentators were concerned that this presumed rate of taxation was too high
because it does not take into consideration taxpayers subject to the
alternative minimum tax rate. In light of the comments received, this
provision has been amended in the final regulations to allow certain
transferees that compute their taxable income using the alternative minimum
tax rate to use the alternative minimum tax rate applicable to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present
values in the formula test are to be computed using a discount rate equal to
the applicable Federal short-term rate prescribed by Section 1274(d). This
is a change from the proposed regulation and Rev. Proc. 2001-12. In those
publications the provision stated that "present values are computed using a
discount rate equal to the applicable Federal rate prescribed in
Section 1274(d) compounded semiannually" and that "[a] lower discount rate
may be used if the transferee can demonstrate that it regularly borrows, in
the course of its trade or business, substantial funds at such lower rate
from an unrelated third party." The IRS and the Treasury Department have
learned that, based on this provision, certain taxpayers have been attempting
to use unrealistically low or zero interest rates to satisfy the formula
test, frustrating the intent of the test. Furthermore, the Treasury
Department and the IRS believe that a rule allowing for a rate other than a
rate based on an objective index would add unnecessary complexity to the safe
harbor. As a result, the rule in the proposed regulations that permits a
transferee to use a lower discount rate, if the transferee can demonstrate
that it regularly borrows substantial funds at such lower rate, is not
included in the final regulations; and the Federal short-term rate has been
substituted for the applicable Federal rate. To simplify taxpayers'
computations, the final regulations allow use of any of the published
short-term rates, provided that the present values are computed with a
corresponding period of compounding. With the exception of the provisions
relating to transfers to foreign branches, these changes generally have the
proposed applicability date of February 4, 2000, but taxpayers may choose to
apply the interest rate formula set forth in the proposed regulation and
Rev. Proc. 2001-12 for transfers occurring before August 19, 2002.
[[Page 47453]]
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19,
2002.
Special Analyses
It is hereby certified that these regulations will not have a
significant economic impact on a substantial number of small entities. This
certification is based on the fact that it is unlikely that a substantial
number of small entities will hold REMIC residual interests. Therefore, a
Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5
U.S.C. chapter 6) is not required. It has been determined that this Treasury
decision is not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It also has been
determined that sections 553(b) and 553(d) of the Administrative Procedure
Act (5 U.S.C. chapter 5) do not apply to these regulations.
Drafting Information
The principal author of these regulations is ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
However, other personnel from the IRS and Treasury Department participated in
their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
__________ , 20__
Residential Funding Mortgage Securities I, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[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.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they
become due in the future. The Seller understands that the transfer of a
Class R[-__] Certificate may not be respected for United States income tax
purposes (and the Seller may continue to be liable for United States income
taxes associated therewith) unless the Seller has conducted such an
investigation.
4. The Seller has no actual knowledge that the proposed Transferee is not
both a United States Person and a Permitted Transferee.
Very truly yours,
__________________________________________
(Seller)
By:_______________________________________
Name:
Title:
EXHIBIT H
FORM OF INVESTOR REPRESENTATION LETTER
______________ , 20___
Residential Funding Mortgage Securities I, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Trustee]
Residential Funding Company, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Residential Funding Company, LLC Series ________
RE: Mortgage Pass-Through Certificates,
Series ________, [Class B- ]
Ladies and Gentlemen:
_________________- (the "Purchaser") intends to purchase from
_________________ (the "Seller") $_____________ Initial Certificate Principal
Balance of Mortgage Pass-Through Certificates, Series ________, Class (the
"Certificates"), issued pursuant to the Series Supplement, dated as of
________________, to the Standard Terms of Pooling and Servicing Agreement
dated as of ________________ (together, the "Pooling and Servicing
Agreement") among Residential Funding Mortgage Securities I, Inc., as seller
(the "Company"), Residential Funding 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:
5. 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.
6. 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.
7. 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.
8. 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.]
9. 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.
10. 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 ▇.▇.▇.▇▇. 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 I
FORM OF TRANSFEROR REPRESENTATION LETTER
_________, 20___
Residential Funding Mortgage Securities I, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Trustee]
Attention: Residential Funding Company, LLC Series ________
Re: Mortgage Pass-Through Certificates,
Series ________, [Class B-]
Ladies and Gentlemen:
In connection with the sale by ____________________ (the "Seller") to
____________________ (the "Purchaser") of __________________ Initial
Certificate Principal Balance of Mortgage Pass-Through Certificates, Series
________, Class (the "Certificates"), issued pursuant to the Series
Supplement, dated as of ________________, to the Standard Terms of Pooling
and Servicing Agreement dated as of ________________ (together, the "Pooling
and Servicing Agreement") among Residential Funding Mortgage Securities I,
Inc., as seller (the "Company"), Residential Funding 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.
Very truly yours,
__________________________________________
(Seller)
__________________________________________
By:
Name:
Title:
EXHIBIT J
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_______________________________
_______________________________
_______________________________
_______________________________
The undersigned seller, as registered holder (the "Seller"), intends to
transfer the Rule 144A Securities described above to the undersigned buyer
(the "Buyer").
11. 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.
12. 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.
(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.
13. 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 ▇.▇.▇.▇▇. 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.
14. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
____________________________ __________________________
Print Name of Seller Print Name of Buyer
By:________________________ By:________________________
Name: Name:
Title: Title:
Taxpayer Identification Taxpayer Identification:
No. No:
Date: Date:
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
22. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
23. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $ in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency of
a State or territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act of
1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit
of its employees, or (b) employee benefit plans within the meaning of Title I
of the Employee Retirement Income Security Act of 1974, but is not a trust
fund that includes as participants individual retirement accounts or H.R.10
plans.
24. 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.
25. 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.
26. 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
Yes No the Rule 144A Securities only
for the Buyer's own account?
27. 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.
28. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
__________________________________________
Print Name of Buyer
By:_______________________________________
Name:
Title:
Date:_____________________________________
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the
Rule 144A Investment Representation to which this Certification is attached:
29. 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.
30. 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).
31. 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).
32. 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.
33. 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.
34. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities
will constitute a reaffirmation of this certification by the undersigned as
of the date of such purchase.
__________________________________________
Print Name of Buyer
__________________________________________
By:
Name:
Title:
IF AN ADVISOR:
__________________________________________
Print Name of Buyer
Date:_____________________________________
EXHIBIT K
[TEXT OF AMENDMENT TO POOLING AND SERVICING
AGREEMENT PURSUANT TO SECTION 11.01(e)
FOR A LIMITED GUARANTY]
ARTICLE XIII
SUBORDINATE CERTIFICATE LOSS COVERAGE; LIMITED GUARANTY
Section 13.01. Subordinate Certificate Loss Coverage; Limited
Guaranty. (a) Subject to subSection (c) below, prior to the later of the
third Business Day prior to each Distribution Date or the related
Determination Date, the Master Servicer shall determine whether it or any
Sub-Servicer will be entitled to any reimbursement pursuant to
Section 4.02(a) on such Distribution Date for Advances or Sub-Servicer
Advances previously made, (which will not be Advances or Sub-Servicer
Advances that were made with respect to delinquencies which were subsequently
determined to be Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses) and, if so, the Master Servicer
shall demand payment from Residential Funding of an amount equal to the
amount of any Advances or Sub-Servicer Advances reimbursed pursuant to
Section 4.02(a), to the extent such Advances or Sub-Servicer Advances have
not been included in the amount of the Realized Loss in the related Mortgage
Loan, and shall distribute the same to the Class B Certificateholders in the
same manner as if such amount were to be distributed pursuant to
Section 4.02(a).
(b)___Subject to subSection (c) below, prior to the later of the third
Business Day prior to each Distribution Date or the related Determination
Date, the Master Servicer shall determine whether any Realized Losses (other
than Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud
Losses and Extraordinary Losses) will be allocated to the Class B
Certificates on such Distribution Date pursuant to Section 4.05, and, if so,
the Master Servicer shall demand payment from Residential Funding of the
amount of such Realized Loss and shall distribute the same to the Class B
Certificateholders in the same manner as if such amount were to be
distributed pursuant to Section 4.02(a); provided, however, that the amount
of such demand in respect of any Distribution Date shall in no event be
greater than the sum of (i) the additional amount of Accrued Certificate
Interest that would have been paid for the Class B Certificateholders on such
Distribution Date had such Realized Loss or Losses not occurred plus (ii) the
amount of the reduction in the Certificate Principal Balances of the Class B
Certificates on such Distribution Date due to such Realized Loss or Losses.
Notwithstanding such payment, such Realized Losses shall be deemed to have
been borne by the Certificateholders for purposes of Section 4.05. Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses and
Extraordinary Losses allocated to the Class B Certificates will not be
covered by the Subordinate Certificate Loss Obligation.
(c)___Demands for payments pursuant to this Section shall be made prior
to the later of the third Business Day prior to each Distribution Date or the
related Determination Date by the Master Servicer with written notice thereof
to the Trustee. The maximum amount that Residential Funding shall be
required to pay pursuant to this Section on any Distribution Date (the
"Amount Available") shall be equal to the lesser of (X) minus the sum of
(i) all previous payments made under subsections (a) and (b) hereof and
(ii) all draws under the Limited Guaranty made in lieu of such payments as
described below in subSection (d) and (Y) the then outstanding Certificate
Principal Balances of the Class B Certificates, or such lower amount as may
be established pursuant to Section 13.02. Residential Funding's obligations
as described in this Section are referred to herein as the "Subordinate
Certificate Loss Obligation."
(d)___The Trustee will promptly notify 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
confirmation from each nationally recognized credit rating agency that rated
the Class B Certificates at the request of the Company that such substitution
shall not lower the rating on the Class B Certificates below the lesser of
(a) the then-current rating assigned to the Class B Certificates by such
rating agency and (b) the original rating assigned to the Class B
Certificates by such rating agency. Any replacement of the Limited Guaranty
or Subordinate Certificate Loss Obligation pursuant to this Section shall be
accompanied by a written Opinion of Counsel to the substitute guarantor or
obligor, addressed to the Master Servicer and the Trustee, that such
substitute instrument constitutes a legal, valid and binding obligation of
the substitute guarantor or obligor, enforceable in accordance with its
terms, and concerning such other matters as the Master Servicer and the
Trustee shall reasonably request. Neither the Company, the Master Servicer
nor the Trustee shall be obligated to substitute for or replace the Limited
Guaranty or Subordinate Certificate Loss Obligation under any circumstance.
Section 13.02. Amendments Relating to the Limited Guaranty.
Notwithstanding Sections 11.01 or 13.01: (i) the provisions of this Article
XIII may be amended, superseded or deleted, (ii) the Limited Guaranty or
Subordinate Certificate Loss Obligation may be amended, reduced or canceled,
and (iii) any other provision of this Agreement which is related or
incidental to the matters described in this Article XIII may be amended in
any manner; in each case by written instrument executed or consented to by
the Company and Residential Funding but without the consent of any
Certificateholder and without the consent of the Master Servicer or the
Trustee being required unless any such amendment would impose any additional
obligation on, or otherwise adversely affect the interests of, the Master
Servicer or the Trustee, as applicable; provided that the Company shall also
obtain a letter from each nationally recognized credit rating agency that
rated the Class B Certificates at the request of the Company to the effect
that such amendment, reduction, deletion or cancellation will not lower the
rating on the Class B Certificates below the lesser of (a) the then-current
rating assigned to the Class B Certificates by such rating agency and (b) the
original rating assigned to the Class B Certificates by such rating agency,
unless (A) the Holder of 100% of the Class B Certificates is Residential
Funding or an Affiliate of Residential Funding, or (B) such amendment,
reduction, deletion or cancellation is made in accordance with
Section 11.01(e) and, provided further that the Company obtains (subject to
the provisions of Section 10.01(f) as if the Company was substituted for the
Master Servicer solely for the purposes of such provision), in the case of a
material amendment or supersession (but not a reduction, cancellation or
deletion of the Limited Guaranty or the Subordinate Certificate Loss
Obligation), an Opinion of Counsel (which need not be an opinion of
Independent counsel) to the effect that any such amendment or supersession
will not cause either (a) any federal tax to be imposed on the Trust Fund,
including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) the Trust Fund
to fail to qualify as a REMIC at any time that any Certificate is
outstanding. A copy of any such instrument shall be provided to the Trustee
and the Master Servicer together with an Opinion of Counsel that such
amendment complies with this Section 13.02.
EXHIBIT L
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
Mortgage Pass-Through Certificates
Series ________
___________, 20____
[Trustee]
Attention: Residential Funding 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 New York corporation ("GMAC"), plans to incur certain obligations as
described under Section 13.01 of the Series Supplement, dated as of
________________, to the Standard Terms of Pooling and Servicing Agreement
dated as of ________________ (together, the "Servicing Agreement"), among
Residential Funding Mortgage Securities I, Inc. (the "Company"), Residential
Funding and __________ (the "Trustee") as amended by Amendment No. thereto,
dated as of , with respect to the Mortgage Pass-Through Certificates, Series
________ (the "Certificates"); and
WHEREAS, pursuant to Section 13.01 of the Servicing Agreement,
Residential Funding agrees to make payments to the Holders of the Class B
Certificates with respect to certain losses on the Mortgage Loans as
described in the Servicing Agreement; and
WHEREAS, GMAC desires to provide certain assurances with respect to the
ability of Residential Funding to secure sufficient funds and faithfully to
perform its Subordinate Certificate Loss Obligation;
NOW THEREFORE, in consideration of the premises herein contained and
certain other good and valuable consideration, the receipt of which is ▇▇▇▇▇▇
acknowledged, GMAC agrees as follows:
35. Provision of Funds. (a) GMAC agrees to contribute and deposit in the
Certificate Account on behalf of Residential Funding (or otherwise provide
to Residential Funding, or to cause to be made available to Residential
Funding), either directly or through a subsidiary, in any case prior to the
related Distribution Date, such moneys as may be required by Residential
Funding to perform its Subordinate Certificate Loss Obligation when and as
the same arises from time to time upon the demand of the Trustee in
accordance with Section 13.01 of the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall be absolute,
irrevocable and unconditional and shall not be affected by the transfer by
GMAC or any other person of all or any part of its or their interest in
Residential Funding, by any insolvency, bankruptcy, dissolution or other
proceeding affecting Residential Funding or any other person, by any defense
or right of counterclaim, set-off or recoupment that GMAC may have against
Residential Funding or any other person or by any other fact or
circumstance. Notwithstanding the foregoing, GMAC's obligations under
clause (a) shall terminate upon the earlier of (x) substitution for this
Limited Guaranty pursuant to Section 13.01(f) of the Servicing Agreement, or
(y) the termination of the Trust Fund pursuant to the Servicing Agreement.
36. 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.
37. 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.
38. Successor. Except as otherwise expressly provided herein, the
guarantee herein set forth shall be binding upon GMAC and its respective
successors.
39. Governing Law. This Limited Guaranty shall be governed by the laws of
the State of New York.
40. 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.
41. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meaning given them in the Servicing Agreement.
42. Counterparts. This Limited Guaranty may be executed in any number of
counterparts, each of which shall be deemed to be an original and such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be
executed and delivered by its respective officers thereunto duly authorized
as of the day and year first above written.
GMAC LLC
By:_______________________________________
Name:
Title:
Acknowledged by:
[Trustee], as Trustee
By: _______________________________
Name:
Title:
RESIDENTIAL FUNDING MORTGAGE SECURITIES I, INC.
By: _________________________________
Name:
Title:
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
_____________, 20______
Residential Funding Mortgage Securities I, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[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 such
assignment is at the request of the borrower under the related Mortgage Loan.
Very truly yours,
(▇▇▇▇▇▇)
By:_______________________________________
Name:
Title:
EXHIBIT N
FORM OF REQUEST FOR EXCHANGE
[Date]
U.S. Bank National Association
U.S. Bank Corporate Trust Services
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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 [Class/Subclass] of Class A-V Certificates, hereby requests
the Trustee to exchange the above-referenced Certificates for the Subclasses
referred to below:
1. Class A-V Certificates, corresponding to the following
Uncertificated REMIC Regular Interests: [List numbers
corresponding to the related loans and Pool Strip Rates from the
Mortgage Loan Schedule]. The Initial Subclass Notional Amount
and the initial Pass-Through Rate on the Class A-V Certificates
will be $___________ and _____%, respectively.
[2. Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate all of
the Uncertificated REMIC Regular Interests represented by the Class A-V
Certificates surrendered for exchange.
The capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement, dated as of
_______, among Residential Funding Mortgage Securities I, Inc., Residential
Funding Company, LLC and U.S. Bank National Association, as trustee.
RESIDENTIAL FUNDING
CORPORATION
By:_______________________________________
Name:
Title:
EXHIBIT O
FORM OF FORM 10-K CERTIFICATION
I, [identify the certifying individual], certify that:
43. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of the trust (the Exchange Act periodic reports) created pursuant to
the Pooling and Servicing Agreement dated __________ (the "Agreement") among
Residential Funding Mortgage Securities I, Inc., Residential Funding
Company, LLC (the "Master Servicer") and [Name of Trustee] (the "Trustee");
44. Based on my knowledge, Exchange Act periodic reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by this report;
45. 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;
46. I am responsible for reviewing the activities performed by the Master
Servicer and based on my knowledge and the compliance review conducted in
preparing the servicer compliance statement required in this report under
Item 1123 of Regulation AB and except as disclosed in the Exchange Act
periodic reports, the Master Servicer has fulfilled its obligations under
the Agreement; and
47. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
required to be included in this report in accordance with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as
an exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the
Trustee].
Date:____________
_________________________________*
[Signature]
Name:
Title:
* - to be signed by the senior officer in charge of the servicing
functions of the Master Servicer
EXHIBIT P
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of U.S. Bank National
Association (the "Trustee") certifies that:
48. The Trustee has performed all of the duties specifically required to be
performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated ____________ (the "Agreement") by and among Residential
Funding Mortgage Securities I, Inc. (the "Company"), Residential Funding
Company, LLC (the "Master Servicer") and Trustee in accordance with the
standards set forth therein.
49. Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is provided by
the Trustee pursuant to Section 4.03(f)(I) of the Agreement is accurate as
of the last day of the 20___ calendar year.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
IN WITNESS THEREOF, I have duly executed this certificate as of
____________, 20___.
Name:_____________________________________
Title:____________________________________
EXHIBIT Q
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING AGENCIES
RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Terms (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
EXHIBIT R
SERVICING CRITERIA
The assessment of compliance to be delivered by the Trustee shall
address, at a minimum, the criteria identified below as "Applicable Servicing
Criteria"
------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------
------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------
------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(1)(ii)If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(1)(iiiAny requirements in the transaction agreements
to maintain a back-up servicer for the pool
assets are maintained.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(1)(iv)A fidelity bond and errors and omissions
policy is in effect on the party participating
in the servicing function throughout the
reporting period in the amount of coverage
required by and otherwise in accordance with
the terms of the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(2)(i) Payments on pool assets are deposited into the |X|(as to
appropriate custodial bank accounts and accounts held
related bank clearing accounts no more than by Trustee)
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 |X|(as to
of an obligor or to an investor are made only investors only)
by authorized personnel.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(2)(iiiAdvances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
The related accounts for the transaction, such
as cash reserve accounts or accounts
established as a form of |X|(as to
overcollateralization, are separately accounts held
maintained (e.g., with respect to commingling by Trustee)
of cash) as set forth in the transaction
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)(viiReconciliations are prepared on a monthly
basis for all asset-backed securities related
bank accounts, including custodial accounts
and related bank clearing accounts. These
reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days
after the bank statement cutoff date, or such
other number of days specified in the
transaction agreements; (C) reviewed and
approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These
reconciling items are resolved within 90
calendar days of their original
identification, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements and
applicable Commission requirements.
Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set
forth in the transaction agreements;
(B) provide information calculated in
accordance with the terms specified in the
transaction agreements; (C) are filed with the
Commission as required by its rules and
regulations; and (D) agree with investors' or
the trustee's records as to the total unpaid
principal balance and number of pool assets
serviced by the servicer.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(3)(ii)Amounts due to investors are allocated and |X|
remitted in accordance with timeframes,
distribution priority and other terms set
forth in the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Disbursements made to an investor are posted
within two business days to the servicer's
investor records, or such other number of days |X|
1122(d)(3)(iiispecified in the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Amounts remitted to investors per the investor
reports agree with cancelled checks, or other |X|
1122(d)(3)(iv)form of payment, or custodial bank statements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security pool asset is
maintained as required by the transaction
agreements or related asset pool documents.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Pool assets and related documents are
safeguarded as required by the transaction
1122(d)(4)(ii)agreements
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(4)(iiiAny 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)(viiLoss 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)(viiRecords documenting collection efforts are
maintained during the period a pool asset is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent pool assets including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(4)(ix)Adjustments to interest rates or rates of
return for pool assets with variable rates are
computed based on the related pool asset
documents.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's pool asset documents, on at least an
annual basis, or such other period specified
in the transaction agreements; (B) interest on
such funds is paid, or credited, to obligors
in accordance with applicable pool asset
documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar
days of full repayment of the related pool
asset, or such other number of days specified
in the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(4)(xi)Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or
before the related penalty or expiration
dates, as indicated on the appropriate bills
or notices for such payments, provided that
such support has been received by the servicer
at least 30 calendar days prior to these
dates, or such other number of days specified
in the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(4)(xiiAny 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
1122(d)(4)(xiitransaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
1122(d)(4)(xiv)Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as |X|
1122(d)(4)(xv)set forth in the transaction agreements.
------------------------------------------------------------------------------
------------------------------------------------------------------------------