EXHBIT 4.1
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
Depositor,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
[ ]
Trustee
FORM OF POOLING AND SERVICING AGREEMENT
Dated as of [________] 1, 20[_]
Mortgage Asset-Backed Pass-Through Certificates
Series 20[__]-RZ[_]
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...................................................6
Section 1.01. Definitions.............................................6
Section 1.02. Determination of One-Month LIBOR.......................59
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.................................................61
Section 2.01. Conveyance of Mortgage Loans...........................61
Section 2.02. Acceptance by Trustee..................................64
Section 2.03. Representations, Warranties and Covenants of the
Master Servicer and the Depositor......................66
Section 2.04. Representations and Warranties of Sellers..............68
Section 2.05. Execution and Authentication of Certificates;
Conveyance of Uncertificated REMIC Regular
Interests..............................................70
Section 2.06. Purposes and Powers of the Trust.......................71
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...............72
Section 3.01. Master Servicer to Act as Servicer.....................72
Section 3.02. Subservicing Agreements Between Master Servicer
and Subservicers; Enforcement of Subservicers'
Obligations; Special Servicing.........................73
Section 3.03. Successor Subservicers.................................74
Section 3.04. Liability of the Master Servicer.......................75
Section 3.05. No Contractual Relationship Between Subservicer
and Trustee or Certificateholders......................75
Section 3.06. Assumption or Termination of Subservicing
Agreements by Trustee..................................75
Section 3.07. Collection of Certain Mortgage Loan Payments;
Deposits to Custodial Account..........................76
Section 3.08. Subservicing Accounts; Servicing Accounts..............78
Section 3.09. Access to Certain Documentation and Information
Regarding the Mortgage Loans...........................80
Section 3.10. Permitted Withdrawals from the Custodial Account.......80
Section 3.11. Maintenance of Primary Insurance Coverage..............82
Section 3.12. Maintenance of Fire Insurance and Omissions and
Fidelity Coverage......................................83
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments...........84
Section 3.14. Realization Upon Defaulted Mortgage Loans..............86
Section 3.15. Trustee to Cooperate; Release of Mortgage Files........89
Section 3.16. Servicing and Other Compensation; Compensating
Interest...............................................90
Section 3.17. Reports to the Trustee and the Depositor...............91
Section 3.18. Annual Statement as to Compliance......................91
Section 3.19. Annual Independent Public Accountants' Servicing
Report.................................................92
Section 3.20. Right of the Depositor in Respect of the Master
Servicer...............................................92
Section 3.21. Advance Facility.......................................93
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS...............................97
Section 4.01. Certificate Account....................................97
Section 4.02. Distributions..........................................97
Section 4.03. Statements to Certificateholders; Statements to
Rating Agencies; Exchange Act Reporting...............101
Section 4.04. Distribution of Reports to the Trustee and the
Depositor; Advances by the Master Servicer............104
Section 4.05. Allocation of Realized Losses.........................106
Section 4.06. Reports of Foreclosures and Abandonment of
Mortgaged Property....................................108
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.........108
Section 4.08. Swap Agreement........................................109
ARTICLE V THE CERTIFICATES............................................111
Section 5.01. The Certificates......................................111
Section 5.02. Registration of Transfer and Exchange of
Certificates..........................................113
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.....118
Section 5.04. Persons Deemed Owners.................................119
Section 5.05. Appointment of Paying Agent...........................119
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER.......................120
Section 6.01. Respective Liabilities of the Depositor and the
Master Servicer.......................................120
Section 6.02. Merger or Consolidation of the Depositor or the
Master Servicer; Assignment of Rights and
Delegation of Duties by Master Servicer...............120
Section 6.03. Limitation on Liability of the Depositor, the
Master Servicer and Others............................121
Section 6.04. Depositor and Master Servicer Not to Resign...........122
ARTICLE VII DEFAULT.....................................................123
Section 7.01. Events of Default.....................................123
Section 7.02. Trustee or Depositor to Act; Appointment of
Successor.............................................125
Section 7.03. Notification to Certificateholders....................126
Section 7.04. Waiver of Events of Default...........................126
ARTICLE VIII CONCERNING THE TRUSTEE......................................127
Section 8.01. Duties of Trustee.....................................127
Section 8.02. Certain Matters Affecting the Trustee.................128
Section 8.03. Trustee Not Liable for Certificates or Mortgage
Loans.................................................130
Section 8.04. Trustee May Own Certificates..........................130
Section 8.05. Master Servicer to Pay Trustee's Fees and
Expenses; Indemnification.............................130
Section 8.06. Eligibility Requirements for Trustee..................131
Section 8.07. Resignation and Removal of the Trustee................132
Section 8.08. Successor Trustee.....................................133
Section 8.09. Merger or Consolidation of Trustee....................133
Section 8.10. Appointment of Co-Trustee or Separate Trustee.........133
Section 8.11. Appointment of Custodians.............................134
Section 8.12. Appointment of Office or Agency.......................135
Section 8.13. DTC Letter of Representations.........................135
Section 8.14. Swap Agreement........................................135
ARTICLE IX TERMINATION.................................................136
Section 9.01. Termination Upon Purchase or Liquidation of All
Mortgage Loans........................................136
Section 9.02. Additional Termination Requirements...................141
ARTICLE X REMIC PROVISIONS............................................142
Section 10.01. REMIC Administration..................................142
Section 10.02. Master Servicer, REMIC Administrator and Trustee
Indemnification.......................................145
ARTICLE XI MISCELLANEOUS PROVISIONS....................................147
Section 11.01. Amendment.............................................147
Section 11.02. Recordation of Agreement; Counterparts................149
Section 11.03. Limitation on Rights of Certificateholders............150
Section 11.04. Governing Law.........................................150
Section 11.05. Notices...............................................151
Section 11.06. Notices to Rating Agencies............................151
Section 11.07. Severability of Provisions............................152
Section 11.08. Supplemental Provisions for Resecuritization..........152
Section 11.09. Intended Third Party Beneficiary......................153
EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B-1 Form of Class M Certificate
Exhibit B-2 Form of Class B Certificate
Exhibit C Form of Class SB Certificate
Exhibit D Form of Class R Certificate
Exhibit E Form of Custodial Agreement
Exhibit F Mortgage Loan Schedule
Exhibit G Form of Request for Release
Exhibit H-1 Form of Transfer Affidavit and Agreement
Exhibit H-2 Form of Transferor Certificate
Exhibit I Form of Investor Representation Letter
Exhibit J Form of Transferor Representation Letter
Exhibit K Form of Form 10-K Certification
Exhibit L Form of Back-Up Certification to Form 10-K Certification
Exhibit M Form of Lender Certification for Assignment of Mortgage Loan
Exhibit N Form of Rule 144A Investment Representation
Exhibit O Form of ERISA Representation Letter for Class SB Certificates
Exhibit P Form of ERISA Representation Letter for Class M Certificates
Exhibit Q Information to be Provided by the Master Servicer to the
Rating Agencies Relating to Reportable Modified Mortgage Loans
Exhibit R Schedule of Swap Agreement Notional Balances
Exhibit S Swap Agreement
Exhibit T Servicing Criteria to be Addressed in Assessment of Compliance
This Pooling and Servicing Agreement, effective as of [________] 1,
20[_], among RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as the depositor
(together with its permitted successors and assigns, the "Depositor"),
RESIDENTIAL FUNDING CORPORATION, as master servicer (together with its
permitted successors and assigns, the "Master Servicer"), and
[_____________], a banking association organized under the laws of the United
States, as trustee (together with its permitted successors and assigns, the
"Trustee").
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage asset-backed pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
seventeen classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans (as defined herein) and certain
other related assets.
REMIC I
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Mortgage Loans and
certain other related assets (exclusive of the Swap Account and the Swap
Agreement) subject to this Agreement as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC I." The Class [R-I] Certificates will
represent the sole Class of "residual interests" in REMIC I for purposes of
the REMIC Provisions (as defined herein) under federal income tax law. The
following table irrevocably sets forth the designation, remittance rate (the
"Uncertificated REMIC I Pass-Through Rate") and initial Uncertificated
Principal Balance for each of the "regular interests" in REMIC I (the
"REMIC I Regular Interests"). The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii)) for each REMIC I Regular Interest shall be the
Maturity Date. None of the REMIC I Regular Interests will be certificated.
Uncertificated Initial Uncertificated
REMIC I REMIC I Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date
[I-1-A] [____](1) [_______] [________] 20[_]
[I-1-B] [____](1) [_______] [________] 20[_]
[I-2-A] [____](1) [_______] [________] 20[_]
[I-2-B] [____](1) [_______] [________] 20[_]
[I-3-A] [____](1) [_______] [________] 20[_]
[I-3-B] [____](1) [_______] [________] 20[_]
[I-4-A] [____](1) [_______] [________] 20[_]
[I-4-B] [____](1) [_______] [________] 20[_]
[I-5-A] [____](1) [_______] [________] 20[_]
[I-5-B] [____](1) [_______] [________] 20[_]
[I-6-A] [____](1) [_______] [________] 20[_]
[I-6-B] [____](1) [_______] [________] 20[_]
[I-7-A] [____](1) [_______] [________] 20[_]
[I-7-B] [____](1) [_______] [________] 20[_]
[I-8-A] [____](1) [_______] [________] 20[_]
[I-8-B] [____](1) [_______] [________] 20[_]
[I-9-A] [____](1) [_______] [________] 20[_]
[I-9-B] [____](1) [_______] [________] 20[_]
[I-10-A] [____](1) [_______] [________] 20[_]
[I-10-B] [____](1) [_______] [________] 20[_]
[I-11-A] [____](1) [_______] [________] 20[_]
[I-11-B] [____](1) [_______] [________] 20[_]
[I-12-A] [____](1) [_______] [________] 20[_]
[I-12-B] [____](1) [_______] [________] 20[_]
[I-13-A] [____](1) [_______] [________] 20[_]
[I-13-B] [____](1) [_______] [________] 20[_]
[I-14-A] [____](1) [_______] [________] 20[_]
[I-14-B] [____](1) [_______] [________] 20[_]
[I-15-A] [____](1) [_______] [________] 20[_]
[I-15-B] [____](1) [_______] [________] 20[_]
[I-16-A] [____](1) [_______] [________] 20[_]
[I-16-B] [____](1) [_______] [________] 20[_]
[I-17-A] [____](1) [_______] [________] 20[_]
[I-17-B] [____](1) [_______] [________] 20[_]
[I-18-A] [____](1) [_______] [________] 20[_]
[I-18-B] [____](1) [_______] [________] 20[_]
[I-19-A] [____](1) [_______] [________] 20[_]
[I-19-B] [____](1) [_______] [________] 20[_]
[I-20-A] [____](1) [_______] [________] 20[_]
[I-20-B] [____](1) [_______] [________] 20[_]
[I-21-A] [____](1) [_______] [________] 20[_]
[I-21-B] [____](1) [_______] [________] 20[_]
[I-22-A] [____](1) [_______] [________] 20[_]
[I-22-B] [____](1) [_______] [________] 20[_]
[I-23-A] [____](1) [_______] [________] 20[_]
[I-23-B] [____](1) [_______] [________] 20[_]
[I-24-A] [____](1) [_______] [________] 20[_]
[I-24-B] [____](1) [_______] [________] 20[_]
[I-25-A] [____](1) [_______] [________] 20[_]
[I-25-B] [____](1) [_______] [________] 20[_]
[I-26-A] [____](1) [_______] [________] 20[_]
[I-26-B] [____](1) [_______] [________] 20[_]
[I-27-A] [____](1) [_______] [________] 20[_]
[I-27-B] [____](1) [_______] [________] 20[_]
[I-28-A] [____](1) [_______] [________] 20[_]
[I-28-B] [____](1) [_______] [________] 20[_]
[I-29-A] [____](1) [_______] [________] 20[_]
[I-29-B] [____](1) [_______] [________] 20[_]
[I-30-A] [____](1) [_______] [________] 20[_]
[I-30-B] [____](1) [_______] [________] 20[_]
[I-31-A] [____](1) [_______] [________] 20[_]
[I-31-B] [____](1) [_______] [________] 20[_]
[I-32-A] [____](1) [_______] [________] 20[_]
[I-32-B] [____](1) [_______] [________] 20[_]
[I-33-A] [____](1) [_______] [________] 20[_]
[I-33-B] [____](1) [_______] [________] 20[_]
[I-34-A] [____](1) [_______] [________] 20[_]
[I-34-B] [____](1) [_______] [________] 20[_]
[I-35-A] [____](1) [_______] [________] 20[_]
[I-35-B] [____](1) [_______] [________] 20[_]
[I-36-A] [____](1) [_______] [________] 20[_]
[I-36-B] [____](1) [_______] [________] 20[_]
[I-37-A] [____](1) [_______] [________] 20[_]
[I-37-B] [____](1) [_______] [________] 20[_]
[I-38-A] [____](1) [_______] [________] 20[_]
[I-38-B] [____](1) [_______] [________] 20[_]
[I-39-A] [____](1) [_______] [________] 20[_]
[I-39-B] [____](1) [_______] [________] 20[_]
[I-40-A] [____](1) [_______] [________] 20[_]
[I-40-B] [____](1) [_______] [________] 20[_]
[I-41-A] [____](1) [_______] [________] 20[_]
[I-41-B] [____](1) [_______] [________] 20[_]
[I-42-A] [____](1) [_______] [________] 20[_]
[I-42-B] [____](1) [_______] [________] 20[_]
[I-43-A] [____](1) [_______] [________] 20[_]
[I-43-B] [____](1) [_______] [________] 20[_]
[I-44-A] [____](1) [_______] [________] 20[_]
[I-44-B] [____](1) [_______] [________] 20[_]
[I-45-A] [____](1) [_______] [________] 20[_]
[I-45-B] [____](1) [_______] [________] 20[_]
[I-46-A] [____](1) [_______] [________] 20[_]
[I-46-B] [____](1) [_______] [________] 20[_]
[I-47-A] [____](1) [_______] [________] 20[_]
[I-47-B] [____](1) [_______] [________] 20[_]
[I-48-A] [____](1) [_______] [________] 20[_]
[I-48-B] [____](1) [_______] [________] 20[_]
[I-49-A] [____](1) [_______] [________] 20[_]
[I-49-B] [____](1) [_______] [________] 20[_]
[A-I] [____](1) [_______] [________] 20[_]
_______________
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(1) Calculated as provided in the definition of Uncertificated REMIC I
Pass-Through Rate.
REMIC II
As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the REMIC I Regular
Interests subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
"REMIC II." The Class [R-II] Certificates will represent the sole Class of
"residual interests" in REMIC II for purposes of the REMIC Provisions (as
defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, remittance rate (the "Uncertificated
REMIC II Pass-Through Rate") and initial Uncertificated Principal Balance for
each of the "regular interests" in REMIC II (the "REMIC II Regular
Interests"). The "latest possible maturity date" (determined solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) for
each REMIC II Regular Interest shall be the Maturity Date. None of the
REMIC II Regular Interests will be certificated.
Uncertificated Initial Uncertificated
REMIC II REMIC II Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date
[LT1] [____](1 [_______] November 2035
[LT2] [____](1 [_______] November 2035
[LT3] [____](1 [_______] November 2035
[LT4] [____](1 [_______] November 2035
[LT-IO] [____](1 (2) November 2035
_______________
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(1) Calculated as provided in the definition of Uncertificated REMIC II
Pass-Through Rate.
(2) REMIC II Regular Interest LT-IO will not have an Uncertificated
Principal Balance but will accrue interest on its uncertificated notional
amount calculated in accordance with the definition of "Uncertificated
Notional Amount" herein.
REMIC III
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as REMIC III. The Class R-III Certificates will represent
the sole Class of "residual interests" in REMIC III for purposes of the REMIC
Provisions under federal income tax law. The following table irrevocably
sets forth the designation, Pass-Through Rate, aggregate Initial Certificate
Principal Balance, certain features, month of Final Scheduled Distribution
Date and initial ratings for each Class of Certificates comprising the
interests representing "regular interests" in REMIC III. The "latest
possible maturity date" (determined solely for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii)) for each Class of REMIC III
Regular Certificates shall be the Maturity Date.
Aggregate Month of
Initial Final
Certificate Scheduled
Pass-Through Principal Distribution
Designation Type Rate Balance Features Date Initial Ratings
[S&P] [Moody's]
Class [__] Regular(1) Adjustable $[_______] [Senior/Adjustable [___] 20[_] [AAA] [Aaa]
Rate]
Class [__] Regular(1) Adjustable $[_______] [Senior/Adjustable [___] 20[_] [AAA] [Aaa]
Rate]
Class [__] Regular(1) Adjustable $[_______] [Senior/Adjustable [___] 20[_] [AAA] [Aaa]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 20[_] [AA+] [Aa1]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 20[_] [AA] [Aa2]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 20[_] [AA-] [Aa3]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 20[_] [A+] [A2]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 20[_] [A] [A3]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 20[_] [A-] [Baa1]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 00[_] [XXXx] [Xxx0]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Mezzanine/Adjustable[___] 00[_] [XXX] [Baa3]
Rate]
Class [__] Regular(1) Adjustable(2)(3)$[_______] [Subordinate/Adjustable[___] 00[_] [XXX-] [Ba1]
Rate]
Class [__] Regular (4) $[_______] [Subordinate Rate] [N/A] [N/A] [N/A]
(4)
Class [__] Regular(5) (6) (7) [Residual] [N/A] [N/A] [N/A]
_______________
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_______________
(1) The [Class A, Class M and Class B] Certificates will represent
ownership of a REMIC III Regular Interest [together with (i) certain
rights to payments to be made from amounts received under the Swap
Agreement which will be deemed made for federal income tax purposes
outside of REMIC III by the holder of the Class SB Certificates as the
owner of the Swap Agreement and (ii) the obligation to pay the Class IO
Distribution Amount. Any amount distributed on this Class of Certificates
on any Distribution Date in excess of the amount distributable on the
related REMIC III Regular Interest on such Distribution Date shall be
treated for federal income tax purposes as having been paid from the Swap
Account and any amount distributable on such REMIC III Regular Interest on
such Distribution Date in excess of the amount distributable on such Class
of Certificates on such Distribution Date shall be treated as having been
paid to the Swap Account, all pursuant to and as further provided in
Section 4.08 hereof].
(2) [The REMIC III Regular Interests ownership of which is represented by
the Class A, Class M and Class B Certificates, will accrue interest at a
per annum rate equal to LIBOR plus the applicable Margin, each subject to
a payment cap as described in the definition of "Pass-Through Rate" and
the provisions for the payment of Basis Risk Shortfalls herein, which
payments will not be part of the entitlement of the REMIC III Regular
Interests related to such Certificates].
(3) The [Class A, Class M and Class B] Certificates will also entitle their
holders to certain payments from the Holder of the Class SB Certificates
from amounts to which the related REMIC III Regular Interest is entitled
and from amounts received under the Swap Agreement, which will not be a
part of their ownership of the REMIC III Regular Interests].
(4) The Class SB Certificates will accrue interest as described in the
definition of Accrued Certificate Interest. The Class SB Certificates
will not accrue interest on their Certificate Principal Balance. The
Class SB Certificates will be comprised of two REMIC III Regular
Interests, a principal only regular interest designated SB-PO and an
interest only regular interest designated SB-IO, which will be entitled to
distributions as set forth herein. The rights of the Holder of the
Class SB Certificates to payments from the Swap Agreement shall be outside
and apart from its rights under the REMIC III Regular Interests SB-IO and
SB-PO.
(5) [REMIC III Regular Interest IO will be held as an asset of the Swap
Account established by the Trustee].
(6) [For federal income tax purposes, REMIC III Regular Interest IO will
not have a Pass-Through Rate, but will be entitled to 100% of the amounts
distributed on REMIC II Regular Interest LT-IO].
(7) [For federal income tax purposes, REMIC III Regular Interest IO will
not have an Uncertificated Principal Balance, but will have a notional
amount equal to the Uncertificated Notional Amount of REMIC II Regular
Interest LT-IO].
In consideration of the mutual agreements herein contained, the
Depositor, 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.
Accrued Certificate Interest: With respect to each Distribution Date
and each Class of [Class A Certificates, Class M Certificates and Class B
Certificates], an amount equal to interest accrued during the related
Interest Accrual Period on the Certificate Principal Balance thereof
immediately prior to such Distribution Date at the related Pass-Through Rate
for that Distribution Date.
The amount of Accrued Certificate Interest on each Class of
Certificates shall be reduced by the amount of (a) Prepayment Interest
Shortfalls on the Mortgage Loans during the prior calendar month (to the
extent not covered by Eligible Master Servicing Compensation pursuant to
Section 3.16) and Relief Act Shortfalls on Mortgage Loans during the related
Due Period, in each case allocated to each Class of Certificates pro rata, on
the basis of Accrued Certificate Interest payable on such Distribution Date
absent such reductions; and (b) the interest portion of Realized Losses
allocated to such Class through Subordination as described in Section 4.05.
Accrued Certificate Interest shall accrue on the basis of a 360-day
year and the actual number of days in the related Interest Accrual Period.
With respect to each Distribution Date and the Class SB Certificates,
interest accrued during the preceding Interest Accrual Period at the
Pass-Through Rate on the Uncertificated Notional Amount as specified in the
definition of Pass-Through Rate, immediately prior to such Distribution Date,
reduced by any interest shortfalls with respect to the Mortgage Loans,
including Prepayment Interest Shortfalls to the extent not covered by
Compensating Interest pursuant to Section 3.16 or by Excess Cash Flow
pursuant to Section 4.02(c)(v) and (vi). Accrued Certificate Interest on the
Class SB Certificates shall accrue on the basis of a 360-day year and the
actual number of days in the related Interest Accrual Period.
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.
Adjustment Date: With respect to each adjustable-rate Mortgage Loan,
each date set forth in the related Mortgage Note on which an adjustment to
the interest rate on such Mortgage Loan becomes effective.
Advance: With respect to any Mortgage Loan, any advance made by the
Master Servicer, pursuant to Section 4.04.
Affected Party: As defined in the Swap Agreement.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the
purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Amount Held for Future Distribution: With respect to any Distribution
Date, the total of the amounts held in the Custodial Account at the close of
business on the preceding Determination Date on account of (i) Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent Recoveries,
REO Proceeds, 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, Subsequent Recoveries, Insurance Proceeds, REO Proceeds
and purchases of Mortgage Loans that the Master Servicer has deemed to have
been received in the preceding month in accordance with Section 3.07(b)) and
(ii) payments which represent early receipt of scheduled payments of
principal and interest due on a date or dates subsequent to the Due Date in
the related Due Period.
Appraised Value: With respect to any Mortgaged Property, one of the
following: (i) the lesser of (a) the appraised value of such Mortgaged
Property based upon the appraisal or appraisals (or field review) made at the
time of the origination of the related Mortgage Loan, and (b) the sales price
of the Mortgaged Property at such time of origination, or (ii) in the case of
a Mortgaged Property securing a refinanced or modified Mortgage Loan, one of
(1) the appraised value based upon the appraisal made at the time of
origination of the loan which was refinanced or modified, (2) the appraised
value determined in an appraisal made at the time of refinancing or
modification or (3) the sales price of the Mortgaged Property.
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 Depositor relating to
the transfer and assignment of the Mortgage Loans.
Available Distribution Amount: With respect to any Distribution Date,
an amount equal to (a) the sum of (i) the amount 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 that the Master Servicer is not permitted to withdraw from the
Custodial Account pursuant to Section 3.16(e) in respect of the Mortgage
Loans and (v) any amount deposited in the Certificate Account pursuant to
Section 4.07 or 9.01, reduced by (b) the sum as of the close of business on
the immediately preceding Determination Date of (i) any payments or
collections consisting of prepayment charges on the Mortgage Loans that were
received during the related Prepayment Period, (ii) the Amount Held for
Future Distribution, (iii) amounts permitted to be withdrawn by the Master
Servicer from the Custodial Account pursuant to clauses (ii)-(x), inclusive,
of Section 3.10(a), and (iv) any Net Swap Payments required to be made to the
Swap Counterparty and Swap Termination Payments not due to a Swap
Counterparty Trigger Event for such Distribution Date.
Balloon Loan: Each of the Mortgage Loans having an original term to
maturity that is shorter than the related amortization term.
Balloon Payment: With respect to any Balloon Loan, the related Monthly
Payment payable on the stated maturity date of such Balloon Loan.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Basis Risk Shortfall: Any [Class A Basis Risk Shortfall], [Class B
Basis Risk Shortfall] [or] [Class M Basis Risk Shortfall].
Basis Risk Shortfall Carry-Forward Amount: Any [Class A Basic Risk
Shortfall Carry-Forward Amount], [Class B Basis Risk Shortfall Carry-Forward
Amount] [or] [Class M Basis Risk Shortfall Carry-Forward Amount].
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York, the State of
California, the State of Texas, the State of Minnesota or the State of
Illinois (and such other state or states in which the Custodial Account or
the Certificate Account are at the time located) are required or authorized
by law or executive order to be closed.
Calendar Quarter: A Calendar Quarter shall consist of one of the
following time periods in any given year: January 1 through March 31, April
1 through June 30, July 1 through September 30, and October 1 through
December 31.
Capitalization Reimbursement Amount: With respect to any Distribution
Date, the amount of unreimbursed Advances or Servicing Advances that were
added to the Stated Principal Balance of the Mortgage Loans during the
preceding calendar month and reimbursed to the Master Servicer or Subservicer
pursuant to Section 3.10(a)(vii) on or prior to such Distribution Date.
Cash Liquidation: With respect to any defaulted Mortgage Loan other
than a Mortgage Loan as to which an REO Acquisition occurred, a determination
by the Master Servicer that it has received all Insurance Proceeds,
Liquidation Proceeds and other payments or cash recoveries which the Master
Servicer reasonably and in good faith expects to be finally recoverable with
respect to such Mortgage Loan.
Certificate: Any [Class A] Certificate, [Class M] Certificate,
[Class B] Certificate, Class SB Certificate or Class R Certificate.
Certificate Account: The account or accounts created and maintained
pursuant to Section 4.01, which shall be entitled "[_______________], as
trustee, in trust for the registered holders of Residential Asset Mortgage
Products, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series
20[_]-RZ[_]" and which account shall be held for the benefit of the
Certificateholders and which must be an Eligible Account.
Certificate Account Deposit Date: With respect to any Distribution
Date, the Business Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that neither a Disqualified
Organization nor a Non-United States Person shall be a holder of a Class R
Certificate for any purpose hereof. 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 Depositor, 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 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 any [Class A
Certificate, Class M Certificate or Class B Certificate], on any date of
determination, an amount equal to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, minus
(ii) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(c) and (y) the aggregate
of all reductions in Certificate Principal Balance of such
Certificates 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 with respect to any Distribution Date, the Certificate
Principal Balances of the [Class A Certificates, Class M Certificates and
Class B Certificates] will be increased, in each case to the extent of
Realized Losses previously allocated thereto and remaining unreimbursed, to
the extent of Subsequent Recoveries in the following order of priority:
first to the [Class A Certificates, pro rata, and then to the Class M-1
Certificates , Class M-2 Certificates, Class M-3 Certificates , Class M-4
Certificates , Class M-5 Certificates , Class M-6 Certificates , Class M-7
Certificates, Class M-8 Certificates and Class B Certificates], in that order.
[With respect to any Class SB Certificate, on any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate multiplied by an amount equal to (i) the excess, if any, of
(A) the then aggregate Stated Principal Balance of the Mortgage Loans over
(B) the then aggregate Certificate Principal Balance of the Class A
Certificates, Class M Certificates and Class B Certificates then outstanding,
which represents the sum of (i) the Initial Principal Balance of the
REMIC III Regular Interest SB-PO, as reduced by Realized Losses allocated
thereto and payments deemed made thereon, and (ii) accrued and unpaid
interest on the REMIC III Regular Interest SB-IO, as reduced by Realized
Losses allocated thereto.]
The Class R Certificates will not have a Certificate Principal Balance.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates or uncertificated
interests bearing the same designation.
Class A Basis Risk Shortfall: [With respect to each Class of Class A
Certificates and any Distribution Date for which the Pass-Through Rate for
any such Class of Certificates is equal to the Net WAC Cap Rate, the excess,
if any, of (x) the lesser of (a) Accrued Certificate Interest on that Class
of Certificates on such Distribution Date, calculated at a rate equal to
One-Month LIBOR plus the related Margin, as calculated for such Distribution
Date, and (b) 11.00% per annum, over (y) Accrued Certificate Interest on such
Class of Class A Certificates for such Distribution Date calculated at the
Net WAC Cap Rate.]
Class A Basis Risk Shortfall Carry-Forward Amount: [With respect to
each Class of Class A Certificates and any Distribution Date, the sum of
(a) the aggregate amount of Class A Basis Risk Shortfall for such Class on
such Distribution Date plus (b) any Class A Basis Risk Shortfall
Carry-Forward Amount for such Class remaining unpaid from the preceding
Distribution Date, plus (c) one month's interest on the amount in clause
(b) (based on the number of days in the preceding Interest Accrual Period),
to the extent previously unreimbursed by Excess Cash Flow or the Swap
Agreement pursuant to this Agreement, at a rate equal to the related
Pass-Through Rate.]
Class A Certificates: Collectively, the Class [__] Certificates,
Class [__] Certificates and Class [__] Certificates.
[Class A Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
Principal Distribution Amount for that Distribution Date or (b) on or after
the Stepdown Date if a Trigger Event is not in effect for that Distribution
Date, the lesser of:
(i) the Principal Distribution Amount for that Distribution Date; and
(ii) the excess, if any, of (A) the aggregate Certificate Principal
Balance of the Class A Certificates immediately prior to that
Distribution Date over (B) the lesser of (x) the product of
(1) the applicable Subordination Percentage and (2) the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date and
(y) the excess, if any, of the aggregate Stated Principal Balance
of the Mortgage Loans after giving effect to distributions to be
made on that Distribution Date, over the Overcollateralization
Floor.]
[Class A-1 Certificate: Any one of the Class A-1 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit A, senior to [the Class M Certificates,
the Class B Certificates], the Class SB Certificates and the Class R
Certificates with respect to distributions and the allocation of Realized
Losses in respect of the Mortgage Loans as set forth in Section 4.05, and
evidencing (i) an interest designated as a "regular interest" in REMIC III
for purposes of the REMIC Provisions, (ii) the right to receive payments
under the Swap Agreement and (iii) the obligation to pay the Class IO
Distribution Amount.]
[Class A-1 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class A-2 Certificate: Any one of the Class A-2 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit A, senior to [the Class M Certificates,
the Class B Certificates], the Class SB Certificates and the Class R
Certificates with respect to distributions and the allocation of Realized
Losses in respect of the Mortgage Loans as set forth in Section 4.05, and
evidencing (i) an interest designated as a "regular interest" in REMIC III
for purposes of the REMIC Provisions, (ii) the right to receive payments
under the Swap Agreement and (iii) the obligation to pay the Class IO
Distribution Amount.]
[Class A-2 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class A-3 Certificate: Any one of the Class A-3 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit A, senior to [the Class M Certificates,
the Class B Certificates], the Class SB Certificates and the Class R
Certificates with respect to distributions and the allocation of Realized
Losses in respect of the Mortgage Loans as set forth in Section 4.05, and
evidencing (i) an interest designated as a "regular interest" in REMIC III
for purposes of the REMIC Provisions, (ii) the right to receive payments
under the Swap Agreement and (iii) the obligation to pay the Class IO
Distribution Amount.]
[Class A-3 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class B Basis Risk Shortfalls: With respect to the Class B
Certificates and any Distribution Date for which the Pass-Through Rate for
such Class of Certificates is equal to the Net WAC Cap Rate, the excess, if
any, of (x) Accrued Certificate Interest on that Class of Certificates on
such Distribution Date, calculated at a rate equal to LIBOR plus the related
Margin, as calculated for such Distribution Date, over (y) Accrued
Certificate Interest on such Class of Class B Certificates for such
Distribution Date calculated at the Net WAC Cap Rate.]
[Class B Basis Risk Shortfall Carry-Forward Amounts: With respect to
the Class B Certificates and any Distribution Date, the sum of (a) the
aggregate amount of Class B Basis Risk Shortfall on such Distribution Date
plus (b) any Class B Basis Risk Shortfall Carry-Forward Amount remaining
unpaid from the preceding Distribution Date, plus (c) one month's interest on
the amount in clause (b) (based on the number of days in the preceding
Interest Accrual Period), to the extent previously unreimbursed by Excess
Cash Flow or the Swap Agreement pursuant to this Agreement, at a rate equal
to the related Pass-Through Rate.]
[Class B Certificate: Any one of the Class B Certificates executed by
the Trustee and authenticated by the Certificate Registrar substantially in
the form annexed hereto as Exhibit B-2, senior to the Class SB Certificates
and the Class R Certificates with respect to distributions and the allocation
of Realized Losses in as set forth in Section 4.05, and evidencing (i) an
interest designated as a "regular interest" in REMIC III for purposes of the
REMIC Provisions, (ii) the right to receive payments under the Swap Agreement
and (iii) the obligation to pay the Class IO Distribution Amount.]
[Class B Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class B Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
Class M-3 Principal Distribution Amount, Class M-4 Principal Distribution
Amount, Class M-5 Principal Distribution Amount, Class M-6 Principal
Distribution Amount, the Class M-7 Principal Distribution Amount and the
Class M-8 Principal Distribution Amount] or (b) on or after the Stepdown Date
if a Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount, Class M-6 Principal
Distribution Amount, the Class M-7 Principal Distribution Amount
and the Class M-8 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates,
Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates,
Class M-6 Certificates, Class M-7 Certificates and the Class M-8
Certificates (after taking into account the payment of the
Class A Principal Distribution Amount, the Class M-1 Principal
Distribution Amount, the Class M-2 Principal Distribution Amount,
Class M-3 Principal Distribution Amount, Class M-4 Principal
Distribution Amount, Class M-5 Principal Distribution Amount,
Class M-6 Principal Distribution Amount, the Class M-7 Principal
Distribution Amount and the Class M-8 Principal Distribution
Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class B Certificates immediately prior
to that Distribution Date over (B) the lesser of (x) the product
of (1) the applicable Subordination Percentage and (2) the
aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution
Date and (y) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the
Overcollateralization Floor.]
[Class IO Distribution Amount: As defined in Section 4.08(f) hereof.
For purposes of clarity, the Class IO Distribution Amount for any
Distribution Date shall equal the amount payable to the Swap Account on such
Distribution Date in excess of the amount payable on REMIC III Regular
Interest IO on such Distribution Date, all as further provided in Section
4.08(b) hereof.]
[Class M Basis Risk Shortfall: With respect to each Class of Class M
Certificates and any Distribution Date for which the Pass-Through Rate for
any such Class of Certificates is equal to the Net WAC Cap Rate, the excess,
if any, of (x) the lesser of (a) Accrued Certificate Interest on that Class
of Certificates on such Distribution Date, calculated at a rate equal to
One-Month LIBOR plus the related Margin, as calculated for such Distribution
Date, and (b) 11.00% per annum, over (y) Accrued Certificate Interest on such
Class of Class M Certificates for such Distribution Date calculated at the
Net WAC Cap Rate.]
[Class M Basis Risk Shortfall Carry-Forward Amount: With respect to
each Class of Class M Certificates and any Distribution Date, the sum of
(a) the aggregate amount of Class M Basis Risk Shortfall for such Class on
such Distribution Date plus (b) any Class M Basis Risk Shortfall
Carry-Forward Amount for such Class remaining unpaid from the preceding
Distribution Date, plus (c) one month's interest on the amount in clause
(b) (based on the number of days in the preceding Interest Accrual Period),
to the extent previously unreimbursed by Excess Cash Flow or the Swap
Agreement pursuant to this Agreement, at a rate equal to the related
Pass-Through Rate.]
Class M Certificates: Collectively, the Class [__] Certificates,
Class [__] Certificates, Class [__] Certificates, Class [__] Certificates,
Class [__] Certificates, Class [__] Certificates, Class [__] Certificates and
Class [__] Certificates.
[Class M-1 Certificate: Any one of the Class M-1 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to [the Class [__]
Certificates, the Class [__] Certificates, the Class [__] Certificates, the
Class [__] Certificates, the Class [__] Certificates, the Class [__]
Certificates, the Class [__] Certificates, the Class B Certificates,] the
Class SB Certificates and the Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in
Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right
to receive payments under the Swap Agreement and (iii) the obligation to pay
the Class IO Distribution Amount.]
[Class M-1 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-1 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount or (b) on or after
the Stepdown Date if a Trigger Event is not in effect for that Distribution
Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates (after
taking into account the payment of the Class A Principal
Distribution Amount for that Distribution Date) and (2) the
Certificate Principal Balance of the Class M-1 Certificates
immediately prior to that Distribution Date over (B) the lesser
of (x) the product of (1) the applicable Subordination Percentage
and (2) the aggregate Stated Principal Balance of the Mortgage
Loans after giving effect to distributions to be made on that
Distribution Date and (y) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans after giving
effect to distributions to be made on that Distribution Date,
over the Overcollateralization Floor.]
[Class M-2 Certificate: Any one of the Class M-2 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to [the Class [__]
Certificates, the Class [__] Certificates, the Class [__] Certificates, the
Class [__] Certificates, the Class [__] Certificates, the Class [__]
Certificates, the Class B Certificates,] the Class SB Certificates and the
Class R Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.05, and evidencing (i) an interest
designated as a "regular interest" in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive payments under the Swap Agreement and
(iii) the obligation to pay the Class IO Distribution Amount.]
[Class M-2 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-2 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount and the Class M-1
Principal Distribution Amount or (b) on or after the Stepdown Date if a
Trigger Event is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount and the Class M-1 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates and
Class M-1 Certificates (after taking into account the payment of
the Class A Principal Distribution Amount and the Class M-1
Principal Distribution Amount for that Distribution Date) and
(2) the Certificate Principal Balance of the Class M-2
Certificates immediately prior to that Distribution Date over
(B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on
that Distribution Date, over the Overcollateralization Floor.]
[Class M-3 Certificate: Any one of the Class M-3 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to [the Class [__]
Certificates, the Class [__] Certificates, the Class [__] Certificates, the
Class [__] Certificates, the Class [__] Certificates, the Class B
Certificates,] the Class SB Certificates and the Class R Certificates with
respect to distributions and the allocation of Realized Losses as set forth
in Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right
to receive payments under the Swap Agreement and (iii) the obligation to pay
the Class IO Distribution Amount.]
[Class M-3 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-3 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount and the Class M-2 Principal Distribution Amount
or (b) on or after the Stepdown Date if a Trigger Event is not in effect for
that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount and the
Class M-2 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates,
Class M-1 Certificates and Class M-2 Certificates (after taking
into account the payment of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount and the
Class M-2 Principal Distribution Amount for that Distribution
Date) and (2) the Certificate Principal Balance of the Class M-3
Certificates immediately prior to that Distribution Date over
(B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on
that Distribution Date, over the Overcollateralization Floor.]
[Class M-4 Certificate: Any one of the Class M-4 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to the [Class [__]
Certificates, the Class [__] Certificates, the Class [__] Certificates, the
Class [__] Certificates, the Class B Certificates,] the Class SB Certificates
and the Class R Certificates with respect to distributions and the allocation
of Realized Losses as set forth in Section 4.05, and evidencing (i) an
interest designated as a "regular interest" in REMIC III for purposes of the
REMIC Provisions, (ii) the right to receive payments under the Swap Agreement
and (iii) the obligation to pay the Class IO Distribution Amount.]
[Class M-4 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-4 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount
and the Class M-3 Principal Distribution Amount or (b) on or after the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount and the Class M-3
Principal Distribution Amount ; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates,
Class M-1 Certificates, Class M-2 Certificates and Class M-3
Certificates (after taking into account the payment of the
Class A Principal Distribution Amount, the Class M-1 Principal
Distribution Amount, the Class M-2 Principal Distribution Amount
and the Class M-3 Principal Distribution Amount for that
Distribution Date) and (2) the Certificate Principal Balance of
the Class M-4 Certificates immediately prior to that Distribution
Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on
that Distribution Date, over the Overcollateralization Floor.]
[Class M-5 Certificate: Any one of the Class M-5 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to [the Class [__]
Certificates, the Class [__] Certificates, the Class [__] Certificates, the
Class B Certificates,] the Class SB Certificates and the Class R Certificates
with respect to distributions and the allocation of Realized Losses as set
forth in Section 4.05, and evidencing (i) an interest designated as a
"regular interest" in REMIC III for purposes of the REMIC Provisions,
(ii) the right to receive payments under the Swap Agreement and (iii) the
obligation to pay the Class IO Distribution Amount.]
[Class M-5 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-5 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
Class M-3 Principal Distribution Amount and the Class M-4 Principal
Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event
is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount and the Class M-4 Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates,
Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates and Class M-4 Certificates (after taking into
account the payment of the Class A Principal Distribution Amount,
the Class M-1 Principal Distribution Amount, the Class M-2
Principal Distribution Amount, Class M-3 Principal Distribution
Amount and the Class M-4 Principal Distribution Amount for that
Distribution Date) and (2) the Certificate Principal Balance of
the Class M-5 Certificates immediately prior to that Distribution
Date over (B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on
that Distribution Date, over the Overcollateralization Floor.]
[Class M-6 Certificate: Any one of the Class M-6 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to [the Class [__]
Certificates, the Class [__] Certificates, the Class B Certificates,] the
Class SB Certificates and the Class R Certificates with respect to
distributions and the allocation of Realized Losses as set forth in
Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right
to receive payments under the Swap Agreement and (iii) the obligation to pay
the Class IO Distribution Amount.]
[Class M-6 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-6 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
Class M-3 Principal Distribution Amount, Class M-4 Principal Distribution
Amount and the Class M-5 Principal Distribution Amount or (b) on or after the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount and
the Class M-5 Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates,
Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates and Class M-5 Certificates
(after taking into account the payment of the Class A Principal
Distribution Amount, the Class M-1 Principal Distribution Amount,
the Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount and
the Class M-5 Principal Distribution Amount for that Distribution
Date) and (2) the Certificate Principal Balance of the Class M-6
Certificates immediately prior to that Distribution Date over
(B) the lesser of (x) the product of (1) the applicable
Subordination Percentage and (2) the aggregate Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date and (y) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans after giving effect to distributions to be made on
that Distribution Date, over the Overcollateralization Floor.]
[Class M-7 Certificate: Any one of the Class M-7 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to [the Class [__]
Certificates, the Class B Certificates,] the Class SB Certificates and the
Class R Certificates with respect to distributions and the allocation of
Realized Losses as set forth in Section 4.05, and evidencing (i) an interest
designated as a "regular interest" in REMIC III for purposes of the REMIC
Provisions, (ii) the right to receive payments under the Swap Agreement and
(iii) the obligation to pay the Class IO Distribution Amount.]
[Class M-7 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-7 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
Class M-3 Principal Distribution Amount, Class M-4 Principal Distribution
Amount, Class M-5 Principal Distribution Amount and the Class M-6 Principal
Distribution Amount or (b) on or after the Stepdown Date if a Trigger Event
is not in effect for that Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount and the Class M-6
Principal Distribution Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates,
Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates and
Class M-6 Certificates (after taking into account the payment of
the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal
Distribution Amount, Class M-3 Principal Distribution Amount,
Class M-4 Principal Distribution Amount, Class M-5 Principal
Distribution Amount and the Class M-6 Principal Distribution
Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-7 Certificates immediately prior
to that Distribution Date over (B) the lesser of (x) the product
of (1) the applicable Subordination Percentage and (2) the
aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution
Date and (y) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the
Overcollateralization Floor.]
[Class M-8 Certificate: Any one of the Class M-8 Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit B-1, senior to [the Class B
Certificates,] the Class SB Certificates and the Class R Certificates with
respect to distributions and the allocation of Realized Losses as set forth
in Section 4.05, and evidencing (i) an interest designated as a "regular
interest" in REMIC III for purposes of the REMIC Provisions, (ii) the right
to receive payments under the Swap Agreement and (iii) the obligation to pay
the Class IO Distribution Amount.]
[Class M-8 Margin: Initially, [__]% per annum, and on any Distribution
Date on or after the second Distribution Date after the first possible
Optional Termination Date, [__]% per annum.]
[Class M-8 Principal Distribution Amount: With respect to any
Distribution Date (a) prior to the Stepdown Date or on or after the Stepdown
Date if a Trigger Event is in effect for that Distribution Date, the
remaining Principal Distribution Amount for that Distribution Date after
distribution of the Class A Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount,
Class M-3 Principal Distribution Amount, Class M-4 Principal Distribution
Amount, Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount and the Class M-7 Principal Distribution Amount or (b) on
or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
(i) the remaining Principal Distribution Amount for that Distribution
Date after distribution of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount and the Class M-7 Principal Distribution
Amount; and
(ii) the excess, if any, of (A) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates,
Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates,
Class M-6 Certificates and Class M-7 Certificates (after taking
into account the payment of the Class A Principal Distribution
Amount, the Class M-1 Principal Distribution Amount, the
Class M-2 Principal Distribution Amount, Class M-3 Principal
Distribution Amount, Class M-4 Principal Distribution Amount,
Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount and the Class M-7 Principal Distribution
Amount for that Distribution Date) and (2) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior
to that Distribution Date over (B) the lesser of (x) the product
of (1) the applicable Subordination Percentage and (2) the
aggregate Stated Principal Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution
Date and (y) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date, over the
Overcollateralization Floor.]
[Class R Certificate: Any one of the Class [__], Class [__] or
Class [__] Certificates.]
[Class R-I Certificate: Any one of the Class R-I Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit D and evidencing an interest designated
as a "residual interest" in REMIC I for purposes of the REMIC Provisions.]
[Class R-II Certificate: Any one of the Class R-II Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit D and evidencing an
interest designated as a "residual interest" in REMIC II for purposes of the
REMIC Provisions.]
[Class R-III Certificate: Any one of the Class R-III Certificates
executed by the Trustee and authenticated by the Certificate Registrar
substantially in the form annexed hereto as Exhibit D and evidencing an
interest designated as a "residual interest" in REMIC III for purposes of the
REMIC Provisions.]
[Class SB Certificate: Any one of the Class SB Certificates executed
by the Trustee and authenticated by the Certificate Registrar substantially
in the form annexed hereto as Exhibit C, subordinate to the Class A
Certificates, Class M Certificates and Class B Certificates with respect to
distributions and the allocation of Realized Losses as set forth in
Section 4.05, and evidencing an interest comprised of "regular interests" in
REMIC III for purposes of the REMIC Provisions together with certain rights
to payments under the Swap Agreement for purposes of the REMIC Provisions.]
Closing Date: [__________], 20[_].
Code: The Internal Revenue Code of 1986.
Commission: The Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date, any
amount paid by the Master Servicer in accordance with Section 3.16(f).
Corporate Trust Office: The principal office of the Trustee at which
at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this instrument is located at [Address of Trustee] Attention: Residential
Asset Mortgage Products, Inc., Series 20[_]-RZ[_].
Credit Repository: Equifax, Transunion and Experian, or their
successors in interest.
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
Depositor, the Master Servicer, the Trustee and a Custodian in substantially
the form of Exhibit E hereto.
Custodian: A custodian appointed pursuant to a Custodial Agreement.
Cut-off Date Balance: $[__________].
Cut-off Date: [____________] 1, 20[_].
Cut-off Date Principal Balance: With respect 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 definitive, fully-registered 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 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 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 May 1 that
remained unpaid as of the close of business on June 30 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.
Depositor: As defined in the preamble hereto.
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 Exchange Act.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Destroyed Mortgage Note: A Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Determination Date: With respect to any Distribution Date, the [20th]
day (or if such [20th] day is not a Business Day, the Business Day
immediately following such [20th] day) of the month of the related
Distribution Date.
Disqualified Organization: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, including, 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 Xxxxxxx Mac, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code
on unrelated business taxable income) and (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code. A Disqualified
Organization also includes any "electing large partnership," as defined in
Section 775(a) of the Code and 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 any REMIC 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
[__________], 20[_] or, if such 25th day is not a Business Day, the Business
Day immediately following such 25th day.
DTC Letter: The Letter of Representations, dated [__________], 20[_],
among the Trustee on behalf of the Trust Fund, JPMorgan Chase Bank, N.A., in
its individual capacity as agent thereunder and the Depository.
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 calendar month
of such Distribution Date.
Eligible Account: An account that is any of the following:
(i) maintained with a depository institution the debt obligations of which
have been rated by each Rating Agency in its highest rating available, or
(ii) an account or accounts in a depository institution in which such
accounts are fully insured to the limits established by the FDIC, provided
that any deposits not so insured 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 [______________], or (iv) in the case of the
Certificate Account, a trust account or accounts maintained in the corporate
trust division of [______________], or (v) an account or accounts of a
depository institution acceptable each Rating Agency (as evidenced in writing
by each Rating Agency that use of any such account as the Custodial Account
or the Certificate Account will not reduce the rating assigned to any
Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency.
Eligible Master Servicing Compensation: With respect to any
Distribution Date, the lesser of (a) one-twelfth of [__]% of the Stated
Principal Balance of the Mortgage Loans immediately preceding such
Distribution Date and (b) the sum of the Servicing Fee and all income and
gain on amounts held in the Custodial Account and the Certificate Account and
payable to the Certificateholders with respect to such Distribution Date;
provided that for purposes of this definition the amount of the Servicing Fee
will not be reduced pursuant to Section 7.02(a) except as may be required
pursuant to the last sentence of such Section.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 7.01.
[Excess Cash Flow: With respect to any Distribution Date, an amount
equal to the sum of (A) the excess of (i) the Available Distribution Amount
for that Distribution Date over (ii) the sum of (a) the Interest Distribution
Amount for that Distribution Date and (b) the lesser of (1) the aggregate
Certificate Principal Balance of Class A Certificates, Class M Certificates
and Class B Certificates immediately prior to such Distribution Date and
(2) the Principal Remittance Amount for that Distribution Date to the extent
not applied to pay interest on the Class A Certificates, Class M Certificates
and Class B Certificates on such Distribution Date, (B) the
Overcollateralization Reduction Amount, if any, for that Distribution Date
and (C) any Net Swap Payments received by the Trustee under the Swap
Agreement for that Distribution Date.]
Excess Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralization Amount on such
Distribution Date over (b) the Required Overcollateralization Amount for such
Distribution Date.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
Exchange Date: As defined in Section 5.02(e)(iii).
Expense Fee Rate: With respect to any Mortgage Loan as of any date of
determination, the sum of the applicable Servicing Fee Rate and the per annum
rate at which the applicable Subservicing Fee accrues.
Xxxxxx Xxx: Xxxxxx Xxx, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
Fitch: Fitch Ratings, or its successors in interest.
Fixed Swap Payment: With respect to any Distribution Date on or prior
to the Distribution Date in [________] 20[_], an amount equal to the product
of (x) a fixed rate equal to [__]%, (y) the Swap Agreement Notional Balance
for that Distribution Date and (z) a fraction, the numerator of which is
(a) 19 for the Distribution Date in [________] 20[_] and (b) 30 for any
Distribution Date occurring after the Distribution Date in [________] 20[_],
and the denominator of which is 360.
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.
Final Scheduled Distribution Date: [Solely for purposes of the face of
the Certificates, as follows: with respect to the Class [__] Certificates,
the Distribution Date occurring in [________] 20[_];with respect to the Class
[__] Certificates, Class [__] Certificates and each Class of Class M
Certificates and Class B Certificates, the Distribution Date occurring in
[________] 20[_]. No event of default under this Agreement will arise or
become applicable solely by reason of the failure to retire the entire
Certificate Principal Balance of any Class of Class A Certificates, Class M
Certificates or Class B Certificates on or before its Final Scheduled
Distribution Date.]
Floating Swap Payment: With respect to any Distribution Date on or
prior to the Distribution Date in [________] 20[_], an amount equal to the
product of (x) Swap LIBOR, (y) the Swap Agreement Notional Balance for that
Distribution Date and (z) a fraction, the numerator of which is equal to the
number of days in the related calculation period as provided in the Swap
Agreement and the denominator of which is 360.
Foreclosure Profits: With respect to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts
reimbursable therefrom pursuant to Section 3.10(a)(ii)) in respect of each
Mortgage Loan or REO Property for which a Cash Liquidation or REO Disposition
occurred in the related Prepayment Period over the sum of the unpaid
principal balance of such Mortgage Loan or REO Property (determined, in the
case of an REO Disposition, in accordance with Section 3.14) plus accrued and
unpaid interest at the Mortgage Rate on such unpaid principal balance from
the Due Date to which interest was last paid by the Mortgagor to the first
day of the month following the month in which such Cash Liquidation or REO
Disposition occurred.
Form 10-K Certification: As defined in Section 4.03(e).
Xxxxxxx Mac: Xxxxxxx Mac, 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.
HUD: The United States Department of Housing and Urban Development.
Independent: When used with respect to any specified Person, means
such a Person who (i) is in fact independent of the Depositor, 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
Depositor, the Master Servicer or the Trustee or in an Affiliate thereof, and
(iii) is not connected with the Depositor, the Master Servicer or the Trustee
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Index: With respect to each adjustable-rate Mortgage Loan and as to
any Adjustment Date therefor, the related index as stated in the related
Mortgage Note.
Initial Certificate Principal Balance: With respect to each Class of
Certificates (other than the Class R Certificates), the Certificate Principal
Balance of such Class of Certificates as of the Cut-off Date as set forth in
the Preliminary Statement hereto.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance
policy covering a Mortgage Loan, to the extent such proceeds are payable to
the mortgagee under the Mortgage, any Subservicer, the Master Servicer or the
Trustee and are not applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures that
the Master Servicer would follow in servicing mortgage loans held for its own
account.
[Interest Accrual Period: With respect to the Class [_] Certificates,
Class [_] Certificates, Class [_] Certificates and Class [_] Certificates
(i) with respect to the Distribution Date in [_______] 20[_], the period
commencing the Closing Date and ending on the day preceding the Distribution
Date in [_______] 20[_], and (ii) with respect to any Distribution Date after
the Distribution Date in [_______] 20[_], the period commencing on the
Distribution Date in the month immediately preceding the month in which such
Distribution Date occurs and ending on the day preceding such Distribution
Date.
Interest Distribution Amount: For any Distribution Date, the amounts
payable pursuant to Section 4.02(c)[(i)-(iii)].
Interim Certification: As defined in Section 2.02.
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.
LIBOR Business Day: Any day other than (i) a Saturday or Sunday or
(ii) a day on which banking institutions in London, England are required or
authorized to by law to be closed.
LIBOR Certificates: [The Class A Certificates, Class M Certificates
and Class B Certificates.]
LIBOR Rate Adjustment Date: With respect to each Distribution Date,
the second LIBOR Business Day immediately preceding the commencement of the
related Interest Accrual Period.
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 and
Subsequent Recoveries.
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.
Margin: The [Class A-1 Margin, Class A-2 Margin, Class A-3 Margin,
Class M-1 Margin, Class M-2 Margin, Class M-3 Margin, Class M-4 Margin,
Class M-5 Margin, Class M-6 Margin, Class M-7 Margin, Class M-8 Margin and
Class B Margin, as applicable.]
[Marker Rate: With respect to the Class SB Certificates or REMIC III
Regular Interest SB-IO and any Distribution Date, in relation to the REMIC II
Regular Interests [LT1, LT2, LT3, and LT4], a per annum rate equal to two
(2) times the weighted average of the Uncertificated REMIC II Pass-Through
Rates for REMIC II Regular Interest [LT2] and REMIC II Regular Interest [LT3].
Master Servicer: As defined in the preamble hereto.
Maturity Date: With respect to each Class of Certificates of regular
interest or Uncertificated Regular Interest issued by any REMIC hereunder,
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 such Class of Certificates representing
a regular interest in the Trust Fund would be reduced to zero, which is, for
each such regular interest, [_________], 20[_], which is the Distribution
Date occurring in the month following the last scheduled monthly payment of
the Mortgage Loans.
Maximum Mortgage Rate: As to any adjustable-rate Mortgage Loan, the
per annum rate indicated in Exhibit F hereto as the "NOTE CEILING," which
rate is the maximum interest rate that may be applicable to such Mortgage
Loan at any time during the life of such Mortgage Loan.
Maximum Net Mortgage Rate: As to any adjustable-rate Mortgage Loan and
any date of determination, the Maximum Mortgage Rate minus the sum of the per
annum rate at which the Subservicing Fee accrues and the Servicing Fee Rate.
With respect to any fixed-rate Mortgage Loan and any date of determination, the
Net Mortgage Rate.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS® 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® System.
Minimum Mortgage Rate: As to any adjustable-rate Mortgage Loan, a per
annum rate equal to the greater of (i) the Note Margin and (ii) the rate
indicated in Exhibit F hereto as the "NOTE FLOOR," which rate may be
applicable to such Mortgage Loan at any time during the life of such
adjustable-rate Mortgage Loan.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of
a Servicing Modification.
Modified Net Mortgage Rate: With respect 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 the Due Date in any Due Period, the payment of principal and
interest due thereon in accordance with the amortization schedule at the time
applicable thereto (after adjustment, if any, for Curtailments and for
Deficient Valuations occurring prior to such Due Date but before any
adjustment to such amortization schedule by reason of any bankruptcy, other
than a Deficient Valuation, or similar proceeding or any moratorium or
similar waiver or grace period and before any Servicing Modification that
constitutes a reduction of the interest rate on such Mortgage Loan).
Moody's: Xxxxx'x Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note related to a Mortgage
Loan, the mortgage, deed of trust or other comparable instrument creating a
first or junior lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as from time to time are held or deemed
to be held as a part of the Trust Fund, the Mortgage Loans originally so held
being identified in the initial Mortgage Loan Schedule attached hereto as
Exhibit F, and Qualified Substitute Mortgage Loans held or deemed held as
part of the Trust Fund including, without limitation, each related Mortgage
Note, Mortgage and Mortgage File and all rights appertaining thereto.
Mortgage Loan Schedule: The lists of the Mortgage Loans attached
hereto as Exhibit F (as amended from time to time to reflect the addition of
Qualified Substitute Mortgage Loans), which lists shall set forth at a
minimum the following information as to each Mortgage Loan:
(i) the Mortgage Loan identifying number ("RFC LOAN #");
(ii) the state, city and zip code of the Mortgaged Property;
(iii) the maturity of the Mortgage Note ("MATURITY DATE," or "MATURITY
DT" for Mortgage Loans and if such Mortgage Loan is a Balloon
Loan, the amortization term thereof;
(iv) (for the adjustable-rate Mortgage Loans, the Mortgage Rate as of
origination ("ORIG RATE");
(v) the Mortgage Rate as of the Cut-off Date ("CURR RATE")
(vi) the Net Mortgage Rate as of the Cut-off Date ("CURR NET");
(vii) the scheduled monthly payment of principal, if any, and interest
as of the Cut-off Date ("ORIGINAL P & I");
(viii) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(ix) the Loan-to-Value Ratio at origination ("LTV");
(x) a code "T," "BT" or "CT" under the column "LN FEATURE,"
indicating that the Mortgage Loan is secured by a second or
vacation residence (the absence of any such code means the
Mortgage Loan is secured by a primary residence); and
(xi) a code "N" under the column "OCCP CODE," indicating that the
Mortgage Loan is secured by a non-owner occupied residence (the
absence of any such code means the Mortgage Loan is secured by an
owner occupied residence).
(xii) for the adjustable-rate Mortgage Loans, the Maximum Mortgage Rate
("NOTE CEILING");
(xiii) for the adjustable-rate Mortgage Loans, the maximum Net
Mortgage Rate ("NET CEILING");
(xiv) for the adjustable-rate Mortgage Loans, the Note Margin ("NOTE
MARGIN");
(xv) for the adjustable-rate Mortgage Loans, the first Adjustment Date
after the Cut-off Date ("NXT INT CHG DT");
(xvi) for the adjustable-rate Mortgage Loans, the Periodic Cap
("PERIODIC DECR" or "PERIODIC INCR");
Such schedule may consist of multiple reports that collectively set
forth all of the information required.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan, together with any modification thereto.
Mortgage Rate: With respect to any Mortgage Loan, the interest rate
borne by the related Mortgage Note, or any modification thereto other than a
Servicing Modification. The Mortgage Rate on the adjustable-rate Mortgage
Loans will adjust on each Adjustment Date to equal the sum (rounded to the
nearest multiple of one eighth of one percent (0.125%) or up to the nearest
one-eighth of one percent, which are indicated by a "U" on the Mortgage Loan
Schedule, except in the case of the adjustable-rate Mortgage Loans indicated
by an "X" on the Mortgage Loan Schedule under the heading "NOTE METHOD"), of
the related Index plus the Note Margin, in each case subject to the
applicable Periodic Cap, Maximum Mortgage Rate and Minimum Mortgage Rate.
Mortgaged Property: The underlying real property securing a Mortgage
Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: With respect to any Mortgage Loan as of any date of
determination, a per annum rate equal to the Adjusted Mortgage Rate for such
Mortgage Loan as of such date minus the Servicing Fee Rate.
Net Swap Payment: With respect to each Distribution Date, the net
payment required to be made pursuant to the terms of the Swap Agreement by
either the Swap Counterparty or the Trustee, on behalf of the Trust, which
net payment shall not take into account any Swap Termination Payment.
Net WAC Cap Rate: [With respect to any Distribution Date and the
Class A Certificates, Class M Certificates and Class B Certificates, a per
annum rate (which will not be less than zero) equal to (i) the product of
(a) weighted average of the Net Mortgage Rates (or, if applicable, the
Modified Net Mortgage Rates) on the Mortgage Loans using the Net Mortgage
Rates in effect for the Monthly Payments due on such Mortgage Loans during
the related Due Period, weighted on the basis of the respective Stated
Principal Balances thereof for such Distribution Date, (b) a fraction
expressed as a percentage the numerator of which is 30 and the denominator of
which is the actual number of days in the related Interest Accrual Period,
minus (ii) the product of (a) a fraction expressed as a percentage, the
numerator of which is the amount of any Net Swap Payments or Swap Termination
Payment not due to a Swap Counterparty Trigger Event due to the Swap
Counterparty as of such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans as of such
Distribution Date and (b) a fraction expressed as a percentage the numerator
of which is 360 and the denominator of which is the actual number of days in
the related Interest Accrual Period.]
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 or REO Proceeds. 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 shall be evidenced
by an Officers' Certificate delivered to the Depositor, the Trustee and the
Master Servicer. Notwithstanding the above, the Trustee shall be entitled to
rely upon any determination by the Master Servicer that any Advance
previously made is a Nonrecoverable Advance or that any proposed Advance, if
made, would constitute a Nonrecoverable Advance.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Note Margin: With respect to each adjustable-rate Mortgage Loan, the
fixed percentage set forth in the related Mortgage Note and indicated on the
Mortgage Loan Schedule as the "NOTE MARGIN," which percentage is added to the
Index on each Adjustment Date to determine (subject to rounding in accordance
with the related Mortgage Note, the Periodic Cap, the Maximum Mortgage Rate
and the Minimum Mortgage Rate) the interest rate to be borne by such
adjustable-rate Mortgage Loan until the next Adjustment Date.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the President, a Vice President, Assistant Vice President, Director,
Managing Director, the Treasurer, the Secretary, an Assistant Treasurer or an
Assistant Secretary of the Depositor or the Master Servicer, as the case may
be, and delivered to the Trustee, as required by this Agreement.
One-Month LIBOR: With respect to any Distribution Date, the arithmetic
mean of the London interbank offered rate quotations for one-month United
States dollar deposits, determined on the preceding LIBOR Rate Adjustment
Date as set forth in Section 1.02 hereof.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Master Servicer and which counsel may be counsel for the
Depositor 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 hereunder as a REMIC or
compliance with the REMIC Provisions must, unless otherwise specified, be an
opinion of Independent counsel.
Optional Termination Date: Any Distribution Date on or after which the
Stated Principal Balance (after giving effect to distributions to be made on
such Distribution Date) of the Mortgage Loans is less than [10.00]% of the
Cut-off Date Balance.
Outstanding Mortgage Loan: With respect to the Due Date in any Due
Period, a Mortgage Loan (including an REO Property) that was not the subject
of a Principal Prepayment in Full, Cash Liquidation or REO Disposition and
that was not purchased, deleted or substituted for prior to such Due Date
pursuant to Section 2.02, 2.03, 2.04 or 4.07.
Overcollateralization Amount: With respect to any Distribution Date,
the excess, if any, of (a) the aggregate Stated Principal Balance of the
Mortgage Loans before giving effect to distributions of principal to be made
on such Distribution Date over (b) the aggregate Certificate Principal
Balance of the [Class A, Class M and Class B Certificates] immediately prior
to such date.
Overcollateralization Floor: With respect to the Mortgage Loans, an
amount equal to the product of (a) [0.50]% and (b) the Cut-off Date Balance.
Overcollateralization Increase Amount: With respect to any
Distribution Date, the lesser of (a) Excess Cash Flow for that Distribution
Date (to the extent not used to cover the amounts described in clauses
(iv) and (v) of the definition of Principal Distribution Amount as of such
Distribution Date), and (b) the excess of (1) the Required
Overcollateralization Amount for such Distribution Date over (2) the
Overcollateralization Amount for such Distribution Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, to the extent the Excess Overcollateralization Amount is,
after taking into account all other distributions to be made on such
Distribution Date, greater than zero, the Overcollateralization Reduction
Amount shall be equal to the lesser of (i) the Excess Overcollateralization
Amount for that Distribution Date and (ii) the Principal Remittance Amount
for such Distribution Date.
Ownership Interest: With respect to any Certificate, any ownership or
security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Rate: [With respect to each Class of Class A, Class M and
Class B Certificates and any Distribution Date, the least of (i) One-Month
LIBOR plus the related Margin, (ii) the related Net WAC Cap Rate and
(iii) [11.00]% per annum.]
[With respect to the Class SB Certificates or REMIC III Regular
Interest SB-IO and any Distribution Date, a per annum rate equal to the
percentage equivalent of a fraction, the numerator of which is the sum of the
amounts calculated pursuant to clauses (i) through (iii) below, and the
denominator of which is the aggregate principal balance of the REMIC II
Regular Interests. For purposes of calculating the Pass-Through Rate for the
Class SB Certificates or REMIC III Regular Interest SB-IO, the numerator is
equal to the sum of the following components:
(i) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT1 minus the related Marker Rate, applied to a notional
amount equal to the Uncertificated Principal Balance of REMIC II
Regular Interest LT1;
(ii) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT2 minus the related Marker Rate, applied to a notional
amount equal to the Uncertificated Principal Balance of REMIC II
Regular Interest LT2; and
(iii) the Uncertificated Pass-Through Rate for REMIC II Regular
Interest LT4 minus twice the related Marker Rate, applied to a
notional amount equal to the Uncertificated Principal Balance of
REMIC II Regular Interest LT4.]
Paying Agent: [________________] or any successor Paying Agent
appointed by the Trustee.
Percentage Interest: With respect to any [Class A Certificate, Class M
Certificate or Class B 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 divided by the aggregate Initial Certificate Principal
Balance of all of the Certificates of the same Class. The Percentage Interest
with respect to a [Class SB Certificate or Class R Certificate] shall be
stated on the face thereof.
Periodic Cap: With respect to each adjustable-rate Mortgage Loan, the
periodic rate cap that limits the increase or the decrease of the related
Mortgage Rate on any Adjustment Date pursuant to the terms of the related
Mortgage Note.
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 at the date of acquisition thereof have been rated by
each Rating Agency in its highest short-term rating available;
and, provided further that, if the original maturity of such
short-term obligations of a domestic branch of a foreign
depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be A-1+ in the case
of Standard & Poor's if Standard & Poor's is a Rating Agency;
(iv) commercial paper and demand notes (having original maturities of
not more than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof which on the date
of acquisition has been rated by each Rating Agency in its
highest short term rating available; provided that such
commercial paper and demand notes 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 (which
may be managed by the Trustee or one of its Affiliates); 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 then-current rating assigned to such
Certificates by such Rating Agency, as evidenced in writing;
provided, however, that no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with
respect to the underlying debt instrument or (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity greater than 120% of the yield to
maturity at par of such underlying obligations. References herein to the
highest rating available on unsecured long-term debt shall mean AAA in the
case of Standard & Poor's and Aaa in the case of Moody's, and for purposes of
this Agreement, any references herein to the highest rating available on
unsecured commercial paper and short-term debt obligations shall mean the
following: A-1 in the case of Standard & Poor's and P-1 in the case of
Moody's; provided, however, that any Permitted Investment that is a
short-term debt obligation rated A-1 by Standard & Poor's must satisfy the
following additional conditions: (i) the total amount of debt from A-1
issuers must be limited to the investment of monthly principal and interest
payments (assuming fully amortizing collateral); (ii) the total amount of A-1
investments must not represent more than 20% of the aggregate outstanding
Certificate Principal Balance of the Certificates and each investment must
not mature beyond 30 days; (iii) the terms of the debt must have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary; and (iv) if the investments may be liquidated prior to their maturity
or are being relied on to meet a certain yield, interest must be tied to a
single interest rate index plus a single fixed spread (if any) and must move
proportionately with that index. Any Permitted Investment may be purchased
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.
Prepayment Assumption: [With respect to the [Class A, Class M and
Class B] Certificates, the prepayment assumption to be used for determining
the accrual of original issue discount and premium and market discount on
such Certificates for federal income tax purposes, which (a) with respect to
the fixed rate Mortgage Loans, assumes a constant prepayment rate of 4% per
annum of the then outstanding principal balance of the Mortgage Loans in the
first month of the life of the fixed-rate Mortgage Loans, and an additional
approximate 1.9091% per annum in each month thereafter until the twelfth
month, and then beginning in the twelfth month and in each month thereafter
during the life of the fixed-rate Mortgage Loans, a constant prepayment rate
of 25.0% per annum each month and (b) with respect to the adjustable-rate
Mortgage Loans, assumes a constant prepayment rate of 4% per annum of the
then outstanding principal balance of the adjustable-rate Mortgage Loans in
the first month of the life of the adjustable-rate Mortgage Loans, and an
additional approximate 2.8182% per annum in each month thereafter until the
twelfth month, and then beginning in the twelfth month and in each month
thereafter during the life of the adjustable-rate Mortgage Loans, a constant
prepayment rate of 35% per annum each month.]
Prepayment Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan (other than a Mortgage Loan relating to an REO
Property) that was the subject of (a) a Principal Prepayment in Full during
the related Prepayment Period, an amount equal to the excess of one month's
interest at the related 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 related Net
Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan)) paid by the Mortgagor for such Prepayment Period to the date
of such Principal Prepayment in Full or (b) a Curtailment during the prior
calendar month, an amount equal to one month's interest at the related Net
Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified
Mortgage Loan) on the amount of such Curtailment.
Prepayment Period: With respect to any Distribution Date, the calendar
month preceding the month of distribution.
Primary Insurance Policy: With respect to any Mortgage Loan, each
primary policy of mortgage guaranty insurance or replacement policy
therefor. Each Mortgage Loan with a Primary Insurance Policy is identified
on Exhibit F with the exception of either code "23" or "96" under the column
"MI CO CODE."
Principal Distribution Amount: With respect to any Distribution Date,
the lesser of (a) the excess of (x) the sum of (A) the Available Distribution
Amount and (B) with respect to clauses (b)(v) and (vi) below, any Net Swap
Payments received by the Trustee under the Swap Agreement over (y) the
Interest Distribution Amount and (b) the sum of:
(i) the principal portion of each Monthly Payment received or
Advanced with respect to the related Due Period on each
Outstanding Mortgage Loan;
(ii) the Stated Principal Balance of any Mortgage Loan repurchased
during the related Prepayment Period (or deemed to have been so
repurchased in accordance with Section 3.07(b)) pursuant to
Section 2.02, 2.03, 2.04 or 4.07 and the amount of any shortfall
deposited in the Custodial Account in connection with the
substitution of a Deleted Mortgage Loan pursuant to Section 2.03
or 2.04 during the related Prepayment Period;
(iii) the principal portion of all other unscheduled collections, other
than Subsequent Recoveries, on the Mortgage Loans (including,
without limitation, Principal Prepayments in Full, Curtailments,
Insurance Proceeds, Liquidation Proceeds and REO Proceeds)
received during the related Prepayment Period (or deemed to have
been so received) to the extent applied by the Master Servicer as
recoveries of principal of the Mortgage Loans pursuant to
Section 3.14;
(iv) the lesser of (1) Subsequent Recoveries for such Distribution
Date and (2) the principal portion of any Realized Losses
allocated to any Class of Certificates on a prior Distribution
Date and remaining unpaid;
(v) the lesser of (1) the Excess Cash Flow for such Distribution Date
(to the extent not used pursuant to clause (iv) of this
definition on such Distribution Date) and (2) the principal
portion of any Realized Losses incurred (or deemed to have been
incurred) on any Mortgage Loans in the calendar month preceding
such Distribution Date; and
(vi) the lesser of (1) the Excess Cash Flow for that Distribution Date
(to the extent not used pursuant to clauses (iv) and (v) of this
definition on such Distribution Date) and (2) the
Overcollateralization Increase Amount for such Distribution Date;
minus
(vii) (A) the amount of any Overcollateralization Reduction Amount for
such Distribution Date and (B) the amount of any Capitalization
Reimbursement Amount for such Distribution Date; and
(ix) any Net Swap Payments or Swap Termination Payment not due to a
Swap Counterparty Trigger Event due to the Swap Counterparty to
the extent not previously paid from interest or principal
collections on the Mortgage Loans.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation
Proceeds or Insurance Proceeds, which is received in advance of its scheduled
Due Date and is not accompanied by an amount as to interest representing
scheduled interest on such payment due on any date or dates in any month or
months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
all amounts described in clauses (b)(i) through (iii) of the definition of
Principal Distribution Amount for that Distribution Date.
Program Guide: The Residential Funding Seller Guide for mortgage
collateral sellers that participate in Residential Funding's standard
mortgage programs, and Residential Funding's Servicing Guide and any other
subservicing arrangements which Residential Funding has arranged to
accommodate the servicing of the Mortgage Loans.
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) if such Mortgage Loan
(or REO Property) is being purchased pursuant to Sections 2.02, 2.03, 2.04 or
4.07 of this Agreement, 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)) on the Stated
Principal Balance thereof to the first day of the month following the month
of purchase from the Due Date to which interest was last paid by the
Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
Residential Funding or the Depositor for a Deleted Mortgage Loan which must,
on the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee,
(i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall to be deposited by Residential
Funding, in the Custodial Account in the month of substitution);
(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than and
not more than 1% per annum higher than the Mortgage Rate and Net
Mortgage Rate, respectively, of the Deleted Mortgage Loan as of
the date of substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no
higher than that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a Note Margin not less than that of the Deleted Mortgage
Loan;
(v) have a Periodic Rate Cap that is equal to that of the Deleted
Mortgage Loan;
(vi) have a next Adjustment Date no later than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to stated maturity not greater than
(and not more than one year less than) that of the Deleted
Mortgage Loan; and
(viii) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment
Agreement.
Rating Agency: [Each of Fitch, Standard & Poor's and Moody's.] 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 Depositor, notice of which designation shall be given to the Trustee
and the Master Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property) as
to which a Cash Liquidation or REO Disposition has occurred, an amount (not
less than zero) equal to (i) the Stated Principal Balance of the Mortgage
Loan (or REO Property) as of the date of Cash Liquidation or REO Disposition,
plus (ii) interest (and REO Imputed Interest, if any) at the Net Mortgage
Rate from the Due Date as to which interest was last paid or advanced to
Certificateholders up to the last day of the month in which the Cash
Liquidation (or REO Disposition) occurred on the Stated Principal Balance of
such Mortgage Loan (or REO Property) outstanding during each Due Period that
such interest was not paid or advanced, minus (iii) the proceeds, if any,
received during the month in which such Cash Liquidation (or REO Disposition)
occurred, to the extent applied as recoveries of interest at the Net Mortgage
Rate and to principal of the Mortgage Loan, net of the portion thereof
reimbursable to the Master Servicer or any Subservicer with respect to
related Advances, 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. With respect to each Mortgage Loan
which is the subject of a Servicing Modification, (a) (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 (b) 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. With respect to each Mortgage Loan which has become the
subject of a Deficient Valuation, the difference between the principal
balance of the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced by the
Deficient Valuation. With respect to each Mortgage Loan which has become the
object of a Debt Service Reduction, the amount of such Debt Service Reduction.
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.
[Realized Losses allocated to the Class SB Certificates shall be
allocated first to the REMIC III Regular Interest SB-IO in reduction of the
accrued but unpaid interest thereon until such accrued and unpaid interest
shall have been reduced to zero and then to the REMIC III Regular Interest
SB-PO in reduction of the Principal Balance thereof.]
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 [the Class A Certificates, Class M
Certificates and Class B Certificates] and each Distribution Date, the close
of business on the Business Day immediately preceding such Distribution
Date. With respect to [the Class SB and Class R Certificates,] and 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
or, with respect to the first Distribution Date, the Closing Date.
Reference Bank Rate: As defined in Section 1.02.
Regular Certificates: [The Class A Certificates, Class M Certificates,
Class B Certificates and Class SB Certificates.]
Regular Interest: Any one of the REMIC regular interests in the Trust
Fund.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by
the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Relief Act: The Servicemembers Civil Relief Act, formerly known as the
Soldiers' and Sailors' Civil Relief Act of 1940.
Relief Act Shortfalls: Interest shortfalls on the Mortgage Loans
resulting from the Relief Act or similar legislation or regulations.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code. As used herein, the term "REMIC" shall mean
REMIC I, REMIC II or REMIC III.
REMIC Administrator: Residential Funding Corporation. If Residential
Funding Corporation is found by a court of competent jurisdiction to no
longer be able to fulfill its obligations as REMIC Administrator under this
Agreement the Master Servicer or Trustee acting as successor Master Servicer
shall appoint a successor REMIC Administrator, subject to assumption of the
REMIC Administrator obligations under this Agreement.
REMIC Net WAC Rate: For any Distribution Date, a per annum rate equal
to the product of (i) the weighted average of the Net Mortgage Rates (or, if
applicable, the Modified Net Mortgage Rates) on the Mortgage Loans using the
Net Mortgage Rates in effect for the Monthly Payments due on such Mortgage
Loans during the related Due Period, weighted on the basis of the respective
Stated Principal Balances thereof for such Distribution Date and (ii) a
fraction equal to 30 divided by the actual number of days in the related
Interest Accrual Period. The foregoing rate is equal to the weighted average
of the Uncertificated REMIC I Pass-Through Rates with respect to the REMIC I
Regular Interests, weighted in each case by their respective Uncertificated
Principal Balances.
[REMIC I: The segregated pool of assets subject hereto, constituting a
portion of the primary trust created hereby and to be administered hereunder,
with respect to which a separate REMIC election is to be made, consisting
of: (i) the Mortgage Loans and the related Mortgage Files; (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; (iii) property which secured a
Mortgage Loan and which has been acquired for the benefit of the
Certificateholders by foreclosure or deed in lieu of foreclosure; (iv) the
hazard insurance policies and Primary Insurance Policies pertaining to the
Mortgage Loans, if any; and (v) all proceeds of clauses (i) through
(iv) above.]
REMIC I Available Distribution Amount: The Available Distribution
Amount.
[REMIC I Distribution Amount: For any Distribution Date, the REMIC I
Available Distribution Amount shall be distributed to REMIC II in respect of
the REMIC I Regular Interests and the Class R-I Certificates in the following
amounts and priority:
(a) to REMIC I Regular Interest A-I and REMIC I Regular Interest
I-1-A through I-48-B, pro rata, in an amount equal to (A) Uncertificated
Accrued Interest for such REMIC I Regular Interests for such Distribution
Date, plus (B) any amounts payable in respect thereof remaining unpaid from
previous Distribution Dates; and
(b) to the extent of amounts remaining after the distributions made
pursuant to clause (a) above, payments of principal shall be allocated as
follows: first, to REMIC I Regular Interests I-1-A through I-48-B starting
with the lowest numerical denomination until the Uncertificated Principal
Balance of each such REMIC I Regular Interest is reduced to zero, provided
that, for REMIC I Regular Interests with the same numerical denomination,
such payments of principal shall be allocated pro rata between such REMIC I
Regular Interests and second, to the extent of any Overcollateralization
Reduction Amount to REMIC I Regular Interest A-I until the Uncertificated
Principal Balance of such REMIC I Regular Interest is reduced to zero.]
[REMIC I Interests: The REMIC I Regular Interests and the Class R-I
Certificates.]
[REMIC I Realized Losses: All Realized Losses on the Mortgage Loans
shall be allocated first, on each Distribution Date, to REMIC I Regular
Interest A-I until such REMIC I Regular Interest has been reduced to zero.
Second, Realized Losses shall be allocated to REMIC I Regular Interest I-1-A
through REMIC I Regular Interest I-48-B, starting with the lowest numerical
denomination until such REMIC I Regular Interest has been reduced to zero,
provided that, for REMIC I Regular Interests with the same numerical
denomination, such Realized Losses shall be allocated pro rata between such
REMIC I Regular Interests.]
[REMIC I Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as
a "regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect
from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The designations for the respective REMIC I Regular
Interests are set forth in the Preliminary Statement hereto.]
[REMIC I Regular Interest A-I: A regular interest in REMIC I that is
held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC I Pass-Through Rate, and that has such other
terms as are described herein.]
[REMIC II: The segregated pool of assets subject hereto, constituting
a portion of the primary trust created hereby and to be administered
hereunder, with respect to which a separate REMIC election is to be made,
consisting of the REMIC I Regular Interests.]
[REMIC II Available Distribution Amount: For any Distribution Date,
the amount distributed from REMIC I to REMIC II on such Distribution Date in
respect of the REMIC I Regular Interests.]
[REMIC II Distribution Amount: For any Distribution Date, the REMIC II
Available Distribution Amount shall be distributed to REMIC III in respect of
the REMIC II Regular Interests and the Class R-II Certificates in the
following amounts and priority:
(a) to REMIC II Regular Interest LT-IO, in an amount equal to
(i) Uncertificated Accrued Interest for such REMIC II Regular Interest for
such Distribution Date, plus (ii) any amounts in respect thereof remaining
unpaid from previous Distribution Dates;
(b) to the extent of amounts remaining after the distributions
made pursuant to clause (a) above, to REMIC II Regular Interests LT1, LT2,
LT3 and LT4, pro rata, in an amount equal to (i) their Uncertificated Accrued
Interest for such Distribution Date, plus (ii) any amounts in respect thereof
remaining unpaid from previous Distribution Dates; and
(c) to the extent of amounts remaining after the distributions
made pursuant to clauses (a) and (b) above:
(i) to REMIC I Regular Interests LT2, LT3 and LT4, their
respective Principal Distribution Amounts;
(ii) to REMIC I Regular Interest LT1 any remainder until
the Uncertificated Principal Balance thereof is reduced to zero;
(iii) any remainder to REMIC II Regular Interests LT2, LT3
and LT4, pro rata according to their respective Uncertificated Principal
Balances as reduced by the distributions deemed made pursuant to (i) above,
until their respective Uncertificated Principal Balances are reduced to zero;
and
(d) to the extent of amounts remaining after the distributions made
pursuant to clauses (a) through (c) above:
(i) first, to each of the REMIC II Regular Interests, pro
rata according to the amount of unreimbursed Realized Losses allocable to
principal previously allocated to each such REMIC II Regular Interest, the
aggregate amount of any distributions to the Certificates as reimbursement of
such Realized Losses on such Distribution Date pursuant to clause (ix) in
Section 4.02(c); provided, however, that any amounts distributed pursuant to
this paragraph (d)(i) of this definition of "REMIC II Distribution Amount"
shall not cause a reduction in the Uncertificated Principal Balances of any
of the REMIC II Regular Interests; and
(ii) second, to the Class R-II Certificates, any remaining
amount.]
[REMIC II Net WAC Rate: With respect to any Distribution Date, a per
annum rate equal to the weighted average of (x) with respect to REMIC I
Regular Interests ending with the designation "B", the weighted average of
the Uncertificated REMIC I Pass-Through Rates for such REMIC I Regular
Interests, weighted on the basis of the Uncertificated Principal Balance of
such REMIC I Regular Interests for each such Distribution Date, (y) with
respect to REMIC I Regular Interest A-I, the Uncertificated REMIC I
Pass-Through Rate for such REMIC I Regular Interest, and (z) with respect to
REMIC I Regular Interests ending with the designation "A", for each
Distribution Date listed below, the weighted average of the rates listed
below for each such REMIC I Regular Interest listed below, weighted on the
basis of the Uncertificated Principal Balance of each such REMIC I Regular
Interest for each such Distribution Date:
Distribution REMIC I Regular
Date Interest Rate
[1] [I-1-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[2] [I-2-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A] [Uncertificated REMIC I Pass-Through Rate]
[3] [I-3-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A and I-2-A] [Uncertificated REMIC I Pass-Through Rate]
[4] [I-4-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-3-A] [Uncertificated REMIC I Pass-Through Rate]
[5] [I-5-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-4-A] [Uncertificated REMIC I Pass-Through Rate]
[6] [I-6-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-5-A] [Uncertificated REMIC I Pass-Through Rate]
[7] [I-7-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-6-A] [Uncertificated REMIC I Pass-Through Rate]
[8] [I-8-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-7-A] [Uncertificated REMIC I Pass-Through Rate]
[9] [I-9-A through I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-8-A] [Uncertificated REMIC I Pass-Through Rate]
[10] [I-10-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-9-A] [Uncertificated REMIC I Pass-Through Rate]
[11] [I-11-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-10-A] [Uncertificated REMIC I Pass-Through Rate]
[12] [I-12-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-11-A] [Uncertificated REMIC I Pass-Through Rate]
[13] [I-13-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-12-A] [Uncertificated REMIC I Pass-Through Rate]
[14] [I-14-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-13-A] [Uncertificated REMIC I Pass-Through Rate]
[15] [I-15-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-14-A] [Uncertificated REMIC I Pass-Through Rate]
[16] [I-16-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-15-A] [Uncertificated REMIC I Pass-Through Rate]
[17] [I-17-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-16-A] [Uncertificated REMIC I Pass-Through Rate]
[18] [I-18-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-17-A] [Uncertificated REMIC I Pass-Through Rate]
[19] [I-19-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-18-A] [Uncertificated REMIC I Pass-Through Rate]
[20] [I-20-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-19-A] [Uncertificated REMIC I Pass-Through Rate]
[21] [I-21-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-20-A] [Uncertificated REMIC I Pass-Through Rate]
[22] [I-22-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-21-A] [Uncertificated REMIC I Pass-Through Rate]
[23] [I-23-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-22-A] [Uncertificated REMIC I Pass-Through Rate]
[24] [I-24-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-23-A] [Uncertificated REMIC I Pass-Through Rate]
[25] [I-25-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-24-A] [Uncertificated REMIC I Pass-Through Rate]
[26] [I-26-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-25-A] [Uncertificated REMIC I Pass-Through Rate]
[27] [I-27-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-26-A] [Uncertificated REMIC I Pass-Through Rate]
[28] [I-28-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-27-A] [Uncertificated REMIC I Pass-Through Rate]
[29] [I-29-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-28-A] [Uncertificated REMIC I Pass-Through Rate]
[30] [I-30-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-29-A] [Uncertificated REMIC I Pass-Through Rate]
[31] [I-31-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-30-A] [Uncertificated REMIC I Pass-Through Rate]
[32] [I-32-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-31-A] [Uncertificated REMIC I Pass-Through Rate]
[33] [I-33-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-32-A] [Uncertificated REMIC I Pass-Through Rate]
[34] [I-34-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-33-A] [Uncertificated REMIC I Pass-Through Rate]
[35] [I-35-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-34-A] [Uncertificated REMIC I Pass-Through Rate]
[36] [I-36-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-35-A] [Uncertificated REMIC I Pass-Through Rate]
[37] [I-37-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-36-A] [Uncertificated REMIC I Pass-Through Rate]
[38] [I-38-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-37-A] [Uncertificated REMIC I Pass-Through Rate]
[39] [I-39-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-38-A] [Uncertificated REMIC I Pass-Through Rate]
[40] [I-40-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-39-A] [Uncertificated REMIC I Pass-Through Rate]
[41] [I-41-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-40-A] [Uncertificated REMIC I Pass-Through Rate]
[42] [I-42-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-41-A] [Uncertificated REMIC I Pass-Through Rate]
[43] [I-43-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-42-A] [Uncertificated REMIC I Pass-Through Rate]
[44] [I-44-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-43-A] [Uncertificated REMIC I Pass-Through Rate]
[45] [I-45-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-44-A] [Uncertificated REMIC I Pass-Through Rate]
[46] [I-46-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-45-A] [Uncertificated REMIC I Pass-Through Rate]
[47] [I-47-A through [2 multiplied by Swap LIBOR, subject to a
I-49-A] maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-46-A] [Uncertificated REMIC I Pass-Through Rate]
[48] [I-48-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-47-A] [Uncertificated REMIC I Pass-Through Rate]
[49] [I-49-A] [2 multiplied by Swap LIBOR, subject to a
maximum rate of Uncertificated REMIC I
Pass-Through Rate]
[I-1-A through I-49-A] [Uncertificated REMIC I Pass-Through Rate]
[Thereafter][I-1-A through I-49-A] [Uncertificated REMIC I Pass-Through Rate]
------------------------------------------------------------------------------
[REMIC II Principal Reduction Amounts: For any Distribution Date, the
amounts by which the principal balances of the REMIC II Regular Xxxxxxxxx
[XX0], [XX0], [LT3] and [LT4], respectively will be reduced on such
Distribution Date by the allocation of Realized Losses and the distribution
of principal, determined as follows:
For purposes of the succeeding formulas the following symbols shall
have the meanings set forth below:
Y1 = the principal balance of the REMIC II Regular Interest LT1 after
distributions on the prior Distribution Date.
Y2 = the principal balance of the REMIC II Regular Interest LT2 after
distributions on the prior Distribution Date.
Y3 = the principal balance of the REMIC II Regular Interest LT3 after
distributions on the prior Distribution Date.
Y4 = the principal balance of the REMIC II Regular Interest LT4 after
distributions on the prior Distribution Date (note: Y3 = Y4).
ΔY1 = the REMIC II Regular Interest LT1 Principal
Reduction Amount.
ΔY2 = the REMIC II Regular Interest LT2 Principal
Reduction Amount.
ΔY3 = the REMIC II Regular Interest LT3 Principal
Reduction Amount.
ΔY4 = the REMIC II Regular Interest LT4 Principal
Reduction Amount.
P0 = the aggregate principal balance of REMIC II Regular
Interests LT1, LT2, LT3 and LT4 after distributions and
the allocation of Realized Losses on the prior
Distribution Date.
P1 = the aggregate principal balance of the REMIC II Regular
Interest LT1, LT2, LT3 and LT4 after distributions and the
allocation of Realized Losses to be made on such
Distribution Date.
ΔP = P0 - P1 = the aggregate of the REMIC II Regular Interest
LT1, LT2, LT3 and LT4 Principal Reduction Amounts.
= the aggregate of the principal portions of Realized Losses
to be allocated to, and the principal distributions to be
made on, the Certificates on such Distribution Date
(including distributions of accrued and unpaid interest on
the Class SB Certificates for prior Distribution Dates).
R0 = the REMIC Net WAC Rate (stated as a monthly rate) after
giving effect to amounts distributed and Realized Losses
allocated on the prior Distribution Date.
R1 = the REMIC Net WAC Rate (stated as a monthly rate) after
giving effect to amounts to be distributed and Realized
Losses to be allocated on such Distribution Date.
α (Y2 + Y3)/P0. The initial value of α on the Closing
= Date for use on the first Distribution Date shall be
0.0001.
γ0the lesser of (A) the sum for all Classes of Certificates
= other than the Class SB Certificates of the product for
each Class of (i) the monthly interest rate (as limited by
the REMIC Net WAC Rate, if applicable) for such
Class applicable for distributions to be made on such
Distribution Date and (ii) the aggregate Certificate
Principal Balance for such Class after distributions and
the allocation of Realized Losses on the prior
Distribution Date and (B) R0*P0.
γ1the lesser of (A) the sum for all Classes of Certificates
= other than the Class SB Certificates of the product for
each Class of (i) the monthly interest rate (as limited by
the REMIC Net WAC Rate, if applicable) for such
Class applicable for distributions to be made on the next
succeeding Distribution Date and (ii) the aggregate
Certificate Principal Balance for such Class after
distributions and the allocation of Realized Losses to be
made on such Distribution Date and (B) R1*P1.
Then, based on the foregoing definitions:
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4;
ΔY2 = (αΔ2){( γ0R1 - γ1R0)/R0R1};
ΔY3 = αΔP - ΔY2; and
ΔY4 = ΔY3.
if both ΔY2 and ΔY3, as so determined, are non-negative numbers. Otherwise:
(1) If ΔY2, as so determined, is negative, then
ΔY2 = 0;
ΔY3 = α{γ1R0P0 - γ0R1P1} γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
(2) If ΔY3, as so determined, is negative, then
ΔY3 = 0;
ΔY2 = α{γ1R0P0 - γ0R1P1}/{2R1R0P1 - γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.]
[REMIC II Realized Losses: Realized Losses on the Mortgage Loans shall
be allocated to the REMIC II Regular Interests as follows. The interest
portion of Realized Losses on the Mortgage Loans, if any, shall be allocated
among REMIC II Regular Xxxxxxxxx [XX0], [XX0] and [LT4], pro rata according
to the amount of interest accrued but unpaid thereon, in reduction thereof.
Any interest portion of such Realized Losses in excess of the amount
allocated pursuant to the preceding sentence shall be treated as a principal
portion of Realized Losses not attributable to any specific Mortgage Loan and
allocated pursuant to the succeeding sentences. The principal portion of
Realized Losses with respect to Mortgage Loans shall be allocated to the
REMIC II Regular Interests as follows: first, to REMIC II Regular Xxxxxxxxx
[XX0], [XX0] and [LT4], pro-rata according to their respective REMIC II
Principal Reduction Amounts to the extent thereof in reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interests and,
second, the remainder, if any, of such principal portion of such Realized
Losses shall be allocated to REMIC II Regular Interest [LT1] in reduction of
the Uncertificated Principal Balance thereof.
[REMIC II Regular Interests: REMIC II Regular Interest [LT1], REMIC II
Regular Interest [LT2], REMIC II Regular Interest [LT3], REMIC II Regular
Interest [LT4] and REMIC II Regular Interest [LT-IO].]
[REMIC II Regular Interest LT1: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.]
[REMIC II Regular Interest LT1 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT1
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT1 on such Distribution
Date.]
[REMIC II Regular Interest LT2: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.]
[REMIC II Regular Interest LT2 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT2
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT2 on such Distribution
Date.]
[REMIC II Regular Interest LT3: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.]
[REMIC II Regular Interest LT3 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT3
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT3 on such Distribution
Date.]
[REMIC II Regular Interest LT4: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.]
[REMIC II Regular Interest LT4 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT4
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT4 on such Distribution
Date.]
[REMIC II Regular Interest LT-IO: A regular interest in REMIC II that
is held as an asset of REMIC III, that has an initial principal balance equal
to the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.]
[REMIC III: The segregated pool of assets subject hereto, constituting
a portion of the primary trust created hereby and to be administered
hereunder, with respect to which a separate REMIC election is to be made,
consisting of the REMIC II Regular Interests.]
[REMIC III Regular Interest SB-PO: A separate non-certificated
beneficial ownership interests in REMIC III issued hereunder and designated
as a Regular Interest in REMIC III. REMIC III Regular Interest SB-PO shall
have no entitlement to interest, and shall be entitled to distributions of
principal subject to the terms and conditions hereof, in aggregate amount
equal to the initial Certificate Principal Balance of the Class SB
Certificates as set forth in the Preliminary Statement hereto.]
[REMIC III Regular Interest SB-IO: A separate non-certificated
beneficial ownership interests in REMIC III issued hereunder and designated
as a Regular Interest in REMIC III. REMIC III Regular Interest SB-IO shall
have no entitlement to principal, and shall be entitled to distributions of
interest subject to the terms and conditions hereof, in aggregate amount
equal to the interest distributable with respect to the Class SB Certificates
pursuant to the terms and conditions hereof.]
[REMIC III Regular Interest IO: A separate non-certificated beneficial
ownership interests in REMIC III issued hereunder and designated as a Regular
Interest in REMIC III. REMIC III Regular Interest IO shall have no
entitlement to principal, and shall be entitled to distributions of interest
subject to the terms and conditions hereof, in aggregate amount equal to the
interest distributable with respect to REMIC II Regular Interest LT-IO.]
[REMIC III Regular Interests: REMIC III Regular Interests SB-IO, SB-PO
and IO, together with the Class A Certificates, Class M Certificates and
Class B Certificates.]
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: With respect to any REO Property, a determination by
the Master Servicer that it has received substantially 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: With respect to any REO Property, for any
period, an amount equivalent to interest (at a rate equal to the Net Mortgage
Rate that would have been applicable to the related Mortgage Loan had it been
outstanding) on the unpaid principal balance of the Mortgage Loan as of the
date of acquisition thereof for such period.
REO Proceeds: Proceeds, net of expenses, received in respect of any
REO Property (including, without limitation, proceeds from the rental of the
related Mortgaged Property) which proceeds are required to be deposited into
the Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer on
behalf of the Trust Fund for the benefit of the Certificateholders 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.
Repurchase Event: As defined in the Assignment Agreement.
Request for Release: A request for release, the form of which is
attached as Exhibit G 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 Overcollateralization Amount: With respect to any
Distribution Date, (a) prior to the Stepdown Date, an amount equal to [__]%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date, (b) on or after the Stepdown Date if a Trigger Event is not in
effect, the greater of (i) an amount equal to [__]% of the aggregate
outstanding Stated Principal Balance of the Mortgage Loans after giving
effect to distributions made on that Distribution Date and (ii) the
Overcollateralization Floor or (c) on or after the Stepdown Date if a Trigger
Event is in effect, an amount equal to the Required Overcollateralization
Amount from the immediately preceding Distribution Date. The Required
Overcollateralization Amount may be reduced so long as written confirmation
is obtained from each Rating Agency that such reduction shall not reduce the
ratings 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.]
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Depositor
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 with direct responsibility for the
administration of this Agreement.
Restricted Class A Certificate: As defined in Section 5.02(e).
Rule 144A: Rule 144A under the Securities Act of 1933, as in effect
from time to time.
Securitization Transaction: Any transaction involving a sale or other
transfer of mortgage loans directly or indirectly to an issuing in connection
with an issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities.
Seller: With respect 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 Depositor.
Senior Enhancement Percentage: [For any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the sum of
(i) the aggregate Certificate Principal Balance of the [Class M Certificates
and Class B Certificates] and (ii) the Overcollateralization Amount, in each
case prior to the distribution of the Principal Distribution Amount on such
Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans after giving effect to distributions
to be made on that Distribution Date.]
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, (ii) any enforcement or judicial proceedings, including
foreclosures, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS®
System, (iii) the management and liquidation of any REO Property, (iv) any
mitigation procedures implemented in accordance with Section 3.07, and
(v) compliance with the obligations under Sections 3.01, 3.08, 3.12(a) and
3.14, including, if the Master Servicer or any Affiliate of the Master
Servicer provides services such as appraisals and brokerage services that are
customarily provided by Persons other than servicers of mortgage loans,
reasonable compensation for such services.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to any Mortgage Loan and Distribution
Date, the fee payable monthly to the Master Servicer in respect of master
servicing compensation that accrues at an annual rate equal to the Servicing
Fee Rate multiplied by the Stated Principal Balance of such Mortgage Loan as
of the related Due Date in the related Due Period, as may be adjusted
pursuant to Section 3.16(e).
Servicing Fee Rate: With respect to any Mortgage Loan, the per annum
rate designated on the Mortgage Loan Schedule as the "MSTR SERV FEE," as may
be adjusted with respect to successor Master Servicers as provided in
Section 7.02, which rate shall never be greater than the Mortgage Rate of
such Mortgage Loan.
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 Stated 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, 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 on the Closing Date, as such list may
from time to time be amended.
Sixty-Plus Delinquency Percentage: With respect to any Distribution
Date on or after the Stepdown Date, the arithmetic average, for each of the
three Distribution Dates ending with such Distribution Date, of the fraction,
expressed as a percentage, equal to (x) the aggregate Stated Principal
Balance of the Mortgage Loans that are 60 or more days delinquent in payment
of principal and interest for that Distribution Date, including Mortgage
Loans in foreclosure and REO Properties, over (y) the aggregate Stated
Principal Balance of the Mortgage Loans immediately preceding that
Distribution Date.
Standard & Poor's: Standard & Poor's Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc. or its successors in interest.
Startup Date: The day designated as such pursuant to Article X hereof.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, as of any date of determination, (i) the sum of (a) the Cut-off Date
Principal Balance of the Mortgage Loan and (b) any amount by which the Stated
Principal Balance of the Mortgage Loan has been increased pursuant to a
Servicing Modification, minus (ii) the sum of (a) the principal portion of
the Monthly Payments due with respect to such Mortgage Loan or REO Property
during each Due Period ending with the Due Period relating to the most recent
Distribution Date which were received or with respect to which an Advance was
made, (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.
Stepdown Date: [That Distribution Date which is the later to occur of
(i) the Distribution Date in [_______] 20[_] and (ii) the first Distribution
Date on which the Senior Enhancement Percentage is equal to or greater than
[__]%.
Subordination: The provisions described in Section 4.05 relating to
the allocation of Realized Losses other than a pro rata basis.
Subordination Percentage: With respect to any Class of [Class A
Certificates, Class M Certificates or Class B Certificates], the respective
percentage set forth below.
Class Percentage Class Percentage
[__] [__]% [__] [__]%
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 and 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 Depositor.
Subservicing Fee: With respect 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 with respect to each Distribution Date at an annual
rate designated as "SUBSERV FEE" on the Mortgage Loan Schedule.
Swap Account: The separate trust account created and maintained by the
Trustee pursuant to Section 4.08(a).
Swap Agreement: The interest rate swap agreement between the Swap
Counterparty and the Trustee, on behalf of the Trust, which agreement
provides for Net Swap Payments and Swap Termination Payments to be paid, as
provided therein, together with any schedules, confirmations or other
agreements relating thereto, attached hereto as Exhibit S.
Swap Agreement Notional Balance: As to the Swap Agreement and each
Floating Rate Payer Payment Date and Fixed Rate Payer Payment Date (each as
defined in the Swap Agreement) the amount set forth on Exhibit R hereto for
such Floating Rate Payer Payment Date.
Swap Counterparty: The swap counterparty under the Swap Agreement
either (a) entitled to receive payments from the Trustee from amounts payable
by the Trust Fund under this Agreement or (b) required to make payments to
the Trustee for payment to the Trust Fund, in either case pursuant to the
terms of the Swap Agreement, and any successor in interest or assign.
Initially, the Swap Counterparty shall be Bear Xxxxxxx Financial Products Inc.
Swap Counterparty Trigger Event: With respect to any Distribution
Date, (i) an Event of Default under the Swap Agreement with respect to which
the Swap Counterparty is a Defaulting Party, (ii) a Termination Event under
the Swap Agreement with respect to which the Swap Counterparty is the sole
Affected Party, or (iii) an additional termination event under the Swap
Agreement with respect to which the Swap Counterparty is the sole Affected
Party.
Swap LIBOR: LIBOR as determined pursuant to the Swap Agreement.
Swap Termination Payment: Upon the designation of an "Early
Termination Date" as defined in the Swap Agreement, the payment to be made by
the Trustee on behalf of the Trust to the Swap Counterparty from payments
from the Trust Fund, or by the Swap Counterparty to the Trustee for payment
to the Trust Fund, as applicable, pursuant to the terms of the Swap Agreement.
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 hereunder due to its classification as a REMIC
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.
Telerate Screen Page 3750: As defined in Section 1.02.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Certificate.
Transfer Affidavit and Agreement: As defined in Section 5.02(e).
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.
Trigger Event: [A Trigger Event is in effect with respect to any
Distribution Date if either (a) on or after the Stepdown Date the Sixty-Plus
Delinquency Percentage for that Distribution Date exceeds [__]% of the
current Senior Enhancement Percentage or (b) on or after the Distribution
Date in [________] 20[_], the aggregate amount of Realized Losses on the
Mortgage Loans as a percentage of the Cut-off Date Balance exceeds the
applicable amount set forth below:
[________] 20[_] to [__]% with respect to [________]
[________] 20[_]: 20[_], plus an additional 1/12th
of [__]% for each month
thereafter;
[________] 20[_] to [__]% with respect to [________]
[________] 20[_]: 20[_], plus an additional 1/12th
of [__]% for each month
thereafter;
[________] 20[_] to [__]% with respect to [________]
[________] 20[_]: 20[_], plus an additional 1/12th
of [__]% for each month
thereafter; and
[________] 20[_] and [__]%.
thereafter:
Trustee: As defined in the preamble hereto.
Trustee Information: As specified in Section 12.05(a)(i)(A).
Trust Fund: Collectively, the assets of each REMIC hereunder.
[Uncertificated Accrued Interest: With respect to any Uncertificated
Regular Interest for any Distribution Date, one month's interest at the
related Uncertificated Pass-Through Rate for such Distribution Date, accrued
on the Uncertificated Principal Balance or Uncertificated Notional Amount, as
applicable, immediately prior to such Distribution Date. Uncertificated
Accrued Interest for the Uncertificated Regular Interests shall accrue on the
basis of a 360-day year consisting of twelve 30-day months. For purposes of
calculating the amount of Uncertificated Accrued Interest for the REMIC I
Regular Interests for any Distribution Date, any Prepayment Interest
Shortfalls and Relief Act Shortfalls (to the extent not covered by
Compensating Interest) shall be allocated among REMIC I Regular Interests,
pro rata, based on, and to the extent of, Uncertificated Accrued Interest, as
calculated without application of this sentence. For purposes of calculating
the amount of Uncertificated Accrued Interest for the REMIC II Regular
Interests for any Distribution Date, any Prepayment Interest Shortfalls and
Relief Act Shortfalls (to the extent not covered by Compensating Interest)
shall be allocated among the REMIC II Regular Interests, pro rata, based on,
and to the extent of, Uncertificated Accrued Interest, as calculated without
application of this sentence. Uncertificated Interest on REMIC III Regular
Interest SB-PO shall be zero. Uncertificated Accrued Interest on the REMIC
III Regular Interest SB-IO for each Distribution Date shall equal Accrued
Certificate Interest for the Class SB Certificates.]
[Uncertificated Notional Amount: With respect to the Class SB
Certificates or the REMIC III Regular Interest SB-IO, immediately prior to
any Distribution Date, the aggregate of the Uncertificated Principal Balances
of the REMIC II Regular Interests.
With respect to REMIC II Regular Interest LT-IO and each Distribution
Date listed below, the aggregate Uncertificated Principal Balance of the
REMIC I Regular Interests ending with the designation "A" listed below:
Distribution
Date REMIC I Regular Interests
[1] [I-1-A through I-49-A]
[2] [I-2-A through I-49-A]
[3] [I-3-A through I-49-A]
[4] [I-4-A through I-49-A]
[5] [I-5-A through I-49-A]
[6] [I-6-A through I-49-A]
[7] [I-7-A through I-49-A]
[8] [I-8-A through I-49-A]
[9] [I-9-A through I-49-A]
[10] [I-10-A through I-49-A]
[11] [I-11-A through I-49-A]
[12] [I-12-A through I-49-A]
[13] [I-13-A through I-49-A]
[14] [I-14-A through I-49-A]
[15] [I-15-A through I-49-A]
[16] [I-16-A through I-49-A]
[17] [I-17-A through I-49-A]
[18] [I-18-A through I-49-A]
[19] [I-19-A through I-49-A]
[20] [I-20-A through I-49-A]
[21] [I-21-A through I-49-A]
[22] [I-22-A through I-49-A]
[23] [I-23-A through I-49-A]
[24] [I-24-A through I-49-A]
[25] [I-25-A through I-49-A]
[26] [I-26-A through I-49-A]
[27] [I-27-A through I-49-A]
[28] [I-28-A through I-49-A]
[29] [I-29-A through I-49-A]
[30] [I-30-A through I-49-A]
[31] [I-31-A through I-49-A]
[32] [I-32-A through I-49-A]
[33] [I-33-A through I-49-A]
[34] [I-34-A through I-49-A]
[35] [I-35-A through I-49-A]
[36] [I-36-A through I-49-A]
[37] [I-37-A through I-49-A]
[38] [I-38-A through I-49-A]
[39] [I-39-A through I-49-A]
[40] [I-40-A through I-49-A]
[41] [I-41-A through I-49-A]
[42] [I-42-A through I-49-A]
[43] [I-43-A through I-49-A]
[44] [I-44-A through I-49-A]
[45] [I-45-A through I-49-A]
[46] [I-46-A through I-49-A]
[47] [I-47-A through I-49-A]
[48] [I-48-A through I-49-A]
[49] [I-49-A]
thereafter [$0.00]
------------------------------------------------------------------------------
With respect to REMIC III Regular Interest IO, immediately prior to any
Distribution Date, an amount equal to the Uncertificated Notional Amount of
REMIC II Regular Interest LT-IO.]
[Uncertificated Pass-Through Rate: The Uncertificated REMIC I
Pass-Through Rate or the Uncertificated REMIC II Pass-Through Rate, as
applicable.]
[Uncertificated Principal Balance: The principal amount of any
Uncertificated Regular Interest outstanding as of any date of determination.
The Uncertificated Principal Balance of each REMIC Regular Interest shall
never be less than zero. With respect to REMIC III Regular Interest SB-PO
the initial amount set forth with respect thereto in the Preliminary
Statement as reduced by distributions deemed made in respect thereof pursuant
to Section 4.02 and Realized Losses allocated thereto pursuant to
Section 4.05.]
[Uncertificated Regular Interests: The REMIC I Regular Interests and
the REMIC II Regular Interests.]
[Uncertificated REMIC I Pass-Through Rate: With respect to each REMIC
I Regular Interest ending with the designation "A", a per annum rate equal to
the weighted average Net Mortgage Rate of the Mortgage Loans multiplied by
two (2), subject to a maximum rate of [___]%. With respect to each REMIC I
Regular Interest ending with the designation "B", the greater of (x) a per
annum rate equal to the excess, if any, of (i) 2 multiplied by the weighted
average Net Mortgage Rate of the Mortgage Loans over (ii) [___]% and
(y) 0.00000%. With respect to REMIC I Regular Interest A-I, the weighted
average Net Mortgage Rate of the Mortgage Loans.]
[Uncertificated REMIC II Pass-Through Rate: With respect to any
Distribution Date and (i) REMIC II Regular Interests LT1 and LT2, the REMIC
II Net WAC Rate, (ii) REMIC II Regular Interest LT3, zero (0.00%),
(iii) REMIC II Regular Interest LT4, twice the REMIC II Net WAC Rate, and
(iv) REMIC II Regular Interest LT-IO, the excess of (i) the weighted average
of the Uncertificated REMIC I Pass-Through Rates for REMIC I Regular
Interests ending with the designation "A", over (ii) 2 multiplied by Swap
LIBOR.]
Uniform Single Attestation Program for Mortgage Bankers: The Uniform
Single Attestation Program for Mortgage Bankers, as published by the Mortgage
Bankers Association of America and effective with respect to fiscal periods
ending on or after March 15, 1995.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable
by the hazard insurance policies.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity (treated as a corporation or
partnership for United States federal income tax purposes) created or
organized in, or under the laws of, the United States, any state thereof, or
the District of Columbia (except in the case of a partnership, to the extent
provided in Treasury regulations) provided that, for purposes solely of the
restrictions on the transfer of Class R Certificates, 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 operative agreement to be United States Persons, 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. [___]% of all of the
Voting Rights shall be allocated among Holders of the Class A Certificates,
the Class M Certificates and the Class B Certificates in proportion to the
outstanding Certificate Principal Balances of their respective Certificates;
[___]% of all of the Voting Rights shall be allocated to the Holders of the
Class SB Certificates, and [___]% , [___]% and [___]% of all of the Voting
Rights shall be allocated to the Holders of the Class R-I Certificates, the
Class R-II Certificates and the Class R-III Certificates, respectively; in
each case to be allocated among the Certificates of such Class in accordance
with their respective Percentage Interests.
Section 1.02. Determination of One-Month LIBOR
One-Month LIBOR applicable to the calculation of the Pass-Through Rate
on the LIBOR Certificates for any Interest Accrual Period (including the
initial Interest Accrual Period) will be determined on each LIBOR Rate
Adjustment Date.
On each LIBOR Rate Adjustment Date, or if such LIBOR Rate Adjustment
Date is not a Business Day, then on the next succeeding Business Day,
One-Month LIBOR shall be established by the Trustee and, as to any Interest
Accrual Period, shall equal the rate for one month United States dollar
deposits that appears on the Telerate Screen Page 3750 of the Moneyline
Telerate Capital Markets Report as of 11:00 a.m., London time, on the LIBOR
Rate Adjustment Date. "Telerate Screen Page 3750" means the display
designated as page 3750 on the Telerate Service (or such other page as may
replace page 3750 on that service for the purpose of displaying London
interbank offered rates of major banks). If such rate does not appear on
such page (or such other page as may replace that page on that service, or if
such service is no longer offered, such other service for displaying
One-Month LIBOR or comparable rates as may be selected by the Trustee after
consultation with the Master Servicer), the rate will be the Reference Bank
Rate.
The "Reference Bank Rate" will be determined on the basis of the rates
at which deposits in U.S. Dollars are offered by the reference banks (which
shall be any three major banks that are engaged in transactions in the London
interbank market, selected by the Trustee after consultation with the Master
Servicer) as of 11:00 a.m., London time, on the LIBOR Rate Adjustment Date to
prime banks in the London interbank market for a period of one month in
amounts approximately equal to the aggregate Certificate Principal Balance of
the LIBOR Certificates then outstanding. The Trustee shall request the
principal London office of each of the reference banks to provide a quotation
of its rate. If at least two such quotations are provided, the rate will be
the arithmetic mean of the quotations rounded up to the next multiple of
1/16%. If on such date fewer than two quotations are provided as requested,
the rate will be the arithmetic mean of the rates quoted by one or more major
banks in New York City, selected by the Trustee after consultation with the
Master Servicer, as of 11:00 a.m., New York City time, on such date for loans
in U.S. Dollars to leading European banks for a period of one month in
amounts approximately equal to the aggregate Certificate Principal Balance of
the LIBOR Certificates then outstanding. If no such quotations can be
obtained, the rate will be One-Month LIBOR for the prior Distribution Date;
provided, however, if, under the priorities described above, One-Month LIBOR
for a Distribution Date would be based on One-Month LIBOR for the previous
Distribution Date for the third consecutive Distribution Date, the Trustee
shall select an alternative comparable index (over which the Trustee has no
control), used for determining one-month Eurodollar lending rates that is
calculated and published (or otherwise made available) by an independent
party.
The establishment of One-Month LIBOR by the Trustee on any LIBOR Rate
Adjustment Date and the Trustee's subsequent calculation of the Pass-Through
Rates applicable to the LIBOR Certificates for the relevant Interest Accrual
Period, in the absence of manifest error, will be final and binding.
Promptly following each LIBOR Rate Adjustment Date the Trustee shall
supply the Master Servicer with the results of its determination of One-Month
LIBOR on such date. Furthermore, the Trustee shall supply to any
Certificateholder so calling the Bondholder Inquiry Line at 0-000-000-0000
and requesting the Pass-Through Rate on the LIBOR Certificates for the
current and the immediately preceding Interest Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby assign to the Trustee in respect of the Trust Fund without
recourse all the right, title and interest of the Depositor in and to (i) 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) and (ii) all proceeds of the foregoing. In addition, on the Closing
Date, the Trustee is hereby directed to enter into the Swap Agreement on
behalf of the Trust Fund with the Swap Counterparty.
(b) In connection with such assignment, and contemporaneously with the
delivery of this Agreement, except as set forth in Section 2.01(c) below and
subject to Section 2.01(d) below, the Depositor does hereby deliver to, and
deposit with, the Trustee, or to and with one or more Custodians, as the duly
appointed agent or agents of the Trustee for such purpose, the following
documents or instruments (or copies thereof as permitted by this Section)
with respect to each Mortgage 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) 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,
if the original Mortgage has not yet been returned from the public recording
office, a copy of the original Mortgage with evidence of recording indicated
thereon;
(iii) Unless the Mortgage Loan is registered on the MERS® System, the
assignment (which may be included in one or more blanket assignments if
permitted by applicable law) 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 to the Person assigning it to
the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS®
System and noting the presence of a MIN) with evidence of recordation noted
thereon or attached thereto, or a copy of such assignment or assignments of
the Mortgage with evidence of recording indicated thereon; and
(v) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Mortgage Loan, or a copy of each
modification, assumption agreement or preferred loan agreement.
The Depositor may, in lieu of delivering the original of the documents
set forth in Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as
permitted by Section 2.01(b)) to the Trustee or the Custodian, deliver such
documents to the Master Servicer, and the Master Servicer shall hold such
documents in trust for the use and benefit of all present and future
Certificateholders until such time as is set forth in the next sentence.
Within thirty Business Days following the earlier of (i) the receipt of the
original of all of the documents or instruments set forth in
Section 2.01(b)(ii), (iii), (iv) and (v) (or copies thereof as permitted by
such Section) for any Mortgage Loan and (ii) a written request by the Trustee
to deliver those documents with respect to any or all of the Mortgage Loans
then being held by the Master Servicer, the Master Servicer shall deliver a
complete set of such documents to the Trustee or the Custodian that are the
duly appointed agent or agents of the Trustee.
On the Closing Date, the Master Servicer shall certify that it has in
its possession an original or copy of each of the documents referred to in
Section 2.01(b)(ii), (iii), (iv) and (v) which has been delivered to it by
the Depositor.
The Depositor, the Master Servicer and the Trustee agree that it is not
intended that any mortgage loan be included in the Trust Fund 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 High Cost Home Loan Law effective January 1, 2005.
(c) Notwithstanding the provisions of Section 2.01(b), in the event that in
connection with any Mortgage Loan, if the Depositor 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 Depositor 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 Depositor shall promptly cause to be recorded in the appropriate
public office for real property records the Assignment referred to in clause
(iii) of Section 2.01(b), except (a) in states where, in the opinion of
counsel acceptable to the Trustee and the Master Servicer, such recording is
not required to protect the Trustee's interests in the Mortgage Loan or
(b) if MERS is identified on the Mortgage or on a properly recorded
assignment of the Mortgage, as applicable, as the mortgagee of record solely
as nominee for Residential Funding and its successors and assigns. If any
Assignment is lost or returned unrecorded to the Depositor because of any
defect therein, the Depositor shall prepare a substitute Assignment or cure
such defect, as the case may be, and cause such Assignment to be recorded in
accordance with this paragraph. The Depositor shall promptly deliver or
cause to be delivered to the Trustee or the respective Custodian such
Mortgage or Assignment, as applicable (or copy thereof as permitted by
Section 2.01(b)), with evidence of recording indicated thereon upon receipt
thereof from the public recording office or from the related Subservicer or
Seller.
If the Depositor delivers to the Trustee or Custodian any Mortgage Note
or Assignment of Mortgage in blank, the Depositor shall, or shall cause the
Custodian to, complete the endorsement of the Mortgage Note and the
Assignment of Mortgage in the name of the Trustee in conjunction with the
Interim Certification issued by the Custodian, as contemplated by
Section 2.02.
Any of the items set forth in Sections 2.01(b)(ii), (iii), (iv) and
(v) and that may be delivered as a copy rather than the original may be
delivered to the Trustee or the Custodian.
In connection with the assignment of any Mortgage Loan registered on
the MERS® System, the Depositor further agrees that it will cause, at the
Depositor's own expense, within 30 Business Days after the Closing Date, the
MERS® System to indicate that such Mortgage Loans have been assigned by the
Depositor 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
Depositor further agrees that it will not, and will not permit the Master
Servicer to, and the Master Servicer agrees that it will not, alter the codes
referenced in this paragraph with respect to any Mortgage Loan during the
term of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
(d) It is intended that the conveyances by the Depositor to the Trustee of
the Mortgage Loans as provided for in this Section 2.01 and the
Uncertificated Regular Interests be construed as a sale by the Depositor to
the Trustee of the Mortgage Loans and the Uncertificated Regular Interests
for the benefit of the Certificateholders. Further, it is not intended that
any such conveyance be deemed to be a pledge of the Mortgage Loans and the
Uncertificated Regular Interests by the Depositor to the Trustee to secure a
debt or other obligation of the Depositor. Nonetheless, (a) this Agreement is
intended to be and hereby is a security agreement within the meaning of
Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; (b) the conveyances
provided for in this Section 2.01 shall be deemed to be (1) a grant by the
Depositor to the Trustee of a security interest in all of the Depositor's
right (including the power to convey title thereto), title and interest,
whether now owned or hereafter acquired, in and to (A) the Mortgage Loans,
including the related Mortgage Note, the Mortgage, any insurance policies and
all other documents in the related Mortgage File, (B) all amounts payable
pursuant to the Mortgage Loans or the Swap Agreement in accordance with the
terms thereof, (C) any Uncertificated Regular Interests and 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 foregoing, 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 Depositor 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 Depositor 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 Depositor and, at the Depositor's direction, Residential Funding
and the Trustee shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Mortgage Loans and the
Uncertificated Regular Interests and the other property described above, such
security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement. Without limiting the generality of the foregoing,
the Depositor 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 Depositor, 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 the Uncertificated Regular Interests, as evidenced by an Officers'
Certificate of the Depositor, 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 Depositor 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
Depositor, (3) any transfer of any interest of Residential Funding or the
Depositor in any Mortgage Loan or (4) any transfer of any interest of
Residential Funding or the Depositor in any Uncertificated Regular Interests.
Section 2.02. Acceptance by Trustee
The Trustee acknowledges receipt (or, with respect to Mortgage Loans
subject to a Custodial Agreement, and based solely upon a receipt or
certification executed by the Custodian, receipt by the respective Custodian
as the duly appointed agent of the Trustee) of the documents referred to in
Section 2.01(b)(i) above (except that for purposes of such acknowledgement
only, a Mortgage Note may be endorsed in blank and an Assignment of Mortgage
may be in blank) and declares that it, or a Custodian as its agent, holds and
will hold such documents and the other documents constituting a part of the
Mortgage Files delivered to it, or a Custodian as its agent, in trust for the
use and benefit of all present and future Certificateholders. The Trustee or
Custodian (such Custodian being so obligated under a Custodial Agreement)
agrees, for the benefit of Certificateholders, to review each Mortgage File
delivered to it pursuant to Section 2.01(b) within 90 days after the Closing
Date to ascertain that all required documents (specifically as set forth in
Section 2.01(b)), have been executed and received, and that such documents
relate to the Mortgage Loans identified on the Mortgage Loan Schedule, as
supplemented, that have been conveyed to it, and to deliver to the Trustee a
certificate (the "Interim Certification") to the effect that all documents
required to be delivered pursuant to Section 2.01(b) above have been executed
and received and that such documents relate to the Mortgage Loans identified
on the Mortgage Loan Schedule, except for any exceptions listed on Schedule A
attached to such Interim Certification. Upon delivery of the Mortgage Files
by the Depositor 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(b) above.
If the Custodian, as the Trustee's agent, finds any document or
documents constituting a part of a Mortgage File to be missing or defective,
upon receipt of notification from the Custodian as specified in the
succeeding sentence, the Trustee shall promptly so notify or cause the
Custodian to notify the Master Servicer and the Depositor. Pursuant to
Section 2.3 of the Custodial Agreement, the Custodian will notify the Master
Servicer, the Depositor and the Trustee of any such omission or defect found
by it in respect of any Mortgage File held by it in respect of the items
received by it pursuant to the Custodial Agreement. If such omission or
defect materially and adversely affects the interests in the related Mortgage
Loan of the Certificateholders, the Master Servicer shall promptly notify
Residential Funding of such omission or defect and request Residential
Funding to correct or cure such omission or defect within 60 days from the
date the Master Servicer was notified of such omission or defect and, if
Residential Funding does not correct or cure such omission or defect within
such period, 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
or caused to be deposited by the Master Servicer in the Custodial Account
maintained by it pursuant to Section 3.07 and, upon receipt by the Trustee of
written notification of such deposit signed by a Servicing Officer, the
Trustee or any Custodian, as the case may be, shall release to Residential
Funding the related Mortgage File and the Trustee shall execute and deliver
such instruments of transfer or assignment prepared by the Master Servicer,
in each case without recourse, as shall be necessary to vest in Residential
Funding or its designee, any Mortgage Loan released pursuant hereto and
thereafter such Mortgage Loan shall not be part of the Trust Fund. It is
understood and agreed that the obligation of Residential Funding, to so cure
or purchase any Mortgage Loan as to which a material and adverse defect in or
omission of a constituent document exists shall constitute the sole remedy
respecting such defect or omission available to Certificateholders or the
Trustee on behalf of Certificateholders.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Depositor
(a) The Master Servicer hereby represents and warrants to the Trustee for
the benefit of the Certificateholders that:
(i) The Master Servicer is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and
is or will be in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan in accordance with the terms of this
Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer and
its performance and compliance with the terms of this Agreement will not
violate the Master Servicer's Certificate of Incorporation or Bylaws or
constitute a material default (or an event which, with notice or lapse of
time, or both, would constitute a material default) under, or result in the
material breach of, any material contract, agreement or other instrument to
which the Master Servicer is a party or which may be applicable to the Master
Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and delivery by
the Trustee and the Depositor, 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 shall 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 Depositor, any Affiliate of the Depositor
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;
(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; and
(x) The Servicing Guide of the Master Servicer requires that the
Subservicer for each Mortgage Loan accurately and fully reports its borrower
credit files to each of the Credit Repositories in a timely manner.
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(a) shall survive delivery of the respective
Mortgage Files to the Trustee or any Custodian.
Upon discovery by either the Depositor, 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 breach would cause the Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or
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) The Depositor hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that as of the Closing Date (or, if
otherwise specified below, as of the date so specified): (i) the information
set forth in Exhibit F hereto with respect to each Mortgage Loan or the
Mortgage Loans, as the case may be, is true and correct in all material
respects at the respective date or dates which such information is furnished;
(ii) immediately prior to the conveyance of the Mortgage Loans to the
Trustee, the Depositor 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
conveyance validly transfers ownership of the Mortgage Loans to the Trustee
free and clear of any pledge, lien, encumbrance or security interest; and
(iii) 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).
It is understood and agreed that the representations and warranties set
forth in this Section 2.03(b) shall survive delivery of the respective
Mortgage Files to the Trustee or any Custodian.
Upon discovery by any of the Depositor, the Master Servicer, the
Trustee or any Custodian of a breach of any of the representations and
warranties set forth in this Section 2.03(b) which materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties (any Custodian being so obligated under a Custodial Agreement);
provided, however, that in the event of a breach of the representation and
warranty set forth in Section 2.03(b)(iii), 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 Depositor 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 Depositor 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, substitution or repurchase must occur within 90 days from the date such
breach was discovered. Any such substitution shall be effected by the
Depositor 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 Depositor 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 Depositor 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
The Depositor, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of the
Certificateholders all of its right, title and interest in respect of the
Assignment Agreement applicable to a Mortgage Loan as and to the extent set
forth in the Assignment Agreement. 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 Depositor, the
Master Servicer, the Trustee or any Custodian of a breach of any of the
representations and warranties made in the Assignment Agreement in respect of
any Mortgage Loan or of any Repurchase Event 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 or
Repurchase Event and request that Residential Funding either (i) cure such
breach or Repurchase Event in all material respects within 90 days from the
date the Master Servicer was notified of such breach or Repurchase Event or
(ii) purchase such Mortgage Loan from the Trust Fund at the Purchase Price
and in the manner set forth in Section 2.02; provided that, in the case of a
breach or Repurchase Event under the Assignment Agreement Residential Funding
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the breach would cause the
Mortgage Loan to be other than a "qualified mortgage" as defined in
Section 860G(a)(3) of the Code, any such cure or substitution must occur
within 90 days from the date the breach was discovered. 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 (w) 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 for the benefit of the
Certificateholders with respect to such Qualified Substitute Mortgage Loan or
Loans, the original Mortgage Note, the Mortgage, an Assignment of the
Mortgage in recordable form, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed as required by
Section 2.01. No substitution will be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall not be
part of the Trust Fund and will be retained by the Master Servicer and
remitted by the Master Servicer to Residential Funding on the next succeeding
Distribution Date. For the month of substitution, distributions to the
Certificateholders will include the Monthly Payment due on a Deleted Mortgage
Loan for such month and thereafter Residential Funding shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan. The
Master Servicer shall amend or cause to be amended the Mortgage Loan Schedule
for the benefit of the Certificateholders to reflect the removal of such
Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the amended
Mortgage Loan Schedule to the Trustee. Upon such substitution, the Qualified
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement and the related Subservicing Agreement in all respects, Residential
Funding shall be deemed to have made the representations and warranties with
respect to the Qualified Substitute Mortgage Loan (other than those of a
statistical nature) contained in Section 4 of the Assignment Agreement as of
the date of substitution, and the covenants, representations and warranties
set forth in this Section 2.04, and in Section 2.03(a) 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
shall 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 created
hereunder to fail to qualify as a REMIC 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 substitute for a 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 (w) of Section 4 thereof shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on behalf of the Certificateholders. If
the Master Servicer is Residential Funding, then the Trustee shall also have
the right to give the notification and require the purchase or substitution
provided for in the second preceding paragraph in the event of such a breach
of a representation or warranty made by Residential Funding in the Assignment
Agreement. In connection with the purchase of or substitution for any such
Mortgage Loan by Residential Funding, the Trustee shall assign to Residential
Funding all of the right, title and interest in respect of the Seller's
Agreement and the Assignment Agreement applicable to such Mortgage Loan.
Section 2.05. Execution and Authentication of Certificates; Conveyance of
Uncertificated REMIC Regular Interests
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans and
the delivery of the Mortgage Files to it, or any Custodian on its behalf,
subject to any exceptions noted, together with the assignment to it of all
other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such delivery and in exchange therefor, the
Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed and caused to be authenticated and
delivered to or upon the order of the Depositor the [Certificates in
authorized denominations which evidence ownership of the entire Trust Fund].
(b) [The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in trust to the
Trustee without recourse all the right, title and interest of the Depositor
in and to the REMIC I Regular Interests and the REMIC II Regular Interests
for the benefit of the Holders of each Class of Certificates (other than the
Class R-I Certificates and the Class R-II Certificates). The Trustee
acknowledges receipt of the REMIC I Regular Interests and the REMIC II
Regular Interests and declares that it holds and will hold the same in trust
for the exclusive use and benefit of the Holders of each Class of
Certificates (other than the Class R-I Certificates and the Class R-II
Certificates). The interests evidenced by the Class R-III Certificates,
together with the REMIC III Regular Interests, constitute the entire
beneficial ownership interest in REMIC III.]
Section 2.06. 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 Depositor 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 2.06 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 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® System, or cause the removal from the registration of any
Mortgage Loan on the MERS® 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 as set forth in Section 3.10(a)(ii). 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 created hereunder 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 or
other documents. 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
customarily provided by Persons other than 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' Obligations; Special Servicing
(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 Xxxxxxx Mac, Xxxxxx Mae or HUD
approved mortgage 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. 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, to the extent that the non-performance of any such 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 and are
reimbursable pursuant to Section 3.10(a)(vii).
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 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 Depositor 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 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) In the event the Master Servicer shall for any reason no longer be the
master servicer (including by reason of an Event of Default), the Trustee,
its designee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer under each Subservicing Agreement that may
have been entered into. The Trustee, its designee or the successor servicer
for the Trustee shall be deemed to have assumed all of the Master Servicer's
interest therein and to have replaced the Master Servicer as a party to the
Subservicing Agreement to the same extent as if the Subservicing Agreement
had been assigned to the assuming party except that the Master Servicer shall
not thereby be relieved of any liability or obligations under the
Subservicing Agreement.
(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 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. No such
modification shall reduce the Mortgage 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 accrue.
The final maturity date for any Mortgage Loan shall not be extended beyond
the Maturity Date. Also, 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. 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 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 purposes. 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 re-amortized such that the Monthly Payment is recalculated as an amount
that will fully amortize the remaining principal balance thereof by the
original maturity date based on the original Mortgage Rate; provided, that
such reamortization shall not be permitted if it would constitute a
reissuance of the Mortgage Loan for federal income tax purposes.
(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 the interest component of any Subservicer
Advance or of any REO Proceeds received in connection with an REO Property
for which an REO Disposition has occurred;
(iii) Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds (net
of any related expenses of the Subservicer);
(iv) All proceeds of any Mortgage Loans purchased pursuant to Section 2.02,
2.03, 2.04 or 4.07 (including amounts received from Residential Funding
pursuant to the last paragraph of Section 4 of the Assignment Agreement in
respect of any liability, penalty or expense that resulted from a breach of
the representation and warranty set forth in clause 4(w) of the Assignment
Agreement) 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; and
(v) Any amounts required to be deposited pursuant to Section 3.07(c) and
any payments or collections received in the nature of prepayment charges.
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 received prior to the Cut-off Date) and
payments or collections consisting of late payment charges or assumption fees
may but need not be deposited by the Master Servicer in the Custodial
Account. In the event any amount not required to be deposited in the
Custodial Account is so deposited, the Master Servicer may at any time
withdraw such amount from the Custodial Account, any provision herein to the
contrary notwithstanding. 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,
Subsequent Recoveries 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.
(d) The Master Servicer shall give notice to the Trustee and the Depositor
of any change in the location of the Custodial Account and the location of
the Certificate Account prior to the use thereof.
Section 3.08. Subservicing Accounts; Servicing Accounts
(a) In those cases where a Subservicer is servicing a Mortgage Loan
pursuant to a Subservicing Agreement, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to establish and
maintain one or more Subservicing Accounts which shall be an Eligible Account
or, if such account is not an Eligible Account, shall generally satisfy the
requirements of the Program Guide and be otherwise acceptable to the Master
Servicer and each Rating Agency. The Subservicer will be required thereby to
deposit into the Subservicing Account on a daily basis all proceeds of
Mortgage Loans received by the Subservicer, less its Subservicing Fees and
unreimbursed advances and expenses, to the extent permitted by the
Subservicing Agreement. If the Subservicing Account is not an Eligible
Account, the Master Servicer shall be deemed to have received such monies
upon receipt thereof by the Subservicer. The Subservicer shall not be
required to deposit in the Subservicing Account payments or collections in
the nature of late charges or assumption fees, or payments or collections
received in the nature of prepayment charges to the extent that the
Subservicer is entitled to retain such amounts pursuant to the Subservicing
Agreement. 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, if any, 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
In the event that compliance with this Section 3.09 shall make any
Class of Certificates legal for investment by federally insured savings and
loan associations, the Master Servicer shall provide, or cause the
Subservicers to provide, to the Trustee, the Office of Thrift Supervision or
the FDIC and the supervisory agents and examiners thereof access to the
documentation regarding the Mortgage Loans required by applicable regulations
of the Office of Thrift Supervision, such access being afforded without
charge but only upon reasonable request and during normal business hours at
the offices designated by the Master Servicer. The Master Servicer shall
permit such representatives to photocopy any such documentation and shall
provide equipment for that purpose at a charge reasonably approximating the
cost of such photocopying to the Master Servicer.
Section 3.10. Permitted Withdrawals from the Custodial Account
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant
to Section 3.07 that are attributable to the Mortgage Loans for the following
purposes:
(i) to make deposits into the Certificate Account in the amounts and in the
manner provided for in Section 4.01;
(ii) to reimburse itself or the related Subservicer for previously
unreimbursed Advances, Servicing Advances or other expenses made pursuant to
Sections 3.01, 3.07(a), 3.08, 3.11, 3.12(a), 3.14 and 4.04 or otherwise
reimbursable pursuant to the terms of this Agreement, such withdrawal right
being limited to amounts received on the related Mortgage Loans (including,
for this purpose, REO Proceeds, Insurance Proceeds, Liquidation Proceeds and
proceeds from the purchase of a Mortgage Loan pursuant to Section 2.02, 2.03,
2.04 or 4.07) which represent (A) Late Collections of Monthly Payments for
which any such advance was made in the case of Subservicer Advances or
Advances pursuant to Section 4.04 and (B) recoveries of amounts in respect of
which such advances were made in the case of Servicing Advances;
(iii) to pay to 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 a rate per annum equal to 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, and any amounts remitted by Subservicers as interest in respect of
Curtailments pursuant to Section 3.08(b);
(vi) to pay to itself, a Subservicer, a Seller, Residential Funding, the
Depositor 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
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;
(viii) to reimburse itself or the Depositor for expenses incurred by and
reimbursable to it or the Depositor pursuant to Section 3.01(a), 3.11, 3.13,
3.14(c), 6.03, 10.01 or otherwise, or in connection with enforcing any
repurchase, substitution or indemnification obligation of any Seller (other
than the Depositor or an Affiliate of the Depositor) pursuant to the related
Seller's Agreement;
(ix) to reimburse itself for amounts expended by it (a) pursuant to
Section 3.14 in good faith in connection with the restoration of property
damaged by an Uninsured Cause, and (b) in connection with the liquidation of
a Mortgage Loan or disposition of an REO Property to the extent not otherwise
reimbursed pursuant to clause (ii) or (viii) above; and
(x) to withdraw any amount deposited in the Custodial Account that was not
required to be deposited therein pursuant to Section 3.07, including any
payoff fees or penalties or any other additional amounts payable to the
Master Servicer or Subservicer pursuant to the terms of the Mortgage Note.
(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 made 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 Primary Insurance Coverage
(a) The Master Servicer shall not take, or permit any Subservicer to take,
any action which would result in noncoverage 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 at origination 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 Master Servicer had knowledge of such Primary Insurance
Policy. 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 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
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% 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, 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 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 are
located at the time of origination of such Mortgage Loan in a federally
designated special flood hazard area, the Master Servicer shall cause flood
insurance (to the extent available) to be maintained in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the amount
required to compensate for any loss or damage to the Mortgaged Property on a
replacement cost basis and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood
insurance program (assuming that the area in which such Mortgaged Property is
located is participating in such program).
In the event that the Master Servicer shall obtain and maintain a
blanket fire insurance policy with extended coverage insuring against hazard
losses on all of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its obligations as set forth in the first sentence of this
Section 3.12(a), it being understood and agreed that such policy may contain
a deductible clause, in which case the Master Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property a
policy complying with the first sentence of this Section 3.12(a) and there
shall have been a loss which would have been covered by such policy, deposit
in the Certificate Account the amount not otherwise payable under the blanket
policy because of such deductible clause. Any such deposit by the Master
Servicer shall be made on the Certificate Account Deposit Date next preceding
the Distribution Date which occurs in the month following the month in which
payments under any such policy would have been deposited in the Custodial
Account. In connection with its activities as administrator and servicer of
the Mortgage Loans, the Master Servicer agrees to present, on behalf of
itself, the Trustee and Certificateholders, claims under any such blanket
policy.
(b) The Master Servicer shall obtain and maintain at its own expense and
keep in full force and effect throughout the term of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy covering the
Master Servicer's officers and employees and other persons acting on behalf
of the Master Servicer in connection with its activities under this
Agreement. The amount of coverage shall be at least equal to the coverage
that would be required by Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater,
with respect to the Master Servicer if the Master Servicer were servicing and
administering the Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac. In the event
that any such bond or policy ceases to be in effect, the Master Servicer
shall obtain a comparable replacement bond or policy from an issuer or
insurer, as the case may be, meeting the requirements, if any, of the Program
Guide and acceptable to the Depositor. 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 or
otherwise adversely affect the interests of the Certificateholders.
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 both
constitute a "significant modification" effecting an exchange or reissuance
of such Mortgage Loan under the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and cause any REMIC created
hereunder to fail to qualify as a REMIC under the Code or the imposition of
any tax on "prohibited transactions" or "contributions" after the Startup
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, (or, with respect to
any junior lien, a junior lien of the same priority in relation to any
senior lien on such Mortgage Loan), (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, the buyer/transferee of the
Mortgaged Property would be qualified to assume the Mortgage Loan based on
generally comparable credit quality and 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 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 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 REMIC created hereunder 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 Date would be imposed on any REMIC created
hereunder 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 Mortgage Loan is secured by Mortgaged Property
located in a jurisdiction in which an assignment in lieu of satisfaction is
required to preserve lien priority, minimize or avoid mortgage recording
taxes or otherwise comply with, or facilitate a refinancing under, the laws
of such jurisdiction; (ii) that the substance of the assignment is, and is
intended to be, a refinancing of such Mortgage Loan and that the form of the
transaction is solely to comply with, or facilitate the transaction under,
such local laws; (iii) that the Mortgage Loan following the proposed
assignment will have a rate of interest at least 0.25% below or above the
rate of interest on such Mortgage Loan prior to such proposed assignment; and
(iv) that such assignment is at the request of the borrower under the related
Mortgage Loan. Upon approval of an assignment in lieu of satisfaction with
respect to any Mortgage Loan, the Master Servicer shall receive cash in an
amount equal to the unpaid principal balance of and accrued interest on such
Mortgage Loan and the Master Servicer 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; 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 or action 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 correction of any default
on a related senior mortgage loan, 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 and 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 its funds so expended
pursuant to Section 3.10.
In addition, the Master Servicer may pursue any remedies that may be
available in connection with a breach of a representation and warranty with
respect to any such Mortgage Loan in accordance with Sections 2.03 and 2.04.
However, the Master Servicer is not required to continue to pursue both
foreclosure (or similar remedies) with respect to the Mortgage Loans and
remedies in connection with a breach of a representation and warranty if the
Master Servicer determines in its reasonable discretion that one such remedy
is more likely to result in a greater recovery as to the Mortgage Loan. Upon
the occurrence of a Cash Liquidation or REO Disposition, following the
deposit in the Custodial Account of all Insurance Proceeds, Liquidation
Proceeds and other payments and recoveries referred to in the definition of
"Cash Liquidation" or "REO Disposition," as applicable, upon receipt by the
Trustee of written notification of such deposit signed by a Servicing
Officer, the Trustee or any Custodian, as the case may be, shall release to
the Master Servicer the related Mortgage File and the Trustee shall execute
and deliver such instruments of transfer or assignment prepared by the Master
Servicer, in each case without recourse, as shall be necessary to vest in the
Master Servicer or its designee, as the case may be, the related Mortgage
Loan, and thereafter such Mortgage Loan shall not be part of the Trust Fund.
Notwithstanding the foregoing or any other provision of this Agreement, in
the Master Servicer's sole discretion with respect to any defaulted Mortgage
Loan or REO Property as to either of the following provisions, (i) a Cash
Liquidation or REO Disposition may be deemed to have occurred if
substantially all amounts expected by the Master Servicer to be received in
connection with the related defaulted Mortgage Loan or REO Property have been
received, and (ii) for purposes of determining the amount of any Liquidation
Proceeds, Insurance Proceeds, REO Proceeds or 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) In the event that title to any Mortgaged Property is acquired by the
Trust Fund as an REO Property by foreclosure or by deed in lieu of
foreclosure, the deed or certificate of sale shall be issued to the Trustee
or to its nominee on behalf of Certificateholders. Notwithstanding any such
acquisition of title and cancellation of the related Mortgage Loan, such REO
Property shall (except as otherwise expressly provided herein) be considered
to be an Outstanding Mortgage Loan held in the Trust Fund until such time as
the REO Property shall be sold. Consistent with the foregoing for purposes of
all calculations hereunder so long as such REO Property shall be considered
to be an Outstanding Mortgage Loan it shall be assumed that, notwithstanding
that the indebtedness evidenced by the related Mortgage Note shall have been
discharged, such Mortgage Note and the related amortization schedule in
effect at the time of any such acquisition of title (after giving effect to
any previous Curtailments and before any adjustment thereto by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period) remain in effect.
(c) In the event that the Trust Fund acquires any REO Property as aforesaid
or otherwise in connection with a default or imminent default on a Mortgage
Loan, the Master Servicer on behalf of the Trust Fund shall dispose of such
REO Property 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 each REMIC created hereunder 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 created hereunder 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 any REMIC created
hereunder 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); 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 shall cause compliance
with the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any
successor thereto) necessary to assure that no withholding tax obligation
arises with respect to the proceeds of such foreclosure except to the extent,
if any, that proceeds of such foreclosure are required to be remitted to the
obligors on such Mortgage Loan.
Section 3.15. Trustee to Cooperate; Release of Mortgage Files
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
upon the receipt by the Master Servicer of a notification that payment in
full will be escrowed in a manner customary for such purposes, the Master
Servicer shall immediately notify the Trustee (if it holds the related
Mortgage File) or the Custodian by a certification of a Servicing Officer
(which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required
to be deposited in the Custodial Account pursuant to Section 3.07 have been
or will be so deposited), substantially in the form attached hereto as
Exhibit G, or, in the case of the Custodian, an electronic request in a form
acceptable to the Custodian, requesting delivery to it of the Mortgage File.
Upon receipt of such certification and request, the Trustee shall promptly
release, or cause the Custodian to release, the related Mortgage File to the
Master Servicer. The Master Servicer is authorized to execute and deliver to
the Mortgagor the request for reconveyance, deed of reconveyance or release
or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage, together with the Mortgage Note with, as appropriate, written
evidence of cancellation thereon and to cause the removal from the
registration on the MERS® 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, including any applicable UCC termination statements. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account or the Certificate
Account.
(b) From time to time as is appropriate for the servicing or foreclosure of
any Mortgage Loan, the Master Servicer shall deliver to the Custodian, with a
copy to the Trustee, a certificate of a Servicing Officer substantially in
the form attached as Exhibit G hereto, or, in the case of the Custodian, an
electronic request in a form acceptable to the Custodian, requesting that
possession of all, or any document constituting part of, the Mortgage File be
released to the Master Servicer and certifying as to the reason for such
release and that such release will not invalidate any insurance coverage
provided in respect of the Mortgage Loan under any Required Insurance
Policy. Upon receipt of the foregoing, the Trustee shall deliver, or cause
the Custodian to deliver, the Mortgage File or any document therein to the
Master Servicer. The Master Servicer shall cause each Mortgage File or any
document therein so released to be returned to the Trustee, or the Custodian
as agent for the Trustee when the need therefor by the Master Servicer no
longer exists, unless (i) the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or (ii) the Mortgage File or such document has been
delivered directly or through a Subservicer to an attorney, or to a public
trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Master
Servicer has delivered directly or through a Subservicer to the Trustee a
certificate of a Servicing Officer certifying as to the name and address of
the Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. In the event of the liquidation of a
Mortgage Loan, the Trustee shall deliver the Request for Release with respect
thereto to the Master Servicer upon the Trustee's receipt of notification
from the Master Servicer of the 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 shall 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 late payment charges,
assumption fees, 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.
(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 clauses (a) and (b) above, 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 the amount of Compensating Interest (if any)
for such Distribution Date used to cover Prepayment Interest Shortfalls as
provided in Section 3.16(f) below. 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 shall 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 shall 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).
(f) With respect to any Distribution Date, Prepayment Interest Shortfalls
on the Mortgage Loans will be covered first, by the Master Servicer, but only
to the extent such Prepayment Interest Shortfalls do not exceed Eligible
Master Servicing Compensation.
Section 3.17. Reports to the Trustee and the Depositor
Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee and the Depositor 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 Depositor and the Trustee on or
before the earlier of (a) March 31 of each year or (b) with respect to any
calendar year during which the Depositor'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 Item
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 materials 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 Depositor'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
a report to the Depositor 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. Right of the Depositor in Respect of the Master Servicer
The Master Servicer shall afford the Depositor and the Trustee, 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 Depositor
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 Depositor or
Residential Funding. The Depositor may enforce the obligation of the Master
Servicer hereunder and may, but it 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 Depositor or its designee.
Neither the Depositor nor the Trustee shall have the responsibility or
liability for any action or failure to act by the Master Servicer and the
Depositor is not obligated to supervise the performance of the Master
Servicer under this Agreement or otherwise.
Section 3.21. Advance Facility
(a) The Master Servicer is hereby authorized to enter into a financing or
other facility (any such arrangement, an "Advance Facility") under which
(1) the Master Servicer sells, assigns or pledges to another Person (an
"Advancing Person") the Master Servicer's rights under this Agreement to be
reimbursed for any Advances or Servicing Advances and/or (2) an Advancing
Person agrees to fund some or all Advances and/or Servicing Advances required
to be made by the Master Servicer pursuant to this Agreement. No consent of
the Depositor, the Trustee, the Certificateholders or any other party shall
be required before the Master Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an
Advancing Person agrees to fund Advances and/or Servicing Advances on the
Master Servicer's behalf, the Master Servicer shall remain obligated
pursuant to this Agreement to make Advances and Servicing Advances pursuant
to and as required by this Agreement. If the Master Servicer enters into an
Advance Facility, and for so long as an Advancing Person remains entitled to
receive reimbursement for any Advances including Nonrecoverable 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 3.21 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 3.21(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 3.21(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 Depositor nor the Trustee shall have
any duty or liability with respect to the calculation of any Reimbursement
Amount, nor shall the Depositor or the Trustee have any responsibility to
track or monitor the administration of the Advance Facility and the Depositor
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 reasonably satisfactory to the Trustee provided by the Master
Servicer recognizing the interests of any Advancing Person or Advance
Facility Trustee in such Reimbursement Amounts as the Master Servicer may
cause to be made subject to Advance Facilities pursuant to this Section 3.21,
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 3.21(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 3.21(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 Servicing Advances funded by the Master Servicer to the extent
the related rights to be reimbursed therefor have not been sold, assigned or
pledged to an Advancing Person.
(g) Any amendment to this Section 3.21 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 3.21, including
amendments to add provisions relating to a successor master servicer, may be
entered into by the Trustee, Depositor 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, notwithstanding anything to the
contrary in Section 11.01 of or elsewhere in this Agreement.
(h) Any rights of set-off that the Trust Fund, the Trustee, the Depositor,
any Successor Master Servicer or any other Person might otherwise have
against the Master Servicer under this Agreement shall not attach to any
rights to be reimbursed for Advances or Servicing Advances that have been
sold, transferred, pledged, conveyed or assigned to any Advancing Person.
(i) At any time when an Advancing Person shall have ceased funding Advances
and/or Servicing Advances (as the case may be) and the Advancing Person or
related Advance Facility Trustee shall have received Reimbursement Amounts
sufficient in the aggregate to reimburse all Advances and/or Servicing
Advances (as the case may be) the right to reimbursement for which were
assigned to the Advancing Person, then upon the delivery of a written notice
signed by the Advancing Person and the Master Servicer or its successor or
assign) to the Trustee terminating the Advance Facility Notice (the "Notice
of Facility Termination"), the Master Servicer or its Successor Master
Servicer shall again be entitled to withdraw and retain the related
Reimbursement Amounts from the Custodial Account pursuant to Section 3.10.
(j) After delivery of any Advance Facility Notice, and until any such
Advance Facility Notice has been terminated by a Notice of Facility
Termination, this Section 3.21 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 acting as agent of the Trustee shall establish and
maintain a Certificate Account in which the Master Servicer shall cause to be
deposited on behalf of the Trustee on or before 2:00 P.M. New York time on
each Certificate Account Deposit Date by wire transfer of immediately
available funds an amount equal to the sum of (i) any Advance for the
immediately succeeding Distribution Date, (ii) any amount required to be
deposited in the Certificate Account pursuant to Section 3.12(a), (iii) any
amount required to be deposited in the Certificate Account pursuant to
Section 3.16(e) or Section 4.07, (iv) any amount required to be paid pursuant
to Section 9.01, (v) all other amounts constituting the Available
Distribution Amount for the immediately succeeding Distribution Date and
(vi) any payments or collections in the nature of prepayment charges received
by the Master Servicer in respect of the Mortgage Loans and the related
Prepayment Period.
(b) On or prior to the Business Day immediately following each
Determination Date, the Master Servicer shall determine any amounts owed by
the Swap Counterparty under the Swap Agreement and inform the Trustee in
writing of the amount so calculated.
(c) The Trustee shall, upon written request from the Master Servicer,
invest or cause the institution maintaining the Certificate Account to invest
the funds in the Certificate Account in Permitted Investments designated in
the name of the Trustee for the benefit of the Certificateholders, which
shall mature not later than the Business Day next preceding the Distribution
Date next following the date of such investment (except that (i) if such
Permitted Investment is an obligation of the institution that maintains such
account or a fund for which such institution serves as custodian, then such
Permitted Investment may mature on such Distribution Date and (ii) any other
investment may mature on such Distribution Date if the Trustee shall advance
funds on such Distribution Date to the Certificate Account in the amount
payable on such investment on such Distribution Date, pending receipt thereof
to the extent necessary to make distributions on the Certificates) and shall
not be sold or disposed of prior to maturity. 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.
Section 4.02. Distributions
(a) [On each Distribution Date, the Trustee (or the Paying Agent on behalf
of the Trustee) shall allocate and distribute the Available Distribution
Amount for such date to the interests issued in respect of REMIC I, REMIC II
and REMIC III as specified in this Section.]
(b) (1) [On each Distribution Date, the REMIC I Distribution Amount
shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests in the amounts and with the priorities set forth in the definition
thereof.]
(2) On each Distribution Date, the REMIC II Distribution Amount shall be
distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests in the amounts and with the priorities set forth in the definition
thereof.
(3) Notwithstanding the distributions on the REMIC Regular Interests
described in this Section 4.02(b), distribution of funds from the Certificate
Account shall be made only in accordance with Sections 4.02(c) and (d).
(c) [On each Distribution Date (x) the Master Servicer on behalf of the
Trustee or (y) the Paying Agent appointed by the Trustee, shall distribute to
each Certificateholder of record on the next preceding Record Date (other
than as provided in Section 9.01 respecting the final distribution) either in
immediately available funds (by wire transfer or otherwise) to the account of
such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder has so notified the Master
Servicer or the Paying Agent, as the case may be, or, if such
Certificateholder has not so notified the Master Servicer or the Paying Agent
by the Record Date, by check mailed to such Certificateholder at the address
of such Holder appearing in the Certificate Register such Certificateholder's
share (which share with respect to each Class of Certificates, shall be based
on the aggregate of the Percentage Interests represented by Certificates of
the applicable Class held by such Holder of the following amounts), in the
following order of priority, in each case to the extent of the Available
Distribution Amount on deposit in the Certificate Account [(or, with respect
to clause (xi)(B) below, to the extent of prepayment charges on deposit in
the Certificate Account)]:
(i) to the Class A Certificateholders, the Accrued Certificate Interest
payable on the Class A Certificates with respect to such Distribution Date,
plus any related amounts accrued pursuant to this clause (i) but remaining
unpaid from any prior Distribution Date, being paid from and in reduction of
the Available Distribution Amount for such Distribution Date;
(ii) to the Class M Certificateholders and Class B Certificateholders from
the amount, if any, of the Available Distribution Amount remaining after the
foregoing distributions, the Accrued Certificate Interest payable on the
Class M Certificates and Class B Certificates with respect to such
Distribution Date, plus any related amounts accrued pursuant to this clause
(ii) but remaining unpaid from any prior Distribution Date, sequentially, to
the [Class M-1 Certificateholders, Class M-2 Certificateholders, Class M-3
Certificateholders, Class M-4 Certificateholders, Class M-5
Certificateholders, Class M-6 Certificateholders, Class M-7
Certificateholders, Class M-8 Certificateholders and Class B
Certificateholders], in that order, being paid from and in reduction of the
Available Distribution Amount for such Distribution Date;
(iii) [reserved]
(iv) the Principal Distribution Amount shall be distributed as follows, in
each case to the extent of the remaining Principal Distribution Amount:
(A) [first, the Class A Principal Distribution Amount, sequentially, to the
Class A-1 Certificateholders, Class A-2 Certificateholders and
Class A-3 Certificateholders, in that order, until the aggregate
Certificate Principal Balance of the Class A Certificates has
been reduced to zero;
(B) third, to the Class M-1 Certificateholders, the Class M-1 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-1 Certificates has been reduced to zero;
(C) fourth, to the Class M-2 Certificateholders, the Class M-2 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-2 Certificates has been reduced to zero;
(D) fifth, to the Class M-3 Certificateholders, the Class M-3 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-3 Certificates has been reduced to zero;
(E) sixth, to the Class M-4 Certificateholders, the Class M-4 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-4 Certificates has been reduced to zero;
(F) seventh, to the Class M-5 Certificateholders, the Class M-5 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-5 Certificates has been reduced to zero;
(G) eighth, to the Class M-6 Certificateholders, the Class M-6 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-6 Certificates has been reduced to zero;
(H) ninth, to the Class M-7 Certificateholders, the Class M-7 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-7 Certificates has been reduced to zero;
(I) tenth, to the Class M-8 Certificateholders, the Class M-8 Principal
Distribution Amount, until the Certificate Principal Balance of
the Class M-8 Certificates has been reduced to zero;
(J) eleventh, to the Class B Certificateholders, the Class B Principal
Distribution Amount, until the Certificate Principal Balance of
the Class B Certificates has been reduced to zero]; and
(v) to the Class A Certificateholders, Class M Certificateholders and
Class B Certificateholders, the amount of any Prepayment Interest Shortfalls
allocated thereto for such Distribution Date, on a pro rata basis based on
Prepayment Interest Shortfalls allocated thereto to the extent not offset by
Eligible Master Servicing Compensation on such Distribution Date;
(vi) to the Class A Certificateholders, Class M Certificateholders and
Class B Certificateholders, the amount of any Prepayment Interest Shortfalls
previously allocated thereto remaining unpaid from prior Distribution Dates
together with interest thereon at the related Pass-Through Rate, on a pro
rata basis based on unpaid Prepayment Interest Shortfalls previously
allocated thereto;
(vii) to the Class A Certificateholders, the amount of any unpaid Class A
Basis Risk Shortfall Carry-Forward Amounts allocated thereto, on a pro rata
basis based on the amount of unpaid Class A Basis Risk Shortfall
Carry-Forward Amounts allocated thereto, and then sequentially, to the
[Class M-1 Certificateholders, the Class M-2 Certificateholders, the
Class M-3 Certificateholders, the Class M-4 Certificateholders, the Class M-5
Certificateholders, the Class M-6 Certificateholders, the Class M-7
Certificateholders, the Class M-8 Certificateholders and Class B
Certificateholders,] in that order, the amount of any unpaid Basis Risk
Shortfall Carry-Forward Amounts allocated thereto;
(viii) to the Class A Certificateholders, Class M Certificateholders and
Class B Certificateholders, Relief Act Shortfalls allocated thereto for such
Distribution Date, on a pro rata basis based on Relief Act Shortfalls
allocated thereto for such Distribution Date,
(ix) first, to the Class A Certificateholders, the principal portion of any
Realized Losses previously allocated to those Certificates and remaining
unreimbursed, on a pro rata basis based on their respective principal portion
of any Realized Losses previously allocated to those Certificates and
remaining unreimbursed, and then, sequentially, to the Class M-1
Certificateholders, the Class M-2 Certificateholders, the Class M-3
Certificateholders, the Class M-4 Certificateholders, the Class M-5
Certificateholders, the Class M-6 Certificateholders, the Class M-7
Certificateholders, the Class M-8 Certificateholders and the Class B
Certificateholders, in that order, the principal portion of any Realized
Losses previously allocated to such Class and remaining unreimbursed;
(x) to the Swap Account for payment to the Swap Counterparty, any Swap
Termination Payments due to a Swap Counterparty Trigger Event.
(xi) to the Class SB Certificates, (A) from the amount, if any, of the
Excess Cash Flow remaining after the foregoing distributions, the sum of
(I) Accrued Certificate Interest thereon, (II) the amount of any
Overcollateralization Reduction Amount for such Distribution Date and
(III) for any Distribution Date after the Certificate Principal Balance of
each Class of Class A Certificates, Class M Certificates and Class B
Certificates has been reduced to zero, the Overcollateralization Amount and
(B) from prepayment charges on deposit in the Certificate Account, any
prepayment charges received on the Mortgage Loans during the related
Prepayment Period; and
(xii) to the Class R-III Certificateholders, the balance, if any, of the
Excess Cash Flow.
Notwithstanding anything in this Agreement to the contrary, all amounts
owed by the Trust to the Swap Counterparty under the Swap Agreement in any
calendar month shall be limited by the Available Distribution Amount for the
Distribution Date in such calendar month, before giving effect to any
reductions to the Available Distribution Amount to account for any Net Swap
Payments required to be made to the Swap Counterparty.
(d) Notwithstanding the foregoing clause (c), upon the reduction of the
Certificate Principal Balance of a Class of [Class A Certificates, Class M
Certificates or Class B Certificates] to zero, such Class of Certificates
will not be entitled to further distributions pursuant to Section 4.02.
(e) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of
its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible
for disbursing funds to the Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law.
(f) Except as otherwise provided in Section 9.01, if the Master Servicer
anticipates that a final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Master Servicer
shall, no later than the Determination Date in the month of such final
distribution, notify the Trustee and the Trustee shall, no later than two
(2) Business Days after such Determination Date, mail on such date to each
Holder of such Class of Certificates a notice to the effect that: (i) the
Trustee anticipates that the final distribution with respect to such Class of
Certificates will be made on such Distribution Date but only upon
presentation and surrender of such Certificates at the office of the Trustee
or as otherwise specified therein, and (ii) no interest shall accrue on such
Certificates from and after the end of the prior calendar month. In the event
that Certificateholders required to surrender their Certificates pursuant to
Section 9.01(c) do not surrender their Certificates for final cancellation,
the Trustee shall cause funds distributable with respect to such Certificates
to be withdrawn from the Certificate Account and credited to a separate
escrow account for the benefit of such Certificateholders as provided in
Section 9.01(d).
Section 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 forward by mail or otherwise make
available electronically on its website (which may be obtained by any
Certificateholder by telephoning the Trustee at (000) 000-0000) to each
Holder and the Depositor a statement setting forth the following information
as to each Class of Certificates, in each case to the extent applicable:
(i) the applicable Record Date, Determination Date and Distribution Date;
(ii) the aggregate amount of payments received with respect to the Mortgage
Loans, including prepayment amounts;
(iii) the Servicing Fee and Subservicing Fee payable to the Master Servicer
and the Subservicer;
(iv) the amount of any other fees or expenses paid, and the identity of the
party receiving such fees or expenses;
(v) (A) the amount of such distribution to the
Certificateholders of such Class applied to reduce the Certificate Principal
Balance thereof, and (B) the aggregate amount included therein representing
Principal Prepayments;
(vi) the amount of such distribution to Holders of such Class of
Certificates allocable to interest;
(vii) if the distribution to the Holders of such Class of Certificates is
less than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the shortfall;
(viii) the aggregate Certificate Principal Balance of each Class of the
Certificates, 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 percentage of the outstanding principal balances of the [Class A
Certificates and Class M Certificates] after giving effect to the distributions
on that Distribution Date;
(x) 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;
(xi) on the basis of the most recent reports furnished to it by
Sub-Subservicers, the number and aggregate 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 aggregate principal balance of Mortgage Loans that
are in foreclosure;
(xii) the amount, terms and general purpose of any Advance by the Master
Servicer pursuant to Section 4.04 and the amount of all Advances that have
been reimbursed during the preceding Due Period;
(xiii) 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;
(xiv) any material breaches of Mortgage Loan representations or warranties or
covenants in the Agreement;
(xv) the number, aggregate principal balance and book value of any REO
Properties;
(xvi) 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;
(xvii) the aggregate amount of Realized Losses with respect to the
Mortgage Loans for such Distribution Date and the aggregate amount of
Realized Losses with respect to the Mortgage Loans incurred since the Cut-off
Date;
(xviii) the Pass-Through Rate on each Class of Certificates, separately
identifying One-Month LIBOR for such Distribution Date and the Net WAC Cap
Rate;
(xix) the Overcollateralization Amount and the Required Overcollateralization
Amount following such Distribution Date;
(xx) the number and aggregate principal balance of the Mortgage Loans
repurchased under Section 4.07;
(xxi) the aggregate amount of any recoveries with respect to the Mortgage
Loans on previously foreclosed loans from Residential Funding due to a breach
of representation or warranty;
(xxii) the weighted average remaining term to maturity of the Mortgage
Loans after giving effect to the amounts distributed on such Distribution
Date;
(xxiii) the weighted average Mortgage Rates of the Mortgage Loans after
giving effect to the amounts distributed on such Distribution Date;
(xxiv) [the Class A Basis Risk Shortfall, Class A Basis Risk Shortfall
Carry-Forward Amount, Class M Basis Risk Shortfall, Class M Basis Risk
Shortfall, Class B Basis Risk Shortfall Carry-Forward Amount and Prepayment
Interest Shortfalls;]
(xxv) the amount of any Net Swap Payment payable to the Trustee on behalf of
the Trust, any Net Swap Payment payable to the Swap Counterparty, any Swap
Termination Payment payable to the Trustee on behalf of the Trust and any
Swap Termination Payment payable to the Swap Counterparty; and
(xxvi) the occurrence of the Stepdown Date.
In the case of information furnished pursuant to clauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount per Certificate
with a $1,000 denomination. In addition to the statement provided to the
Trustee as set forth in this Section 4.03(a), the Master Servicer shall
provide to any manager of a trust fund consisting of some or all of the
Certificates, upon reasonable request, such additional information as is
reasonably obtainable by the Master Servicer at no additional expense to the
Master Servicer. 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 P to such
Rating Agency within a reasonable period of time; provided, however, that the
Master Servicer shall not be required to provide such information more than
four times in a calendar year to any Rating Agency.
(b) Within a reasonable period of time after the end of each calendar year,
the Master Servicer shall prepare, or cause to be prepared, and the Trustee
shall forward, or cause to be forwarded, to each Person who at any time
during the calendar year was the Holder of a Certificate, other than a
Class R Certificate, a statement containing the information set forth in
clauses [(i) and (ii)] referred to in of subsection (a) above aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Master Servicer shall be deemed
to have been satisfied to the extent that substantially comparable
information shall be provided by the Master Servicer pursuant to any
requirements of the Code.
(c) Within a reasonable period of time after the end of each calendar year,
the Master Servicer shall prepare, or cause to be prepared, and shall
forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Class R Certificate, a statement containing
the applicable distribution information provided pursuant to this
Section 4.03 aggregated for such calendar year or applicable portion thereof
during which such Person was the Holder of a Class R Certificate. Such
obligation of the Master Servicer shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Master Servicer pursuant to any requirements of the Code.
(d) Upon the written request of any Certificateholder, the Master Servicer,
as soon as reasonably practicable, shall provide the requesting
Certificateholder with such information as is necessary and appropriate, in
the Master Servicer's sole discretion, for purposes of satisfying applicable
reporting requirements under Rule 144A.
(e) The Master Servicer shall, on behalf of the Depositor and in respect of
the Trust Fund, sign and cause to be filed with the Commission any periodic
reports required to be filed under the provisions of the Exchange Act, and
the rules and regulations of the Commission thereunder, 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 the Trustee, (III) notice of all matters
that, to the actual knowledge of a Responsible Officer of the Trustee, have
been submitted to a vote of the Certificateholders, other than those matters
that have been submitted to a vote of the Certificateholders at the request
of the Depositor or the Master Servicer, and (IV) notice of any failure of
the Trustee to make any distribution to the Certificateholders as required
pursuant to the Series Supplement. Neither the Master Servicer nor the
Trustee shall have any liability with respect to the Master Servicer's
failure to properly prepare or file such periodic reports resulting from or
relating to the Master Servicer's inability or failure to obtain any
information not resulting from the Master Servicer's own negligence or
willful misconduct.
(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
T-1 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 certifications.
(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 T-2.
(h) This Section 4.03 may be amended in accordance with this Agreement
without the consent of the Certificateholders.
Section 4.04. Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer
(a) Prior to the close of business on the Business Day next succeeding each
Determination Date, the Master Servicer shall furnish a written statement
(which may be in a mutually agreeable electronic format) to the Trustee, any
Paying Agent and the Depositor (the information in such statement to be made
available to Certificateholders by the Master Servicer on request) (provided
that the Master Servicer shall use its best efforts to deliver such written
statement not later than 12:00 p.m. New York time on the second Business Day
prior to the Distribution Date) setting forth (i) the Available Distribution
Amount, (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),
(iii) the amount of Prepayment Interest Shortfalls and Basis Risk Shortfall
Carry-Forward Amounts and (iv) the Net Swap Payments and Swap Termination
Payments, if any, for such Distribution Date. 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) remit to the Trustee for
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 sum of (A) the aggregate amount of
Monthly Payments other than Balloon Payments (with each interest portion
thereof adjusted to a per annum rate equal to the Net Mortgage Rate), less
the amount of any related Servicing Modifications, Debt Service Reductions or
Relief Act Shortfalls, on the Outstanding Mortgage Loans as of the related
Due Date in the related Due Period, which Monthly Payments were due during
the related Due Period and 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 and (B) with respect to each Balloon Loan
delinquent in respect of its Balloon Payment as of the close of business on
the related Determination Date, an amount equal to the assumed Monthly
Payment (with each interest portion thereof adjusted to a per annum rate
equal to the Net Mortgage Rate) that would have been due on the related Due
Date based on the original amortization schedule for such Balloon Loan until
such Balloon Loan is finally liquidated, over any payments of interest or
principal (with each interest portion thereof adjusted to a per annum rate
equal to the Net Mortgage Rate) received from the related Mortgagor as of the
close of business on the related Determination Date and allocable to the Due
Date during the related Due Period for each month until such Balloon Loan is
finally liquidated, (ii) withdraw from amounts on deposit in the Custodial
Account and remit to the Trustee for 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
clauses (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 determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by a certificate of a
Servicing Officer delivered to the Depositor.
In the event that the Master Servicer determines as of the Business Day
preceding any Certificate Account Deposit Date that it will be unable to
deposit in the Certificate Account an amount equal to the Advance required to
be made for the immediately succeeding Distribution Date, it shall give
notice to the Trustee of its inability to advance (such notice may be given
by telecopy), not later than 3:00 P.M., New York time, on such Business Day,
specifying the portion of such amount that it will be unable to deposit. Not
later than 3:00 P.M., New York time, on the Certificate Account Deposit Date
the Trustee shall, unless by 12:00 Noon, New York time, on such day the
Trustee shall have been notified in writing (by telecopy) that the Master
Servicer shall have directly or indirectly deposited in the Certificate
Account such portion of the amount of the Advance as to which the Master
Servicer shall have given notice pursuant to the preceding sentence, pursuant
to Section 7.01, (a) terminate all of the rights and obligations of the
Master Servicer under this Agreement in accordance with Section 7.01 and
(b) assume the rights and obligations of the Master Servicer hereunder,
including the obligation to deposit in the Certificate Account an amount
equal to the Advance for the immediately succeeding Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this
Section 4.04(b) into the Certificate Account.
Section 4.05. Allocation of Realized Losses
(a) 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 Modifications, 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 in the month in
which such Distribution Date occurs. The amount of each Realized Loss shall
be evidenced by an Officers' Certificate.
(b) [All Realized Losses on the Mortgage Loans shall be allocated as
follows:
(i) first, to Excess Cash Flow in the amounts and priority as provided in
Section 4.02;
(ii) second, in reduction of the Overcollateralization Amount, until such
amount has been reduced to zero;
(iii) third, the Class B Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(iv) fourth, to the Class M-8 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(v) fifth, to the Class M-7 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(vi) sixth, to the Class M-6 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(vii) seventh, to the Class M-5 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(viii) eighth, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(ix) ninth, to the Class M-3 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(x) tenth, to the Class M-2 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
(xi) eleventh, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
and
(xii) twelfth, to the Class A Certificates on a pro rata basis, based on
their then outstanding Certificate Principal Balances
prior to giving effect to distributions to be made on
such Distribution Date, until the aggregate
Certificate Principal Balance thereof has been
reduced to zero.]
(c) 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 in the case of an interest portion of a Realized Loss. Any
allocation of the principal portion of Realized Losses (other than Debt
Service Reductions) to the Class A Certificates, Class M Certificates or
Class B 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.
Allocations of the interest portions of Realized Losses (other than any
interest rate reduction resulting from a Servicing Modification) shall be
made by operation of the definition of "Accrued Certificate Interest" for
each Class for such Distribution Date. 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 priority of
payment provisions of Section 4.02(c). Allocations of the principal portion
of Debt Service Reductions shall be made by operation of the priority of
payment provisions of Section 4.02(c). 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.
(d) [All Realized Losses on the Mortgage Loans shall be allocated on each
Distribution Date to the REMIC I Regular Interests and the REMIC II Regular
Interests as provided in the definition of REMIC I Realized Losses and REMIC
II Realized Losses, respectively.]
(e) [Realized Losses allocated to the Excess Cash Flow or the
Overcollateralization Amount pursuant to paragraphs (a), (b) or (c) of this
Section, the definition of Accrued Certificate Interest and the operation of
Section 4.02(c) shall be deemed allocated to the Class SB Certificates.
Realized Losses allocated to the Class SB Certificates shall, to the extent
such Realized Losses represent Realized Losses on an interest portion, be
allocated to the REMIC III Regular Interest SB-IO. Realized Losses allocated
to the Excess Cash Flow pursuant to paragraph (b) of this Section shall be
deemed to reduce Accrued Certificate Interest on the REMIC III Regular
Interest SB-IO. Realized Losses allocated to the Overcollateralization
Amount pursuant to paragraph (b) of this Section shall be deemed first to
reduce the principal balance of the REMIC I Regular Interest SB-PO until such
principal balance shall have been reduced to zero and thereafter to reduce
accrued and unpaid interest on the REMIC III Regular Interest SB-IO.]
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 interest received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged
Property and the informational returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by
Sections 6050H, 6050J and 6050P of the Code, respectively, and deliver to the
Trustee an Officers' Certificate on or before March 31 of each year,
beginning with the first March 31 that occurs at least six months after the
Cut off Date, stating that such reports have been filed. Such reports shall
be in form and substance sufficient to meet the reporting requirements
imposed by such Sections 6050H, 6050J and 6050P of the Code.
Section 4.07. Optional Purchase of Defaulted Mortgage Loans
(a) As to any Mortgage Loan which is delinquent in payment by 90 days or
more, the Master Servicer may, at its option, purchase such Mortgage Loan
from the Trustee at the Purchase Price therefor; provided, that any 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
4.07 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,
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.
Section 4.08. Swap Agreement.
(a) On the Closing Date, the Trustee shall (i) establish and maintain in
its name, in trust for the benefit of Class A, Class M and Class B
Certificates, the Swap Account and (ii) for the benefit of the Class A,
Class M and Class B Certificates, cause the Trust to enter into the Swap
Agreement.
(b) The Trustee shall deposit in the Swap Account all payments that are
payable to the Trust Fund under the Swap Agreement. Net Swap Payments and
Swap Termination Payments (other than Swap Termination Payments resulting
from a Swap Counterparty Trigger Event) payable by the Trust Fund to the Swap
Counterparty pursuant to the Swap Agreement shall be excluded from the
Available Distribution Amount and payable to the Swap Counterparty prior to
any distributions to the Certificateholders. On each Distribution Date, such
amounts will be remitted by the Trustee to the Swap Account for payment to
the Swap Counterparty, first to make any Net Swap Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Distribution Date, and
second to make any Swap Termination Payment (not due to a Swap Counterparty
Trigger Event) owed to the Swap Counterparty pursuant to the Swap Agreement
for such Distribution Date. For federal income tax purposes, such amounts
paid to the Swap Account on each Distribution Date shall first be deemed paid
to the Swap Account in respect of REMIC III Regular Interest IO to the extent
of the amount distributable on such REMIC III Regular Interest IO on such
Distribution Date, and any remaining amount shall be deemed paid to the Swap
Account in respect of the Class IO Distribution Amount. Any Swap Termination
Payment triggered by a Swap Counterparty Trigger Event owed to the Swap
Counterparty pursuant to the Swap Agreement will be subordinated to
distributions to the Holders of the Class A, Class M and Class B Certificates
and shall be paid as set forth under Section 4.02.
(c) Net Swap Payments payable by the Swap Counterparty to the Trustee on
behalf of the Trust Fund pursuant to the Swap Agreement will be deposited by
the Trustee into the Swap Account, and shall be included into the definition
of Excess Cash Flow.
(d) Subject to Sections 8.01 and 8.02 hereof, the Trustee agrees to comply
with the terms of the Swap Agreement and to enforce the terms and provisions
thereof against the Swap Counterparty at the written direction of the Holders
of [Class A Certificates, Class M Certificates and Class B Certificates]
entitled to at least 51% of the Voting Rights of such Classes of
Certificates, or if the Trustee does not receive such direction from such
Certificateholders, then at the written direction of Residential Funding.
(e) The Swap Account shall be an Eligible Account. Amounts held in the Swap
Account from time to time shall continue to constitute assets of the Trust
Fund, but not of the REMICs, until released from the Swap Account pursuant to
this Section 4.08. The Swap Account constitutes an "outside reserve fund"
within the meaning of Treasury Regulation Section 1.860G-2(h) and is not an
asset of the REMICs. The [Class SB Certificateholders] shall be the owners
of the Swap Account. The Trustee shall keep records that accurately reflect
the funds on deposit in the Swap Account. The Trustee shall, at the
direction of the Master Servicer, invest amounts on deposit in the Swap
Account in Permitted Investments. In the absence of written direction to the
Trustee from the Master Servicer, all funds in the Swap Account shall remain
uninvested.
(f) The Trustee and the Master Servicer shall treat the holders of each
Class of Certificates [(other than the Class SB Certificates and Class R
Certificates)] as having entered into a notional principal contract with the
holders of the [Class SB Certificates]. Pursuant to each such notional
principal contract, all holders of Certificates [(other than the Class SB
Certificates and Class R Certificates)] shall be treated as having agreed to
pay, on each Distribution Date, to the holder of the [Class SB Certificates]
an aggregate amount equal to the excess, if any, of (i) the amount payable on
such Distribution Date on the REMIC III Regular Interest corresponding to
such Class of Certificates over (ii) the amount payable on such Class of
Certificates on such Distribution Date (such excess, a "Class IO Distribution
Amount"). In addition, pursuant to such notional principal contract, the
holder of the [Class SB Certificates] shall be treated as having agreed to
pay the related Basis Risk Shortfall Carry Forward-Amounts to the holders of
the Certificates [(other than the Class SB Certificates and Class R
Certificates)] in accordance with the terms of this Agreement. Any payments
to the Certificates from amounts deemed received in respect of this notional
principal contract shall not be payments with respect to a "regular interest"
in a REMIC within the meaning of Code Section 860G(a)(1). However, any
payment from the Certificates [(other than the Class SB Certificates and
Class R Certificates)] of a Class IO Distribution Amount shall be treated for
tax purposes as having been received by the holders of such Certificates in
respect of the REMIC III Regular Interest corresponding to such Class of
Certificates and as having been paid by such holders to the Swap Account
pursuant to the notional principal contract. Thus, each Certificate [(other
than the Class R Certificates)] shall be treated as representing not only
ownership of regular interests in REMIC III, but also ownership of an
interest in, and obligations with respect to, a notional principal contract.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates
(a) [The Class A Certificates, Class M Certificates, Class B Certificates,
Class SB Certificates and Class R Certificates shall be substantially in the
forms set forth in Exhibits A, X-0, X-0, C and D, respectively, and shall, on
original issue, be executed and delivered by the Trustee to the Certificate
Registrar for authentication and delivery to or upon the order of the
Depositor upon receipt by the Trustee or one or more Custodians of the
documents specified in Section 2.01. The Class A and Class M-1 Certificates
shall be issuable in minimum dollar denominations of $[100,000] and integral
multiples of $1 in excess thereof. The Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates and Class B
Certificates shall be issuable in minimum dollar denominations of $[250,000]
and integral multiples of $1 in excess thereof. The Class SB Certificates
shall be issuable in registered, certificated form in minimum percentage
interests of [5.00]% and integral multiples of [0.01]%. Each Class of
Class R Certificates shall be issued in registered, certificated form in
minimum percentage interests of [20.00]% and integral multiples of [0.01]% in
excess thereof; provided, however, that one Class R Certificate of each
Class will be issuable to the REMIC Administrator as "tax matters person"
pursuant to Section 10.01(c) in a minimum denomination representing a
Percentage Interest of not less than 0.01%.
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) The [Class A Certificates, Class M Certificates and Class B
Certificates] shall initially be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as
provided below, registration of such Certificates may not be transferred by
the Trustee except to another Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. The Certificate Owners shall hold their respective Ownership
Interests in and to each [Class A Certificate, Class M Certificate and
Class B Certificate], 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 Depositor 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 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 Depositor
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 Depositor 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 Depository 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 Owners 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 issue the
Definitive Certificates.
In addition, if an Event of Default has occurred and is continuing,
each Certificate Owner materially adversely affected thereby may at its
option request a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in the related Class of Certificates. In order to make
such request, such Certificate Owner shall, subject to the rules and
procedures of the Depository, provide the Depository or the related
Depository Participant with directions for the Certificate Registrar to
exchange or cause the exchange of the Certificate Owner's interest in such
Class of Certificates for an equivalent Percentage Interest in fully
registered definitive form. Upon receipt by the Certificate Registrar of
instructions from the Depository directing the Certificate Registrar to
effect such exchange (such instructions to contain information regarding the
Class of Certificates and the Certificate Principal Balance being exchanged,
the Depository Participant account to be debited with the decrease, the
registered holder of and delivery instructions for the Definitive
Certificate, and any other information reasonably required by the Certificate
Registrar), (i) the Certificate Registrar shall instruct the Depository to
reduce the related Depository Participant's account by the aggregate
Certificate Principal Balance of the Definitive Certificate, (ii) the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver,
in accordance with the registration and delivery instructions provided by the
Depository, a Definitive Certificate evidencing such Certificate Owner's
Percentage Interest in such Class of Certificates and (iii) the Trustee shall
execute and the Certificate Registrar shall authenticate a new Book-Entry
Certificate reflecting the reduction in the aggregate Certificate Principal
Balance of such Class of Certificates by the amount of the Definitive
Certificates.
Neither the Depositor, the Master Servicer nor the Trustee shall be
liable for any actions taken by the Depository or its nominee, including,
without limitation, any delay in delivery of any instructions required under
this Section 5.01 and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates,
all references herein to obligations imposed upon or to be performed by the
Depositor in connection with the issuance of the Definitive Certificates
pursuant to this Section 5.01 shall be deemed to be imposed upon and
performed by the Trustee, and the Trustee and the Master Servicer shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(c) Each of the Certificates is intended to be a "security" governed by
Article 8 of the Uniform Commercial Code as in effect in the State of New
York and any other applicable jurisdiction, to the extent that any of such
laws may be applicable.
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 SB Certificate or Class R
Certificate, upon satisfaction of the conditions set forth below, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Certificates of a like Class and aggregate Percentage Interest.
(c) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class and
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange the Trustee shall execute and the Certificate
Registrar shall authenticate and deliver the Certificates of such Class which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Trustee or the Certificate Registrar) be duly endorsed by, or
be accompanied by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing.
(d) No transfer, sale, pledge or other disposition of a [Class B
Certificate, Class SB Certificate or Class R Certificate] shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"1933 Act"), and any applicable state securities laws or is made in
accordance with said Act and laws. Except as otherwise provided in this
Section 5.02(d), in the event that a transfer of a Class B Certificate,
Class SB Certificate or Class R Certificate is to be made, (i) unless the
Depositor directs the Trustee otherwise, the Trustee shall require a written
Opinion of Counsel acceptable to and in form and substance satisfactory to
the Trustee and the Depositor 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 Trust Fund,
the Depositor or the Master Servicer, and (ii) the Trustee shall require the
transferee to execute a representation letter, substantially in the form of
Exhibit I hereto, and the Trustee shall require the transferor to execute a
representation letter, substantially in the form of Exhibit J hereto, each
acceptable to and in form and substance satisfactory to the Depositor and the
Trustee certifying to the Depositor and the Trustee the facts surrounding
such transfer, which representation letters shall not be an expense of the
Trustee, the Trust Fund, the Depositor or the Master Servicer. In lieu of the
requirements set forth in the preceding sentence, transfers of Class B
Certificates, Class SB Certificates or Class R Certificates may be made in
accordance with this Section 5.02(d) if the prospective transferee of such a
Certificate provides the Trustee and the Master Servicer with an investment
letter substantially in the form of Exhibit N attached hereto, which
investment letter shall not be an expense of the Trustee, the Depositor, or
the Master Servicer, and which investment letter states that, among other
things, such transferee (i) 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 (ii) is
aware that the proposed transferor intends to rely on the exemption from
registration requirements under the 1933 Act provided by Rule 144A. The
Holder of a Class B Certificate, Class SB Certificate or Class R Certificate
desiring to effect any transfer, sale, pledge or other disposition shall, and
does hereby agree to, indemnify the Trustee, the Depositor, 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 and this Agreement. If
any transfer of a Class B Certificate held by a transferor and to be held by
a transferee in book-entry form is to made without registration under the
1933 Act, the transferor shall be deemed to have made each of the
certifications set forth in Exhibit J hereto as of the transfer date and the
transferee shall be deemed to have made each of the certifications set forth
in Exhibit N hereto as of the transfer date, in each case as if such Class B
Certificate were in physical form.
(e) (i) [In the case of any Class A Certificate, Class M Certificate,
Class B Certificate, Class SB Certificate 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 Depositor and the Master Servicer to the
effect that the purchase or holding of such Class B Certificate, Class SB
Certificate or Class R Certificate is permissible under applicable law, will
not constitute or result in any non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or comparable provisions of
any subsequent enactments), and will not subject the Trustee, the Depositor
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 Depositor or the Master Servicer, or (B) the
prospective transferee shall be required to provide the Trustee, the
Depositor and the Master Servicer with a certification to the effect set
forth in Exhibit P (with respect to a Class A, Class M, Class B or Class SB
Certificate; provided, however; that such certification shall be deemed to
have been given by any Class A Certificateholder, Class M Certificateholder
or Class B Certificateholder who acquires a Book-Entry Certificate) or in
paragraph fifteen of Exhibit H-1 (with respect to a Class R Certificate),
which the Trustee may rely upon without further inquiry or investigation, or
such other certifications as the Trustee may deem desirable or necessary in
order to establish that such transferee or the Person in whose name such
registration is requested is either (a) not an employee benefit plan or other
plan or arrangement subject to the prohibited transaction provisions of ERISA
or Section 4975 of the Code, or any Person (including an investment manager,
a named fiduciary or a trustee of any such plan) who is using "plan assets"
of any such plan to effect such acquisition (each of the foregoing, a "Plan
Investor"), or (b) an insurance company, the source of funds used to purchase
or hold such Certificates is an "insurance company general account," as the
term is defined in DOL Prohibited Transaction Class Exemption ("PTCE") 95-60,
and the conditions in Sections I and III of PTCE 95-60 have been satisfied.
(ii) Any Transferee of a Class A Certificate, Class M Certificate or Class B
Certificate that does not deliver the Opinion of Counsel or certification
referred to in clause (i) above will be deemed to have represented by virtue
of its purchase or holding of such Certificate (or interest therein) that
such Transferee is not a Plan Investor.
(iii) If any Class A Certificate, Class M Certificate or Class B Certificate
(or any interest therein) is acquired or held by any Person that does not
satisfy the conditions described in paragraph (i) and (ii) above, then the
last preceding Transferee 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 A Certificate, Class M Certificate or
Class B Certificate. The Trustee shall be under no liability to any Person
for making any payments due on such Certificate to such preceding Transferee.
(iv) Any purported Certificate Owner whose acquisition or holding of any
Class A Certificate, Class M Certificate or Class B Certificate (or interest
therein) was effected in violation of the restrictions in this
Section 5.02(e) shall indemnify and hold harmless the Depositor, the Trustee,
the Master Servicer, any Subservicer, any 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 H-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 H-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 H-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R
Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is
a "pass-through interest holder" within the meaning of Temporary
Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Class R Certificate, if it
is, or is holding an Ownership Interest in a Class R Certificate
on behalf of, a "pass-through interest holder."
(ii) The Trustee shall register the Transfer of any Class R Certificate only
if it shall have received the Transfer Affidavit and Agreement, a certificate
of the Holder requesting such transfer in the form attached hereto as
Exhibit H-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.
(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.
(iii) 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.
(iv) 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 [Class A Certificates, Class M
Certificates 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) A Certificate of the Master Servicer stating that the Master Servicer
has received an Opinion of Counsel, in form and substance
satisfactory to the Master Servicer, to the effect that such
modification, addition to or absence of such provisions will not
cause any REMIC to cease to qualify as a REMIC and will not cause
(x) any REMIC 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 Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name 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 in Section 4.09, and neither the Depositor, the Master Servicer, the
Trustee, the Certificate Registrar nor any agent of the Depositor, the Master
Servicer, the Trustee or the Certificate Registrar shall be affected by
notice to the contrary except as provided in Section 5.02(f).
Section 5.05. Appointment of Paying Agent
The Trustee may appoint a Paying Agent for the purpose of making
distributions to 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 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 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
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 DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master
Servicer
The Depositor 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 Depositor and the Master
Servicer herein. By way of illustration and not limitation, the Depositor 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 Depositor or the Master
Servicer; Assignment of Rights and Delegation of Duties by Master Servicer
(a) The Depositor and the Master Servicer shall each keep in full effect
its existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
(b) Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party,
or any Person succeeding to the business of the Depositor or the Master
Servicer, shall be the successor of the Depositor or the Master Servicer, as
the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, however, that the successor or
surviving Person to the Master Servicer shall be qualified to service
mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac; and provided further
that each Rating Agency's ratings, if any Class of Class A Certificates,
Class M Certificates or Class B Certificates in effect immediately prior to
such merger or consolidation will not be qualified, reduced or withdrawn as a
result thereof (as evidenced by a letter to such effect from each Rating
Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04 to
the contrary, the Master Servicer may assign its rights and delegate its
duties and obligations under this Agreement; provided that the Person
accepting such assignment or delegation shall be a Person which is qualified
to service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac, is
reasonably satisfactory to the Trustee and the Depositor, is willing to
service the Mortgage Loans and executes and delivers to the Depositor and the
Trustee an agreement, in form and substance reasonably satisfactory to the
Depositor 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. Notwithstanding the foregoing, in the
event of a pledge or assignment by the Master Servicer solely of its rights to
purchase all assets of the Trust Fund under Section 9.01(a) (or, if so specified
in Section 9.01(a), its rights to purchase the Mortgage Loans and property
acquired related to such Mortgage Loans or its rights to purchase the Certificates
related thereto), the provisos of the first sentence of this paragraph will not
apply.
Section 6.03. Limitation on Liability of the Depositor, the Master
Servicer and Others
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor 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 Depositor, the Master Servicer or
any such Person against any breach of warranties, 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 Depositor, the Master Servicer and any director,
officer, employee or agent of the Depositor 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
Depositor, the Master Servicer and any director, officer, employee or agent
of the Depositor 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 Depositor 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 Depositor 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 Depositor 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. Depositor and Master Servicer Not to Resign
Subject to the provisions of Section 6.02, neither the Depositor 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 Depositor or the Master Servicer shall be
evidenced by an Opinion of Counsel (at the expense of the resigning party) 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 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 Depositor or to the Master Servicer, the Depositor
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 Depositor, or to the
Master Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to 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 Depositor or the
Trustee shall at the direction of Holders of Certificates entitled to at
least 51% of the Voting Rights, by notice in writing to the Master Servicer
(and to the Depositor if given by the Trustee or to the Trustee if given by
the Depositor), 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;
provided, however, that a successor to the Master Servicer is appointed
pursuant to Section 7.02 and such successor Master Servicer shall have
accepted the duties of Master Servicer effective upon the resignation of the
Master Servicer. If an Event of Default described in clause (vi) hereof shall
occur, the Trustee shall, by notice to the Master Servicer and the Depositor,
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 as successor Master Servicer 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 Depositor shall deliver to the
Trustee, as successor Master Servicer, a copy of the Program Guide.
Section 7.02. Trustee or Depositor 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 Depositor and with the
Depositor's consent 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 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
successor Master Servicer. If the Trustee has become the successor to the
Master Servicer in accordance with Section 6.04 or Section 7.01, then
notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall, if it is unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, which is also a Xxxxxx Xxx or Xxxxxxx Mac-approved mortgage
servicing institution, having a net worth of not less than $10,000,000 as the
successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee shall become successor to the Master Servicer and
shall act in such capacity as hereinabove provided. As compensation
therefor, the Trustee, as successor Master Servicer, 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. 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 Depositor, 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 0.200% 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 0.200% per
annum in order to hire a Subservicer with respect to such Mortgage Loans.
(b) In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the Mortgage Loans that are
registered with MERS, in which case the predecessor Master Servicer shall
cooperate with the successor Master Servicer in causing MERS to revise its
records to reflect the transfer of servicing to the successor Master Servicer
as necessary under MERS' rules and regulations, or (ii) the predecessor
Master Servicer shall cooperate with the successor Master Servicer in causing
MERS to execute and deliver an 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® 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 as provided in Section 7.04 hereof.
Section 7.04. Waiver of Events of Default
The Holders representing at least 66% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder may waive
any 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), (ii) or (iii).
Upon any such waiver of a default or Event of Default by the Holders
representing the requisite percentage of Voting Rights of Certificates
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, 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 each REMIC created hereunder 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 Depositor 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 the Certificateholders holding Certificates which evidence,
Percentage Interests aggregating not less than 25% of the affected Classes 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 Depositor
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), 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 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 the 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 (and except as provided for
in Section 2.04), 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 REMIC created hereunder 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 Depositor 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® System. Except as otherwise provided herein, the Trustee
shall not be accountable for the use or application by the Depositor 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
Depositor 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 Depositor 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 shall 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 its obligation to execute the DTC Letter in its individual
capacity, and 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 Swap Agreement, and the Master Servicer further agrees to
indemnify the Trustee for, and to hold the Trustee harmless against, any
loss, liability or expense arising out of, or in connection with, the
provisions set forth in the last paragraph of Section 2.01(b) 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 Certificateholders pursuant to the
terms of this Agreement.
Section 8.06. Eligibility Requirements for Trustee
The Trustee hereunder shall at all times be a national banking
association or a New York banking corporation having its principal office in
a state and city acceptable to the Depositor 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 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 Depositor and the
Master Servicer. Upon receiving such notice of resignation, the Depositor
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 then 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 Depositor, 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 Depositor 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 Depositor determines that the Trustee has
failed (i) to distribute or cause to be distributed to 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 Depositor)
for distribution or (ii) to otherwise observe or perform in any material
respect any of its covenants, agreements or obligations hereunder, and such
failure shall continue unremedied for a period of 5 days (in respect of
clause (i) above) or 30 days (in respect of clause (ii) above) after the date
on which written notice of such failure, requiring that the same be remedied,
shall have been given to the Trustee by the Depositor, then the Depositor,
which consent shall not be unreasonably withheld, 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 Depositor 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 Depositor, 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 Depositor and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held by a Custodian, which shall become the agent
of any successor trustee hereunder), and the Depositor, 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 Depositor 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 Depositor 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
Depositor.
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
Depositor, appoint one or more Custodians who are not Affiliates of the
Depositor or the Master Servicer to hold all or a portion of the Mortgage
Files as agent for the Trustee, by entering into a Custodial Agreement.
Subject to Article VIII, the Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against
the Custodian for the benefit of the Certificateholders. Each Custodian shall
be a depository institution subject to supervision by federal or state
authority, shall have a combined capital and surplus of at least $15,000,000
and shall be qualified to do business in the jurisdiction in which it holds
any Mortgage File. Each Custodial Agreement may be amended only as provided
in Section 11.01. The Trustee shall notify the Certificateholders of the
appointment of any Custodian (other than the Custodian appointed as of the
Closing Date) pursuant to this Section 8.11.
Section 8.12. Appointment of Office or Agency
The Trustee shall maintain an office or agency in the [______________]
where Certificates may be surrendered for registration of transfer or
exchange. The Trustee initially designates its offices located at the
Corporate Trust Office for the purpose of keeping the Certificate Register.
The Trustee shall maintain an office at the address stated in
Section 11.05(c) hereof where notices and demands to or upon the Trustee in
respect of this Agreement may be served.
Section 8.13. DTC Letter of Representations.
The Trustee is hereby authorized and directed to, and agrees that it
shall, enter into the DTC Letter on behalf of the Trust Fund and in its
individual capacity as agent thereunder.
Section 8.14. [Swap Agreement.]
[The Trustee is hereby authorized and directed to, and agrees that it
shall, enter into the Swap Agreement on behalf of the Trust Fund.]
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase or Liquidation of All Mortgage
Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Depositor, 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 Depositor 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) at the option of EMC Mortgage Corporation or its designee or the Master
Servicer, as provided in Section 9.01(f), the purchase of all Mortgage Loans
and all property acquired in respect of any Mortgage Loan remaining in the
Trust Fund, at a price equal to the sum of (A) 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) (and if such purchase is made by the Master Servicer only, net of
any unreimbursed Advances attributable to principal) on the day of
repurchase, plus accrued interest thereon at the Net Mortgage Rate (or
Modified Net Mortgage Rate in the case of any Modified Mortgage Loan), to,
but not including, the first day of the month in which such repurchase price
is distributed, and (B) any unpaid Swap Termination Payment payable to the
Swap Counterparty (or any Swap Termination Payment payable to the Swap
Counterparty as a result of the exercise of the option provided for in this
Section 9.01(a)(ii));
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof; and provided further, that
the purchase price set forth above shall be increased as is necessary, as
determined by the Master Servicer, to avoid disqualification of any REMIC
created hereunder as a REMIC.
The purchase price paid by EMC Mortgage Corporation or its designee or
the Master Servicer, as applicable, pursuant to Section 9.01(a)(ii) shall
also include any amounts owed by Residential Funding pursuant to the last
paragraph of Section 4 of the Assignment Agreement in respect of any
liability, penalty or expense that resulted from a breach of the
representation and warranty set forth in clause (w) of Section 4 of the
Assignment Agreement that remain unpaid on the date of such purchase.
The right of EMC Mortgage Corporation or its designee or the Master
Servicer, as applicable, to purchase all of the Mortgage Loans pursuant to
clause (ii) above is conditioned upon the date of such purchase occurring on
or after the Optional Termination Date. If such right is exercised by the
Master Servicer, the Master Servicer shall be deemed to have been reimbursed
for the full amount of any unreimbursed Advances theretofore made by it with
respect to the Mortgage Loans being purchased. 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 EMC Mortgage Corporation or its
designee or the Master Servicer, as applicable, the Mortgage Files pertaining
to the Mortgage Loans being purchased.
In addition to the foregoing, on any Distribution Date on or after the
Optional Termination Date, EMC Mortgage Corporation or its designee or the
Master Servicer, as provided in Section 9.01(f), shall have the right, at its
option, to purchase the [Class A Certificates, Class M Certificates, Class B
Certificates] and Class SB Certificates in whole, but not in part, at a price
equal to the sum of the outstanding Certificate Principal Balance of such
Certificates plus the sum of one month's Accrued Certificate Interest
thereon, any previously unpaid Accrued Certificate Interest, and any unpaid
Prepayment Interest Shortfalls previously allocated thereto and, in the case
of Prepayment Interest Shortfalls, accrued interest thereon at the applicable
Pass-Through Rate, plus, with respect to any optional termination by EMC
Mortgage Corporation or its designee, an amount equal to all accrued and
unpaid Servicing Fees and reimbursement for all unreimbursed Advances and
Servicing Advances, in each case through the date of such optional
termination. If the Master Servicer or EMC Mortgage Corporation or its
designee, as applicable, exercises this right to purchase the outstanding
Class A Certificates, Class M Certificates, Class B Certificates and Class SB
Certificates, EMC Mortgage Corporation or its designee or the Master
Servicer, as applicable, will promptly terminate the respective obligations
and responsibilities created hereby in respect of these Certificates pursuant
to this Article IX.
(b) The Master Servicer or EMC Mortgage Corporation or its designee, as
applicable, shall give the Trustee (and the Master Servicer if EMC Mortgage
Corporation or its designee is exercising its option) not less than 60 days'
prior notice of the Distribution Date on which (1) EMC Mortgage Corporation
or its designee or the Master Servicer, as applicable, anticipates that the
final distribution will be made to Certificateholders as a result of the
exercise by the Holder of the Class SB Certificates or the Master Servicer,
as applicable, of its right to purchase the Mortgage Loans) or (2) on which
EMC Mortgage Corporation or its designee or the Master Servicer, as
applicable, anticipates that the Certificates will be purchased as a result
of the exercise by EMC Mortgage Corporation or its designee or the Master
Servicer, as applicable, to purchase the outstanding Certificates. Notice of
any termination, specifying the anticipated Final Distribution Date (which
shall be a date that would otherwise be a Distribution Date) upon which the
Certificateholders may surrender their Certificates to the Trustee (if so
required by the terms hereof) for payment of the final distribution and
cancellation or notice of any purchase of the outstanding Certificates,
specifying the Distribution Date upon which the Holders may surrender their
Certificates to the Trustee for payment, shall be given promptly by the
Master Servicer (if it is exercising the right to purchase the Mortgage Loans
or to purchase the outstanding Certificates), or by the Trustee (in any other
case) by letter to the Certificateholders (with a copy to the Certificate
Registrar) mailed not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of such final distribution
specifying:
(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 EMC
Mortgage Corporation or its designee or the Master Servicer, as applicable,
of the outstanding Certificates, the Distribution Date on which such purchase
is 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 or the Trustee is obligated to give notice to
Certificateholders as required above, it shall give such notice to the
Certificate Registrar at the time such notice is given to
Certificateholders. In the event of a purchase of the Mortgage Loans by EMC
Mortgage Corporation or its designee or the Master Servicer, as applicable,
EMC Mortgage Corporation or its designee or the Master Servicer, as
applicable, shall deposit in the Certificate Account before the Final
Distribution Date in immediately available funds an amount equal to the
purchase price computed as provided above. As a result of the exercise by
EMC Mortgage Corporation or its designee or the Master Servicer, as
applicable, of its right to purchase the outstanding Certificates, EMC
Mortgage Corporation or its designee or the Master Servicer, as applicable,
shall deposit in an Eligible Account, established by the Master Servicer on
behalf of the Trustee and separate from the Certificate Account, in the name
of the Trustee in trust for the registered holders of the Certificates,
before the Distribution Date on which such purchase is to occur, in
immediately available funds, an amount equal to the purchase price for the
Certificates computed as provided above, and provide notice of such deposit
to the Trustee. The Trustee shall withdraw from such account the amount
specified in subsection (c) below and distribute such amount to the
Certificateholders as specified in subsection (c) below. EMC Mortgage
Corporation or its designee or the Master Servicer, as applicable, shall
provide to the Trustee written notification of any change to the anticipated
Final Distribution Date as soon as practicable. If the Trust Fund is not
terminated on the anticipated Final Distribution Date, for any reason, the
Trustee shall promptly mail notice thereof to each affected Certificateholder.
(c) Upon presentation and surrender of the [Class A Certificates, Class M
Certificates, Class B Certificates] and Class SB Certificates by the
Certificateholders thereof, the Trustee shall distribute to such
Certificateholders (i) the amount otherwise distributable on such
Distribution Date, if not in connection with the Holder's of the Class SB
Certificates or the Master Servicer's, as applicable, election to repurchase
the Mortgage Loans or the outstanding [Class A Certificates, Class M
Certificates, Class B Certificates] and Class SB Certificates, or (ii) if EMC
Mortgage Corporation or its designee or the Master Servicer, as applicable,
elected to so repurchase the Mortgage Loans or the outstanding [Class A
Certificates, Class M Certificates, Class B Certificates] and Class SB
Certificates, an amount equal to the price paid pursuant to
Section 9.01(a) as follows: first, with respect to any optional termination
by EMC Mortgage Corporation or its designee, payment of any accrued and
unpaid Servicing Fees and reimbursement for all unreimbursed Advances and
Servicing Advances, in each case through the date of such optional
termination, to the Master Servicer, second, with respect to the [Class A
Certificates, pari passu, the outstanding Certificate Principal Balance
thereof, plus Accrued Certificate Interest thereon for the related Interest
Accrual Period and any previously unpaid Accrued Certificate Interest, third,
with respect to the Class M-1 Certificates, the outstanding Certificate
Principal Balance thereof, plus Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate
Interest, fourth, with respect to the Class M-2 Certificates, the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest
thereon for the related Interest Accrual Period and any previously unpaid
Accrued Certificate Interest, fifth, with respect to the Class M-3
Certificates, the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest thereon for the related Interest Accrual Period
and any previously unpaid Accrued Certificate Interest, sixth, with respect
to the Class M-4 Certificates, the outstanding Certificate Principal Balance
thereof, plus Accrued Certificate Interest thereon for the related Interest
Accrual Period and any previously unpaid Accrued Certificate Interest,
seventh, with respect to the Class M-5 Certificates, the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest
thereon for the related Interest Accrual Period and any previously unpaid
Accrued Certificate Interest, eighth, with respect to the Class M-6
Certificates, the outstanding Certificate Principal Balance thereof, plus
Accrued Certificate Interest thereon for the related Interest Accrual Period
and any previously unpaid Accrued Certificate Interest, ninth, with respect
to the Class M-7 Certificates, the outstanding Certificate Principal Balance
thereof, plus Accrued Certificate Interest thereon for the related Interest
Accrual Period and any previously unpaid Accrued Certificate Interest, tenth,
with respect to the Class M-8 Certificates, the outstanding Certificate
Principal Balance thereof, plus Accrued Certificate Interest thereon for the
related Interest Accrual Period and any previously unpaid Accrued Certificate
Interest, eleventh, with respect to the Class B Certificates, the outstanding
Certificate Principal Balance thereof, plus Accrued Certificate Interest
thereon for the related Interest Accrual Period and any previously unpaid
Accrued Certificate Interest, twelfth, to the Class A, Class M and Class B
Certificates, the amount of any Prepayment Interest Shortfalls allocated
thereto for such Distribution Date or remaining unpaid from prior
Distribution Dates and accrued interest thereon at the applicable
Pass-Through Rate, on a pro rata basis based on Prepayment Interest
Shortfalls allocated thereto for such Distribution Date or remaining unpaid
from prior Distribution Dates, thirteenth, to the Swap Counterparty (without
duplication of amounts payable to the Swap Counterparty on such date in
accordance with Section 4.02) any Swap Termination Payment payable to the
Swap Counterparty then remaining unpaid or which is due to the exercise of
any early termination of the Trust Fund pursuant to this Section 9.01, and
fourteenth, to the Class SB Certificates, all remaining amounts.]
(d) In the event that any Certificateholders shall not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Trustee shall on such date cause all funds in the
Certificate Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for
the benefit of such Certificateholders, and the Master Servicer (if it
exercised its right to purchase the Mortgage Loans) 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 and the Certificateholders shall
look only to the Master Servicer for such payment.
(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 Eligible Account established by the Master Servicer deposited therein by
the Master Servicer pursuant to Section 9.01(b) to be withdrawn therefrom and
deposited in a separate escrow account for the benefit of such
Certificateholders, and the Master Servicer shall give a second written
notice to such Certificateholders to surrender their Certificates for payment
of the purchase price therefor. If within six months after the second notice
any Certificate shall not have been surrendered for cancellation, the Trustee
shall take appropriate steps as directed by the Master Servicer to contact
the Holders of such Certificates concerning surrender of their Certificates.
The costs and expenses of maintaining the escrow account and of contacting
Certificateholders shall be paid out of the assets which remain in the escrow
account. If within nine months after the second notice any Certificates
shall not have been surrendered for cancellation in accordance with this
Section 9.01, the Trustee shall pay to the Master Servicer all amounts
distributable to the Holders thereof and shall have no further obligation or
liability therefor and the Master Servicer shall thereafter hold such amounts
until distributed to such Holders. No interest shall accrue or be payable to
any Certificateholder on any amount held in the escrow account or by the
Master Servicer as a result of such Certificateholder's failure to surrender
its Certificate(s) for payment in accordance with this Section 9.01. Any
Certificate that is not surrendered on the Distribution Date on which a
purchase pursuant to this Section 9.01 occurs as provided above will be
deemed to have been purchased and the Holder as of such date will have no
rights with respect thereto except to receive the purchase price therefor
minus any costs and expenses associated with such escrow account and notices
allocated thereto. Any Certificates so purchased or deemed to have been
purchased on such Distribution Date shall remain outstanding hereunder. The
Master Servicer shall be for all purposes the Holder thereof as of such date.
(f) With respect to the first possible Optional Termination Date, EMC
Mortgage Corporation or its designee shall have the sole option to exercise
the purchase options described in Section 9.01(a) and the Master Servicer
shall have no claim thereto. If EMC Mortgage Corporation or its designee
elects not to exercise one of its options to purchase pursuant to
Section 9.01(a) with respect to the first possible Optional Termination Date,
it shall lose such right and have no claim to exercise any purchase options
pursuant to this Section 9.01 thereafter. Beginning with the second possible
Optional Termination Date and thereafter, the Master Servicer shall have the
sole option to exercise the purchase options described in Section 9.01(a).
(g) EMC Mortgage Corporation, if it is not the Master Servicer or any
Subservicer, or its designee, as applicable, shall be deemed to represent
that one of the following will be true and correct: (i) the exercise of the
optional termination right set forth in Section 9.01 shall not result in a
non-exempt prohibited transaction under ERISA or section 4975 of the Code or
(ii) EMC Mortgage Corporation or such designee, as the case may be, is (A)
not a party in interest with respect to any Plan and (B) is not a "benefit
plan investor" (other than a plan sponsored or maintained by EMC Mortgage
Corporation or the designee, as the case may be, provided that no assets of
such plan are invested or deemed to be invested in the Certificates). If the
holder of the option is unable to exercise such option by reason of the
preceding sentence, then the Master Servicer may exercise such option.
Section 9.02. Additional Termination Requirements
(a) [Any REMIC hereunder, as the case may be, shall be terminated in
accordance with the following additional requirements, unless (subject to
Section 10.01(f)) the Trustee and the Master Servicer have received an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee) to the effect that the failure of any REMIC created hereunder as the
case may be, to comply with the requirements of this Section 9.02 will not
(i) result in the imposition on the Trust Fund of taxes on "prohibited
transactions," as described in Section 860F of the Code, or (ii) cause any
REMIC created hereunder 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
REMIC I, REMIC II or REMIC III, as applicable, and any other related
terminating REMICs, and specify the first day of such period in a statement
attached to REMIC I's, REMIC II's or REMIC III's, as applicable, and any
other related terminating REMICs', 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 REMIC I under Section 860F of
the Code and the 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 liquidating REMICs in
accordance with the terms hereof; and
(iii) If the Master Servicer is exercising its right to purchase the assets
of the Trust Fund, the Master Servicer shall, during the 90-day liquidation
period and at or prior to the Final Distribution Date, purchase all of the
assets of the liquidating REMICs 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 any REMIC hereunder at the expense of the
Trust Fund in accordance with the terms and conditions of this Agreement.]
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration
(a) [The REMIC Administrator shall make an election to treat all REMICs
created hereunder as a REMIC under the Code and, if necessary, under
applicable state law. Each 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. The REMIC I Regular
Interests shall be designated as the "regular interests" and the Class R-I
Certificates shall be designated as the sole Class of "residual interests" in
the REMIC I. The REMIC II Regular Interests shall be designated as the
"regular interests" and the Class R-II Certificates shall be designated as
the sole Class of "residual interests" in the REMIC II. The REMIC III
Regular Interests shall be designated as the "regular interests" and the
Class R-III Certificates shall be designated as the sole Class of "residual
interests" in the REMIC III. The REMIC Administrator and the Trustee shall
not permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in REMIC I, REMIC II or REMIC III other than the
REMIC I Regular Interests, the REMIC II Regular Interests, REMIC III Regular
Interest IO and the Certificates.]
(b) The Closing Date is hereby designated as the "startup day" of each of
REMIC created hereunder within the meaning of Section 860G(a)(9) of the Code
(the "Startup Date").
(c) [The REMIC Administrator shall hold a Class R Certificate in each REMIC
representing a 0.01% Percentage Interest of the Class R Certificates in each
REMIC and shall be designated as the "tax matters person" with respect to
each of 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 of
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 the REMICs
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, if any, 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 created hereunder.
(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 thereof as a REMIC under the
REMIC Provisions (and the Trustee shall assist the Master Servicer and the
REMIC Administrator, to the extent reasonably requested by the Master
Servicer and the REMIC Administrator to do so). In performing their duties as
more specifically set forth herein, 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 and the scope of duties
more specifically set forth herein, that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
REMIC created hereunder as a REMIC or (ii) result in the imposition of a tax
upon any REMIC created hereunder (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code (except
as provided in Section 2.04) and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, in the absence of
an Opinion of Counsel or the indemnification referred to in this sentence, an
"Adverse REMIC Event") unless the Master Servicer or the REMIC Administrator,
as applicable, has received an Opinion of Counsel (at the expense of the
party seeking to take such action or, if such party fails to pay such
expense, and the Master Servicer or the REMIC Administrator, as applicable,
determines that taking such action is in the best interest of the Trust Fund
and the Certificateholders, at the expense of the Trust Fund, but in no event
at the expense of the Master Servicer, the REMIC Administrator or the
Trustee) to the effect that the contemplated action will not, with respect to
the Trust Fund created hereunder, endanger such status or, unless the Master
Servicer or 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 or inaction, as the case may be. In addition, prior to taking any
action with respect to the Trust Fund or its assets, or causing the Trust
Fund to take any action, which is not expressly permitted under the terms of
this Agreement, the Trustee shall consult with the Master Servicer or the
REMIC Administrator, as applicable, or its designee, in writing, with respect
to whether such action could cause an Adverse REMIC Event to occur with
respect to the Trust Fund and the Trustee shall not take any such action or
cause the Trust Fund to take any such action as to which the Master Servicer
or the REMIC Administrator, as applicable, has advised it in writing that an
Adverse REMIC Event could occur. The Master Servicer or the REMIC
Administrator, as applicable, may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not expressly permitted by this Agreement, but in no event at the
expense of the Master Servicer or the REMIC Administrator. At all times as
may be required by the Code, the Master Servicer or the REMIC Administrator,
as applicable, will to the extent within its control and the scope of its
duties more specifically set forth herein, maintain substantially all of the
assets of the REMIC 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 REMIC as defined in
Section 860G(c) of the Code, on any contributions to any REMIC after the
Startup Date therefor pursuant to Section 860G(d) of the Code, or any other
tax 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 in its role as
Master Servicer or REMIC Administrator 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 on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following the Startup Date, neither the Master Servicer nor the Trustee
shall accept any contributions of assets to any REMIC 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 any REMIC
will not cause any REMIC created hereunder to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject any such 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 REMIC created hereunder 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 purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the principal
balance of each regular interest in each REMIC would be reduced to zero is
[________], 20[_], which is the Distribution Date in the month following the
last scheduled payment on any Mortgage Loan.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of any REMIC pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement)
or acquire any assets for any REMIC or sell or dispose of any investments in
the Custodial Account or the Certificate Account for gain, or accept any
contributions to any 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 any REMIC created hereunder as a
REMIC or (b) unless the Master Servicer has determined in its sole discretion
to indemnify the Trust Fund against such tax, cause any 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 Depositor, 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 Depositor or the Master Servicer, as a result
of a breach of the Trustee's covenants set forth in Article VIII or this
Article X. In the event that Residential Funding is no longer the Master
Servicer, the Trustee shall indemnify Residential Funding for any taxes and
costs including, without limitation, any reasonable attorneys fees imposed on
or incurred by Residential Funding 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
Depositor, 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 Depositor, 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 Depositor,
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 Depositor, 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.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment
(a) This Agreement or any Custodial Agreement may be amended from time to
time by the Depositor, 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 any REMIC
created hereunder 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 the Trust Fund provided
that (A) such change shall not result in reduction of the rating assigned to
any such Class of Certificates below the lower of the then-current rating or
the rating assigned to such Certificates as of the Closing Date, as evidenced
by a letter from each Rating Agency to such effect, and (B) such change shall
not (subject to Section 10.01(f)), as evidenced by an Opinion of Counsel (at
the expense of the party seeking so to modify, eliminate or add such
provisions), cause the Trust Fund or any of the Certificateholders (other
than the transferor) to be subject to a federal tax caused by a transfer to a
Person that is not a Permitted Transferee, or
(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 and is
authorized or permitted under Section 11.01.
(b) This Agreement or any Custodial Agreement may also be amended from time
to time by the Depositor, the Master Servicer, the Trustee and 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, or
(ii) adversely affect in any material respect the interest of the Holders of
Certificates of any Class in a manner other than as described in clause
(i) hereof without the consent of Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating not less
than 66%, or
(iii) 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 (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 Depositor or the Trustee in
accordance with such amendment will not result in the imposition of a federal
tax on the Trust Fund or cause any REMIC hereunder to fail to qualify as a
REMIC at any time that any Certificate is outstanding; provided, that if the
indemnity described in Section 10.01(f) with respect to any taxes that might
be imposed on the Trust Fund has been given, the Trustee shall not require
the delivery to it of the Opinion of Counsel described in this
Section 11.01(c). The Trustee may but shall not be obligated to enter into
any amendment pursuant to this Section that affects its rights, duties and
immunities and this Agreement or otherwise; provided, however, such consent
shall not be unreasonably withheld.
(d) Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 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 Depositor 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 R 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 R Certificateholders, but
shall not be and shall not be deemed to be under any circumstances included
in any REMIC. 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 such REMIC,
(ii) any such reserve fund shall be owned by the Depositor, and (iii) amounts
transferred by such REMIC to any such reserve fund shall be treated as
amounts distributed by such REMIC to the Depositor or any successor, all
within the meaning of Treasury regulations Section 1.860G-2(h) in effect 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
Depositor and such related insurer 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
Certificateholders, the Master Servicer or the Trustee, as applicable;
provided that the Depositor obtains 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.
(f) Notwithstanding anything to the contrary set forth in Sections 11.01
(b), (c), (d), and (e), any amendment of Sections 4.02(c)(x) and 4.08 of this
Agreement shall require the consent of the Swap Counterparty as a third-party
beneficiary of Sections 4.02(c)(x) and 4.08 of this Agreement.
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 the 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 shall have
given its written consent 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
All demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid (except for notices to the Trustee which
shall be deemed to have been duly given only when received), to (a) in the
case of the Depositor, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: President (RAMP), or such other
address as may hereafter be furnished to the Master Servicer and the Trustee
in writing by the Depositor; (b) in the case of the Master Servicer, 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Bond
Administration or such other address as may be hereafter furnished to the
Depositor and the Trustee by the Master Servicer in writing; (c) in the case
of the Trustee, the Corporate Trust Office or such other address as may
hereafter be furnished to the Depositor and the Master Servicer in writing by
the Trustee; (d) in the case of [Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Mortgage Surveillance or such
other address as may be hereafter furnished to the Depositor, Trustee and
Master Servicer by Standard & Poor's]; (e) in the case of [Moody's, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring Department, or
such other address as may be hereafter furnished to the Depositor, the
Trustee and the Master Servicer in writing by Moody's]; and (f) [in the case
of the Swap Counterparty, Hedge Agreement Provider, [_________________], or
such other address as may be hereafter furnished to the Depositor, the
Trustee and the Master Servicer in writing by the Swap Counterparty]. 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. Notices to Rating Agencies
The Depositor, the Master Servicer or the Trustee, as applicable,
(a) shall notify each Rating Agency at such time as it is otherwise required
pursuant to this Agreement to give notice of the occurrence of any of the
events described in clause (i), (ii), (iii), (iv), (vii), (viii), (ix) or
(x) below, (b) shall notify the Subservicer at such time as it is otherwise
required pursuant to this Agreement to give notice of the occurrence of any
of the events described in clause (i), (ii), (iii)(1), (vii)(1) or
(ix) below, or (c) provide a copy to each Rating Agency at such time as
otherwise required to be delivered pursuant to this Agreement of any of the
statements described in clauses (v) and (vi) below:
(i) a material change or amendment to this Agreement,
(ii) the occurrence of an Event of Default,
(iii) (1) the termination or appointment of a successor Master Servicer or
(2) the termination or appointment of a successor Trustee or a change in the
majority ownership of the Trustee,
(iv) 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,
(v) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(vi) the statements required to be delivered pursuant to Sections 3.18 and
3.19,
(vii) (1) a change in the location of the Custodial Account or (2) a change
in the location of the Certificate Account,
(viii) 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,
(ix) the occurrence of the Final Distribution Date, and
(x) 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 (iv), (vii) or (viii) above, the Master Servicer
shall provide prompt written notice to each Rating Agency and the
Subservicer, if applicable, of any such event known to the Master Servicer.
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
(a) 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 Depositor or any
of its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Depositor 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 Depositor, 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.
(b) 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 to the purposes thereof. In
connection with each Supplemental Article, the Depositor 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 any REMIC created
hereunder as a REMIC or result in the imposition of a tax upon the Trust Fund
(including but not limited to the tax on prohibited transaction 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. Intended Third Party Beneficiary
The Swap Counterparty is an express third-party beneficiary of Sections
4.02(c)(x) and 4.08 of this Agreement, and shall have the right to enforce
the provisions of Sections 4.02(c)(x) and 4.08 of this Agreement.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of the Parties; Reasonableness.
The Depositor, the Trustee and the Master Servicer acknowledge and
agree that the purpose of this Article XII is to facilitate compliance by the
Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. The Depositor 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
Depositor 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 fully with the Depositor to deliver
to the Depositor (including any of its assignees or designees), any and all
statements, reports, certifications, records and any other information
necessary in the good faith determination of the Depositor to permit the
Depositor or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Master Servicer, the Trustee
and the Mortgage Loans, or the servicing of the Mortgage Loans, reasonably
believed by the Depositor to be necessary in order to effect such compliance.
Section 12.02. Additional Representations and Warranties of the Trustee.
(a) The Trustee shall be deemed to represent to the Depositor as of the
date on which information is first provided to the Depositor under Section
12.03 that, except as disclosed in writing to the Depositor 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 act or failure to act of the
Trustee; (ii) it has not been terminated as trustee in a securitization of
mortgage loans; (iii) 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;
(iv) there are no material legal or governmental proceedings pending (or
known to be contemplated) against it; and (v) there are no affiliations,
relationships or transactions relating to the Trustee with respect to the
Depositor or any sponsor, issuing entity, servicer, trustee, originator,
significant obligor, enhancement or support provider or other material
transaction party (as such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Agreement (the "Transaction
Parties").
(b) If so requested by the Depositor on any date following the date on
which information is first provided to the Depositor under Section 12.03, 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 request or such confirmation, provide
reasonably adequate disclosure of the pertinent facts, in writing, to the
requesting party.
Section 12.03. Information to Be Provided by the Trustee.
(c) If so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
Certificates, the Trustee shall (i) notify the Depositor in writing of (A)
any material litigation or governmental proceedings pending against the
Trustee and (B) any affiliations or relationships that develop following the
Closing Date between the Trustee and any Transaction Party, and (ii) provide
to the Depositor a written description of such proceedings, affiliations or
relationships.
(d) In addition to such information as the Trustee is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Depositor , the Trustee shall provide such information reasonably available
to the Trustee regarding the performance or servicing of the Mortgage Loans
as is reasonably required to facilitate preparation of distribution reports
in accordance with Item 1121 of Regulation AB.
Section 12.04. Report on Assessment of Compliance and Attestation.
On or before March 15 of each calendar year, the Trustee shall:
(e) deliver to the Depositor a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Trustee's assessment of
compliance with the 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
Depositor and signed by an authorized officer of the Trustee, and shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit S hereto; and
(f) deliver to the Depositor a report of a registered public accounting
firm reasonably acceptable to the Depositor 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.
(g) The Trustee shall indemnify the Depositor, each affiliate of the
Depositor, 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' letter 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;
(ii) any failure by the Trustee to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Article XII; or
(iii) any breach by the Trustee of a representation or warranty set forth in
Section 12.02(a) or in a writing furnished pursuant to Section 12.02(b).
(h) In the case of any failure of performance described in clause (ii) of
this Section, the Trustee shall promptly reimburse the Depositor for all
costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants' letter or other material not
delivered as required by the Trustee.
[Signature Page Follows]
IN WITNESS WHEREOF, the Depositor, 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 date and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC.
By: __________________________
Name:
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
By: __________________________
Name:
Title:
[_______________________],
as Trustee
By: __________________________
Name:
Title:
STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
On the ___ day of [___________], 20[_], before me, a notary public in
and for said State, personally appeared _______________, known to me to be a
[Vice President] of Residential Asset Mortgage Products, 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 [___________], 20[_], before me, a notary public in
and for said State, personally appeared ____________, known to me to be a
[Managing Director] of Residential Funding Corporation, one of the
corporations that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 2005, before me, a notary public in and for
said State, personally appeared ______________, known to me to be a Assistant
Vice President of JPMorgan Chase Bank, N.A., a New York banking corporation
that executed the within instrument, and also known to me to be the person
who executed it on behalf of said banking corporation, and acknowledged to me
that such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
[Notarial Seal]
=================================================================================
EXHIBIT A
FORM OF CLASS A-[ ] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 [COUPLED WITH THE RIGHT TO RECEIVE PAYMENTS UNDER THE
SWAP AGREEMENT].
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE
RESTRICTIONS IN SECTION 5.02(e) OF THE POOLING AND SERVICING AGREEMENT SHALL
INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, 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. [_]
CUSIP: [______]
Date of Pooling and Servicing [Adjustable Pass-Through Rate]
Agreement and Cut-off Date:
[________] 1, 20[_]
First Distribution Date:
[_________], 20[_] Percentage Interest: [_]%
Master Servicer: Aggregate Initial Certificate
Residential Funding Corporation Principal Balance of the Class
A-[_] Certificates: $_________
Final Scheduled Distribution Initial Certificate Principal
Date: Balance of this Class A-[_]
[___________], 20[_] Certificate:
$_________
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 20[_]-RZ[_]
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 one- to four-family fixed and adjustable
interest rate, first lien mortgage loans sold by
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below
or [_______________] 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 Asset Mortgage Products, Inc.,
the Master Servicer, the Trustee or [_______________] or any of their
affiliates. None of the Depositor, the Master Servicer, [_______________] or
any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that [____________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class A-[_] Certificates, both
as specified above) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of one- to four-family fixed
and adjustable interest rate, first lien mortgage loans (the "Mortgage
Loans"), sold by Residential Asset Mortgage Products, Inc. (hereinafter
called the "Depositor," which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as specified above (the "Agreement")
among the Depositor, the Master Servicer and [_______________], as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
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 day prior (or if such last day is
not a Business Day, the Business Day immediately preceding such day) to such
Distribution Date (the "Record Date"), from the Available Distribution Amount
in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount of interest and principal, if any, required
to be distributed to Holders of Class A-[_] Certificates on such Distribution
Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by
the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear
on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of, this Certificate at the office or agency
appointed by the Trustee for that purpose in [_______________]. The Initial
Certificate Principal Balance of this Certificate is set forth above. The
Certificate Principal Balance hereof will be reduced from time to time
pursuant to the Agreement.
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 Depositor and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations
of the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% 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.
No transfer of this Certificate or any interest therein shall be made
to any employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or
any person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition (each of the
foregoing, a "Plan Investor").
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the
Depositor, the Master Servicer, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan, and (ii) the purchase by the
Master Servicer or Holder of the Class SB Certificates, as described in the
Agreement, thereby effecting early retirement of the related Certificates.
The Agreement permits, but does not require, the purchase by the Master
Servicer or Holder of the Class SB Certificates, as described in the
Agreement, (i) from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, at a price determined as
provided in the Agreement, or (ii) in whole, but not in part, of all of the
Class A Certificates, [Class M Certificates] and Class SB Certificates from
the Holders thereof; provided, that any such options may only be exercised if
the Stated Principal Balance of the Mortgage Loans (before giving effect to
the distributions to be made on such Distribution Date), 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
[_______________],
as Trustee
By:___________________________________
Authorized Signatory
Dated: [_______], 20[_]
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[_] Certificates referred to in the
within-mentioned Agreement.
[_______________], 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 Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of
assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________for
the account of ______________________________________________________ account
number or, if mailed by check, to
__________________________________________________
Applicable statements should be mailed to:
_____________________________________
___________________________________________________________________________________________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________, as its agent.
EXHIBIT B
FORM OF CLASS M-[_] CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A AND
CLASS M-[_] CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED
BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
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.
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") [COUPLED WITH A RIGHT TO RECEIVE PAYMENTS
UNDER THE SWAP AGREEMENT].
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF THIS
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE
RESTRICTIONS IN SECTION 5.02(e) OF THE POOLING AND SERVICING AGREEMENT SHALL
INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, 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. M-[_]
CUSIP: [______]
Date of Pooling and Servicing [Adjustable Pass-Through Rate]
Agreement and Cut-off Date:
[________] 1, 20[_]
First Distribution Date:
[________], 20[_] Aggregate Initial Certificate
Principal Balance of the Class
Master Servicer: M-[_]Certificates: $______
Residential Funding Corporation
Final Scheduled Distribution Initial Certificate Principal
Date: Balance of the Class M-[_]
_________ __, 20[_] Certificates: $_________
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 20[_]-RZ[_]
evidencing a percentage interest in the distributions
allocable to the Class M-[_] Certificates with
respect to a Trust Fund consisting primarily of a
pool of one- to four-family fixed and adjustable
interest rate, first lien mortgage loans sold by
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below
or [___________] 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 Asset Mortgage Products, Inc.,
the Master Servicer, the Trustee or [___________] or any of their affiliates.
None of the Depositor, the Master Servicer, [___________] or any of their
affiliates will have any obligation with respect to any certificate or other
obligation secured by or payable from payments on the Certificates.
This certifies that [___________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class M-[_] Certificates, both
as specified above) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of one- to four-family fixed
and adjustable rate, first lien mortgage loans (the "Mortgage Loans"), sold
by Residential Asset Mortgage Products, Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement
referred to below). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as specified above (the "Agreement") among the
Depositor, the Master Servicer and [___________], as trustee (the "Trustee"),
a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
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 day prior (or if such last day is
not a Business Day, the Business Day immediately preceding such day) to such
Distribution Date (the "Record Date"), from the Available Distribution Amount
in an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount of interest and principal, if any, required
to be distributed to Holders of Class M-[_] Certificates on such Distribution
Date.
Distributions on this Certificate will be made either by the Master
Servicer acting on behalf of the Trustee or by a Paying Agent appointed by
the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear
on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose in [___________]. The 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 Certificate or any interest therein shall be made
to any employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or
any person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition (each of the
foregoing, a "Plan Investor").
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 Depositor and the Master Servicer of advances made, or certain
expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations
of the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Certificates affected thereby. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional
circumstances, without the consent of the Holders of certain Classes of
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies appointed by the Trustee in [__________________],
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 Depositor, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the
Depositor, the Master Servicer, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan, and (ii) the purchase by the
Master Servicer or Holder of the Class SB Certificates, as described in the
Agreement, thereby effecting early retirement of the related Certificates.
The Agreement permits, but does not require, the purchase by the Master
Servicer or Holder of the Class SB Certificates, as described in the
Agreement, (i) from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, at a price determined as
provided in the Agreement, or (ii) in whole, but not in part, of all of the
Class A Certificates, Class M Certificates and Class SB Certificates from the
Holders thereof; provided, that any such options may only be exercised if the
Stated Principal Balance of the Mortgage Loans (before giving effect to the
distributions to be made on such Distribution Date), 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
[__________________],
as Trustee
By:___________________________________
Authorized Signatory
Dated: [_________], 20[_]
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-[_] Certificates referred to in the
within-mentioned Agreement.
[__________________],
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 Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of
assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________for
the account of ______________________________________________________ account
number or, if mailed by check, to
__________________________________________________
Applicable statements should be mailed to:
_____________________________________
___________________________________________________________________________________________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________, as its agent.
1
EXHIBIT C
FORM OF CLASS SB CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND CLASS M 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 (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT
AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT (THE "AGREEMENT").
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
Certificate No. [_]
CUSIP:__________
Date of Pooling and Servicing Percentage Interest: [__]%
Agreement and Cut-off Date:
[_____________], 20[_]
First Distribution Date: Aggregate Certificate Principal
[_____________], 20[_] Balance of the Class SB
Certificates: $______
Master Servicer:
Residential Funding Corporation
Final Scheduled Distribution Initial Certificate Principal
Date: Balance of this Certificate:
[_____________], 20[_] $_________
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 20[_]-RZ[_]
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 fixed and adjustable interest
rate, first lien mortgage loans sold by RESIDENTIAL
ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below
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 Asset Mortgage Products, Inc., the Master
Servicer, the Trustee or any of their affiliates. None of the Depositor, the
Master Servicer 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 SB Certificates, both as specified
above) in certain distributions with respect to the Trust Fund consisting
primarily of an interest in a pool of one- to four-family fixed and
adjustable interest rate, first lien mortgage loans (the "Mortgage Loans"),
sold by Residential Asset Mortgage Products, Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement
referred to below). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as specified above (the "Agreement") among the
Depositor, the Master Servicer and [_____________], as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof, assents and by which such Holder is bound.
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 in which the related Distribution
Date occurs (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 in [_____________].
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 not accrue interest on its Certificate Principal Balance.
No transfer of this Class SB Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act
of 1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Depositor may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor that such transfer is exempt (describing the applicable exemption
and the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment
letter in the form described by the Agreement. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Depositor, the Master Servicer and the Certificate Registrar acting on
behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with such Federal and state
laws.
No transfer of this Certificate or any interest therein shall be made
to any employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or
any person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition (each of the
foregoing, a "Plan Investor").
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 Depositor and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations
of the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Certificates affected thereby. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional
circumstances, without the consent of the. Holders of certain Classes of
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies appointed by the Trustee in [_____________], 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 Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the
Depositor, the Master Servicer, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan, and (ii) the purchase by the
Master Servicer or Holder of the Class SB Certificates, as described in the
Agreement, thereby effecting early retirement of the related Certificates.
The Agreement permits, but does not require, the purchase by the Master
Servicer or Holder of the Class SB Certificates, as described in the
Agreement, (i) from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, at a price determined as
provided in the Agreement, or (ii) in whole, but not in part, of all of the
[Class A Certificates, Class M Certificates] and Class SB Certificates from
the Holders thereof; provided, that any such options may only be exercised if
the Stated Principal Balance of the Mortgage Loans (before giving effect to
the distributions to be made on such Distribution Date), 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
[________________________],
as Trustee
By:___________________________________
Authorized Signatory
Dated: [_____________], 20[_]
CERTIFICATE OF AUTHENTICATION
This is one of the Class SB Certificates referred to in the
within-mentioned Agreement.
[________________________],
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 Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of
assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________for
the account of ______________________________________________________ account
number or, if mailed by check, to
__________________________________________________
Applicable statements should be mailed to:
_____________________________________
___________________________________________________________________________________________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________, as its agent.
EXHIBIT D
FORM OF CLASS R-[__] CERTIFICATE
THE CLASS R-[_] CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS
CONSTITUTING THE AVAILABLE DISTRIBUTION AMOUNT UNTIL SUCH TIME AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN (THE "AGREEMENT").
THIS CLASS R-[_] CERTIFICATE IS SUBORDINATE TO THE CLASS A, CLASS M AND
CLASS SB CERTIFICATES, TO THE EXTENT DESCRIBED HEREIN AND IN THE AGREEMENT.
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").
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 THEREIN SHALL BE MADE
TO ANY EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR ANY PERSON
(INCLUDING AN INSURANCE COMPANY INVESTING ITS GENERAL ACCOUNT, AN INVESTMENT
MANAGER, A NAMED FIDUCIARY OR A TRUSTEE OF ANY SUCH PLAN) WHO IS USING "PLAN
ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION (EACH OF THE FOREGOING, A
"PLAN INVESTOR").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
MASTER SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF
THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR XXXXXXX MAC, A MAJORITY OF ITS
BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (B) A FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY
OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE
TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO
THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED BY
SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL
ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E)
BEING HEREIN REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (F) AN AGENT
OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE
THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR
ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
Certificate No. [_]
Class R-[_] [Subordinate]
Date of Pooling and Servicing Percentage Interest: [100]%
Agreement and Cut-off Date:
[_________]1, 20[_]
First Distribution Date: Final Scheduled Distribution Date:
[_________], 20[_] [_________], 20[_]
Master Servicer:
Residential Funding Corporation
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES
SERIES 20[_]-RZ[_]
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 one- to four-family fixed and adjustable
interest rate, first lien mortgage loans sold by
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
This Certificate is payable solely from the assets of the Trust Fund
and does not represent an obligation of or interest in Residential Asset
Mortgage Products, Inc., the Master Servicer, the Trustee referred to below
or [____________]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 Asset Mortgage Products, Inc.,
the Master Servicer, the Trustee or [____________] or any of their
affiliates. None of the Depositor, the Master Servicer or [____________] 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 specified above in certain
distributions with respect to the Trust Fund consisting primarily of a pool
of one- to four-family fixed and adjustable interest rate, first lien
mortgage loans (the "Mortgage Loans"), sold by Residential Asset Mortgage
Products, Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Agreement referred to below). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as specified
above (the "Agreement) among the Depositor, the Master Servicer and
[____________], as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of
the month immediately preceding the month of such distribution (the "Record
Date"), from the Available Distribution Amount in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
amount of interest and principal, if any, required to be distributed to
Holders of Class R-[_] Certificates on such Distribution Date.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions set forth in the Agreement to the effect that (i)
each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer
of any Ownership Interest in this Certificate will be conditioned upon the
delivery to the Trustee of, among other things, an affidavit to the effect
that it is a United States Person and Permitted Transferee, (iii) any
attempted or purported transfer of any Ownership Interest in this Certificate
in violation of such restrictions will be absolutely null and void and will
vest no rights in the purported transferee, and (iv) if any person other than
a United States Person and a Permitted Transferee acquires any Ownership
Interest in this Certificate in violation of such restrictions, then the
Master Servicer 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 Master Servicer, which purchaser may be the Master
Servicer, or any affiliate of the Master Servicer, on such terms and
conditions as the Master Servicer may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose in [____________]. The Holder of
this Certificate may have additional obligations with respect to this
Certificate, including tax liabilities.
No transfer of this Class R-[_] Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act
of 1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Depositor may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Depositor that such transfer is exempt (describing the applicable exemption
and the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment
letter in the form described by the Agreement. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Depositor, the Master Servicer and the Certificate Registrar acting on
behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with such Federal and state
laws.
No transfer of this Certificate or any interest herein shall be made to
any employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code (a
"Plan"), any Person acting, directly or indirectly, on behalf of any such
Plan or any Person acquiring such Certificates with "plan assets" of a Plan
within the meaning of the Department of Labor regulation promulgated at 29
C.F.R. §2510.3-101 unless the Depositor, the Trustee and the Master Servicer
are provided with an Opinion of Counsel which establishes to the satisfaction
of the Depositor, the Trustee and the Master Servicer that the purchase or
holding of this Certificate is permissible under applicable law, will not
constitute or result in any non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Depositor, the Master
Servicer, the Trustee or the Trust Fund 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 Depositor, the Master Servicer, the
Trustee or the Trust Fund. In lieu of such Opinion of Counsel, a Person
acquiring this Certificate may provide a certification in the form of
paragraph fifteen of Exhibit H-1 to the Agreement, which the Trustee may rely
upon without further inquiry or investigation.
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 Depositor and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations
of the Depositor, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66% of the Percentage
Interests of each Class of Certificates affected thereby. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Agreement also
permits the amendment thereof in certain circumstances without the consent of
the Holders of any of the Certificates and, in certain additional
circumstances, without the consent of the Holders of certain Classes of
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies appointed by the Trustee in [____________], 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 Depositor, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, the Trustee or
the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the
Depositor, the Master Servicer, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier
of (i) the maturity or other liquidation of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan, and (ii) the purchase by the
Master Servicer or Holder of the Class SB Certificates, as described in the
Agreement, thereby effecting early retirement of the related Certificates.
The Agreement permits, but does not require, the purchase by the Master
Servicer or Holder of the Class SB Certificates, as described in the
Agreement, (i) from the Trust Fund of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, at a price determined as
provided in the Agreement, or (ii) in whole, but not in part, of all of the
[Class A Certificates, Class M Certificates] and Class SB Certificates from
the Holders thereof; provided, that any such options may only be exercised if
the Stated Principal Balance of the Mortgage Loans (before giving effect to
the distributions to be made on such Distribution Date), 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.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
[________________________],
as Trustee
By:___________________________________
Authorized Signatory
Dated: [__________], 20[_]
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-[_] Certificates referred to in the
within-mentioned Agreement.
[________________________],
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 Asset-Backed
Pass-Through Certificate and hereby authorizes the transfer of registration
of such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________
Dated:_________________ _________________________________
Signature by or on behalf of
assignor
_________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
______________________________________________________________________________for
the account of ______________________________________________________ account
number or, if mailed by check, to
__________________________________________________
Applicable statements should be mailed to:
_____________________________________
___________________________________________________________________________________________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________, as its agent.
E-15
EXHIBIT E
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of [___________] 1, 20[_], by and among
[________________________]., as trustee (including its successors under the
Pooling Agreement defined below, the "Trustee"), RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC., as company (together with any successor in interest, the
"Company"), RESIDENTIAL FUNDING CORPORATION, as master servicer (together
with any successor in interest or successor under the Pooling Agreement
referred to below, the "Master Servicer") and [________________________], as
custodian (together with any successor in interest or any successor appointed
hereunder, the "Custodian").
W I T N E S S E T H T H A T:
WHEREAS, the Company, the Master Servicer, and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of [___________] 1, 20[_],
relating to the issuance of Residential Asset Mortgage Products, Inc.,
Mortgage Asset-Backed Pass-Through Certificates, Series 20[_]-RZ[_] (as in
effect on the date of this Agreement, the "Original Pooling Agreement," and
as amended and supplemented from time to time, the "Pooling Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company and the Master Servicer under the Pooling Agreement,
all upon the terms and conditions and subject to the limitations hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Original Pooling Agreement, unless
otherwise required by the context herein.
ARTICLE II
Custody of Mortgage Documents
Section 2.1 Custodian to Act as Agent: Acceptance of Mortgage Files. The
Custodian, as the duly appointed agent of the Trustee for these purposes,
acknowledges receipt of the Mortgage Files relating to the Mortgage Loans
identified on the schedule attached hereto (the "Mortgage Files") and
declares that it holds and will hold the Mortgage Files as agent for the
Trustee, in trust, for the use and benefit of all present and future
Certificateholders.
Section 2.2 Recordation of Assignments. If any Mortgage File includes one
or more assignments of the related Mortgage Loans to the Trustee that have
not been recorded, each such assignment shall be delivered by the Custodian
to the Company for the purpose of recording it in the appropriate public
office for real property records, and the Company, at no expense to the
Custodian, shall promptly cause to be recorded in the appropriate public
office for real property records each such assignment and, upon receipt
thereof from such public office, shall return each such assignment to the
Custodian.
Section 2.3 Review of Mortgage Files.
(a) On or prior to the Closing Date, the Custodian shall deliver to the
Trustee an Initial Certification in the form annexed hereto as Exhibit One
evidencing receipt of a Mortgage File for each Mortgage Loan listed on the
Schedule attached hereto (the "Mortgage Loan Schedule"). The parties hereto
acknowledge that certain documents referred to in Subsection 2.01(b)(i) of
the Pooling Agreement may be missing on or prior to the Closing Date and such
missing documents shall be listed as a Schedule to Exhibit One.
(b) Within [45] days after the Closing Date, the Custodian agrees, for the
benefit of Certificateholders, to review in accordance with the provisions of
Section 2.02 of the Pooling Agreement each Mortgage File and to deliver to
the Trustee an Interim Certification in the form annexed hereto as Exhibit
Two to the effect that all documents required to be delivered pursuant to
Section 2.01 (b) of the Pooling Agreement have been executed and received and
that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, except for any exceptions listed on Schedule A attached to
such Interim Certification. For purposes of such review, the Custodian shall
compare the following information in each Mortgage File to the corresponding
information in the Mortgage Loan Schedule: (i) the loan number, (ii) the
borrower name and (iii) the original principal balance. In the event that
any Mortgage Note or Assignment of Mortgage has been delivered to the
Custodian by the Company in blank, the Custodian, upon the direction of the
Company, shall cause each such Mortgage Note to be endorsed to the Trustee
and each such Assignment of Mortgage to be completed in the name of the
Trustee prior to the date on which such Interim Certification is delivered to
the Trustee. Within [45] days of receipt of the documents required to be
delivered pursuant to Section 2.01(c) of the Pooling Agreement, the Custodian
agrees, for the benefit of the Certificateholders, to review each such
document, and upon the written request of the Trustee to deliver to the
Trustee and an updated Schedule A to the Interim Certification. The
Custodian shall be under no duty or obligation to inspect, review or examine
said documents, instruments, certificates or other papers to determine that
the same are genuine, enforceable, or appropriate for the represented purpose
or that they have actually been recorded or that they are other than what
they purport to be on their face, or that the MIN is accurate. If in
performing the review required by this Section 2.3 the Custodian finds any
document or documents constituting a part of a Mortgage File to be missing or
defective in respect of the items reviewed as described in this Section
2.3(b), the Custodian shall promptly so notify the Company, the Master
Servicer and the Trustee.
(c) Upon receipt of all documents required to be in the Mortgage Files the
Custodian shall deliver to the Trustee a Final Certification in the form
annexed hereto as Exhibit Three evidencing the completeness of the Mortgage
Files.
Upon receipt of written request from the Trustee, the Company or the
Master Servicer, the Custodian shall as soon as practicable supply the
Trustee with a list of all of the documents relating to the Mortgage Loans
required to be delivered pursuant to Section 2.01 (b) of the Pooling
Agreement not then contained in the Mortgage Files.
Section 2.4 Notification of Breaches of Representations and Warranties.
If the Custodian discovers, in the course of performing its custodial
functions, a breach of a representation or warranty made by the Master
Servicer or the Company as set forth in the Pooling Agreement with respect to
a Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt
written notice to the Company, the Master Servicer and the Trustee.
Section 2.5 Custodian to Cooperate: Release of Mortgage Files. Upon the
repurchase or substitution of any Mortgage Loan pursuant to Article II of the
Pooling Agreement or payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full will be escrowed
in a manner customary for such purposes, the Master Servicer shall
immediately notify the Custodian by delivering to the Custodian a Request for
Release (in the form of Exhibit Four attached hereto or a mutually acceptable
electronic form) and shall request delivery to it of the Mortgage File. The
Custodian agrees, upon receipt of such Request for Release, promptly to
release to the Master Servicer the related Mortgage File.
Upon receipt of a Request for Release from the Master Servicer, signed
by a Servicing Officer, that (i) the Master Servicer or a Subservicer, as the
case may be, has made a deposit into the Certificate Account in payment for
the purchase of the related Mortgage Loan in an amount equal to the Purchase
Price for such Mortgage Loan or (ii) the Company has chosen to substitute a
Qualified Substitute Mortgage Loan for such Mortgage Loan, the Custodian
shall release to the Master Servicer the related Mortgage File.
Upon written notification of a substitution, the Master Servicer shall
deliver to the Custodian and the Custodian agrees to accept the Mortgage Note
and other documents constituting the Mortgage File with respect to any
Qualified Substitute Mortgage Loan, upon receiving written notification from
the Master Servicer of such substitution.
From time to time as is appropriate for the servicing or foreclosures
of any Mortgage Loan, including, for this purpose, collection under any
Primary Insurance Policy or any Mortgage Pool Insurance Policy, the Master
Servicer shall deliver to the Custodian a Request for Release certifying as
to the reason for such release. Upon receipt of the foregoing, the Custodian
shall deliver the Mortgage File or such document to the Master Servicer. The
Master Servicer shall cause each Mortgage File or any document therein so
released to be returned to the Custodian when the need therefor by the Master
Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated
and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Custodial Account or (ii) the Mortgage File or such document
has been delivered to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or pursuing legal
action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non-judicially, and the Master Servicer has delivered to
the Custodian an updated Request for Release signed by a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File or such document was delivered and the purpose or purposes of such
delivery. Immediately upon receipt of any Mortgage File returned to the
Custodian by the Master Servicer, the Custodian shall deliver a signed
acknowledgement to the Master Servicer, confirming receipt of such Mortgage
File.
Upon the written request of the Master Servicer, the Custodian will
send to the Master Servicer copies of any documents contained in the Mortgage
File.
Section 2.6 Assumption Agreements. In the event that any assumption
agreement or substitution of liability agreement is entered into with respect
to any Mortgage Loan subject to this Agreement in accordance with the terms
and provisions of the Pooling Agreement, the Master Servicer shall notify the
Custodian that such assumption or substitution agreement has been completed
by forwarding to the Custodian the original of such assumption or
substitution agreement, which shall be added to the related Mortgage File
and, for all purposes, shall be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting parts
thereof.
ARTICLE III
Concerning the Custodian
Section 3.1 Custodian a Bailee and Agent of the Trustee. With respect to
each Mortgage Note, Mortgage and other documents constituting each Mortgage
File which are delivered to the Custodian, the Custodian is exclusively the
bailee and agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. Except upon compliance with
the provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage
or other document constituting a part of a Mortgage File shall be delivered
by the Custodian to the Company or the Master Servicer or otherwise released
from the possession of the Custodian.
The Master Servicer shall promptly notify the Custodian in writing if
it shall no longer be a member of MERS, or if it otherwise shall no longer be
capable of registering and recording Mortgage Loans using MERS. In addition,
the Master Servicer shall (i) promptly notify the Custodian in writing when a
MERS Mortgage Loan is no longer registered with and recorded under MERS and
(ii) concurrently with any such deregistration of a MERS Mortgage Loan,
prepare, execute and record an original assignment from MERS to the Trustee
and deliver such assignment to the Custodian.
Section 3.2 Indemnification. The Company hereby agrees to indemnify and
hold the Custodian harmless from and against all claims, liabilities, losses,
actions, suits or proceedings at law or in equity, or any other expenses,
fees or charges of any character or nature, which the Custodian may incur or
with which the Custodian may be threatened by reason of its acting as
custodian under this Agreement, including indemnification of the Custodian
against any and all expenses, including attorney's fees if counsel for the
Custodian has been approved by the Company, and the cost of defending any
action, suit or proceedings or resisting any claim. Notwithstanding the
foregoing, it is specifically understood and agreed that in the event any
such claim, liability, loss, action, suit or proceeding or other expense, fee
or charge shall have been caused by reason of any negligent act, negligent
failure to act or willful misconduct on the part of the Custodian, or which
shall constitute a willful breach of its duties hereunder, the
indemnification provisions of this Agreement shall not apply.
Section 3.3 Custodian May Own Certificates. The Custodian in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Custodian.
Section 3.4 Master Servicer to Pay Custodian's Fees and Expenses. The
Master Servicer covenants and agrees to pay to the Custodian from time to
time, and the Custodian shall be entitled to, reasonable compensation for all
services rendered by it in the exercise and performance of any of the powers
and duties hereunder of the Custodian, and the Master Servicer will pay or
reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ), except any such expense, disbursement
or advance as may arise from its negligence or bad faith.
Section 3.5 Custodian May Resign; Trustee May Remove Custodian. The
Custodian may resign from the obligations and duties hereby imposed upon it
as such obligations and duties relate to its acting as Custodian of the
Mortgage Loans. Upon receiving such notice of resignation, the Trustee shall
either take custody of the Mortgage Files itself and give prompt notice
thereof to the Company, the Master Servicer and the Custodian, or promptly
appoint a successor Custodian by written instrument, in duplicate, one copy
of which instrument shall be delivered to the resigning Custodian and one
copy to the successor Custodian. If the Trustee shall not have taken custody
of the Mortgage Files and no successor Custodian shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time. In such event, the
Trustee shall appoint, or petition a court of competent jurisdiction to
appoint, a successor Custodian hereunder. Any successor Custodian shall be a
depository institution subject to supervision or examination by federal or
state authority and shall be able to satisfy the other requirements contained
in Section 3.7 and shall be unaffiliated with the Master Servicer or the
Company.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5
shall become effective upon acceptance of appointment by the successor
Custodian. The Trustee shall give prompt notice to the Company and the Master
Servicer of the appointment of any successor Custodian. No successor
Custodian shall be appointed by the Trustee without the prior approval of the
Company and the Master Servicer.
Section 3.6 Merger or Consolidation of Custodian. Any Person into which
the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person
succeeding to the business of the Custodian, shall be the successor of the
Custodian hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 3.7 Representations of the Custodian. The Custodian hereby
represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and
surplus of at least $15,000,000 and is qualified to do business in the
jurisdictions in which it will hold any Mortgage File.
ARTICLE IV
Miscellaneous Provisions
Section 4.1 Notices. All notices, requests, consents and demands and other
communications required under this Agreement or pursuant to any other
instrument or document delivered hereunder shall be in writing and, unless
otherwise specifically provided, may be delivered personally, by telegram or
telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar
notice in writing).
Section 4.2 Amendments. No modification or amendment of or supplement to
this Agreement shall be valid or effective unless the same is in writing and
signed by all parties hereto, and neither the Company, the Master Servicer
nor the Trustee shall enter into any amendment hereof except as permitted by
the Pooling Agreement. The Trustee shall give prompt notice to the Custodian
of any amendment or supplement to the Pooling Agreement and furnish the
Custodian with written copies thereof.
Section 4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Master Servicer and at
its expense on direction by the Trustee (pursuant to the request of holders
of Certificates evidencing undivided interests in the aggregate of not less
than 25% of the Trust Fund), but only upon direction accompanied by an
Opinion of Counsel reasonably satisfactory to the Master Servicer to the
effect that the failure to effect such recordation is likely to materially
and adversely affect the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
Section 4.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the holders thereof.
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
[________________]
Address: as Trustee
[________________]
[________________]
Attention: Residential Asset Mortgage By: _______________________________
Products, Inc., Series Name:_____________________
20[_]-RZ[_] Title: ______________________
Address: RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By: _______________________________
Name:_____________________
Title: ______________________
Address: RESIDENTIAL FUNDING CORPORATION, as
Master Servicer.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
By: _______________________________
Name:_____________________
Title: ______________________
Address: [CUSTODIAN]
[________________]
[________________]
[________________]
By: _______________________________
Name:_____________________
Title: ______________________
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the _____ day of _______________, 20[_], before me, a notary public
in and for said State, personally appeared _____________, known to me to be a
___________ of [________________], a [__________] banking corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said banking corporation and acknowledged to me that
such banking corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________
Notary Public
[SEAL]
STATE OF MINNESOTA )
)ss.:
COUNTY OF HENNEPIN )
On the _____ day of _______________, 20[_], before me, a notary public
in and for said State, personally appeared ___________________, known to me
to be a _________________ of Residential Asset Mortgage Products, 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
[Notorial Seal]
STATE OF MINNESOTA )
)ss.:
COUNTY OF HENNEPIN )
On the _____ day of _______________, 20[_], before me, a notary public
in and for said State, personally appeared ___________________, known to me
to be a _________________ of Residential Funding Corporation, one of the
corporations that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________
Notary Public
[Notorial Seal]
STATE OF MINNESOTA )
)ss.:
COUNTY OF HENNEPIN )
On the _____ day of _______________, 20[_], before me, a notary public
in and for said State, personally appeared ___________________, known to me
to be a _________________ of [________________], 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
ANNEX I TO EXHIBIT E
FORM OF CUSTODIAN
INITIAL CERTIFICATION
[__________], 20[_]
[________________]
[________________]
[________________]
Re: Custodial Agreement, dated as of [__________], 20[_], by and
among [________________], Residential Asset Mortgage Products,
Inc., Residential Funding Corporation and [________________],
relating to Mortgage Asset-Backed Pass-Through Certificates,
Series 20[_]-RZ[_]
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement, and subject to Section 2.02 of the Pooling Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage
File (which contains an original Mortgage Note or an original lost note
affidavit with a copy of the related Mortgage Note) to the extent required in
Section 2.01(b) of the Pooling Agreement with respect to each Mortgage Loan
listed in the Mortgage Loan Schedule, with any exceptions listed on Schedule
A attached hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial
Agreement.
[________________]
By: ___________________________________
Name: _________________________________
Title: __________________________________
ANNEX II TO EXHIBIT E
FORM OF CUSTODIAN INTERIM CERTIFICATION
____________ __, 20__
[__________________]
[__________________]
[__________________]
Re: Custodial Agreement, dated as of [___________] 1,
20[_], by and among [__________________], Residential
Asset Mortgage Products, Inc., Residential Funding
Corporation and [__________________], relating to
Mortgage Asset-Backed Pass-
Through Certificates, Series 20[_]-RZ[_]
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement, the undersigned, as Custodian, hereby certifies that it has
received a Mortgage File to the extent required pursuant to Section 2.01(b)
of the Pooling Agreement with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, and it has reviewed the Mortgage File and the
Mortgage Loan Schedule and has determined that: all required documents have
been executed and received and that such documents relate to the Mortgage
Loans identified on the Mortgage Loan Schedule, with any exceptions listed on
Schedule A attached hereto.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial
Agreement.
[__________________]
By: ___________________________________
Name: _________________________________
Title: __________________________________
ANNEX III TO EXHIBIT E
FORM OF CUSTODIAN FINAL CERTIFICATION
____________ __, 20__
[__________________]
[__________________]
[__________________]
Attention: Residential Asset Mortgage Products, Inc., Series 20[_]5-RZ[_]
Re: Custodial Agreement, dated as of [____________],
20[_], by and among [__________________], Residential
Asset Mortgage Products, Inc., Residential Funding
Corporation and [__________________], relating to
Mortgage Asset-Backed Pass-
Through Certificates, Series 20[_]-RZ[_]
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement, the undersigned, as Custodian, hereby certifies that it has
received a Mortgage File with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule and it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: all required documents referred to in
Section 2.01(b) of the Pooling Agreement have been executed and received and
that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Custodial
Agreement.
[__________________]
By: ___________________________________
Name: _________________________________
Title: ________________________________
ANNEX IV TO EXHIBIT E
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by
you for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
______________________________
Residential Funding Corporation
Authorized Signature
****************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off
documents being enclosed with a copy of this form. You should retain this
form for your files in accordance with the terms of the Pooling and Servicing
Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of
Trust
[ ] Title Insurance Policy
[ ] Other: ________________________
___________________________
Name
___________________________
Title
___________________________
Date
EXHIBIT F
MORTGAGE LOAN SCHEDULE
[ON FILE WITH TRUSTEE AND CUSTODIAN]
EXHIBIT G
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by
you for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
MIN#:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan Prepaid in Full
Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
______________________________
Residential Funding Corporation
Authorized Signature
****************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off
documents being enclosed with a copy of this form. You should retain this
form for your files in accordance with the terms of the Pooling and Servicing
Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of
Trust
[ ] Title Insurance Policy
[ ] Other: ________________________
___________________________
Name
___________________________
Title
___________________________
Date
X-0-0
X-0-0
XXXXXXX X-0
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
)ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or beneficial
owner of the Mortgage Asset-Backed Pass-Through Certificates, Series
20[_]-RZ[_], 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 Section 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 an
electing large partnership 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. That the Owner is aware that the Trustee will not register the transfer
of any Class R-__ Certificates unless the transferee, or the transferee's
agent, delivers to it an affidavit and agreement, among other things, in
substantially the same form as this affidavit and agreement. The Owner
expressly agrees that it will not consummate any such transfer if it knows or
believes that any of the representations contained in such affidavit and
agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face of
the Class R -__ Certificates and the provisions of Section 5.02(f) of the
Pooling and Servicing Agreement under which the Class R-__ Certificates were
issued (in particular, clause (iii)(A) and (iii)(B) of Section 5.02(f) which
authorize the Trustee to deliver payments to a person other than the Owner
and negotiate a mandatory sale by the Trustee in the event the Owner holds
such Certificates in violation of Section 5.02(f)). The Owner expressly
agrees to be bound by and to comply with such restrictions and provisions.
7. That the Owner consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a
reasonable arrangement to ensure that the Class R-__ Certificates will only
be owned, directly or indirectly, by an Owner that is not a disqualified
organization.
8. The Owner's Taxpayer Identification Number is ____________________.
9. This affidavit and agreement relates only to the Class R-__
Certificates held by the Owner and not to any other holder of the Class R-__
Certificates. The Owner understands that the liabilities described herein
relate only to the Class R-__ Certificates.
10. That no purpose of the Owner relating to the transfer of any of the
Class R-__ Certificates by the Owner is or will be to impede the assessment
or collection of any tax; in making this representation, the Owner warrants
that the Owner is familiar with (i) Treasury Regulation 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 Annex I.
11. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents
to and for the benefit of the person from whom it acquired the Class R-__
Certificate that the Owner intends to pay taxes associated with holding such
Class R-__ Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R-__
Certificate.
12. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of
the Class R-__ Certificates remain outstanding.
13. 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.
14. The Owner hereby agrees that it will not cause income from the Class
R-__ Certificates to be attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of the
Owner or another United States taxpayer.
15. The Owner hereby certifies, represents and warrants to, and covenants
with the Depositor, the Trustee and the Master Servicer that the following
statement is accurate:
The Certificates are not being acquired by, and will not be
transferred to, any employee benefit plan or other plan or arrangement
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"), or any person (including an insurance company investing its
general account, an investment manager, a named fiduciary or a trustee
of any such plan) who is using "plan assets" of any such plan to effect
such acquisition (each of the foregoing, a "Plan Investor").
In addition, the Owner hereby certifies, represents and warrants to,
and covenants with, the Depositor, the Trustee and the Master Servicer that
the Owner will not transfer such Certificates to any Plan Investor or person
unless either such Plan Investor or person meets the requirements set forth
in the statement 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 ______________ 20__.
[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__
ANNEX I TO EXHIBIT H-1
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage
investment conduits (REMICs). The final regulations provide additional
limitations on the circumstances under which transferors may claim safe
harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and,
pending receipt and evaluation of public comments, approved by the Office of
Management and Budget (OMB) under 44 U.S.C. 3507 and assigned control number
1545-1675.
The collection of information in this regulation is in Sec.
1.860E-1(c)(5)(ii). This information is required to enable the IRS to verify
that a taxpayer is complying with the conditions of this regulation. The
collection of information is mandatory and is required. Otherwise, the
taxpayer will not receive the benefit of safe harbor treatment as provided in
the regulation. The likely respondents are businesses and other for-profit
institutions.
Comments on the collection of information should be sent to the Office
of Management and Budget, Attn: Desk Officer for the Department of the
Treasury, Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX,
00000, with copies to the Internal Revenue Service, Attn: IRS Reports
Clearance Officer, W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the
collection of information should be received by September 17, 2002. Comments
are specifically requested concerning:
Whether the collection of information is necessary for the proper
performance of the functions of the Internal Revenue Service,
including whether the information will have practical utility;
The accuracy of the estimated burden associated with the collection
of information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the collection of information may
be minimized, including through the application of automated
collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid control
number assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an
estimated number of respondents of 470 and an estimated average annual burden
hours per respondent of one hour.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the administration
of any internal revenue law. Generally, tax returns and tax return
information are confidential, as required by 26 U.S.C. 6103.
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 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.
The notice of proposed rulemaking also contained rules for FASITs.
Section 1.860H-6(g) of the proposed regulations provides requirements for
transfers of FASIT ownership interests and adopts a safe harbor by reference
to the safe harbor provisions of the REMIC regulations. In January 2001, the
IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to set forth an
alternative safe harbor that taxpayers could use while the IRS and the
Treasury considered comments on the proposed regulations. Under the
alternative safe harbor, if a transferor meets the investigation requirement
and the representation requirement but the transfer fails to meet the formula
test, the transferor may invoke the safe harbor if the transferee meets a
two-prong test (the asset test). A transferee generally meets the first prong
of this test if, at the time of the transfer, and in each of the two years
preceding the year of transfer, the transferee's gross assets exceed $100
million and its net assets exceed $10 million. A transferee generally meets
the second prong of this test if it is a domestic, taxable corporation and
agrees in writing not to transfer the interest to any person other than
another domestic, taxable corporation that also satisfies the requirements of
the asset test. A transferor cannot rely on the asset test if the transferor
knows, or has reason to know, that the transferee will not comply with its
written agreement to limit the restrictions on subsequent transfers of the
residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied
in the case of a transfer or assignment of a noneconomic residual interest to
a foreign branch of an otherwise eligible transferee. If such a transfer or
assignment were permitted, a corporate taxpayer might seek to claim that the
provisions of an applicable income tax treaty would resource excess inclusion
income as 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.
It is anticipated that when final regulations are adopted with respect
to FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in
this document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of
noneconomic residual interests in REMICs occurring on or after August 19,
2002.
Special Analyses
It is hereby certified that these regulations will not have a
significant economic impact on a substantial number of small entities. This
certification is based on the fact that it is unlikely that a substantial
number of small entities will hold REMIC residual interests. Therefore, a
Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5
U.S.C. chapter 6) is not required. It has been determined that this Treasury
decision is not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It also has been
determined that sections 553(b) and 553(d) of the Administrative Procedure
Act (5 U.S.C. chapter 5) do not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx.
However, other personnel from the IRS and Treasury Department participated in
their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
________________, 200__
[________________]
[________________]
[________________]
[________________]
[________________]
[________________]
Attention: Residential Funding Corporation Series 20[_]-RZ[_]
Re: Mortgage Asset-Backed Pass-Through
Certificates,
Series 20[_]-RZ[_], Class R-
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
________________________ (the "Seller") to ______________________ (the
"Purchaser") of $___________ Initial Certificate Principal Balance of
Mortgage Asset-Backed Pass-Through Certificates, Series 20[_]-RZ[_], Class
R-__ (the "Certificates"), pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
[________]1, 20[_] among Residential Asset Mortgage Products, Inc., as seller
(the "Company"), Residential Funding Corporation, as master servicer (the
"Master Servicer"), and [______________], as trustee (the "Trustee"). All
terms used herein and not otherwise defined shall have the meanings set forth
in the Pooling and Servicing Agreement. The Seller hereby certifies,
represents and warrants to, and covenants with, the Company and the Trustee
that:
1. No purpose of the Seller relating to the transfer of the Certificate by
the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
2. The Seller understands that the Purchaser has delivered to the Trustee
and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit H-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 I
FORM OF INVESTOR REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[________________]
[________________]
[________________]
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Residential Funding Corporation Series 20[_]-RZ[_]
Re: Mortgage Asset-Backed Pass-Through
Certificates,
Series 20[_]-RZ[_], Class [B] [SB] [R-[
]]
Ladies and Gentlemen:
____________________________________ (the "Purchaser") intends to
purchase from (the "Seller") $___________ Initial Certificate Principal
Balance of Mortgage Asset-Backed Pass-Through Certificates, Series
20[_]-RZ[_], Class [B] [SB] [R-[ ]](the "Certificates"), issued pursuant to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of [_________] 1, 20[_] among Residential Asset Mortgage Products,
Inc., as seller (the "Company"), Residential Funding Corporation, as master
servicer (the "Master Servicer"), and [__________________], as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Purchaser
hereby certifies, represents and warrants to, and covenants with, the
Company, the Trustee and the Master Servicer that:
1. The Purchaser understands that (a) the Certificates have not been and
will not be registered or qualified under the Securities Act of 1933, as
amended (the "Act") or any state securities law, (b) the Company is not
required to so register or qualify the Certificates, (c) the Certificates may
be resold only if registered and qualified pursuant to the provisions of the
Act or any state securities law, or if an exemption from such registration
and qualification is available, (d) the Pooling and Servicing Agreement
contains restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its own account for
investment only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or any
applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters, and, in particular, in such matters related to securities similar to
the Certificates, such that it is capable of evaluating the merits and risks
of investment in the Certificates, (b) able to bear the economic risks of
such an investment and (c) an "accredited investor" within the meaning of
Rule 501(a) promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an opportunity to
review (a) [a copy of the Private Placement Memorandum, dated
________________, 20__, relating to the Certificates (b)] a copy of the
Pooling and Servicing Agreement and [b] [c] such other information concerning
the Certificates, the Mortgage Loans and the Company as has been requested by
the Purchaser from the Company or the Seller and is relevant to the
Purchaser's decision to purchase the Certificates. The Purchaser has had any
questions arising from such review answered by the Company or the Seller to
the satisfaction of the Purchaser. [If the Purchaser did not purchase the
Certificates from the Seller in connection with the initial distribution of
the Certificates and was provided with a copy of the Private Placement
Memorandum (the "Memorandum") relating to the original sale (the "Original
Sale") of the Certificates by the Company, the Purchaser acknowledges that
such Memorandum was provided to it by the Seller, that the Memorandum was
prepared by the Company solely for use in connection with the Original Sale
and the Company did not participate in or facilitate in any way the purchase
of the Certificates by the Purchaser from the Seller, and the Purchaser
agrees that it will look solely to the Seller and not to the Company with
respect to any damage, liability, claim or expense arising out of, resulting
from or in connection with (a) error or omission, or alleged error or
omission, contained in the Memorandum, or (b) any information, development or
event arising after the date of the Memorandum.]
5. The Purchaser has not and will not nor has it authorized or will it
authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicit any offer to buy or
to accept a pledge, disposition of other transfer of any Certificate, any
interest in any Certificate or any other similar security from any person in
any manner, (c) otherwise approach or negotiate with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) make any general solicitation by means of
general advertising or in any other manner or (e) take any other action, that
(as to any of (a) through (e) above) would constitute a distribution of any
Certificate under the Act, that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law,
or that would require registration or qualification pursuant thereto. The
Purchaser will not sell or otherwise transfer any of the Certificates, except
in compliance with the provisions of the Pooling and Servicing Agreement.
6. The Purchaser hereby certifies, represents and warrants to, and
covenants with the Depositor, the Trustee and the Master Servicer that the
following statement is correct:
The Purchaser is not an employee benefit plan or other plan
or arrangement 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"), or any person (including an insurance company investing its
general account, an investment manager, a named fiduciary or a trustee
of any such plan) who is using "plan assets" of any such plan to effect
such acquisition (each of the foregoing, a "Plan Investor").
In addition, the Purchaser hereby certifies, represents and warrants
to, and covenants with, the Company, the Trustee and the Master Servicer that
the Purchaser will not transfer such Certificates to any Plan Investor or
person unless either such Plan Investor or person meets the requirements set
forth in the statement referred to in paragraph 6 above.
Very truly yours,
_______________________________________
(Purchaser)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT J
FORM OF TRANSFEROR REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[________________]
[________________]
[________________]
Attention: Residential Funding Corporation Series 20[_]-RZ[_]
Re: Mortgage Asset-Backed Pass-Through
Certificates,
Series 20[_]-RZ[_], Class [B] [SB] [R-[
]]
Ladies and Gentlemen:
In connection with the sale by ____________ (the "Seller") to
_______________ (the "Purchaser") of $_______ Initial Certificate Principal
Balance of Mortgage Asset-Backed Pass-Through Certificates, Series
20[_]-RZ[_], Class SB (the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
[___________] 1, 20[_] among Residential Asset Mortgage Products, Inc., as
seller (the "Company"), Residential Funding Corporation, as master servicer,
and [______________], as trustee (the "Trustee"). The Seller hereby
certifies, represents and warrants to, and covenants with, the Company and
the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
has otherwise approached or negotiated with respect to any Certificate, any
interest in any Certificate or any other similar security with any person in
any manner, (d) has made any general solicitation by means of general
advertising or in any other manner, or (e) has taken any other action, that
(as to any of (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933 (the "Act"), that would render
the disposition of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Seller will
not act, in any manner set forth in the foregoing sentence with respect to
any Certificate. The Seller has not and will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of the
Pooling and Servicing Agreement.
Very truly yours,
_______________________________________
(Seller)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT K
FORM OF FORM 10-K CERTIFICATION
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K, and all reports on Form 10-D
required to be filed in respect of the period covered by this report on
Form 10-K of the trust (the "Exchange Act periodic reports") created pursuant
to the Pooling and Servicing Agreement dated as of [__________] 1, 20[_] (the
"P&S Agreement") among Residential Asset Mortgage Corporation, Inc.,
Residential Funding Corporation (the "Master Servicer") and [__________] (the
"Trustee");
2. Based on my knowledge, the Exchange Act periodic reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D of the period covered by
this report is included in the Exchange Act periodic reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer and based on my knowledge and the compliance review conducted in
preparing the servicer compliance statement required in this report under
Item 1123 of Regulation AB, and except a disclosed in the Exchange Act
periodic reports, the Master Servicer has fulfilled its obligations under the
P&S Agreement; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
required to be included in this report in accordance with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as
an exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the
Trustee].
IN WITNESS WHEREOF, I have duly executed this certificate as of
_________, 20__.
____________________________
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions of
the Master Servicer
EXHIBIT L
FORM OF BACK-UP CERTIFICATE TO FORM 10-K CERTIFICATION
The undersigned, a Responsible Officer of [______________] (the
"Trustee") certifies that:
1. The Trustee has performed all of the duties specifically required to be
performed by it pursuant to the provisions of the Pooling and Servicing
Agreement dated as of [__________] 1, 20[_] (the "Agreement") by and among
Residential Asset Mortgage Products, Inc. as depositor, Residential Funding
Corporation, as master servicer, and the Trustee in accordance with the
standards set forth therein.
2. Based on my knowledge, the list of Certificateholders as shown on the
Certificate Register as of the end of each calendar year that is provided by
the Trustee pursuant to the Agreement is accurate as of the last day of the
20[_] calendar year.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of
_________, 20__.
____________________________
Name:
Title:
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
___________, 20__
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[________________]
[________________]
[________________]
Attention: Residential Funding Corporation Series 20[_]-RZ[_]
Re: Mortgage Asset-Backed Pass-Through
Certificates,
Series 20[_]-RZ[_] Assignment of Mortgage
Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the assignment
by ________________ (the "Trustee") to ______________________ (the "Lender")
of _______________ (the "Mortgage Loan") pursuant to Section 3.13(d) of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of [__________] 1, 20[_] among Residential Asset Mortgage Products,
Inc., as seller (the "Company"), Residential Funding Corporation, as master
servicer, and the Trustee. All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Lender hereby certifies, represents and warrants to, and covenants with, the
Master Servicer and the Trustee that:
(i) the Mortgage Loan is secured by Mortgaged Property located in a
jurisdiction in which an assignment in lieu of satisfaction is required to
preserve lien priority, minimize or avoid mortgage recording taxes or
otherwise comply with, or facilitate a refinancing under, the laws of such
jurisdiction;
(ii) the substance of the assignment is, and is intended to be, a
refinancing of such Mortgage Loan and the form of the transaction is solely
to comply with, or facilitate the transaction under, such local laws;
(iii) the Mortgage Loan following the proposed assignment will be
modified to have a rate of interest at least [0.25] percent below or above
the rate of interest on such Mortgage Loan prior to such proposed assignment;
and
(iv) such assignment is at the request of the borrower under the
related Mortgage Loan.
Very truly yours,
_______________________________________
(Lender)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT N
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the
undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of
the Rule 144A Securities, any interest in the Rule 144A Securities or any
other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security from, or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Rule 144A Securities under the
Securities Act of 1933, as amended (the "1933 Act"), or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the 1933
Act or require registration pursuant thereto, and that the Seller has not
offered the Rule 144A Securities to any person other than the Buyer or
another "qualified institutional buyer" as defined in Rule 144A under the
0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee and the Master Servicer (as defined in the Pooling and
Servicing Agreement (the "Agreement"), dated as of [__________] 1, 20[_]
among Residential Funding Corporation as Master Servicer, Residential Asset
Mortgage Products, Inc. as depositor pursuant to Section 5.02 of the
Agreement and [______________], as trustee, as follows:
a. The Buyer understands that the Rule 144A Securities have
not been registered under the 1933 Act or the securities laws of any
state.
b. The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Rule 144A Securities.
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Seller, the Trustee or the Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security
from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the
Rule 144A Securities under the 1933 Act or that would render the
disposition of the Rule 144A Securities a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act, nor
has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that
term is defined in Rule 144A under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be
resold, pledged or transferred only (i) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
3. The Buyer of Class SB Certificates or Class R Certificates
is not an employee benefit plan or other plan or arrangement subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or
any person (including an insurance company investing its general account, an
investment manager, a named fiduciary or a trustee of any such plan) who is
using "plan assets" of any such plan to effect such acquisition.
4. This document may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same document.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
Print Name of Buyer
Print Name of Seller _____________________ __________________
By: __________________________________ By: ________________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No.__________________________________ No._______________________________
Date:_________________________________ Date:_____________________________
ANNEX I TO EXHIBIT N
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $___________ in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule
144A) and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporations, 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.
____ Investment Adviser. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
____ SBIC. The Buyer is a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
____ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act
of 1940.
____ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part
of an unsold allotment to or subscription by the Buyer, if the Buyer is a
dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject
to a repurchase agreement and (vii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph. Further, in determining
such aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such subsidiaries are consolidated
with the Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such
securities were not included if the Buyer is a majority-owned, consolidated
subsidiary of another enterprise and the Buyer is not itself a reporting
company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule
144A. In addition, the Buyer agrees that the Buyer will not purchase
securities for a third party unless the Buyer has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently
meets the definition of "qualified institutional buyer" set forth in Rule
144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of Rule 144A
Securities will constitute a reaffirmation of this certification as of the
date of such purchase.
_______________________________________
Print Name of Buyer
By: ___________________________________
Name:
Title:
Date: __________________________________
ANNEX II TO EXHIBIT N
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is
attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year. For purposes of determining the amount of securities
owned by the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used.
____ The Buyer owned $_____________________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $_____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that
each of the parties to which this certification is made are relying and will
continue to rely on the statements made herein because one or more sales to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
_______________________________________
Print Name of Buyer
By: ___________________________________
Name:
Title:
IF AN ADVISER:
Print Name of Buyer
By: ___________________________________
Name:
Title:
Date: ______________________________
EXHIBIT O
FORM OF ERISA REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[____________________]
[____________________]
[____________________]
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Residential Funding Corporation Series 20[_]-RZ[_]
Re: Mortgage Asset-Backed Pass-Through
Certificates,
Series 20[_]-RZ[_], Class [__]
Ladies and Gentlemen:
[____________________________________] (the "Purchaser") intends
to purchase from [______________________________] (the "Seller")
$[____________] Initial Certificate Principal Balance of Mortgage
Asset-Backed Pass-Through Certificates, Series 20[_]-RZ[_], Class ____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of [_________] 1, 20[_] among
Residential Asset Mortgage Products, Inc., as the company (the "Depositor"),
Residential Funding Corporation, as master servicer (the "Master Servicer")
and JPMorgan Chase Bank, N.A., 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 Depositor, the Trustee and the
Master Servicer that:
(a) The Purchaser is not an employee benefit or other plan
subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code") (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. §2510.3-101; or
(b) The Purchaser has provided the Trustee, the Depositor and the
Master Servicer with an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee, the Depositor and the Master
Servicer to the effect that the purchase or 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 Depositor, the Master
Servicer or the Trust Fund 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.
In addition, the Purchaser hereby certifies, represents and
warrants to, and covenants with, the Depositor, the Trustee and the Master
Servicer that the Purchaser will not transfer such Certificates to any Plan
or person unless such Plan or person meets the requirements set forth in
either (a) or (b) above.
Very truly yours,
_______________________________________
(Purchaser)
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT P
FORM OF ERISA REPRESENTATION LETTER
___________, 20__
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
[____________________]
[____________________]
[____________________]
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Residential Funding Corporation Series 20[_]-RZ[_]
Re: Residential Asset Mortgage Products, Inc.
Mortgage Asset-Backed Pass-Through
Certificates, Series 20[_]-RZ[_], Class
[A-[ ]] [M-[ ]] [B]
Ladies and Gentlemen:
[____________________________________] (the "Purchaser") intends
to purchase from [______________________________] (the "Seller")
$[____________] Initial Certificate Principal Balance of Mortgage
Asset-Backed Pass-Through, Series 20[_]-RZ[_] (the "Certificates"), issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of [_________] 1, 20[_], among Residential Asset
Mortgage Products, Inc., as depositor (the "Depositor"), Residential Funding
Corporation, as master servicer (the "Master Servicer"), and [____________],
as trustee (the "Trustee"). All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement.
The Purchaser hereby certifies, represents and warrants to, and
covenants with the Depositor, the Trustee and the Master Servicer that,
either:
(a) The Purchaser is not an employee benefit or other plan
subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code") (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. §2510.3-101; or
(b) The Purchaser is an insurance company, the source of funds
used to purchase or hold the Certificates is an "insurance company
general account", as the term is defined in DOL Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the conditions in Sections I and
III of PTCE 95-60 have been satisfied.
In addition, the Purchaser hereby certifies, represents and
warrants to, and covenants with, the Seller, the Trustee and the Master
Servicer that the Purchaser will not transfer such Certificates to any Plan
or person unless that Plan or person meets the requirements in either (a) or
(b) above.
The Purchaser hereby agrees to indemnify and hold harmless the
Company, the Trustee, the Master Servicer, any Subservicer and the Trust Fund
from and against all liabilities, claims, costs or expenses incurred by such
parties as a result of a breach of any representation, warranty or covenant
made by the Purchaser herein.
Very truly yours,
By: ____________________________________
Name: __________________________________
Title: ___________________________________
EXHIBIT Q
INFORMATION TO BE PROVIDED BY THE MASTER SERVICER TO THE RATING AGENCIES
RELATING TO REPORTABLE MODIFIED MORTGAGE LOANS
Account number
Transaction Identifier
Unpaid Principal Balance prior to Modification
Next Due Date
Monthly Principal and Interest Payment
Total Servicing Advances
Current Interest Rate
Original Maturity Date
Original Term to Maturity (Months)
Remaining Term to Maturity (Months)
Trial Modification Indicator
Mortgagor Equity Contribution
Total Servicer Advances
Trial Modification Term (Months)
Trial Modification Start Date
Trial Modification End Date
Trial Modification Period Principal and Interest Payment
Trial Modification Interest Rate
Trial Modification Term
Rate Reduction Indicator
Interest Rate Post Modification
Rate Reduction Start Date
Rate Reduction End Date
Rate Reduction Term
Term Modified Indicator
Modified Amortization Period
Modified Final Maturity Date
Total Advances Written Off
Unpaid Principal Balance Written Off
Other Past Due Amounts Written Off
Write Off Date
Unpaid Principal Balance Post Write Off
Capitalization Indicator
Mortgagor Contribution
Total Capitalized Amount
Modification Close Date
Unpaid Principal Balance Post Capitalization Modification
Next Payment Due Date per Modification Plan
Principal and Interest Payment Post Modification
Interest Rate Post Modification
Payment Made Post Capitalization
Delinquency Status to Modification Plan
EXHIBIT R
SCHEDULE OF SWAP NOTIONAL AMOUNTS
(SEE SCHEDULE A TO EXHIBIT S)
EXHIBIT S
SWAP AGREEMENT
(SEE ATTACHMENT)
EXHIBIT T
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Trustee shall
address, at a minimum, the criteria identified as below as "Applicable
Servicing Criteria":
----------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing 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.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Any requirements in the transaction
agreements to maintain a back-up servicer for
the credit card accounts or accounts are
1122(d)(1)(iii) maintained.
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----------------------------------------------------------------------------------------
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 credit card accounts are |X|
deposited into the appropriate custodial bank
accounts and related bank clearing accounts no
more than two business days following receipt,
or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on |X|
behalf of an obligor or to an investor are
made only by authorized personnel.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Advances of funds or guarantees
regarding collections, cash flows or
distributions, and any interest or other fees
charged for such advances, are made, reviewed
and approved as specified in the transaction
1122(d)(2)(iii) agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
The related accounts for the
transaction, such as cash reserve accounts or
accounts established as a form of
overcollateralization, are separately
maintained (e.g., with respect to commingling
of cash) as set forth in the transaction
1122(d)(2)(iv) agreements.
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----------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Reconciliations are prepared on a
monthly basis for all asset-backed securities
related bank accounts, including custodial
accounts and related bank clearing accounts.
These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days
after the bank statement cutoff date, or such
other number of days specified in the
transaction agreements; (C) reviewed and
approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These
reconciling items are resolved within 90
calendar days of their original
identification, or such other number of days
1122(d)(2)(vii) 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 credit card accounts
serviced by the Servicer.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated |X|
and 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 |X|
number of days specified in the transaction
1122(d)(3)(iii) agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Amounts remitted to investors per the
investor reports agree with cancelled checks,
or other form of payment, or custodial bank |X|
1122(d)(3)(iv) statements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Pool Asset Administration
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on credit card |X|
accounts is maintained as required by the
transaction agreements or related asset pool
documents.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Account and related documents are
safeguarded as required by the transaction |X|
1122(d)(4)(ii) agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Any additions, removals or substitutions
to the asset pool are made, reviewed and
approved in accordance with any conditions or
1122(d)(4)(iii) requirements in the transaction agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on credit card accounts,
including any payoffs, made in accordance with
the related credit card accounts 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 asset pool documents.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the
accounts and the accounts 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 account (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.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Loss mitigation or recovery actions
(e.g., forbearance plans, modifications and
deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established
1122(d)(4)(vii) by the transaction agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Records documenting collection efforts
are maintained during the period a Account 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 Accounts including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates
of return for Accounts with variable rates are
computed based on the related Account
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 Account 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 Account
documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar
days of full repayment of the related
Accounts, 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.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Any late payment penalties in connection
with any payment to be made on behalf of an
obligor are paid from the servicer's funds and
not charged to the obligor, unless the late
payment was due to the obligor's error or
1122(d)(4)(xii) 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
1122(d)(4)(xiii) specified in the transaction agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Delinquencies, charge-offs and
uncollectible accounts are recognized and
recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Any external enhancement or other
support, identified in Item 1114(a)(1) through
(3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction
1122(d)(4)(xv) agreements.
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