SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 1, 1999
RESIDENTIAL ACCREDIT LOANS, INC. (as company under a Pooling and Servicing
Agreement dated as of September 1, 1999 providing for, inter alia, the issuance
of Mortgage Asset-Backed Pass-Through Certificates, Series 1999-QS12)
Residential Accredit Loans, Inc.
(Exact name of registrant as specified in its charter)
DELAWARE 333-72661 51-0368240
(State or other jurisdiction (Commission) (I.R.S. employer
of incorporation) file number) identification no.)
8400 Normandale Lake Blvd., Suite 600, Minneapolis, MN 55437 (Address
of principal executive offices) (Zip code)
Registrant's telephone number, including area code (612) 832-7000
(Former name or former address, if changed since last report)
Exhibit Index located on Page 2
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Items 1 through 6 and Item 8 are not included because they are not applicable.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits (executed copies): The following execution copies of
Exhibits to the Form S-3 Registration Statement of the Registrant are hereby
filed:
Sequentially
Exhibit Numbered
Number Exhibit Page
10.1 Pooling and Servicing Agreement, dated as of September 1, 1999 among
Residential Accredit Loans, Inc., as company, Residential Funding Corporation,
as master servicer, and Bankers Trust Company, as trustee.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
RESIDENTIAL ACCREDIT LOANS, INC.
By:
Name: Timothy G. Pillar
Title: Vice President
Dated: September 29, 1999
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
RESIDENTIAL ACCREDIT LOANS, INC.
By: /s/ Timothy G. Pillar
Name: Timothy G.. Pillar
Title: Vice President
Dated: September 29, 1999
<PAGE>
Exhibit 10.1
Pooling and Servicing Agreement, dated as of September 1, 1999
among Residential Accredit Loans, Inc., as company, Residential Funding
Corporation, as master servicer, and Bankers Trust Company, as trustee.
<PAGE>
EXECUTION COPY
RESIDENTIAL ACCREDIT LOANS, INC.,
Company,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
BANKERS TRUST COMPANY,
Trustee
SERIES SUPPLEMENT,
Dated as of September 1, 1999,
TO
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
dated as of August 1, 1999
Mortgage Asset-Backed Pass-Through Certificates
Series 1999-QS12
==============================================================================
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<TABLE>
<S> <C> <C>
Article I DEFINITIONS...............................................................3
Article II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES..........12
Section 2.01. Conveyance of Mortgage Loans. (See Section 2.01 of the
Standard Terms).....................................................12
Section 2.02. Acceptance by Trustee. (See Section 2.02 of the
Standard Terms).....................................................12
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Company............................................12
Section 2.04. Representations and Warranties of Sellers. (See Section
2.04 of the Standard Terms).........................................15
Section 2.05. Execution and Authentication of Certificates........................15
Article III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...........................16
Article IV PAYMENTS TO CERTIFICATEHOLDERS...........................................17
Section 4.01. Certificate Account. (See Section 4.01 of the Standard
Terms)..............................................................17
Section 4.02. Distributions......................................................17
Section 4.03. Statements to Certificateholders. (See Section 4.03 of
the Standard Terms and Exhibit Three attached hereto)...............26
Section 4.04. Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer. (See Section 4.04 of
the Standard Terms).................................................26
Section 4.05. Allocation of Realized Losses......................................26
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged
Property. (See Section 4.06 of the Standard Terms).................27
Section 4.07. Optional Purchase of Defaulted Mortgage Loans. (See
Section 4.07 of the Standard Terms).................................27
Section 4.08. Surety Bond. (See Section 4.08 of the Standard Terms)..............27
Article V THE CERTIFICATES.........................................................28
Article VI THE COMPANY AND THE MASTER SERVICER......................................29
Article VII DEFAULT..................................................................30
Article VIII CONCERNING THE TRUSTEE...................................................31
Article IX TERMINATION..............................................................32
Article X REMIC PROVISIONS.........................................................33
Section 10.01. REMIC Administration. (See Section 10.01 of the
Standard Terms).....................................................33
Section 10.02. Master Servicer; REMIC Administrator and Trustee
Indemnification. (See Section 10.02 of the Standard
Terms)..............................................................33
Section 10.03. Designation of REMIC...............................................33
Section 10.04. Compliance with Withholding Requirements...........................33
Article XI MISCELLANEOUS PROVISIONS.................................................34
Section 11.01. Amendment. (See Section 11.01 of the Standard Terms)..............34
Section 11.02. Recordation of Agreement. Counterparts. (See Section
11.02 of the Standard Terms)........................................34
Section 11.03. Limitation on Rights of Certificateholders. (See
Section 11.03 of the Standard Terms)................................34
Section 11.04. Governing Laws. (See Section 11.04 of the Standard
Terms)..............................................................34
Section 11.05. Notices............................................................34
Section 11.06. Required Notices to Rating Agency and Subservicer.
(See Section 11.06 of the Standard Terms)...........................35
Section 11.07. Severability of Provisions (See Section 11.07 of the
Standard Terms).....................................................35
Section 11.08. Supplemental Provisions for Resecuritization. (See
Section 11.08 of the Standard Terms)................................35
Section 11.09. Allocation of Voting Rights........................................35
</TABLE>
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EXHIBITS
Exhibit One: Mortgage Loan Schedule
Exhibit Two: Schedule of Discount Fractions
Exhibit Three: Information to be Included in
Monthly Distribution Date Statement
Exhibit Four: Standard Terms of Pooling and Servicing
Agreement Dated as of August 1, 1999
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This is a Series Supplement, dated as of September 1, 1999 (the "Series
Supplement"), to the Standard Terms of Pooling and Servicing Agreement, dated as
of August 1, 1999 and attached as Exhibit Four hereto (the "Standard Terms" and,
together with this Series Supplement, the "Pooling and Servicing Agreement" or
"Agreement"), among RESIDENTIAL ACCREDIT LOANS, INC., as the company (together
with its permitted successors and assigns, the "Company"), RESIDENTIAL FUNDING
CORPORATION, as master servicer (together with its permitted successors and
assigns, the "Master Servicer"), and BANKERS TRUST COMPANY, as Trustee (together
with its permitted successors and assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell mortgage asset-backed pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Mortgage Loans. As provided herein, the REMIC
Administrator will make an election to treat the entire segregated pool of
assets described in the definition of Trust Fund, and subject to this Agreement
(including the Mortgage Loans but excluding the Initial Monthly Payment Fund),
as one or more real estate mortgage investment conduits (each, a "REMIC") for
federal income tax purposes.
The terms and provisions of the Standard Terms are hereby incorporated
by reference herein as though set forth in full herein. If any term or provision
contained herein shall conflict with or be inconsistent with any provision
contained in the Standard Terms, the terms and provisions of this Series
Supplement shall govern. All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Standard Terms. The Pooling and
Servicing Agreement shall be dated as of the date of the Series Supplement.
<PAGE>
The following table sets forth the designation, type, Pass-Through Rate,
aggregate Initial Certificate Principal Balance, Maturity Date, initial ratings
and certain features for each Class of Certificates comprising the interests in
the Trust Fund created hereunder.
<TABLE>
<CAPTION>
Aggregate
Initial Standard &
Certificate Poor's/
Pass-Through Principal Maturity ----------- Minimum
Designation Rate Balance Features1 Date DCR Denominations2
September 25,
<S> <C> <C> <C> <C> <C> <C>
Class CB 7.00% $74,644,000.00 Senior 2014 AAA/AAA $25,000.00
Class NB 7.00% $25,183,000.00 Senior September 25, AAA/AAA $25,000.00
2014
Class A-P 0.00% $994,755.29 Principal September 25, AAAr/AAA $25,000.00
Only/Senior 2014
Class A-V Variable $0.00 Variable September 25, AAAr/AAA 4
Rate 3 Strip/Senior 2014
Class R 7.00% $100.00 Residual/Senior September 25, AAA/AAA 5
2014
Class M-1 7.00% Mezzanine September 25, NA/AA $25,000.00
$3,503,000.00 2014
Class M-2 7.00% $531,000.00 Mezzanine September 25, NA/A $250,000.00
2014
Class M-3 7.00% $477,700.00 Mezzanine September 25, NA/BBB $250,000.00
2014
Class B-1 7.00% $318,400.00 Subordinate September 25, NA/BB $250,000.00
2014
Class B-2 7.00% $212,300.00 Subordinate September 25, NA/B $250,000.00
2014
Class B-3 7.00% $265,344.67 Subordinate September 25, NA/NA $250,000.00
2014
</TABLE>
_________________________
1 The Certificates, other than the Class A-P, Class A-V, Class B and Class R
Certificates shall be Book-Entry Certificates. The Class A-P, Class A-V,
Class B and Class R Certificates shall be delivered to the holders thereof
in physical form.
2 The Certificates, other than the Class A-V and Class R Certificates, shall
be issuable in minimum dollar denominations as indicated above (by
Certificate Principal Balance or Notional Amount, as applicable) and
integral multiples of $1 (or $1,000 in the case of the Class A-P, Class
B-1, Class B-2 and Class B-3 Certificates) in excess thereof, except that
one Certificate of any of the Class A-P and Class B-1, Class B-2 and Class
B-3 Certificates that contain an uneven multiple of $1,000 shall be issued
in a denomination equal to the sum of the related minimum denomination set
forth above and such uneven multiple for such Class or the sum of such
denomination and an integral multiple of $1,000.
3 The Initial Pass-Through Rate on the Class A-V Certificates is 0.5362%. The
Class A-V Certificates relate to the Group CB Loans and Group NB Loans.
4 The Class A-V Certificates shall be issuable in minimum denominations of
not less than a 20% Percentage Interest.
5 The Class R Certificates shall be issuable in minimum denominations of not
less than a 20% Percentage Interest; provided, however, that one Class R
Certificate will be issuable to Residential Funding as "tax matters person"
pursuant to Section 10.01(c) and (e) in a minimum denomination representing
a Percentage Interest of not less than 0.01%.
The Mortgage Loans have an aggregate principal balance as of the Cut-off
Date of $106,129,599.96.
2
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In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
3
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ARTICLE I
DEFINITIONS
Section 1.01...Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accrued Certificate Interest: With respect to each Distribution Date, as
to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class or
Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on the Mortgage Loans in the
related Loan Group (to the extent not offset by the Master
Servicer with a payment of Compensating Interest as provided in
Section 4.01),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan)) of Realized Losses on the Mortgage Loans in the related
Loan Group (including Excess Special Hazard Losses, Excess Fraud
Losses, Excess Bankruptcy Losses and Extraordinary Losses) not
allocated solely to one or more specific Classes of Certificates
pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on the Mortgage
Loans in the related Loan Group, which remained unreimbursed
following the Cash Liquidation or REO Disposition of such
Mortgage Loan or REO Property or (B) made with respect to
delinquencies that were ultimately determined to be Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses or Extraordinary Losses, and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended, or similar legislation or regulations as in effect
from time to time,
with the related Senior Percentage of all such reductions allocated
among the related Senior Certificates in proportion to the amounts of Accrued
Certificate Interest payable from the related Loan Group on such Distribution
Date absent such reductions, with the remainder of such reductions allocated
among the holders of the Class M Certificates and Class B Certificates in
proportion to their respective amounts of Accrued Certificate Interest payable
on such Distribution Date absent such reductions. In addition to that portion of
the reductions described
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in the preceding sentence that are allocated to any Class of Class B
Certificates or any Class of Class M Certificates, Accrued Certificate Interest
on such Class of Class B Certificates or such Class of Class M Certificates will
be reduced by the interest portion (adjusted to the Net Mortgage Rate) of
Realized Losses that are allocated solely to such Class of Class B Certificates
or such Class of Class M Certificates pursuant to Section 4.05.
Accrual Certificates: None.
Accretion Termination Date: None.
Bankruptcy Amount: As of any date of determination prior to the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (A)
$100,000 over (B) the aggregate amount of Bankruptcy Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section 4.05 of
this Series Supplement. As of any date of determination on or after the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of
(1) the lesser of (a) the Bankruptcy Amount calculated as of the
close of business on the Business Day immediately preceding the most
recent anniversary of the Cut-off Date coinciding with or preceding such
date of determination (or, if such date of determination is an
anniversary of the Cut-off Date, the Business Day immediately preceding
such date of determination) (for purposes of this definition, the
"Relevant Anniversary") and (b) the greater of
(A) the greater of (i) 0.0006 times the aggregate principal balance of all the
Mortgage Loans in the Mortgage Pool as of the Relevant Anniversary (other
than Additional Collateral Loans) having a Loan-to-Value Ratio at
origination which exceeds 75% and (ii) $100,000; and
(B) the greater of (i) the product of (x) an amount equal to the largest
difference in the related Monthly Payment for any Non-Primary Residence
Loan remaining in the Mortgage Pool (other than Additional Collateral
Loans) which had an original Loan-to-Value Ratio of 80% or greater that
would result if the Net Mortgage Rate thereof was equal to the weighted
average (based on the principal balance of the Mortgage Loans as of the
Relevant Anniversary) of the Net Mortgage Rates of all Mortgage Loans as of
the Relevant Anniversary less 1.25% per annum, (y) a number equal to the
weighted average remaining term to maturity, in months, of all Non-Primary
Residence Loans remaining in the Mortgage Pool as of the Relevant
Anniversary, and (z) one plus the quotient of the number of all Non-Primary
Residence Loans remaining in the Mortgage Pool divided by the total number
of Outstanding Mortgage Loans in the Mortgage Pool as of the Relevant
Anniversary, and (ii) $50,000,
over (2) the aggregate amount of Bankruptcy Losses allocated
solely to one or more specific Classes of Certificates in accordance
with Section 4.05 since the Relevant Anniversary.
The Bankruptcy Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such
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reduction, the Master Servicer shall (i) obtain written confirmation from each
Rating Agency that such reduction shall not reduce the rating assigned to any
Class of Certificates by such Rating Agency below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date by
such Rating Agency and (ii) provide a copy of such written confirmation to the
Trustee.
CB Loan Group: The group of Mortgage Loans comprised of the Group CB Loans.
Certificate: Any Class CB, Class NB, Class A-P, Class A-V, Class M, Class B
or Class R Certificate.
Certificate Account: The separate account or accounts created and
maintained pursuant to Section 4.01 of the Standard Terms, which shall be
entitled "Bankers Trust Company, as trustee, in trust for the registered holders
of Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through
Certificates, Series 1999-QS12" and which must be an Eligible Account.
Certificate Policy: None.
Class CB Certificate: Any one of the Class CB Certificates, executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit A, which Certificates relate to
the Group CB Loans.
Class CB Percentage: As of any Distribution Date, the lesser of 100% and
a fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class CB Certificates immediately prior to
such Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
(other than the related Discount Fraction of each Discount Mortgage Loan) in the
CB Loan Group immediately prior to such Distribution Date.
Class CB Principal Distribution Amount: As to any Distribution Date, the
lesser of (a) the balance of the Available Distribution Amount related to the CB
Loan Group remaining after the distribution of all amounts required to be
distributed pursuant to Section 4.02(a)(i)(X), after the distribution of the
portion of the amounts required to be distributed therefrom pursuant to Section
4.02(a)(i)(Z), and after the distribution of the amount required to be
distributed to the Class A-P Certificateholders pursuant to Section
4.02(a)(ii)(X) or, after the Credit Support Depletion Date, the amount required
to be distributed to the Class A-P Certificateholders pursuant to Section
4.02(d), and (b) the sum of the amounts required to be distributed therefrom to
the Class CB Certificateholders on such Distribution Date pursuant to and
Section 4.02(a)(ii)(Y) and (Z), and Section 4.02(a)(xvii) and (xviii).
Class NB Certificate: Any one of the Class NB Certificates, executed by
the Trustee and authenticated by the Certificate Registrar substantially in the
form annexed to the Standard Terms as Exhibit A, which Certificates relate to
the Group NB Loans.
Class NB Percentage: As of any Distribution Date, the lesser of 100% and
a fraction, expressed as a percentage, the numerator of which is the aggregate
Certificate Principal Balance of the Class NB Certificates and Class R
Certificates immediately prior to such Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of all of the Mortgage
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Loans (or related REO Properties) (other than the related Discount Fraction of
each Discount Mortgage Loan) in the NB Loan Group immediately prior to such
Distribution Date.
Class NB Principal Distribution Amount: As to any Distribution Date, the
lesser of (a) the balance of the Available Distribution Amount related to the NB
Loan Group remaining after the distribution of all amounts required to be
distributed pursuant to Section 4.02(a)(i)(Y), after the distribution of the
portion of the amounts required to be distributed therefrom pursuant to Section
4.02(a)(i)(Z), and after the distribution of the amount required to be
distributed to the Class A-P Certificateholders pursuant to Section
4.02(a)(ii)(X) or, after the Credit Support Depletion Date, the amount required
to be distributed to the Class A-P Certificateholders pursuant to Section
4.02(d), and (b) the sum of the amounts required to be distributed therefrom to
the Class NB Certificateholders and Class R Certificateholders on such
Distribution Date pursuant to and Section 4.02(a)(ii)(Y) and (Z), and Section
4.02(a)(xvii) and (xviii).
Class R Certificate: Any one of the Class R Certificates executed by the
Trustee and authenticated by the Certificate Registrar substantially in the form
annexed to the Standard Terms as Exhibit D and evidencing an interest designated
as a "residual interest" in the REMIC for purposes of the REMIC Provisions.
Closing Date: September 29, 1999.
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 1761 East St. Andrews Place, Santa Ana, California
92705-4934, Attention: Residential Funding Corporation Series 1999-QS12.
Cut-off Date: September 1, 1999.
Discount Net Mortgage Rate: 7.00% per annum.
Due Period: With respect to each Distribution Date and any Mortgage
Loan, the period commencing on the second day of the month prior to the month in
which such Distribution Date occurs and ending on the first day of the month in
which such Distribution Date occurs.
Eligible Funds: On any Distribution Date, the portion, if any, of the
Available Distribution Amount remaining after reduction by the sum of (i) the
aggregate amount of Accrued Certificate Interest on the Senior Certificates,
(ii) the Senior Principal Distribution Amount (determined without regard to
Section 4.02(a)(ii)(Y)(D) hereof), (iii) the Class A-P Principal Distribution
Amount (determined without regard to Section 4.02(b)(i)(E) hereof) and (iv) the
aggregate amount of Accrued Certificate Interest on the Class M, Class B-1 and
Class B-2 Certificates.
Fraud Loss Amount: As of any date of determination after the Cut-off
Date, an amount equal to: (X) prior to the first anniversary of the Cut-off Date
an amount equal to 2.00% of the aggregate outstanding principal balance of all
of the Mortgage Loans as of the Cut-off Date minus the aggregate amount of Fraud
Losses allocated solely to one or more specific Classes of Certificates in
accordance with Section 4.05 of this Series Supplement since the Cut-off Date up
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to such date of determination and (Y) from the first to the fifth anniversary of
the Cut-off Date, an amount equal to (1) the lesser of (a) the Fraud Loss Amount
as of the most recent anniversary of the Cut-off Date and (b) 1.00% of the
aggregate outstanding principal balance of all of the Mortgage Loans as of the
most recent anniversary of the Cut-off Date minus (2) the aggregate amount of
Fraud Losses allocated solely to one or more specific Classes of Certificates in
accordance with Section 4.05 since the most recent anniversary of the Cut-off
Date up to such date of determination. On and after the fifth anniversary of the
Cut-off Date, the Fraud Loss Amount shall be zero.
The Fraud Loss Amount may be further reduced by the Master Servicer
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Group CB Loans: The Mortgage Loans designated on the Mortgage Loan
Schedule as Group CB Loans, having original principal balances less than or
equal to $240,000.00.
Group NB Loans: The Mortgage Loans designated on the Mortgage Loan
Schedule as Group NB Loans, having original principal balances exceeding
$240,000.00.
Initial Monthly Payment Fund: $7,020.36, representing scheduled
principal amortization and interest at the Net Mortgage Rate during the Due
Period ending on October 1, 1999, for those Mortgage Loans for which the Trustee
will not be entitled to receive such payment.
Initial Notional Amount: With respect to the Class A-V Certificates or
Subclass thereof issued pursuant to Section 5.01(c), the aggregate Cut-off Date
Principal Balance of the Mortgage Loans corresponding to the Uncertificated
Class A-V REMIC Regular Interests represented by such Class or Subclass on such
date.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Certificate Principal Balance of the such Class of Subordinate Certificates
divided by the aggregate Stated Principal Balance of all the Mortgage Loans as
of the Cut-off Date as follows:
Class M-1: 3.30% Class B-1: 0.30%
Class M-2: 0.50% Class B-2: 0.20%
Class M-3: 0.45% Class B-3: 0.25%
Interest Accrual Period: With respect to any Certificates and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs.
Interest Only Certificates: Any one of the Class A-V Certificates. The
Interest Only Certificates will have no Certificate Principal Balance.
Loan Group: Either or both of the CB Loan Group or the NB Loan Group.
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Maturity Date: September 25, 2014, the Distribution Date immediately
following the latest scheduled maturity date of any Mortgage Loan.
Mortgage Loan Schedule: The list or lists of the Mortgage Loans attached
hereto as Exhibit One (as amended from time to time to reflect the addition of
Qualified Substitute Mortgage Loans), which list or lists shall set forth the
following information as to each Mortgage Loan:
(i) the Mortgage Loan identifying number ("RFC LOAN #");
(ii) the street address of the Mortgaged Property (or, with respect to a
Cooperative Loan, the related Cooperative Apartment) including state and
zip code ("ADDRESS");
(iii) the maturity of the Mortgage Note ("MATURITY DATE");
(iv) the Mortgage Rate ("ORIG RATE");
(v) the Subservicer pass-through rate ("CURR NET");
(vi) the Net Mortgage Rate ("NET MTG RT");
(vii) the Pool Strip Rate ("STRIP");
(viii) the initial scheduled monthly payment of principal, if any, and interest
("ORIGINAL P & I");
(ix) the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(x) the Loan-to-Value Ratio at origination ("LTV");
(xi) the rate at which the Subservicing Fee accrues ("SUBSERV FEE") and at which
the Servicing Fee accrues ("MSTR SERV FEE");
(xii)a code "T," "BT" or "CT" under the column "LN FEATURE," indicating that
the Mortgage Loan is secured by a second or vacation residence; and
(xiii) a code "N" under the column "OCCP CODE," indicating that the Mortgage
Loan is secured by a non-owner occupied residence.
Such schedule may consist of multiple reports that collectively set forth all of
the information required.
NB Loan Group: The group of Mortgage Loans comprised of the Group NB Loans.
Notional Amount: As of any Distribution Date, with respect to any Class
A-V Certificates or Subclass thereof issued pursuant to Section 5.01(c), the
aggregate Stated Principal Balance of the Mortgage Loans corresponding to the
Uncertificated Class A-V REMIC Regular Interests represented by such Class or
Subclass immediately prior to such date.
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Pass-Through Rate: With respect to the Senior Certificates (other than
the Class A-V and Class A-P Certificates), Class M Certificates and Class B
Certificates and any Distribution Date, the per annum rates set forth in the
Preliminary Statement hereto. With respect to the Class A-V Certificates (other
than any Subclass thereof) and any Distribution Date, a rate equal to the
weighted average, expressed as a percentage, of the Pool Strip Rates of all
Mortgage Loans as of the Due Date in the related Due Period, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans as of
the day immediately preceding such Distribution Date (or, with respect to the
initial Distribution Date, at the close of business on the Cut-off Date). With
respect to the Class A-V Certificates and the initial Distribution Date the
Pass-Through Rate is equal to 0.5362% per annum. With respect to any Subclass of
Class A-V Certificates and any Distribution Date, a rate equal to the weighted
average, expressed as a percentage, of the Pool Strip Rates of all Mortgage
Loans corresponding to the Uncertificated Class A-V REMIC Regular Interests
represented by such Subclass as of the Due Date in the related Due Period,
weighted on the basis of the respective Stated Principal Balances of such
Mortgage Loans as of the day immediately preceding such Distribution Date (or
with respect to the initial Distribution Date, at the close of business on the
Cut-off Date). The Principal Only Certificates have no Pass-Through Rate and are
not entitled to Accrued Certificate Interest.
Prepayment Assumption: With respect to the Class CB, Class A-P, Class
A-V, 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 assumes a
constant prepayment rate of 4.0% per annum of the then outstanding principal
balance of the related Mortgage Loans in the first month of the life of such
Mortgage Loans and an additional 12/11% per annum in each month thereafter until
the twelfth month, and beginning in the twelfth month and in each month
thereafter during the life of the Mortgage Loans, a constant prepayment rate of
16.0% per annum. With respect to the Class NB Certificates, the prepayment
assumption used for determining the accrual of original issue discount and
market discount and premium on the Certificates for federal income tax purposes,
which assumes a constant rate of prepayment of mortgage loans of 6.0% per annum
of the then outstanding principal balance of such mortgage loans in the first
month of the life of the mortgage loans, increasing by an additional 14/11% per
annum in each succeeding month until the twelfth month, and a constant 20.0% per
annum rate of prepayment thereafter for the life of the mortgage loans.
Prepayment Distribution Percentage: With respect to any Distribution
Date and the Available Distribution Amount for each Loan Group and each Class of
Subordinate Certificates, under the applicable circumstances set forth below,
the respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date in
October 2004 (unless the Certificate Principal Balances of the
Class CB Certificates or Class NB Certificates and Class R
Certificates, as applicable, have been reduced to zero), 0%.
(ii) For any Distribution Date not discussed in clause (i) above on
which any Class of Subordinate Certificates are outstanding:
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(a) in the case of the Class of Subordinate Certificates then
outstanding with the Highest Priority and each other Class of Subordinate
Certificates for which the related Prepayment Distribution Trigger has been
satisfied, a fraction, expressed as a percentage, the numerator of which is
the Certificate Principal Balance of such Class immediately prior to such
date and the denominator of which is the sum of the Certificate Principal
Balances immediately prior to such date of (1) the Class of Subordinate
Certificates then outstanding with the Highest Priority and (2) all other
Classes of Subordinate Certificates for which the respective Prepayment
Distribution Triggers have been satisfied; and
(b) in the case of each other Class of Subordinate Certificates for
which the Prepayment Distribution Triggers have not been satisfied, 0%; and
(iii)Notwithstanding the foregoing, if the application of the foregoing
percentages on any Distribution Date as provided in Section 4.02 of this
Series Supplement (determined without regard to the proviso to the
definition of "Subordinate Principal Distribution Amount") would result in
a distribution in respect of principal of any Class or Classes of
Subordinate Certificates in an amount greater than the remaining
Certificate Principal Balance thereof (any such class, a "Maturing Class"),
then: (a) the Prepayment Distribution Percentage of each Maturing Class
shall be reduced to a level that, when applied as described above, would
exactly reduce the Certificate Principal Balance of such Class to zero; (b)
the Prepayment Distribution Percentage of each other Class of Subordinate
Certificates (any such Class, a "Non-Maturing Class") shall be recalculated
in accordance with the provisions in paragraph (ii) above, as if the
Certificate Principal Balance of each Maturing Class had been reduced to
zero (such percentage as recalculated, the "Recalculated Percentage"); (c)
the total amount of the reductions in the Prepayment Distribution
Percentages of the Maturing Class or Classes pursuant to clause (a) of this
sentence, expressed as an aggregate percentage, shall be allocated among
the Non-Maturing Classes in proportion to their respective Recalculated
Percentages (the portion of such aggregate reduction so allocated to any
Non-Maturing Class, the "Adjustment Percentage"); and (d) for purposes of
such Distribution Date, the Prepayment Distribution Percentage of each
Non-Maturing Class shall be equal to the sum of (1) the Prepayment
Distribution Percentage thereof, calculated in accordance with the
provisions in paragraph (ii) above as if the Certificate Principal Balance
of each Maturing Class had not been reduced to zero, plus (2) the related
Adjustment Percentage.
Principal Only Certificates: Any one of the Class A-P Certificates.
Senior Certificate: Any one of the Class CB, Class NB, Class A-V, Class
A-P or Class R Certificates, executed by the Trustee and authenticated by the
Certificate Registrar substantially in the form annexed to the Standard Terms as
Exhibit A and Exhibit D.
Senior Percentage: The Class CB Percentage or Class NB Percentage, as
applicable.
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Senior Principal Distribution Amount: Either of the Class CB Principal
Distribution Amount or the Class NB Principal Distribution Amount, as
applicable.
Special Hazard Amount: As of any Distribution Date, an amount equal to
$1,878,734.00 minus the sum of (i) the aggregate amount of Special Hazard Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 4.05 of this Series Supplement and (ii) the Adjustment Amount (as
defined below) as most recently calculated. For each anniversary of the Cut-off
Date, the Adjustment Amount shall be equal to the amount, if any, by which the
amount calculated in accordance with the preceding sentence (without giving
effect to the deduction of the Adjustment Amount for such anniversary) exceeds
the greater of (A) the greatest of (i) twice the outstanding principal balance
of the Mortgage Loan in the Trust Fund which has the largest outstanding
principal balance on the Distribution Date immediately preceding such
anniversary, (ii) the product of 1.00% multiplied by the outstanding principal
balance of all Mortgage Loans on the Distribution Date immediately preceding
such anniversary and (iii) the aggregate outstanding principal balance (as of
the immediately preceding Distribution Date) of the Mortgage Loans in any single
five-digit California zip code area with the largest amount of Mortgage Loans by
aggregate principal balance as of such anniversary and (B) the greater of (i)
the product of 0.50% multiplied by the outstanding principal balance of all
Mortgage Loans on the Distribution Date immediately preceding such anniversary
multiplied by a fraction, the numerator of which is equal to the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of all of the Mortgage Loans secured by Mortgaged Properties located in
the State of California divided by the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of all of the Mortgage
Loans, expressed as a percentage, and the denominator of which is equal to
16.844% (which percentage is equal to the percentage of Mortgage Loans by
aggregate principal balance initially secured by Mortgaged Properties located in
the State of California) and (ii) the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of the largest Mortgage Loan
secured by a Mortgaged Property (or, with respect to a Cooperative Loan, the
related Cooperative Apartment) located in the State of California.
The Special Hazard Amount may be further reduced by the Master Servicer
(including accelerating the manner in which coverage is reduced) provided that
prior to any such reduction, the Master Servicer shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group and each Class of Subordinate Certificates, (a)
the sum of the following: (i) such Class's pro rata share, based on the
Certificate Principal Balance of each Class of Subordinate Certificates then
outstanding, of the aggregate of the amounts calculated for such Distribution
Date for the related Loan Group under clauses (1), (2) and (3) of Section
4.02(a)(ii)(Y)(A) to the extent not payable to the Senior Certificates; (ii)
such Class's pro rata share, based on the Certificate Principal Balance of each
Class of Subordinate Certificates then outstanding, of the principal collections
described in Section 4.02(a)(ii)(Y)(B)(b) for the related Loan Group to the
extent such collections are not otherwise distributed to the Senior
Certificates; (iii) the product of
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(x) the related Prepayment Distribution Percentage and (y) the aggregate of all
Principal Prepayments in Full and Curtailments received in the related
Prepayment Period for the related Loan Group (other than the related Discount
Fraction of such Principal Prepayments in Full and Curtailments with respect to
a Discount Mortgage Loan) to the extent not payable to the Senior Certificates;
(iv) if such Class is the Class of Subordinate Certificates with the Highest
Priority, any Excess Subordinate Principal Amount for the related Loan Group for
such Distribution Date; and (v) any amounts described in clauses (i), (ii) and
(iii) as determined for any previous Distribution Date, that remain
undistributed to the extent that such amounts are not attributable to Realized
Losses which have been allocated to a Class of Subordinate Certificates minus
(b) with respect to the Class of Subordinate Certificates with the Lowest
Priority, any Excess Subordinate Principal Amount for such Distribution Date;
provided, however, that the Subordinate Principal Distribution Amount for any
Class of Subordinate Certificates on any Distribution Date shall in no event
exceed the outstanding Certificate Principal Balance of such Class of
Certificates immediately prior to such date.
Uncertificated Class A-V REMIC Regular Interests or Uncertificated REMIC
Regular Interests: The 1,004 uncertificated partial undivided beneficial
ownership interests in the Trust Fund, numbered sequentially from 1 to 1,004,
each relating to a particular Mortgage Loan identified by such sequential number
on the Mortgage Loan Schedule, each having no principal balance, and each
bearing interest at the respective Pool Strip Rate on the Stated Principal
Balance of the related Mortgage Loan.
Section 1.02. Use of Words and Phrases.
"Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to the Pooling and Servicing Agreement as a
whole. All references herein to Articles, Sections or Subsections shall mean the
corresponding Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definitions set forth herein include both the singular and the
plural.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans. (See Section 2.01 of the Standard
Terms)
Section 2.02. Acceptance by Trustee. (See Section 2.02 of the Standard Terms)
Section 2.03. Representations, Warranties and Covenants of the Master Servicer
and the Company.
(a) For representations, warranties and covenants of the Master Servicer,
see Section 2.03(a) of the Standard Terms.
(b) The Company hereby represents and warrants to the Trustee for the
benefit of Certificateholders that as of the Closing Date (or, if otherwise
specified below, as of the date so specified):
(i) No Mortgage Loan is 30 or more days Delinquent in payment of
principal and interest as of the Cut-off Date and no Mortgage Loan has been
so Delinquent more than once in the 12-month period prior to the Cut-off
Date;
(ii) The information set forth in Exhibit One hereto with respect to
each Mortgage Loan or the Mortgage Loans, as the case may be, is true and
correct in all material respects at the date or dates respecting which such
information is furnished;
(iii) The Mortgage Loans are fully-amortizing, fixed-rate mortgage
loans with level Monthly Payments due on the first day of each month and
terms to maturity at origination or modification of not more than 30 years;
(iv) To the best of the Company's knowledge, except with respect to
one Mortgage Loans representing approximately 0.1% of the Mortgage Loans by
aggregate Stated Principal Balance, if a Mortgage Loan is secured by a
Mortgaged Property with a Loan-to-Value Ratio at origination in excess of
80%, such Mortgage Loan is the subject of a Primary Insurance Policy that
insures that portion of the principal balance thereof that generally
exceeds the amount equal to 75% of the Appraised Value of the related
Mortgaged Property. To the best of the Company's knowledge, each such
Primary Insurance Policy is in full force and effect and the Trustee is
entitled to the benefits thereunder;
(v) The issuers of the Primary Insurance Policies are insurance
companies whose claims-paying abilities are currently acceptable to each
Rating Agency;
(vi) No more than 0.4% of the Group CB Loans by aggregate Stated
Principal Balance as of the Cut-off Date are secured by Mortgaged
Properties located in any one zip code area in California, and no more than
0.6% of the Group CB Loans by aggregate
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Stated Principal Balance as of the Cut-off Date are secured by Mortgaged
Properties located in any one zip code area outside California; and no more
than 3.5% of the Group NB Loans by aggregate Stated Principal Balance as of
the Cut-off Date are secured by Mortgaged Properties located in any one zip
code area in California, and no more than 2.3% of the Group NB Loans by
aggregate Stated Principal Balance as of the Cut-off Date are secured by
Mortgaged Properties located in any one zip code area outside California;
(vii) If the improvements securing a Mortgage Loan are in a federally
designated special flood hazard area, flood insurance in the amount
required under the Program Guide covers the related Mortgaged Property
(either by coverage under the federal flood insurance program or by
coverage by private insurers);
(viii) Immediately prior to the assignment of the Mortgage Loans to
the Trustee, the Company had good title to, and was the sole owner of, each
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest (other than rights to servicing and related compensation) and such
assignment validly transfers ownership of the Mortgage Loans to the Trustee
free and clear of any pledge, lien, encumbrance or security interest;
(ix) Approximately 50.10% of the Group CB Loans by aggregate Stated
Principal Balance as of the Cut-off Date were underwritten under a reduced
loan documentation program, approximately 18.30% of the Group CB Loans by
aggregate Stated Principal Balance as of the Cut-off Date were underwritten
under a no-stated income program, and approximately 2.33% of the Group CB
Loans by aggregate Stated Principal Balance as of the Cut-off Date were
underwritten under a no income/no asset program; and approximately 54.95%
of the Group NB Loans by aggregate Stated Principal Balance as of the
Cut-off Date were underwritten under a reduced loan documentation program,
approximately 10.75% of the Group NB Loans by aggregate Stated Principal
Balance as of the Cut-off Date were underwritten under a no-stated income
program, and none of the Group NB Loans by aggregate Stated Principal
Balance as of the Cut-off Date were underwritten under a no income/no asset
program;
(x) Except with respect to approximately 36.81% of the Group CB Loans
by aggregate Stated Principal Balance as of the Cut-off Date, and
approximately 8.09% of the Group NB Loans by aggregate Stated Principal
Balance as of the Cut-off Date, the Mortgagor represented in its loan
application with respect to the related Mortgage Loan that the Mortgaged
Property would be owner-occupied;
(xi) None of the Mortgage Loans are Buydown Mortgage Loans;
(xii) Each Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(xiii) A policy of title insurance was effective as of the closing of
each Mortgage Loan and is valid and binding and remains in full force and
effect;
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(xiv) None of the Mortgage Loans are Cooperative Loans; with respect
to a Mortgage Loan that is a Cooperative Loan, the Cooperative Stock that
is pledged as security for the Mortgage Loan is held by a person as a
tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code);
(xv) With respect to each Mortgage Loan originated under a
"streamlined" Mortgage Loan program (through which no new or updated
appraisals of Mortgaged Properties are obtained in connection with the
refinancing thereof), the related Seller has represented that either (a)
the value of the related Mortgaged Property as of the date the Mortgage
Loan was originated was not less than the appraised value of such property
at the time of origination of the refinanced Mortgage Loan or (b) the
Loan-to-Value Ratio of the Mortgage Loan as of the date of origination of
the Mortgage Loan generally meets the Company's underwriting guidelines;
(xvi) Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months;
(xvii) One of the Mortgage Loans contains in the related Mortgage File
a Destroyed Mortgage Note;
(xviii) No more than 1.1% of the Group CB Loans and no more than 3.9%
of the Group NB Loans by aggregate Stated Principal Balance as of the
Cut-off Date will have been made to International Borrowers, and no such
Mortgagor is a member of a foreign diplomatic mission with diplomatic rank;
(xix) No Mortgage Loan provides for payments that are subject to
reduction by withholding taxes levied by any foreign (non-United States)
sovereign government; and
(xx) None of the Mortgage Loans are Additional Collateral Loans and
none of the Mortgage Loans are Pledged Asset Loans.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03(b) shall survive delivery of the respective Mortgage Files to
the Trustee or any Custodian.
Upon discovery by any of the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any of the representations and warranties set
forth in this Section 2.03(b) that materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties (any Custodian
being so obligated under a Custodial Agreement); provided, however, that in the
event of a breach of the representation and warranty set forth in Section
2.03(b)(xii), the party discovering such breach shall give such notice within
five days of discovery. Within 90 days of its discovery or its receipt of notice
of breach, the Company shall either (i) cure such breach in all material
respects or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that the Company
shall have the option to substitute a Qualified Substitute Mortgage Loan or
Loans for such Mortgage Loan if such substitution occurs within two years
following the Closing Date; provided that if the omission or defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as
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defined in Section 860G(a)(3) of the Code, any such cure or repurchase must
occur within 90 days from the date such breach was discovered. Any such
substitution shall be effected by the Company under the same terms and
conditions as provided in Section 2.04 for substitutions by Residential Funding.
It is understood and agreed that the obligation of the Company to cure such
breach or to so purchase or substitute for any Mortgage Loan as to which such a
breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Certificateholders or the Trustee on
behalf of the Certificateholders. Notwithstanding the foregoing, the Company
shall not be required to cure breaches or purchase or substitute for Mortgage
Loans as provided in this Section 2.03(b) if the substance of the breach of a
representation set forth above also constitutes fraud in the origination of the
Mortgage Loan.
Section 2.04. Representations and Warranties of Sellers. (See Section 2.04 of
the Standard Terms)
Section 2.05. Execution and Authentication of Certificates
The Trustee acknowledges the assignment to it of the Mortgage Loans and
the delivery of the Mortgage Files to it, or any Custodian on its behalf,
subject to any exceptions noted, together with the assignment to it of all other
assets included in the Trust Fund and/or the applicable REMIC, receipt of which
is hereby acknowledged. Concurrently with such delivery and in exchange
therefor, the Trustee, pursuant to the written request of the Company executed
by an officer of the Company, has executed and caused to be authenticated and
delivered to or upon the order of the Company the Certificates in authorized
denominations that evidence ownership of the entire Trust Fund.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
(See Article III of the Standard Terms)
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account. (See Section 4.01 of the Standard Terms)
Section 4.02. Distributions.
(a) On each Distribution Date (x) the Master Servicer on behalf of the
Trustee or (y) the Paying Agent appointed by the Trustee, shall distribute to
the Master Servicer, in the case of a distribution pursuant to Section
4.02(a)(iv) below, the amount required to be distributed to the Master Servicer
or a Sub-Servicer pursuant to Section 4.02(a)(iv) below, and 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 (A) with
respect to each Class of Certificates (other than any Subclass of the Class A-V
Certificates), shall be based on the aggregate of the Percentage Interests
represented by Certificates of the applicable Class held by such Holder or (B)
with respect to any Subclass of the Class A-V Certificates, shall be equal to
the amount (if any) distributed pursuant to Section 4.02(a)(i) below to each
Holder of a Subclass thereof) of the following amounts, in the following order
of priority (subject to the provisions of Section 4.02(b) below), in each case
to the extent of the related or specified Available Distribution Amount
remaining in the case of clauses (i) through (iii), and to the extent of the
Available Distribution Amount for both Loan Groups remaining in the case of
clauses (iv) through (xviii):
(i) (X) from the Available Distribution Amount related to the CB Loan
Group, to the Class CB Certificateholders, Accrued Certificate
Interest on such Class of Certificates for such Distribution Date,
plus any Accrued Certificate Interest thereon remaining unpaid from
any previous Distribution Date except as provided in the last
paragraph of this Section 4.02(a);
(Y) from the Available Distribution Amount related to the NB Loan Group, to
the Class NB Certificateholders and Class R Certificateholders, on a pro rata
basis based on Accrued Certificate Interest payable on such Certificates with
respect to such Distribution Date, Accrued Certificate Interest on such Classes
of Certificates (or Subclasses, if any, with respect to the Class A-V
Certificates) for such Distribution Date, plus any Accrued Certificate Interest
thereon remaining unpaid from any previous Distribution Date except as provided
in the last paragraph of this Section 4.02(a); and
(Z) from the Available Distribution Amount derived from the related Loan
Group, on a parity with the distributions in Sections 4.02(a)(i)(X) and
4.02(a)(i)(Y), as applicable, to the Class A-V Certificates (or Subclasses, if
any) in proportion to the
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respective amounts of Accrued Certificate Interest thereon derived from each
Loan Group, Accrued Certificate Interest on the Class A-V Certificates with
respect to such Distribution Date, plus any Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date except as provided in the
last paragraph of this Section 4.02(a);
(ii) (X) to the Class A-P Certificates, from the Available Distribution
Amount for each Loan Group in proportion to the respective amounts of
the Class A-P Principal Distribution Amount derived from each Loan
Group, the Class A-P Principal Distribution Amount; and
(Y) to the Senior Certificates (other than the Class A-P
Certificates), in the priorities and amounts set forth in Section
4.02(b) through (e), the sum of the following (applied to reduce the
Certificate Principal Balances of such Senior Certificates, as
applicable):
(A) the related Senior Percentage for such Distribution Date times the sum
of the following:
(1) the principal portion of each Monthly Payment due during the related
Due Period on each Outstanding Mortgage Loan in the related Loan Group (other
than the related Discount Fraction of the principal portion of such payment with
respect to a Discount Mortgage Loan), whether or not received on or prior to the
related Determination Date, minus the principal portion of any Debt Service
Reduction (other than the related Discount Fraction of the principal portion of
such Debt Service Reductions with respect to each Discount Mortgage Loan) which
together with other Bankruptcy Losses exceeds the Bankruptcy Amount;
(2) the Stated Principal Balance of any Mortgage Loan in the related Loan
Group 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 in such
Loan Group pursuant to Section 2.03 or 2.04 during the related Prepayment Period
(other than the related Discount Fraction of such Stated Principal Balance or
shortfall with respect to each Discount Mortgage Loan); and
(3) the principal portion of all other unscheduled collections with respect
to the related Loan Group (other than Principal Prepayments in Full and
Curtailments and amounts received in connection with a Cash Liquidation or REO
Disposition of a Mortgage Loan described in Section 4.02(a)(ii)(Y)(B) of this
Series Supplement, including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related Prepayment Period (or
deemed to have been so received in accordance with Section 3.07(b) of the
Standard Terms) to the extent
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applied by the Master Servicer as recoveries of principal of the related
Mortgage Loan pursuant to Section 3.14 of the Standard Terms (other than the
related Discount Fraction of the principal portion of such unscheduled
collections, with respect to each Discount Mortgage Loan);
(B) with respect to each Mortgage Loan in the related Loan Group for which
a Cash Liquidation or a REO Disposition occurred during the related Prepayment
Period (or was deemed to have occurred during such period in accordance with
Section 3.07(b) of the Standard Terms) and did not result in any Excess Special
Hazard Losses, Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary
Losses, an amount equal to the lesser of (a) the related Senior Percentage for
such Distribution Date times the Stated Principal Balance of such Mortgage Loan
(other than the related Discount Fraction of such Stated Principal Balance, with
respect to each Discount Mortgage Loan) and (b) the related Senior Accelerated
Distribution Percentage for such Distribution Date times the related unscheduled
collections (including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) to the extent applied by the Master Servicer as
recoveries of principal of the related Mortgage Loan pursuant to Section 3.14 of
the Standard Terms (in each case other than the portion of such unscheduled
collections, with respect to a Discount Mortgage Loan, included in Section
4.02(b)(i)(C) of this Series Supplement);
(C) the related Senior Accelerated Distribution Percentage for such
Distribution Date times the aggregate of all Principal Prepayments in Full and
Curtailments with respect to the related Loan Group received in the related
Prepayment Period (other than the related Discount Fraction of such Principal
Prepayments in Full and Curtailments, with respect to each Discount Mortgage
Loan);
(D) any portion of the Excess Subordinate Principal Amount for such
Distribution Date allocated to the related Loan Group; and
(E) any amounts described in subsection (ii)(Y), clauses (A), (B) and (C)
of this Section 4.02(a), as determined for any previous Distribution Date, which
remain unpaid after application of amounts previously distributed pursuant to
this clause (E) to the extent that such amounts are not attributable to Realized
Losses which have been allocated to the Subordinate Certificates; and
(Z) to the Holders of the Class CB or Class NB Certificates, as applicable,
amounts required to be distributed pursuant to Section 4.02(c);
(iii) if the aggregate Certificate Principal Balance of the Class CB or
Class NB Certificates and Class R Certificates is greater than the aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan Group (other
than the related Discount Fraction of each Discount Mortgage Loan in the related
Loan Group) and the Class M Certificates or Class B Certificates are still
outstanding, in each case after giving effect to distributions to be made on
such Distribution Date, to the Holders of such Class
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or Classes of Class CB or Class NB Certificates, an amount equal to one month's
interest at a rate of 7.00% per annum on the amount of the difference between
the aggregate Certificate Principal Balance of such Class or Classes of Class CB
or Class NB Certificates, as applicable, and the aggregate Stated Principal
Balance of its related Loan Group, from the Available Distribution Amount for
the other Loan Group, applied first to pay Accrued Certificate Interest on such
Class or Classes of Class CB Certificates or Class NB Certificates and Class R
Certificates on a pro rata basis to the extent not paid on such Distribution
Date pursuant to Section 4.02(a)(i), and then to pay principal on such Class or
Classes of Class CB Certificates or Class NB Certificates and Class R
Certificates in accordance with the priorities set forth in Section 4.02(b),
until the Certificate Principal Balance of such Class CB Certificates or Class
NB Certificates and Class R Certificates is equal to the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group;
(iv) if the Certificate Principal Balances of the Subordinate Certificates
have not been reduced to zero, to the Master Servicer or a Sub-Servicer, by
remitting for deposit to the Custodial Account, to the extent of and in
reimbursement for any Advances or Sub-Servicer Advances previously made with
respect to any Mortgage Loan or REO Property which remain unreimbursed in whole
or in part following the Cash Liquidation or REO Disposition of such Mortgage
Loan or REO Property, minus any such Advances that were made with respect to
delinquencies that ultimately constituted Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses;
(v) to the Holders of the Class M-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date, except as
provided below;
(vi) to the Holders of the Class M-1 Certificates, an amount equal to (x)
the Subordinate Principal Distribution Amount for such Class of Certificates for
each Loan Group for such Distribution Date, minus (y) the amount of any Class
A-P Collection Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates, to the extent the amounts available pursuant to
clause (x) of Sections 4.02(a)(viii), (x), (xii), (xiv), (xv) and (xvi) of this
Series Supplement are insufficient therefor, applied in reduction of the
Certificate Principal Balance of the Class M-1 Certificates;
(vii) to the Holders of the Class M-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued Certificate
Interest thereon remaining unpaid from any previous Distribution Date, except as
provided below;
(viii) to the Holders of the Class M-2 Certificates, an amount equal to (x)
the Subordinate Principal Distribution Amount for such Class of Certificates for
each Loan Group for such Distribution Date, minus (y) the amount of any Class
A-P Collection Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates, to the extent the amounts available pursuant to
clause (x) of Sections 4.02(a) (x), (xii), (xiv), (xv) and (xvi) are
insufficient therefor, applied in reduction of the Certificate Principal Balance
of the Class M-2 Certificates;
22
<PAGE>
(ix) to the Holders of the Class M-3 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(x) to the Holders of the Class M-3 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates
for each Loan Group for such Distribution Date minus (y) the amount of
any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections 4.02(a)(xii),
(xiv), (xv) and (xvi) are insufficient therefor, applied in reduction of
the Certificate Principal Balance of the Class M-3 Certificates;
(xi) to the Holders of the Class B-1 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(xii) to the Holders of the Class B-1 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates
for each Loan Group for such Distribution Date minus (y) the amount of
any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections 4.02(a)(xiv), (xv)
and (xvi) are insufficient therefor, applied in reduction of the
Certificate Principal Balance of the Class B-1 Certificates;
(xiii) to the Holders of the Class B-2 Certificates, the Accrued Certificate
Interest thereon for such Distribution Date, plus any Accrued
Certificate Interest thereon remaining unpaid from any previous
Distribution Date, except as provided below;
(xiv) to the Holders of the Class B-2 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates
for each Loan Group for such Distribution Date minus (y) the amount of
any Class A-P Collection Shortfalls for such Distribution Date or
remaining unpaid for all previous Distribution Dates, to the extent the
amounts available pursuant to clause (x) of Sections 4.02(a)(xv) and
(xvi) are insufficient therefor, applied in reduction of the Certificate
Principal Balance of the Class B-2 Certificates;
(xv) to the Holders of the Class B-3 Certificates, an amount equal to (x) the
Accrued Certificate Interest thereon for such Distribution Date, plus
any Accrued Certificate Interest thereon remaining unpaid from any
previous Distribution Date, except as provided below, minus (y) the
amount of any Class A-P Collection Shortfalls for such Distribution Date
or remaining unpaid for all previous Distribution Dates, to the extent
the amounts available pursuant to clause (x) of Section 4.02(a) (xvi)
are insufficient therefor;
(xvi) to the Holders of the Class B-3 Certificates, an amount equal to (x) the
Subordinate Principal Distribution Amount for such Class of Certificates
for each Loan Group for such Distribution Date minus (y) the amount of
any Class A-P Collection
23
<PAGE>
Shortfalls for such Distribution Date or remaining unpaid for all
previous Distribution Dates applied in reduction of the Certificate
Principal Balance of the Class B-3 Certificates;
(xvii) to the Senior Certificates, on a pro rata basis in accordance with their
respective outstanding Certificate Principal Balances, the portion, if any,
of the Available Distribution Amounts for each Loan Group remaining after
the foregoing distributions, applied to reduce the Certificate Principal
Balances of such Senior Certificates, but in no event more than the
aggregate of the outstanding Certificate Principal Balances of each such
Class of Senior Certificates, and thereafter, to each Class of Subordinate
Certificates then outstanding beginning with such Class with the Highest
Priority, any portion of the Available Distribution Amounts for each Loan
Group remaining after the Senior Certificates have been retired, applied to
reduce the Certificate Principal Balance of each such Class of Subordinate
Certificates, but in no event more than the outstanding Certificate
Principal Balance of each such Class of Subordinate Certificates; and
(xviii) to the Class R Certificates, the balance, if any, of the Available
Distribution Amounts for both Loan Groups.
Notwithstanding the foregoing, on any Distribution Date, with respect to
the Class of Subordinate Certificates outstanding on such Distribution Date with
the Lowest Priority, or in the event the Subordinate Certificates are no longer
outstanding, the Senior Certificates, Accrued Certificate Interest thereon
remaining unpaid from any previous Distribution Date will be distributable only
to the extent that such unpaid Accrued Certificate Interest was attributable to
interest shortfalls relating to the failure of the Master Servicer to make any
required Advance, or the determination by the Master Servicer that any proposed
Advance would be a Nonrecoverable Advance with respect to the related Mortgage
Loan where such Mortgage Loan has not yet been the subject of a Cash Liquidation
or REO Disposition.
(b) Distributions of principal on the Senior Certificates on each
Distribution Date occurring prior to the Credit Support Depletion Date will be
made as follows:
(i) first, to the Class A-P Certificates, until the Certificate
Principal Balance thereof is reduced to zero, an amount (the "Class A-P
Principal Distribution Amount") equal to the aggregate of:
(A) the related Discount Fraction of the principal portion
of each Monthly Payment on each Discount Mortgage Loan due during
the related Due Period, whether or not received on or prior to
the related Determination Date, minus the Discount Fraction of
the principal portion of any related Debt Service Reduction which
together with other Bankruptcy Losses exceeds the Bankruptcy
Amount;
(B) the related Discount Fraction of the principal portion
of all unscheduled collections on each Discount Mortgage Loan
received during the preceding calendar month (other than amounts
received in connection with a Cash Liquidation or REO Disposition
of a Discount Mortgage Loan described in clause
24
<PAGE>
(C) below), including Principal Prepayments in Full, Curtailments
and repurchases (including deemed repurchases under Section
3.07(b) of the Standard Terms) of Discount Mortgage Loans (or, in
the case of a substitution of a Deleted Mortgage Loan, the
Discount Fraction of the amount of any shortfall deposited in the
Custodial Account in connection with such substitution);
(C) in connection with the Cash Liquidation or REO
Disposition of a Discount Mortgage Loan that did not result in
any Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, an amount equal to the
lesser of (1) the applicable Discount Fraction of the Stated
Principal Balance of such Discount Mortgage Loan immediately
prior to such Distribution Date and (2) the aggregate amount of
the collections on such Mortgage Loan to the extent applied as
recoveries of principal;
(D) any amounts allocable to principal for any previous
Distribution Date (calculated pursuant to clauses (A) through (C)
above) that remain undistributed; and
(E) the amount of any Class A-P Collection Shortfalls for
such Distribution Date and the amount of any Class A-P Collection
Shortfalls remaining unpaid for all previous Distribution Dates,
but only to the extent of the Eligible Funds for such
Distribution Date;
(ii) concurrently with the distribution described in clause (iii)
below, the Class CB Principal Distribution Amount shall be distributed
to the Class CB Certificates until the Certificate Principal Balance
thereof has been reduced to zero; and
(iii) the Class NB Principal Distribution Amount shall be
distributed as follows:
(A) first, to the Class R Certificates until the
Certificate Principal Balance thereof has been
reduced to zero; and
(B) second, to the Class NB Certificates until the
Certificate Principal Balance thereof has been
reduced to zero.
(c) Prior to the occurrence of the Credit Support Depletion Date but after
the reduction of the Certificate Principal Balances of the Class CB Certificates
or Class NB Certificates and Class R Certificates to zero, the remaining Class
CB Certificates or Class NB Certificates and Class R Certificates, as
applicable, will be entitled to receive, in addition to any Mortgagor
prepayments related to such Certificates' respective Loan Group, 100% of the
Mortgagor prepayments on the Mortgage Loans in the other Loan Group, and in
accordance with the priorities set forth in clause (b) above, and in reduction
of the Certificate Principal Balances thereof, on any Distribution Date unless
(i) the weighted average of the Subordinate Percentages for both Loan Groups,
weighted on the basis of the Stated Principal Balances of the Mortgage Loans in
the related Loan Group, is at least two times the weighted average of the
initial Subordinate Percentages for both Loan Groups (calculated on such basis)
and (ii) the outstanding principal balance of the Mortgage Loans in both Loan
Groups delinquent 60 days or more
25
<PAGE>
averaged over the last six months, as a percentage of the aggregate outstanding
Certificate Principal Balance of the Subordinate Certificates, is less than 50%.
In addition, on any Distribution Date prior to the Credit Support Depletion Date
on which the aggregate Certificate Principal Balance of the Class CB
Certificates or Class NB Certificates and Class R Certificates, as applicable,
is greater than the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group in each case after giving effect to distributions to be
made on such Distribution Date, 100% of the Mortgagor prepayments allocable to
the Subordinate Certificates on the Mortgage Loans in the other Loan Group will
be distributed to such class or classes of Class CB Certificates or Class NB
Certificates and Class R Certificates, as applicable, and in accordance with the
priorities set forth in clause (b) above, and in reduction of the Certificate
Principal Balances thereof, until the aggregate Certificate Principal Balance of
such Class or Classes of Certificates equals the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group.
(d) On or after the Credit Support Depletion Date, all priorities relating
to distributions as described in Section 4.02(b) above in respect of principal
among the various classes of Senior Certificates (other than the Class A-P
Certificates) will be disregarded, and (i) the remaining Class CB Principal
Distribution Amount will be distributed to the Class CB Certificates pro rata in
accordance with their respective outstanding Certificate Principal Balances,
(ii) the remaining Class NB Principal Distribution Amount will be distributed to
the Class NB Certificates and Class R Certificates pro rata in accordance with
their respective outstanding Certificate Principal Balances, (iii) the amount
set forth in Section 4.02(a)(i) will be distributed as set forth therein, and
(iv) an amount equal to the Discount Fraction of the principal portion of
scheduled payments and unscheduled collections received or advanced in respect
of Discount Mortgage Loans will be distributed to the Class A-P Certificates,
from the Available Distribution Amount for each Loan Group in proportion to the
respective amounts of the Class A-P Principal Distribution Amount derived from
each Loan Group.
(e) After the reduction of the Certificate Principal Balances of the Senior
Certificates (other than the Class A-P Certificates) to zero but prior to the
Credit Support Depletion Date, the Senior Certificates (other than the Class A-P
Certificates) will be entitled to no further distributions of principal thereon
and the Available Distribution Amount for each Loan Group will be paid solely to
the holders of the Class A-P, Class A-V and Subordinate Certificates, in each
case as described herein.
(f) In addition to the foregoing distributions, with respect to any
Mortgage Loan that was previously the subject of a Cash Liquidation or an REO
Disposition that resulted in a Realized Loss, in the event that within two years
of the date on which such Realized Loss was determined to have occurred the
Master Servicer receives amounts, which the Master Servicer reasonably believes
to represent subsequent recoveries (net of any related liquidation expenses), or
determines that it holds surplus amounts previously reserved to cover estimated
expenses, specifically related to such Mortgage Loan (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), the Master
Servicer shall distribute such amounts to the applicable Certificateholders of
the Class or Classes to which such Realized Loss was allocated (with the amounts
to be distributed allocated among such Classes in the same proportions as such
Realized Loss was allocated), and within each such Class to the
Certificateholders of record as of the
26
<PAGE>
Record Date immediately preceding the date of such distribution (or if such
Class of Certificates is no longer outstanding, to the Certificateholders of
record at the time that such Realized Loss was allocated); provided that no such
distribution to any Class of Certificates of subsequent recoveries related to a
Mortgage Loan shall exceed, either individually or in the aggregate and together
with any other amounts paid in reimbursement therefor, the amount of the related
Realized Loss that was allocated to such Class of Certificates. Notwithstanding
the foregoing, no such distribution shall be made with respect to the
Certificates of any Class to the extent that either (i) such Class was protected
against the related Realized Loss pursuant to any instrument or fund established
under Section 11.01(e) or (ii) such Class of Certificates has been deposited
into a separate trust fund or other structuring vehicle and separate
certificates or other instruments representing interests therein have been
issued in one or more classes, and any of such separate certificates or other
instruments was protected against the related Realized Loss pursuant to any
limited guaranty, payment obligation, irrevocable letter of credit, surety bond,
insurance policy or similar instrument or a reserve fund, or a combination
thereof. Any amount to be so distributed with respect to the Certificates of any
Class shall be distributed by the Master Servicer to the Certificateholders of
record as of the Record Date immediately preceding the date of such distribution
(i) with respect to the Certificates of any Class (other than the Class A-V
Certificates), on a pro rata basis based on the Percentage Interest represented
by each Certificate of such Class as of such Record Date and (ii) with respect
to the Class A-V Certificates, to the Class A-V Certificates or any Subclass
thereof in the same proportion as the related Realized Loss was allocated. Any
amounts to be so distributed shall not be remitted to or distributed from the
Trust Fund, and shall constitute subsequent recoveries with respect to Mortgage
Loans that are no longer assets of the Trust Fund.
(g) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be solely
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm") for which it acts as agent. Each brokerage
firm shall be responsible for disbursing funds to the Certificate Owners that it
represents. None of the Trustee, the Certificate Registrar, the Company or the
Master Servicer shall have any responsibility therefor.
(h) Except as otherwise provided in Section 9.01, if the Master Servicer
anticipates that a final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Master Servicer shall, no later
than the Determination Date in the month of such final distribution, notify the
Trustee and the Trustee shall, no later than two (2) Business Days after such
Determination Date, mail on such date to each Holder of such Class of
Certificates a notice to the effect that: (i) the Trustee anticipates that the
final distribution with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Trustee or as otherwise specified therein, and
(ii) no interest shall accrue on such Certificates from and after the end of the
related Interest Accrual Period. In the event that Certificateholders required
to surrender their Certificates pursuant to Section 9.01(c) do not surrender
their Certificates for final cancellation, the Trustee shall cause funds
distributable with respect to such Certificates to be
27
<PAGE>
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. (See Section 4.03 of the
Standard Terms and Exhibit Three attached hereto)
Section 4.04. Distribution of Reports to the Trustee and the Company; Advances
by the Master Servicer. (See Section 4.04 of the Standard Terms)
Section 4.05. Allocation of Realized Losses.
Prior to each Distribution Date, the Master Servicer shall determine the
total amount of Realized Losses, if any, that resulted from any Cash
Liquidation, Servicing Modification, Debt Service Reduction, Deficient Valuation
or REO Disposition that occurred during the related Prepayment Period or, in the
case of a Servicing Modification that constitutes a reduction of the interest
rate on a Mortgage Loan, the amount of the reduction in the interest portion of
the Monthly Payment due during the related Due Period. The amount of each
Realized Loss shall be evidenced by an Officers' Certificate. All Realized
Losses, other than Excess Special Hazard Losses, Extraordinary Losses, Excess
Bankruptcy Losses or Excess Fraud Losses, shall be allocated as follows: first,
to the Class B-3 Certificates until the Certificate Principal Balance thereof
has been reduced to zero; second, to the Class B-2 Certificates until the
Certificate Principal Balance thereof has been reduced to zero; third, to the
Class B-1 Certificates until the Certificate Principal Balance thereof has been
reduced to zero; fourth, to the Class M-3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; fifth, to the Class M-2
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; sixth, to the Class M-1 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; and, thereafter, if any such Realized
Losses are on a Discount Mortgage Loan, to the Class A-P Certificates in an
amount equal to the Discount Fraction of the principal portion thereof, and the
remainder of such Realized Losses on the Discount Mortgage Loans and the entire
amount of such Realized Losses on Non-Discount Mortgage Loans will be allocated
among all the Class CB Certificates (in the case of a Group CB Loan) or among
the Class NB Certificates and Class R Certificates (in the case of a Group NB
Loan), and the Class A-V Certificates (in the case of the interest portion of a
Realized Loss on a Mortgage Loan in either Loan Group) on a pro rata basis, as
described below. The principal portion of any Excess Special Hazard Losses,
Excess Bankruptcy Losses, Excess Fraud Losses and Extraordinary Losses on
Discount Mortgage Loans will be allocated to the Class A-P Certificates in an
amount equal to the Discount Fraction thereof and the Class CB Percentage or
Class NB Percentage (as applicable) of the remainder of the principal portion of
such losses will be allocated to the Class CB Certificates (in the case of a
Class CB Loan) or between the Class NB and Class R Certificates (in the case of
a Class NB Loan) on a pro rata basis, as described below; and the remainder of
the principal portion of such Realized Losses will be allocated among the
Subordinate Certificates, on a pro rata basis, as described below. The interest
portion of any Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess
Fraud Losses and Extraordinary Losses will be allocated to all the Certificates
on a pro rata basis.
As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various
28
<PAGE>
Classes so specified, to each such Class of Certificates on the basis of their
then outstanding Certificate Principal Balances derived from the related Loan
Group prior to giving effect to distributions to be made on such Distribution
Date in the case of the principal portion of a Realized Loss or based on the
Accrued Certificate Interest thereon payable from the related Loan Group in
respect of such Distribution Date and derived from the related Loan Group
(without regard to any Compensating Interest for such Distribution Date) in the
case of an interest portion of a Realized Loss. Except as provided in the
following sentence, any allocation of the principal portion of Realized Losses
(other than Debt Service Reductions) to a Class of Certificates shall be made by
reducing the Certificate Principal Balance thereof by the amount so allocated,
which allocation shall be deemed to have occurred on such Distribution Date. Any
allocation of the principal portion of Realized Losses (other than Debt Service
Reductions) to the Subordinate Certificates then outstanding with the Lowest
Priority shall be made by operation of the definition of "Certificate Principal
Balance" and by operation of the provisions of Section 4.02(a). Allocations of
the interest portions of Realized Losses shall be made in proportion to the
amount of Accrued Certificate Interest and by operation of the definition of
"Accrued Certificate Interest" and by operation of the provisions of Section
4.02(a). Allocations of the principal portion of Debt Service Reductions shall
be made by operation of the provisions of Section 4.02(a). All Realized Losses
and all other losses allocated to a Class of Certificates hereunder will be
allocated among the Certificates of such Class in proportion to the Percentage
Interests evidenced thereby; provided that if any Subclasses of the Class A-V
Certificates have been issued pursuant to Section 5.01(c), such Realized Losses
and other losses allocated to the Class A-V Certificates shall be allocated
among such Subclasses in proportion to the respective amounts of Accrued
Certificate Interest payable on such Distribution Date that would have resulted
absent such reductions.
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.
(See Section 4.06 of the Standard Terms)
Section 4.07. Optional Purchase of Defaulted Mortgage Loans. (See Section 4.07
of the Standard Terms)
Section 4.08. Surety Bond. (See Section 4.08 of the Standard Terms)
29
<PAGE>
ARTICLE V
THE CERTIFICATES
(See Article V of the Standard Terms)
30
<PAGE>
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
(See Article VI of the Standard Terms)
31
<PAGE>
ARTICLE VII
DEFAULT
(See Article VII of the Standard Terms)
32
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
(See Article VIII of the Standard Terms)
33
<PAGE>
ARTICLE IX
TERMINATION
(See Article IX of the Standard Terms)
34
<PAGE>
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration. (See Section 10.01 of the Standard Terms)
Section 10.02. Master Servicer; REMIC Administrator and Trustee Indemnification.
(See Section 10.02 of the Standard Terms)
Section 10.03. Designation of REMIC.
The REMIC Administrator will make an election to treat the entire
segregated pool of assets described in the definition of Trust Fund, and subject
to this Agreement (including the Mortgage Loans but excluding the Initial
Monthly Payment Fund) as a REMIC for federal income tax purposes.
The Class CB, Class NB, Class A-P, Class M-1, Class M-2, Class M-3,
Class B-1, Class B-2 and Class B-3 Certificates and the Uncertificated Class A-V
REMIC Regular Interests, the rights in and to which will be represented by the
Class A-V Certificates, will be "regular interests" in the REMIC, and the Class
R Certificates will be the sole class of "residual interests" therein for
purposes of the REMIC Provisions (as defined herein) under federal income tax
law. On and after the date of issuance of any Subclass of Class A-V Certificates
pursuant to Section 5.01(c), any such Subclass will represent the Uncertificated
Class A-V REMIC Regular Interest or Interests specified by the initial Holder of
the Class A-V Certificates pursuant to said Section.
Section 10.04. Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement, the
Trustee or any Paying Agent, as applicable, shall comply with all federal
withholding requirements respecting payments to Certificateholders, including
interest or original issue discount payments or advances thereof that the
Trustee or any Paying Agent, as applicable, reasonably believes are applicable
under the Code. The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee or any Paying Agent, as applicable, does
withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee or any Paying Agent, as applicable, shall indicate the
amount withheld to such Certificateholder pursuant to the terms of such
requirements.
35
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment. (See Section 11.01 of the Standard Terms)
Section 11.02. Recordation of Agreement. Counterparts. (See Section 11.02 of the
Standard Terms)
Section 11.03. Limitation on Rights of Certificateholders. (See Section 11.03 of
the Standard Terms)
Section 11.04. Governing Laws. (See Section 11.04 of the Standard Terms)
Section 11.05. Notices. All demands and notices hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by registered mail, postage prepaid (except for notices to the Trustee which
shall be deemed to have been duly given only when received), to the appropriate
address for each recipient listed in the table below or, in each case, such
other address as may hereafter be furnished in writing to the Master Servicer,
the Trustee and the Company, as applicable:
<TABLE>
<CAPTION>
- ---------------------------------- --------------------------------------------------------------
Recipient Address
- ---------------------------------- --------------------------------------------------------------
- ---------------------------------- --------------------------------------------------------------
<S> <C>
Company 8400 Normandale Lake Boulevard
Suite 600, Minneapolis, Minnesota 55437,
Attention: President
- ---------------------------------- --------------------------------------------------------------
- ---------------------------------- --------------------------------------------------------------
Master Servicer 10 Universal City Plaza, Suite 2100
Universal City, California 91608,
Attention: Managing Director/Master Servicing
- ---------------------------------- --------------------------------------------------------------
- ---------------------------------- --------------------------------------------------------------
Trustee Corporate Trust Office
1761 East St. Andrews Place, Santa Ana, California 92705-4934
Attention: Residential Accredit Loans, Inc. Series 1999-QS12
The Trustee designates its offices located at
Four Albany Street, New York, NY 10006, for
the purposes of Section 8.12 of the Standard
Terms
- ---------------------------------- --------------------------------------------------------------
- ---------------------------------- --------------------------------------------------------------
Standard & Poor's 55 Water Street
New York, New York 10041
- ---------------------------------- --------------------------------------------------------------
- ---------------------------------- --------------------------------------------------------------
DCR 17 State Street
New York, New York 10004
- ---------------------------------- --------------------------------------------------------------
</TABLE>
36
<PAGE>
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
Section 11.06. Required Notices to Rating Agency and Subservicer. (See Section
11.06 of the Standard Terms)
Section 11.07. Severability of Provisions. (See Section 11.07 of the Standard
Terms)
Section 11.08. Supplemental Provisions for Resecuritization. (See Section 11.08
of the Standard Terms)
Section 11.09. Allocation of Voting Rights
98.0% of all of the Voting Rights shall be allocated among
Holders of Certificates, other than the Class A-V Certificates and Class R
Certificates, in proportion to the outstanding Certificate Principal Balances of
their respective Certificates; 1% of all Voting Rights shall be allocated among
the Holders of the Class A-V Certificates in accordance with their respective
Percentage Interests, and 1% of all Voting Rights shall be allocated among the
Holders of the Class R Certificates in accordance with their respective
Percentage Interests.
37
<PAGE>
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized and their respective seals, duly attested, to be
hereunto affixed, all as of the day and year first above written.
RESIDENTIAL ACCREDIT LOANS, INC.
[Seal]
By:
Name: Timothy Pillar
Title: Vice President
Attest: ____________________
Name: Stephen Hynes
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
[Seal]
By:
Name: Stephen Hynes
Title: Director
Attest:____________________
Name: Tim Pillar
Title: Director
BANKERS TRUST COMPANY,
as Trustee
[Seal]
By:
Name:
Title:
Attest:____________________
Name:
Title:
<PAGE>
STATE OF MINNESOTA
)
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of September, 1999 before me, a notary public in
and for said State, personally appeared Tim Pillar, known to me to be a Vice
President of Residential Accredit Loans, Inc., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
- -------------------------------------------------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF MINNESOTA
)
) ss.:
COUNTY OF HENNEPIN )
On the ____ day of September, 1999 before me, a notary public in
and for said State, personally appeared Stephen Hynes, known to me to be a
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]
<PAGE>
STATE OF
)
) ss.:
COUNTY OF )
On the ___ day of September, 1999 before me, a notary public in
and for said State, personally appeared _______________, known to me to be a[n]
_________________ of __________________, the __________________ 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]
<PAGE>
Exhibit ONE
MORTAGE LOAN SCHEDULE
1
RUN ON : 10/01/99 RFC DISCLOSURE SYSTEM RFFSD177-01
AT : 15.22.47 FIXED RATE LOAN LISTING AMORTIZED BALANCE
SERIES : RALI 1999-QS12 CUTOFF : 09/01/99
POOL : 0004401
:
:
POOL STATUS: F
RFC LOAN # S/S CODE PMT TYPE ORIGINAL BAL LOAN FEATURE
ORIG TERM PRINCIPAL BAL # OF UNITS
ADDRESS ORIG RATE ORIGINAL P+I LTV
ADDRESS LINE 2 CURR NET CURRENT P+I VALUE
CITY STATE ZIP LOAN PURP NOTE DATE MI CO CODE
SERVICER LOAN # PROP TYPE 1ST PMT DATE MI CVG
SELLER LOAN # OCCP CODE MATURITY DATE
INVESTOR LOAN #
______________________________________________________________________________
1887268 A35/G02 F 583,300.00 ZZ
180 577,806.41 1
708 PONT CHARTRAIN DR 7.125 5,283.71 75
6.875 5,283.71 777,754.00
LAS VEGAS NV 89129 1 05/06/99 00
0431416106 03 07/01/99 0
A9900085 O 06/01/14
0
1895482 H22/G02 F 540,000.00 ZZ
180 531,816.37 1
220 E 65TH STREET UNIT#19G 7.750 5,082.89 75
7.500 5,082.89 720,000.00
NEW YORK NY 10021 1 03/29/99 00
0431266618 06 05/01/99 0
9901016 O 04/01/14
0
1900401 638/G02 F 280,000.00 ZZ
180 275,233.29 1
12931 MEMORIAL DRIVE 6.875 2,497.19 80
6.625 2,497.19 350,000.00
HOUSTON TX 77079 1 03/26/99 00
0431292994 03 05/01/99 0
8866637 O 04/01/14
0
1902331 638/G02 F 270,000.00 ZZ
180 266,021.73 1
2083 33RD AVENUE 6.875 2,408.01 80
6.625 2,408.01 338,000.00
SAN FRANCISCO CA 94116 2 04/02/99 00
0431294800 07 06/01/99 0
1
8872099 O 05/01/14
0
1908549 637/G02 F 296,250.00 ZZ
180 292,437.98 1
60 SHORE DRIVE WEST 6.875 2,642.12 75
6.625 2,642.12 395,000.00
MIAMI FL 33133 5 04/19/99 00
0431349968 05 06/01/99 0
0010344729 O 05/01/14
0
1910439 638/G02 F 260,000.00 ZZ
180 256,264.77 1
25 FENWICK ROAD 7.000 2,336.95 80
6.750 2,336.95 325,000.00
CHELMSFORD MA 01824 5 04/23/99 00
0431328111 05 06/01/99 0
08874397 O 05/01/14
0
1910571 638/G02 F 256,000.00 ZZ
180 252,705.89 1
37 GRAND AVENUE 6.875 2,283.15 80
6.625 2,283.15 320,000.00
SUWANNEE GA 30024 1 04/29/99 00
0431329341 03 06/01/99 0
8880727 O 05/01/14
0
1912188 638/G02 F 315,000.00 ZZ
180 311,863.35 1
22768 VALLEY VIEW DRIVE 7.250 2,875.52 77
7.000 2,875.52 410,000.00
HAYWARD CA 94541 5 05/05/99 00
0431332790 05 07/01/99 0
8880031 O 06/01/14
0
1912264 638/G02 F 384,000.00 ZZ
180 377,405.94 1
3913 VIA MANZANA 7.250 3,505.39 80
7.000 3,505.39 480,000.00
SAN CLEMENTE CA 92673 5 05/06/99 00
0431331149 05 07/01/99 0
08883404 O 06/01/14
0
1
1917888 560/560 F 280,500.00 ZZ
180 269,621.01 1
11320 FAWN VALLEY TRAIL 6.000 2,367.02 80
5.750 2,367.02 350,900.00
FENTON MI 48430 1 09/04/98 00
499415800 01 11/01/98 0
499415800 O 10/01/13
0
1921089 367/367 F 305,000.00 ZZ
180 303,131.70 1
9708 LOCUST HILL DRIVE 7.375 2,805.77 68
7.125 2,805.77 455,000.00
GREAT FALLS VA 22066 1 06/10/99 00
99103161 05 08/01/99 0
99103161 O 07/01/14
0
1921583 637/G02 F 568,050.00 ZZ
180 564,416.16 1
4910 N GREENTREE DR EAST 6.875 5,066.18 71
6.625 5,066.18 800,000.00
LITCHFIELD PARK AZ 85340 5 06/02/99 00
0431375427 03 08/01/99 0
0015241870 O 07/01/14
0
1922422 637/G02 F 272,100.00 ZZ
180 270,415.00 1
3445 COUNTY ROAD 207 7.250 2,483.90 48
7.000 2,483.90 575,000.00
DURANGO CO 81301 2 06/04/99 00
0431363308 03 08/01/99 0
0014966311 O 07/01/14
0
1923942 Q59/G02 F 314,400.00 ZZ
180 313,550.23 4
12691 JOSEPHINE ST 8.750 3,142.27 80
8.500 3,142.27 393,000.00
GARDEN GROVE CA 92841 1 07/20/99 00
0431407675 05 09/01/99 0
99000968 N 08/01/14
0
1924118 Q59/G02 F 400,000.00 ZZ
180 398,844.06 1
4558 VIRO ROAD 8.000 3,822.61 68
7.750 3,822.61 595,000.00
1
LA CANADA FLINT CA 91011 1 06/30/99 00
0431393644 05 09/01/99 0
99000955 O 08/01/14
0
1924950 944/G02 F 253,600.00 ZZ
180 252,080.12 1
2974 POSTWOOD DRIVE 7.625 2,368.95 80
7.375 2,368.95 317,000.00
SAN JOSE CA 95132 1 06/24/99 00
0431377993 05 08/01/99 0
17708 N 07/01/14
0
1925326 462/G02 F 340,000.00 ZZ
180 336,548.86 1
19751 QUIET BAY LANE 6.250 2,915.24 68
6.000 2,915.24 500,000.00
HUNTINGTON BEAC CA 92648 2 05/13/99 00
0431381995 05 07/01/99 0
0006156400 O 06/01/14
0
1930015 F03/G02 F 291,500.00 ZZ
180 289,694.86 1
1243 MARTIN LUTHER KING JR WY 7.250 2,661.00 76
7.000 2,661.00 386,000.00
BERKLEY CA 94709 5 06/22/99 00
0431390665 05 08/01/99 0
ROS10472 O 07/01/14
0
1930660 Q99/G02 F 255,000.00 ZZ
180 254,186.71 1
460 CREPE MYRTLE TERRACE 6.875 2,274.23 65
6.625 2,274.23 395,000.00
ALPHARETTA GA 30005 5 07/02/99 00
0431434299 03 09/01/99 0
XXX O 08/01/14
0
1931605 M29/G02 F 382,000.00 ZZ
180 382,000.00 1
6969 WAPITI COURT 8.250 3,705.94 85
8.000 3,705.94 450,000.00
BOULDER CO 80301 5 08/09/99 10
0431419027 05 10/01/99 6
0369586 O 09/01/14
0
1
1931715 F03/G02 F 360,000.00 ZZ
180 356,990.77 1
3797 WONDERLAND HILL AVE 8.500 3,545.06 80
8.250 3,545.06 450,000.00
BOULDER CO 80304 5 07/20/99 00
0431398684 05 09/01/99 0
DEN13491 O 08/01/14
0
1934512 E76/G02 F 251,500.00 ZZ
180 250,773.21 1
504 ASHBURNE GLEN CIRCLE 8.000 2,403.46 76
7.750 2,403.46 331,500.00
OVILLA TX 75154 1 07/28/99 00
0431409986 05 09/01/99 0
100027200199070 O 08/01/14
0
1937084 144/144 F 450,000.00 ZZ
180 434,964.28 1
1 SULGRAVE ROAD 6.625 3,950.97 71
6.375 3,950.97 640,000.00
SCARSDALE NY 10583 5 10/14/98 00
160627604 05 12/01/98 0
160627604 O 11/01/13
0
1939769 S48/S48 F 329,646.00 ZZ
180 327,514.40 1
19388 EAST DISCOVERY PLACE 6.750 2,917.07 75
6.500 2,917.07 439,528.00
ROWLAND HEIGHTS CA 91748 1 06/08/99 00
6342713499 03 08/01/99 0
6342713499 O 07/01/14
0
1939894 S48/S48 F 335,000.00 ZZ
180 333,999.31 1
2496 43RD AVENUE 7.625 3,129.34 67
7.375 3,129.34 500,000.00
SAN FRANCISCO CA 94116 2 07/15/99 00
6090148989 07 09/01/99 0
6090148989 O 08/01/14
0
1940136 M79/G02 F 324,000.00 ZZ
180 324,000.00 1
1
20111 CORDILL LANE 8.500 3,190.56 76
8.250 3,190.56 430,000.00
SPICEWOOD TX 78669 1 08/31/99 00
0431460989 05 10/01/99 0
3545 O 09/01/14
0
1940273 664/G02 F 297,600.00 ZZ
180 297,600.00 1
489 MESSINA PLACE 8.125 2,865.54 80
7.875 2,865.54 372,000.00
OAK PARK AREA CA 91377 1 08/23/99 00
0431456391 05 10/01/99 0
0003195567 O 09/01/14
0
2770943 287/287 F 467,600.00 ZZ
180 457,090.66 1
6450 NORTH DESERT WIND CIRCLE 7.000 4,202.93 80
6.750 4,202.93 584,500.00
TUCSON AZ 85750 1 01/11/99 00
5247812 03 03/01/99 0
5247812 O 02/01/14
0
2807070 976/G02 F 300,000.00 T
180 296,261.93 1
130 HOOP HOLE CREEK 7.250 2,738.59 79
7.000 2,738.59 380,000.00
ATLANTIC BEACH NC 28512 1 04/30/99 00
0431341262 05 06/01/99 0
5666069 O 05/01/14
0
2807078 976/G02 F 260,000.00 ZZ
180 256,760.32 1
10 FAIRWAY DRIVE 7.250 2,373.45 52
7.000 2,373.45 500,000.00
WHITE PLAINS NY 10601 2 04/23/99 00
0431341320 05 06/01/99 0
5596973 O 05/01/14
0
2807094 976/G02 F 295,000.00 ZZ
180 291,163.32 1
220 SOUTH CALIFORNIA STREET 6.750 2,610.49 80
6.500 2,610.49 370,000.00
SAN GABRIEL CA 91776 2 04/22/99 00
0431340892 05 06/01/99 0
1
5684518 O 05/01/14
0
2807128 976/G02 F 248,000.00 ZZ
180 244,633.50 1
29141 ROSEWOOD LANE 7.000 2,229.10 80
6.750 2,229.10 310,000.00
HIGHLAND CA 92346 1 05/03/99 00
0431340777 03 07/01/99 0
5708539 O 06/01/14
0
2807132 976/G02 F 423,000.00 ZZ
180 417,672.35 1
3254 PORTAGE BAY PLACE EAST 7.125 3,831.67 61
6.875 3,831.67 698,000.00
SEATTLE WA 98102 1 04/26/99 00
0431340801 03 06/01/99 0
5659609 O 05/01/14
0
2810820 461/461 F 499,000.00 ZZ
180 492,715.15 1
10020 NORTH ORANGE RANCH ROAD 7.125 4,520.10 69
6.875 4,520.10 725,000.00
TUCSON AZ 85742 5 04/22/99 00
9022571335 05 06/01/99 0
9022571335 O 05/01/14
0
2820371 K08/G02 F 315,000.00 ZZ
120 308,453.69 1
15 CHARLES STREET UNIT #7C 7.875 3,801.05 75
7.625 3,801.05 420,000.00
NEW YORK NY 10014 5 05/28/99 00
0411351174 06 07/01/99 0
0411351174 O 06/01/09
0
2829608 623/G02 F 341,000.00 ZZ
180 336,705.17 1
6435 FRANCONIA ROAD 7.125 3,088.88 75
6.875 3,088.88 460,000.00
SPRINGFIELD VA 22150 5 04/05/99 00
0431365972 05 06/01/99 0
1246091 O 05/01/14
0
1
2829635 623/G02 F 280,000.00 ZZ
180 275,669.92 1
2601 S QUEBEC ST #19 7.500 2,595.63 80
7.250 2,595.63 350,000.00
DENVER CO 80231 5 04/07/99 00
0431364686 03 06/01/99 0
1438091 O 05/01/14
0
2829640 623/G02 F 260,000.00 ZZ
180 256,582.37 1
1891 BLOOMFIELD OAKS DRIVE 6.625 2,282.78 78
6.375 2,282.78 335,000.00
WEST BLOOMFIELD MI 48324 1 04/15/99 00
0431365899 05 06/01/99 0
1335867 O 05/01/14
0
2829652 623/G02 F 332,000.00 ZZ
180 328,940.08 1
148 BROAD STREET 7.375 3,054.15 80
7.125 3,054.15 415,000.00
SAN LUIS OBISPO CA 93405 1 05/07/99 00
0431364918 05 07/01/99 0
6238713 O 06/01/14
0
2829691 623/G02 F 550,000.00 ZZ
180 539,984.56 1
7665 NORTH WOODSON AVENUE 7.625 5,137.71 66
7.375 5,137.71 845,000.00
FRESNO CA 93711 4 02/16/99 00
0431364850 05 04/01/99 0
6214452 O 03/01/14
0
2834699 K08/G02 F 400,000.00 ZZ
180 397,705.86 1
4541 LORRAINE AVENUE 8.125 3,851.53 80
7.875 3,851.53 500,000.00
HIGHLAND PARK TX 75205 5 06/21/99 00
0411482813 05 08/01/99 0
0411482813 O 07/01/14
0
2835300 074/074 F 477,750.00 T
180 473,534.49 1
19 IRVING AVENUE 7.875 4,531.22 65
7.625 4,531.22 735,000.00
1
ENGLEWOOD CLIFF NJ 07632 1 05/14/99 00
1101268284 05 07/01/99 0
1101268284 O 06/01/14
0
2835309 074/074 F 299,950.00 T
180 297,215.31 1
179 MIRROR LAKE DRIVE 7.500 2,780.58 60
7.250 2,780.58 500,000.00
LAKE PLACID NY 12946 5 05/28/99 00
1111297970 05 07/01/99 0
1111297970 O 06/01/14
0
2835344 074/074 F 260,000.00 ZZ
180 257,310.50 1
3700 ECONLOCKHATCHEE TRL N 7.375 2,391.80 80
7.125 2,391.80 325,000.00
ORLANDO FL 32817 1 05/27/99 00
1331199978 05 07/01/99 0
1331199978 O 06/01/14
0
2835345 074/074 F 337,500.00 ZZ
180 334,489.28 1
3600 CALLIE STILL ROAD 7.750 3,176.81 75
7.500 3,176.81 450,000.00
LAWRENCEVILLE GA 30045 1 05/24/99 00
1354000738 05 07/01/99 0
1354000738 O 06/01/14
0
2835358 074/074 F 300,000.00 ZZ
180 296,420.19 1
20 W 036 WHITNEY LANE 7.750 2,823.83 71
7.500 2,823.83 425,000.00
LEMONT IL 60439 2 04/02/99 00
1507781092 05 06/01/99 0
1507781092 O 05/01/14
0
2842268 G75/G75 F 313,300.00 ZZ
180 309,396.21 1
T1 TERN ROAD 7.250 2,860.00 75
7.000 2,860.00 420,000.00
BETHANY BEACH DE 19930 2 04/20/99 00
03763148 03 06/01/99 0
03763148 N 05/01/14
0
1
2844950 K08/G02 F 251,250.00 ZZ
180 250,539.86 1
115 CARRIAGE PLACE 8.250 2,437.48 75
8.000 2,437.48 335,000.00
HENDERSONVILLE TN 37075 5 07/07/99 00
0411477474 05 09/01/99 0
0411477474 O 08/01/14
0
2844955 K08/G02 F 300,000.00 ZZ
180 299,123.40 1
18605 SANDY COVE 7.875 2,845.35 80
7.625 2,845.35 375,828.00
NASSAU BAY TX 77058 1 07/12/99 00
0411482219 09 09/01/99 0
0411482219 O 08/01/14
0
2845355 K08/G02 F 400,000.00 ZZ
180 398,856.80 1
2393 TRAMMEL RD 8.125 3,851.53 65
7.875 3,851.53 620,000.00
CUMMING GA 30041 5 07/08/99 00
0411462385 05 09/01/99 0
0411462385 O 08/01/14
0
2847686 E82/G02 F 250,000.00 ZZ
180 249,261.39 1
26 WENDY ROAD 7.750 2,353.19 40
7.500 2,353.19 630,000.00
SYOSSET NY 11791 1 07/15/99 00
0400184198 03 09/01/99 0
0400184198 O 08/01/14
0
2849669 461/461 F 350,000.00 ZZ
180 347,761.02 1
4728 91ST AVENUE SE 6.875 3,121.50 69
6.625 3,121.50 509,000.00
MERCER ISLAND WA 98040 1 05/26/99 00
9022704142 05 08/01/99 0
9022704142 N 07/01/14
0
2849670 461/461 F 259,000.00 ZZ
180 257,360.96 1
1
230 SOUTH CATALINA AVENUE #411 7.000 2,327.97 80
6.750 2,327.97 325,000.00
REDONDO BEACH CA 90277 2 06/02/99 00
9022726111 01 08/01/99 0
9022726111 O 07/01/14
0
2849679 461/461 F 618,000.00 ZZ
180 614,721.41 1
725 VIOLA PLACE 9.000 6,268.17 70
8.750 6,268.17 885,000.00
LOS ALTOS CA 94022 2 06/14/99 00
9022754824 05 08/01/99 0
9022754824 O 07/01/14
0
2849681 461/461 F 365,000.00 ZZ
180 362,465.53 1
544 CHEYENNE DRIVE 9.000 3,702.08 60
8.750 3,702.08 617,000.00
SUNNYVALE CA 94087 2 06/14/99 00
9022757256 05 08/01/99 0
9022757256 O 07/01/14
0
2857238 K08/G02 F 280,000.00 ZZ
180 279,199.76 1
27101 PUERTA DEL ORO 8.125 2,696.07 80
7.875 2,696.07 350,000.00
MISSION VIEJO CA 92691 5 07/22/99 00
0411521776 05 09/01/99 0
0411521776 O 08/01/14
0
2863158 074/074 F 420,000.00 ZZ
180 417,427.26 1
31 ARBUTUS WAY 7.375 3,863.68 75
7.125 3,863.68 560,000.00
STATEN ISLAND NY 10312 1 06/11/99 00
1500504345 05 08/01/99 0
1500504345 O 07/01/14
0
2864693 G52/G02 F 312,000.00 ZZ
180 311,057.72 4
201 WEST FAIRVIEW AVENUE 7.500 2,892.28 80
7.250 2,892.28 390,000.00
SAN GABRIEL CA 91776 1 07/22/99 00
0431439868 05 09/01/99 0
1
89501592 N 08/01/14
0
2865389 736/G02 F 250,000.00 ZZ
180 247,491.57 1
109 COW NECK ROAD 7.625 2,335.32 69
7.375 2,335.32 365,000.00
PORT WASHINGTON NY 11050 5 05/20/99 00
0431427483 05 07/01/99 0
743734 O 06/01/14
0
2874414 K08/G02 F 264,000.00 ZZ
180 264,000.00 1
695 S LAKESHORE DR UNIT #1 8.625 2,619.09 80
8.375 2,619.09 330,000.00
FONTANA WI 53125 5 08/11/99 00
0411498900 05 10/01/99 0
0411498900 O 09/01/14
0
2874438 K08/G02 F 308,000.00 ZZ
180 308,000.00 1
9310 FAIRFAX STREET 8.375 3,010.47 80
8.125 3,010.47 385,000.00
ALEXANDRIA VA 22309 5 08/10/99 00
0411555071 05 10/01/99 0
0411555071 O 09/01/14
0
2877954 623/G02 F 245,000.00 ZZ
180 242,012.42 1
43644 VINTNER'S PLACE DRIVE 7.500 2,271.18 80
7.250 2,271.18 307,000.00
STERLING HEIGHT MI 48312 2 04/22/99 00
0431431147 05 06/01/99 0
1246168 O 05/01/14
0
2877986 623/G02 F 309,000.00 ZZ
180 308,076.98 1
4251 COLUMNS DRIVE 7.625 2,886.46 46
7.375 2,886.46 685,000.00
MARIETTA GA 30067 5 07/09/99 00
0431430974 05 09/01/99 0
1353275 O 08/01/14
0
1
2877991 623/G02 F 271,400.00 ZZ
180 270,580.34 1
9030 HERITAGE BAY CIRCLE 7.500 2,515.91 80
7.250 2,515.91 339,292.00
ORLANDO FL 32836 1 07/26/99 00
0431431592 03 09/01/99 0
1358213 O 08/01/14
0
2877997 623/G02 F 500,000.00 ZZ
180 498,489.94 1
400 BETHANY GREEN COVE 7.500 4,635.06 80
7.250 4,635.06 627,000.00
ALPHARETTA GA 30004 1 07/16/99 00
0431432079 03 09/01/99 0
1360693 O 08/01/14
0
2881273 976/976 F 942,000.00 ZZ
180 939,367.02 1
3027 MONTEREY ROAD 8.375 9,207.36 65
8.125 9,207.36 1,450,000.00
SAN MARINO CA 91108 2 07/22/99 00
5754779 05 09/01/99 0
5754779 O 08/01/14
0
2881287 976/976 F 650,000.00 ZZ
180 650,000.00 4
437 25TH AVENUE 8.625 6,448.53 70
8.375 6,448.53 940,000.00
SAN FRANCISCO CA 94121 1 08/12/99 00
5785029 05 10/01/99 0
5785029 N 09/01/14
0
2881318 976/976 F 600,000.00 ZZ
180 598,246.80 1
170 EAST 87TH STREET 7.875 5,690.70 67
7.625 5,690.70 900,000.00
NEW YORK NY 10028 1 07/14/99 00
5775797 22 09/01/99 0
5775797 O 08/01/14
0
2892043 354/354 F 340,000.00 ZZ
180 335,671.56 1
4605 W 183 STREET 7.000 3,056.02 47
6.750 3,056.02 730,000.00
1
STILWELL KS 66085 2 04/21/99 00
0022661912 05 06/01/99 0
0022661912 O 05/01/14
0
2892044 354/354 F 281,000.00 ZZ
180 276,088.47 1
28650 RCR 200 7.375 2,584.98 71
7.125 2,584.98 398,000.00
STEAMBOAT SPRIN CO 80467 2 04/14/99 00
0022920938 05 06/01/99 0
0022920938 O 05/01/14
0
2892046 354/354 F 284,000.00 ZZ
180 283,132.83 1
311-A SOUTH OCEAN BLVD 7.375 2,612.59 74
7.125 2,612.59 384,000.00
SURFSIDE BEACH SC 29575 1 07/30/99 00
0028401701 03 09/01/99 0
0028401701 O 08/01/14
0
2893412 549/549 F 280,000.00 ZZ
180 276,435.41 1
2189 BOHANNON DRIVE 7.000 2,516.72 80
6.750 2,516.72 350,000.00
SANTA CLARA CA 95050 1 04/19/99 00
5000230580 05 06/01/99 0
5000230580 O 05/01/14
0
2893413 549/549 F 493,500.00 ZZ
180 491,976.58 1
1464 LIGGETT WAY 7.250 4,504.98 70
7.000 4,504.98 705,000.00
SAN DIEGO CA 92106 1 07/20/99 00
6073897107 05 09/01/99 0
6073897107 O 08/01/14
0
2895198 074/074 F 500,000.00 ZZ
180 498,522.79 1
1 ENGINEERS ROAD 7.750 4,706.38 56
7.500 4,706.38 900,000.00
ROSLYN HARBOR NY 11577 1 07/27/99 00
1111314810 05 09/01/99 0
1111314810 O 08/01/14
0
1
2895321 074/074 F 422,200.00 ZZ
180 416,848.15 1
354 SUGARTOWN ROAD 8.000 4,034.76 21
7.750 4,034.76 2,075,000.00
DEVON PA 19333 2 07/20/99 00
1620002410 05 09/01/99 0
1620002410 O 08/01/14
0
2902445 076/076 F 337,500.00 ZZ
180 335,455.10 1
210 JACKSON AVE 7.500 3,128.67 75
7.250 3,128.67 450,000.00
FORT COLLINS CO 80524 5 07/01/99 00
1830910 05 08/01/99 0
1830910 O 07/01/14
0
TOTAL NUMBER OF LOANS : 76
TOTAL ORIGINAL BALANCE : 27,236,396.00
TOTAL PRINCIPAL BALANCE : 26,998,762.34
TOTAL ORIGINAL P+I : 254,536.82
TOTAL CURRENT P+I : 254,536.82
***************************
* END OF REPORT *
***************************
1
RUN ON : 10/01/99 RFC DISCLOSURE SYSTEM RFFSDFIX-01
AT : 15.22.47 FIXED PASSTHRU REPORT AMORTIZED BALANCE
SERIES : RALI 1999-QS12 NON CONF CUTOFF : 09/01/99
POOL : 0004401
:
:
POOL STATUS: F
RFC LOAN NUMBER SUB SERV FEE
PRINCIPAL BALANCE MSTR SERV FEE
CURR NOTE RATE ALL EXP
RFC NET RATE MISC EXP
NET MTG RATE(INVSTR RATE) SPREAD
POST STRIP RATE STRIP
----------------------------------------------------------------------------
1887268 .2500
577,806.41 .0300
7.1250 .0000
6.8750 .0000
6.8450 .0000
6.8450 .0000
1895482 .2500
531,816.37 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.0000 .4200
1900401 .2500
275,233.29 .0300
6.8750 .0000
6.6250 .0000
6.5950 .0000
6.5950 .0000
1902331 .2500
266,021.73 .0300
6.8750 .0000
6.6250 .0000
6.5950 .0000
6.5950 .0000
1908549 .2500
292,437.98 .0300
6.8750 .0000
6.6250 .0000
6.5950 .0000
6.5950 .0000
1910439 .2500
256,264.77 .0300
7.0000 .0000
6.7500 .0000
6.7200 .0000
6.7200 .0000
1
1910571 .2500
252,705.89 .0300
6.8750 .0000
6.6250 .0000
6.5950 .0000
6.5950 .0000
1912188 .2500
311,863.35 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
1912264 .2500
377,405.94 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
1917888 .2500
269,621.01 .0300
6.0000 .0000
5.7500 .0000
5.7200 .0000
5.7200 .0000
1921089 .2500
303,131.70 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0000 .0450
1921583 .2500
564,416.16 .0300
6.8750 .0000
6.6250 .0000
6.5950 .0000
6.5950 .0000
1922422 .2500
270,415.00 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
1923942 .2500
313,550.23 .0800
8.7500 .0000
8.5000 .0000
8.4200 .0000
7.0000 1.4200
1
1924118 .2500
398,844.06 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.0000 .6700
1924950 .2500
252,080.12 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.0000 .2950
1925326 .2500
336,548.86 .0300
6.2500 .0000
6.0000 .0000
5.9700 .0000
5.9700 .0000
1930015 .2500
289,694.86 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
1930660 .2500
254,186.71 .0300
6.8750 .0000
6.6250 .0000
6.5950 .0000
6.5950 .0000
1931605 .2500
382,000.00 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.0000 .9200
1931715 .2500
356,990.77 .0800
8.5000 .0000
8.2500 .0000
8.1700 .0000
7.0000 1.1700
1934512 .2500
250,773.21 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.0000 .6700
1
1937084 .2500
434,964.28 .0300
6.6250 .0000
6.3750 .0000
6.3450 .0000
6.3450 .0000
1939769 .2500
327,514.40 .0300
6.7500 .0000
6.5000 .0000
6.4700 .0000
6.4700 .0000
1939894 .2500
333,999.31 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.0000 .2950
1940136 .2500
324,000.00 .0800
8.5000 .0000
8.2500 .0000
8.1700 .0000
7.0000 1.1700
1940273 .2500
297,600.00 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.0000 .7950
2770943 .2500
457,090.66 .0300
7.0000 .0000
6.7500 .0000
6.7200 .0000
6.7200 .0000
2807070 .2500
296,261.93 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
2807078 .2500
256,760.32 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
1
2807094 .2500
291,163.32 .0300
6.7500 .0000
6.5000 .0000
6.4700 .0000
6.4700 .0000
2807128 .2500
244,633.50 .0300
7.0000 .0000
6.7500 .0000
6.7200 .0000
6.7200 .0000
2807132 .2500
417,672.35 .0300
7.1250 .0000
6.8750 .0000
6.8450 .0000
6.8450 .0000
2810820 .2500
492,715.15 .0300
7.1250 .0000
6.8750 .0000
6.8450 .0000
6.8450 .0000
2820371 .2500
308,453.69 .0800
7.8750 .0000
7.6250 .0000
7.5450 .0000
7.0000 .5450
2829608 .2500
336,705.17 .0300
7.1250 .0000
6.8750 .0000
6.8450 .0000
6.8450 .0000
2829635 .2500
275,669.92 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.0000 .1700
2829640 .2500
256,582.37 .0300
6.6250 .0000
6.3750 .0000
6.3450 .0000
6.3450 .0000
1
2829652 .2500
328,940.08 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0000 .0450
2829691 .2500
539,984.56 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.0000 .2950
2834699 .2500
397,705.86 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.0000 .7950
2835300 .2500
473,534.49 .0800
7.8750 .0000
7.6250 .0000
7.5450 .0000
7.0000 .5450
2835309 .2500
297,215.31 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.0000 .1700
2835344 .2500
257,310.50 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0000 .0450
2835345 .2500
334,489.28 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.0000 .4200
2835358 .2500
296,420.19 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.0000 .4200
1
2842268 .2500
309,396.21 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
2844950 .2500
250,539.86 .0800
8.2500 .0000
8.0000 .0000
7.9200 .0000
7.0000 .9200
2844955 .2500
299,123.40 .0800
7.8750 .0000
7.6250 .0000
7.5450 .0000
7.0000 .5450
2845355 .2500
398,856.80 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.0000 .7950
2847686 .2500
249,261.39 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.0000 .4200
2849669 .2500
347,761.02 .0300
6.8750 .0000
6.6250 .0000
6.5950 .0000
6.5950 .0000
2849670 .2500
257,360.96 .0300
7.0000 .0000
6.7500 .0000
6.7200 .0000
6.7200 .0000
2849679 .2500
614,721.41 .0800
9.0000 .0000
8.7500 .0000
8.6700 .0000
7.0000 1.6700
1
2849681 .2500
362,465.53 .0800
9.0000 .0000
8.7500 .0000
8.6700 .0000
7.0000 1.6700
2857238 .2500
279,199.76 .0800
8.1250 .0000
7.8750 .0000
7.7950 .0000
7.0000 .7950
2863158 .2500
417,427.26 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0000 .0450
2864693 .2500
311,057.72 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.0000 .1700
2865389 .2500
247,491.57 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.0000 .2950
2874414 .2500
264,000.00 .0800
8.6250 .0000
8.3750 .0000
8.2950 .0000
7.0000 1.2950
2874438 .2500
308,000.00 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
7.0000 1.0450
2877954 .2500
242,012.42 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.0000 .1700
1
2877986 .2500
308,076.98 .0800
7.6250 .0000
7.3750 .0000
7.2950 .0000
7.0000 .2950
2877991 .2500
270,580.34 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.0000 .1700
2877997 .2500
498,489.94 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.0000 .1700
2881273 .2500
939,367.02 .0800
8.3750 .0000
8.1250 .0000
8.0450 .0000
7.0000 1.0450
2881287 .2500
650,000.00 .0800
8.6250 .0000
8.3750 .0000
8.2950 .0000
7.0000 1.2950
2881318 .2500
598,246.80 .0800
7.8750 .0000
7.6250 .0000
7.5450 .0000
7.0000 .5450
2892043 .2500
335,671.56 .0300
7.0000 .0000
6.7500 .0000
6.7200 .0000
6.7200 .0000
2892044 .2500
276,088.47 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0000 .0450
1
2892046 .2500
283,132.83 .0800
7.3750 .0000
7.1250 .0000
7.0450 .0000
7.0000 .0450
2893412 .2500
276,435.41 .0300
7.0000 .0000
6.7500 .0000
6.7200 .0000
6.7200 .0000
2893413 .2500
491,976.58 .0300
7.2500 .0000
7.0000 .0000
6.9700 .0000
6.9700 .0000
2895198 .2500
498,522.79 .0800
7.7500 .0000
7.5000 .0000
7.4200 .0000
7.0000 .4200
2895321 .2500
416,848.15 .0800
8.0000 .0000
7.7500 .0000
7.6700 .0000
7.0000 .6700
2902445 .2500
335,455.10 .0800
7.5000 .0000
7.2500 .0000
7.1700 .0000
7.0000 .1700
TOTAL NUMBER OF LOANS: 76
TOTAL BALANCE........: 26,998,762.34
1
RUN ON : 10/01/99 RFC DISCLOSURE SYSTEM RFFSDFIX-01
AT : 15.22.47 INITIAL SECURITY FEES AMORTIZED BALANCE
SERIES : RALI 1999-QS12 NON FIXED SUMMARY REPORT CUTOFF : 09/01/99
POOL : 0004401
:
:
POOL STATUS: F
WEIGHTED AVERAGES FROM TO
---------------------------------------------------------------------------
CURR NOTE RATE 7.5762 6.0000 9.0000
RFC NET RATE 7.3262 5.7500 8.7500
NET MTG RATE(INVSTR RATE) 7.2655 5.7200 8.6700
POST STRIP RATE 6.8793 5.7200 7.0000
SUB SERV FEE .2500 .2500 .2500
MSTR SERV FEE .0607 .0300 .0800
ALL EXP .0000 .0000 .0000
MISC EXP .0000 .0000 .0000
SPREAD .0000 .0000 .0000
STRIP .3862 .0000 1.6700
TOTAL NUMBER OF LOANS: 76
TOTAL BALANCE........: 26,998,762.34
***************************
* END OF REPORT *
***************************
<PAGE>
Exhibit TWO
SCHEDULE OF DISCOUNT FRACTIONS
Loan Number Current Balance Net Mortgage Rate Discount Fraction PO Balance
1917888 "$269,621.01 " 0.0572 0.182857143 "$49,302.13 "
1925326 "$336,548.86 " 0.0597 0.147142857 "$49,520.76 "
2765053 "$131,373.89 " 0.0622 0.111428571 "$14,638.80 "
2829682 "$57,610.76 " 0.0622 0.111428571 "$6,419.48 "
1884140 "$121,515.54 " 0.0622 0.111428571 "$13,540.30 "
2829640 "$256,582.37 " 0.06345 0.093571429 "$24,008.78 "
1937084 "$434,964.28 " 0.06345 0.093571429 "$40,700.23 "
2807144 "$70,076.01 " 0.06345 0.093571429 "$6,557.11 "
2892045 "$117,682.48 " 0.06345 0.093571429 "$11,011.72 "
2877976 "$72,050.61 " 0.0647 0.075714286 "$5,455.26 "
2829597 "$83,549.84 " 0.0647 0.075714286 "$6,325.92 "
2829648 "$55,126.20 " 0.0647 0.075714286 "$4,173.84 "
2829681 "$52,286.43 " 0.0647 0.075714286 "$3,958.83 "
2829685 "$111,407.00 " 0.0647 0.075714286 "$8,435.10 "
2829714 "$48,172.29 " 0.0647 0.075714286 "$3,647.33 "
2829599 "$88,434.70 " 0.0647 0.075714286 "$6,695.77 "
2807085 "$96,330.62 " 0.0647 0.075714286 "$7,293.60 "
2818357 "$53,672.81 " 0.0647 0.075714286 "$4,063.80 "
2877952 "$118,832.79 " 0.0647 0.075714286 "$8,997.34 "
1886033 "$52,548.45 " 0.0647 0.075714286 "$3,978.67 "
2877990 "$41,864.59 " 0.0647 0.075714286 "$3,169.75 "
1939769 "$327,514.40 " 0.0647 0.075714286 "$24,797.52 "
1886036 "$45,391.67 " 0.0647 0.075714286 "$3,436.80 "
2807094 "$291,163.32 " 0.0647 0.075714286 "$22,045.22 "
2902437 "$65,014.88 " 0.0647 0.075714286 "$4,922.56 "
2902433 "$223,545.10 " 0.0647 0.075714286 "$16,925.56 "
2807097 "$147,964.50 " 0.0647 0.075714286 "$11,203.03 "
2829705 "$113,591.63 " 0.06595 0.057857143 "$6,572.09 "
1917289 "$63,384.12 " 0.06595 0.057857143 "$3,667.22 "
2807082 "$49,193.45 " 0.06595 0.057857143 "$2,846.19 "
1921583 "$564,416.16 " 0.06595 0.057857143 "$32,655.51 "
2829671 "$152,745.73 " 0.06595 0.057857143 "$8,837.43 "
2829663 "$70,882.33 " 0.06595 0.057857143 "$4,101.05 "
1929033 "$136,719.75 " 0.06595 0.057857143 "$7,910.21 "
2829643 "$128,327.22 " 0.06595 0.057857143 "$7,424.65 "
1930103 "$47,361.70 " 0.06595 0.057857143 "$2,740.21 "
2829642 "$221,122.44 " 0.06595 0.057857143 "$12,793.51 "
2807115 "$95,505.06 " 0.06595 0.057857143 "$5,525.65 "
2807076 "$148,069.84 " 0.06595 0.057857143 "$8,566.90 "
2807073 "$178,955.03 " 0.06595 0.057857143 "$10,353.83 "
2829611 "$105,690.97 " 0.06595 0.057857143 "$6,114.98 "
1925331 "$196,391.74 " 0.06595 0.057857143 "$11,362.67 "
1930660 "$254,186.71 " 0.06595 0.057857143 "$14,706.52 "
2829662 "$208,826.28 " 0.06595 0.057857143 "$12,082.09 "
2877975 "$99,037.71 " 0.06595 0.057857143 "$5,730.04 "
1917309 "$57,937.07 " 0.06595 0.057857143 "$3,352.07 "
2877953 "$117,042.34 " 0.06595 0.057857143 "$6,771.74 "
1900401 "$275,233.29 " 0.06595 0.057857143 "$15,924.21 "
2849669 "$347,761.02 " 0.06595 0.057857143 "$20,120.46 "
2849667 "$58,622.56 " 0.06595 0.057857143 "$3,391.73 "
1896407 "$180,048.11 " 0.06595 0.057857143 "$10,417.07 "
1910571 "$252,705.89 " 0.06595 0.057857143 "$14,620.84 "
1908549 "$292,437.98 " 0.06595 0.057857143 "$16,919.63 "
1912242 "$95,868.50 " 0.06595 0.057857143 "$5,546.68 "
1912815 "$72,455.48 " 0.06595 0.057857143 "$4,192.07 "
2895230 "$94,432.02 " 0.06595 0.057857143 "$5,463.57 "
1902331 "$266,021.73 " 0.06595 0.057857143 "$15,391.26 "
2770943 "$457,090.66 " 0.0672 0.04 "$18,283.63 "
2829607 "$200,936.82 " 0.0672 0.04 "$8,037.47 "
1910439 "$256,264.77 " 0.0672 0.04 "$10,250.59 "
2877982 "$75,276.46 " 0.0672 0.04 "$3,011.06 "
2877967 "$87,191.57 " 0.0672 0.04 "$3,487.66 "
1800220 "$79,331.08 " 0.0672 0.04 "$3,173.24 "
2881270 "$69,479.87 " 0.0672 0.04 "$2,779.19 "
2807143 "$159,314.34 " 0.0672 0.04 "$6,372.57 "
2881297 "$184,416.33 " 0.0672 0.04 "$7,376.65 "
2807128 "$244,633.50 " 0.0672 0.04 "$9,785.34 "
2892043 "$335,671.56 " 0.0672 0.04 "$13,426.86 "
2893412 "$276,435.41 " 0.0672 0.04 "$11,057.42 "
2807109 "$225,509.31 " 0.0672 0.04 "$9,020.37 "
1849045 "$194,847.79 " 0.0672 0.04 "$7,793.91 "
1839549 "$59,668.01 " 0.0672 0.04 "$2,386.72 "
2807092 "$196,808.01 " 0.0672 0.04 "$7,872.32 "
2881274 "$135,471.24 " 0.0672 0.04 "$5,418.85 "
2829654 "$58,495.56 " 0.0672 0.04 "$2,339.82 "
2829708 "$74,045.20 " 0.0672 0.04 "$2,961.81 "
2829704 "$219,173.78 " 0.0672 0.04 "$8,766.95 "
2829703 "$137,922.96 " 0.0672 0.04 "$5,516.92 "
1912163 "$61,605.60 " 0.0672 0.04 "$2,464.22 "
2842270 "$90,916.79 " 0.0672 0.04 "$3,636.67 "
1912150 "$61,600.60 " 0.0672 0.04 "$2,464.02 "
2849661 "$127,140.18 " 0.0672 0.04 "$5,085.61 "
2829670 "$86,789.23 " 0.0672 0.04 "$3,471.57 "
1922439 "$194,759.64 " 0.0672 0.04 "$7,790.39 "
2849670 "$257,360.96 " 0.0672 0.04 "$10,294.44 "
2829621 "$62,268.37 " 0.0672 0.04 "$2,490.73 "
1912143 "$61,599.60 " 0.0672 0.04 "$2,463.98 "
2829627 "$208,910.61 " 0.0672 0.04 "$8,356.42 "
1923439 "$104,335.53 " 0.0672 0.04 "$4,173.42 "
2865377 "$148,571.98 " 0.0672 0.04 "$5,942.88 "
2829644 "$117,867.09 " 0.0672 0.04 "$4,714.68 "
1912136 "$61,605.60 " 0.0672 0.04 "$2,464.22 "
1912133 "$61,605.60 " 0.0672 0.04 "$2,464.22 "
1925316 "$58,199.52 " 0.0672 0.04 "$2,327.98 "
2829632 "$82,319.70 " 0.0672 0.04 "$3,292.79 "
1938139 "$29,527.93 " 0.06845 0.022142857 $653.83
1937280 "$111,795.73 " 0.06845 0.022142857 "$2,475.48 "
1924892 "$65,934.63 " 0.06845 0.022142857 "$1,459.98 "
1915650 "$92,402.80 " 0.06845 0.022142857 "$2,046.06 "
1916856 "$39,623.25 " 0.06845 0.022142857 $877.37
1887268 "$577,806.41 " 0.06845 0.022142857 "$12,794.28 "
2829699 "$129,596.94 " 0.06845 0.022142857 "$2,869.65 "
2895229 "$62,803.39 " 0.06845 0.022142857 "$1,390.65 "
2877992 "$110,305.13 " 0.06845 0.022142857 "$2,442.47 "
2877980 "$38,830.79 " 0.06845 0.022142857 $859.82
2877948 "$208,067.61 " 0.06845 0.022142857 "$4,607.21 "
2842272 "$133,161.13 " 0.06845 0.022142857 "$2,948.57 "
2835312 "$237,690.09 " 0.06845 0.022142857 "$5,263.14 "
2829701 "$154,825.09 " 0.06845 0.022142857 "$3,428.27 "
2807087 "$161,144.50 " 0.06845 0.022142857 "$3,568.20 "
2829673 "$95,820.65 " 0.06845 0.022142857 "$2,121.74 "
2829636 "$113,946.55 " 0.06845 0.022142857 "$2,523.10 "
2829628 "$232,306.67 " 0.06845 0.022142857 "$5,143.93 "
2829608 "$336,705.17 " 0.06845 0.022142857 "$7,455.61 "
2829595 "$141,686.08 " 0.06845 0.022142857 "$3,137.33 "
2807122 "$83,828.22 " 0.06845 0.022142857 "$1,856.20 "
2823853 "$50,183.87 " 0.06845 0.022142857 "$1,111.21 "
2902440 "$107,663.00 " 0.06845 0.022142857 "$2,383.97 "
2820909 "$61,416.07 " 0.06845 0.022142857 "$1,359.93 "
2813012 "$79,246.57 " 0.06845 0.022142857 "$1,754.75 "
2807132 "$417,672.35 " 0.06845 0.022142857 "$9,248.46 "
2810820 "$492,715.15 " 0.06845 0.022142857 "$10,910.12 "
1912188 "$311,863.35 " 0.0697 0.004285714 "$1,336.56 "
2842269 "$66,772.04 " 0.0697 0.004285714 $286.17
2807070 "$296,261.93 " 0.0697 0.004285714 "$1,269.69 "
2849673 "$33,391.91 " 0.0697 0.004285714 $143.11
2877949 "$83,179.69 " 0.0697 0.004285714 $356.48
1912053 "$42,054.50 " 0.0697 0.004285714 $180.23
2877950 "$121,947.55 " 0.0697 0.004285714 $522.63
2877971 "$59,080.28 " 0.0697 0.004285714 $253.20
2842268 "$309,396.21 " 0.0697 0.004285714 "$1,325.98 "
2877977 "$77,028.12 " 0.0697 0.004285714 $330.12
1914313 "$222,804.62 " 0.0697 0.004285714 $954.88
2807078 "$256,760.32 " 0.0697 0.004285714 "$1,100.40 "
2878042 "$69,127.77 " 0.0697 0.004285714 $296.26
2878055 "$119,579.72 " 0.0697 0.004285714 $512.48
2893413 "$491,976.58 " 0.0697 0.004285714 "$2,108.47 "
2807103 "$64,360.06 " 0.0697 0.004285714 $275.83
2902430 "$137,704.94 " 0.0697 0.004285714 $590.16
1842698 "$56,492.39 " 0.0697 0.004285714 $242.11
2902438 "$198,470.70 " 0.0697 0.004285714 $850.59
1812132 "$71,158.63 " 0.0697 0.004285714 $304.97
2877972 "$77,013.27 " 0.0697 0.004285714 $330.06
1939382 "$130,595.61 " 0.0697 0.004285714 $559.70
1930015 "$289,694.86 " 0.0697 0.004285714 "$1,241.55 "
2829602 "$50,167.01 " 0.0697 0.004285714 $215.00
1926839 "$88,725.26 " 0.0697 0.004285714 $380.25
2829634 "$39,375.09 " 0.0697 0.004285714 $168.75
1923835 "$33,789.44 " 0.0697 0.004285714 $144.81
2829653 "$83,694.00 " 0.0697 0.004285714 $358.69
1922593 "$43,887.26 " 0.0697 0.004285714 $188.09
2829665 "$121,664.89 " 0.0697 0.004285714 $521.42
1922422 "$270,415.00 " 0.0697 0.004285714 "$1,158.92 "
2837080 "$135,157.82 " 0.0697 0.004285714 $579.25
1921830 "$39,312.03 " 0.0697 0.004285714 $168.48
1912264 "$377,405.94 " 0.0697 0.004285714 "$1,617.45 "
1920122 "$20,869.94 " 0.0697 0.004285714 $89.44
2807167 "$56,468.91 " 0.0697 0.004285714 $242.01
2820386 "$52,704.35 " 0.0697 0.004285714 $225.88
2807136 "$171,685.35 " 0.0697 0.004285714 $735.79
1915700 "$55,302.20 " 0.0697 0.004285714 $237.01
2835367 "$42,995.65 " 0.0697 0.004285714 $184.27
1915192 "$133,940.35 " 0.0697 0.004285714 $574.03
1913422 "$49,534.12 " 0.0697 0.004285714 $212.29
2829695 "$43,881.96 " 0.0697 0.004285714 $188.07
1921949 "$36,754.32 " 0.0697 0.004285714 $157.52
<PAGE>
Exhibit THREE
INFORMATION TO BE INCLUDED IN
MONTHLY DISTRIBUTION DATE STATEMENT
(i) (a) the amount of such distribution to the Certificateholders of such
Class applied to reduce the Certificate Principal Balance thereof, and
(b) the aggregate amount included therein representing Principal
Prepayments;
(ii) the amount of such distribution to Holders of such Class of Certificates
allocable to interest;
(iii) if the distribution to the Holders of such Class of Certificates is less
than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the
shortfall;
(iv) the amount of any Advance by the Master Servicer pursuant to Section 4.04;
(v) the number and Pool Stated Principal Balance of the Mortgage Loans after
giving effect to the distribution of principal on such Distribution
Date;
(vi) the aggregate Certificate Principal Balance of each Class of
Certificates and each of the related Class CB and Class NB Percentages
and Subordinate Class Percentage, after giving effect to the amounts
distributed on such Distribution Date, separately identifying any
reduction thereof due to Realized Losses other than pursuant to an
actual distribution of principal;
(vii)the related Subordinate Principal Distribution Amount and Prepayment
Distribution Percentage, if applicable;
(viii) on the basis of the most recent reports furnished to it by
Sub-Servicers, 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;
(ix) the number, aggregate principal balance and book value of any REO
Properties;
(x) the aggregate Accrued Certificate Interest remaining unpaid, if any, for
each Class of Certificates, after giving effect to the distribution made
on such Distribution Date;
(xi) the Special Hazard Amount, Fraud Loss Amount and Bankruptcy Amount as of
the close of business on such Distribution Date and a description of any
change in the calculation of such amounts;
(xii) the weighted average Pool Strip Rate for such Distribution Date and the
Pass-Through Rate with respect to the Class A-V Certificates and each
Subclass, if any, thereof;
<PAGE>
(xiii) the Notional Amount with respect to each class of Interest Only
Certificates and each Subclass Notional Amount;
(xiv) the occurrence of the Credit Support Depletion Date;
(xv) the related Senior Accelerated Distribution Percentage applicable to
such distribution;
(xvi) the related Senior Percentage for such Distribution Date;
(xvii) the aggregate amount of Realized Losses for such Distribution Date;
(xviii) the aggregate amount of any recoveries on previously foreclosed loans
from Sellers due to a breach of representation or warranty;
(xix) the weighted average remaining term to maturity of the Mortgage Loans
after giving effect to the amounts distributed on such Distribution
Date;
(xx) the weighted average Mortgage Rates of the Mortgage Loans after giving
effect to the amounts distributed on such Distribution Date; and
(xxi) if any of the Class M Certificates are held by a Depository, a legend
substantially in the form of Exhibit H-3 to the Standard Terms,
referencing such Certificates.
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.
<PAGE>
Exhibit FOUR
STANDARD TERMS OF POOLING AND SERVICING
AGREEMENT DATED AS OF AUGUST 1, 1999
=============================================================================
STANDARD TERMS OF
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 1999
Residential Accredit Loans, Inc.
Mortgage Asset-Backed Pass-Through Certificates
=============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
Article I DEFINITIONS...............................................................2
Section 1.01. Definitions.........................................................2
Section 1.02. Use of Words and Phrases...........................................30
Article II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES..........31
Section 2.01. Conveyance of Mortgage Loans.......................................31
Section 2.02. Acceptance by Trustee..............................................36
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Company...........................................37
Section 2.04. Representations and Warranties of Sellers..........................38
Article III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...........................41
Section 3.01. Master Servicer to Act as Servicer.................................41
Section 3.02. Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers' and Sellers'
Obligations........................................................42
Section 3.03. Successor Subservicers.............................................43
Section 3.04. Liability of the Master Servicer...................................43
Section 3.05. No Contractual Relationship Between Subservicer and Trustee
or Certificateholders.............................................44
Section 3.06. Assumption or Termination of Subservicing Agreements by
Trustee............................................................44
Section 3.07. Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account..................................................44
Section 3.08. Subservicing Accounts; Servicing Accounts..........................47
Section 3.09. Access to Certain Documentation and Information Regarding the
Mortgage Loans.....................................................48
Section 3.10. Permitted Withdrawals from the Custodial Account..................48
Section 3.11. Maintenance of the Primary Insurance Policies; Collections
Thereunder.........................................................50
Section 3.12. Maintenance of Fire Insurance and Omissions and Fidelity
Coverage...........................................................51
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments......................53
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<PAGE>
TABLE OF CONTENTS
(continued)
Page
Section 3.14. Realization Upon Defaulted Mortgage Loans..........................55
Section 3.15. Trustee to Cooperate; Release of Mortgage Files...................58
Section 3.16. Servicing and Other Compensation; Compensating Interest...........59
Section 3.17. Reports to the Trustee and the Company.............................60
Section 3.18. Annual Statement as to Compliance..................................60
Section 3.19. Annual Independent Public Accountants' Servicing Report............61
Section 3.20. Rights of the Company in Respect of the Master Servicer............61
Section 3.21. Administration of Buydown Funds....................................61
Article IV PAYMENTS TO CERTIFICATEHOLDERS...........................................63
Section 4.01. Certificate Account................................................63
Section 4.02. Distributions......................................................63
Section 4.03. Statements to Certificateholders...................................63
Section 4.04. Distribution of Reports to the Trustee and the Company;
Advances by the Master Servicer....................................64
Section 4.05. Allocation of Realized Losses......................................66
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.....66
Section 4.07. Optional Purchase of Defaulted Mortgage Loans......................66
Section 4.08. Surety Bond........................................................67
Section 4.09. Pledged Assets.....................................................67
Article V THE CERTIFICATES.........................................................68
Section 5.01. The Certificates...................................................68
Section 5.02. Registration of Transfer and Exchange of Certificates..............70
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates..................76
Section 5.04. Persons Deemed Owners..............................................76
Section 5.05. Appointment of Paying Agent........................................76
Section 5.06. Optional Purchase of Certificates..................................77
Article VI THE COMPANY AND THE MASTER SERVICER......................................79
Section 6.01. Respective Liabilities of the Company and the Master Servicer.....79
-ii-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
Section 6.02. Merger or Consolidation of the Company or the Master
Servicer; Assignment of Rights and Delegation of Duties by
Master Servicer....................................................79
Section 6.03. Limitation on Liability of the Company, the Master Servicer
and Others.........................................................80
Section 6.04. Company and Master Servicer Not to Resign..........................81
Article VII DEFAULT..................................................................82
Section 7.01. Events of Default..................................................82
Section 7.02. Trustee or Company to Act; Appointment of Successor...............84
Section 7.03. Notification to Certificateholders.................................84
Section 7.04. Waiver of Events of Default........................................85
Article VIII CONCERNING THE TRUSTEE...................................................86
Section 8.01. Duties of Trustee..................................................86
Section 8.02. Certain Matters Affecting the Trustee..............................87
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.............89
Section 8.04. Trustee May Own Certificates.......................................89
Section 8.05. Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification....................................................89
Section 8.06. Eligibility Requirements for Trustee...............................90
Section 8.07. Resignation and Removal of the Trustee.............................91
Section 8.08. Successor Trustee..................................................91
Section 8.09. Merger or Consolidation of Trustee.................................92
Section 8.10. Appointment of Co-Trustee or Separate Trustee.....................92
Section 8.11. Appointment of Custodians..........................................93
Section 8.12. Appointment of Office or Agency....................................94
Article IX TERMINATION..............................................................95
Section 9.01. Termination Upon Purchase by the Master Servicer or the
Company or Liquidation of All Mortgage Loans......................95
Section 9.02. Additional Termination Requirements................................97
Section 9.03. Termination of REMIC II............................................98
Article X REMIC PROVISIONS.........................................................99
-iii-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
Section 10.01. REMIC Administration...............................................99
Section 10.02. Master Servicer, REMIC Administrator and Trustee
Indemnification...................................................102
Section 10.03 Designation of REMIC(s)...........................................102
Article XI MISCELLANEOUS PROVISIONS................................................104
Section 11.01. Amendment.........................................................104
Section 11.02. Recordation of Agreement; Counterparts............................106
Section 11.03. Limitation on Rights of Certificateholders........................107
Section 11.04. Governing Law.....................................................107
Section 11.05. Notices...........................................................108
Section 11.06. Notices to Rating Agency..........................................108
Section 11.07. Severability of Provisions........................................108
Section 11.08. Supplemental Provisions for Resecuritization.....................109
</TABLE>
-iv-
<PAGE>
EXHIBITS
Exhibit A: Form of Class A Certificate
Exhibit B: Form of Class M Certificate
Exhibit C: Form of Class B Certificate
Exhibit D: Form of Class R Certificate
Exhibit E: Form of Seller/Servicer Contract
Exhibit F: Forms of Request for Release
Exhibit G-1: Form of Transfer Affidavit and Agreement
Exhibit G-2: Form of Transferor Certificate
Exhibit H-1: Form of Investor Representation Letter
Exhibit H-2: Form of ERISA Representation Letter
Exhibit H-3: Form of ERISA Legend
Exhibit I: Form of Transferor Representation Letter
Exhibit J: Form of Rule 144A Investment Representation Letter
Exhibit K: Text of Amendment to Pooling and Servicing Agreement
Pursuant to Section 11.01(e) for a Limited Guaranty
Exhibit L: Form of Limited Guaranty
Exhibit M: Form of Lender Certification for Assignment of Mortgage
Loan
Exhibit N: Request for Exchange Form
<PAGE>
This is the Standard Terms of Pooling and Servicing Agreement, dated as
of August 1, 1999 (the "Standard Terms", and as incorporated by reference into a
Series Supplement dated as of the Cut-off Date, the "Pooling and Servicing
Agreement" or "Agreement"), among RESIDENTIAL ACCREDIT LOANS, INC., as the
company (together with its permitted successors and assigns, the "Company"),
RESIDENTIAL FUNDING CORPORATION, as master servicer (together with its permitted
successors and assigns, the "Master Servicer"), and the trustee named in the
applicable Series Supplement (together with its permitted successors and
assigns, the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell certain mortgage asset-backed pass-through
certificates (collectively, the "Certificates"), to be issued under the
Agreement in multiple classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Mortgage Loans.
In consideration of the mutual agreements herein contained, the Company,
the Master Servicer and the Trustee agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.01.Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accretion Termination Date: As defined in the Series Supplement.
Accrual Certificates: As defined in the Series Supplement.
Accrued Certificate Interest: With respect to each Distribution Date, as
to any Class or Subclass of Certificates (other than any Principal Only
Certificates), interest accrued during the related Interest Accrual Period at
the related Pass-Through Rate on the Certificate Principal Balance or Notional
Amount thereof immediately prior to such Distribution Date. Accrued Certificate
Interest will be calculated on the basis of a 360-day year, consisting of twelve
30-day months. In each case Accrued Certificate Interest on any Class or
Subclass of Certificates will be reduced by the amount of:
(i) Prepayment Interest Shortfalls on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (to the extent not
offset by the Master Servicer with a payment of Compensating
Interest as provided in Section 4.01),
(ii) the interest portion (adjusted to the Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan)) of Realized Losses on all Mortgage Loans or, if the
Mortgage Pool is comprised of two or more Loan Groups, on the
Mortgage Loans in the related Loan Group (including Excess
Special Hazard Losses, Excess Fraud Losses, Excess Bankruptcy
Losses and Extraordinary Losses) not allocated solely to one or
more specific Classes of Certificates pursuant to Section 4.05,
(iii) the interest portion of Advances that were (A) previously made
with respect to a Mortgage Loan or REO Property on all Mortgage
Loans or, if the Mortgage Pool is comprised of two or more Loan
Groups, on the Mortgage Loans in the related Loan Group, which
remained unreimbursed following the Cash Liquidation or REO
Disposition of such Mortgage Loan or REO Property or (B) made
with respect to delinquencies that were ultimately determined to
be Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses or Extraordinary Losses, and
(iv) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates,
including interest that is not collectible from the Mortgagor
pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940,
as amended, or similar legislation or regulations as in effect
from time to time,
2
<PAGE>
with all such reductions allocated (A) among all of the Certificates in
proportion to their respective amounts of Accrued Certificate Interest payable
on such Distribution Date absent such reductions or (B) if the Mortgage Pool is
comprised of two or more Loan Groups, among the related Senior Certificates in
proportion to the amounts of Accrued Certificate Interest payable from the
related Loan Group on such Distribution Date absent such reductions, with the
remainder of such reductions allocated among the holders of the Class M
Certificates and Class B Certificates in proportion to their respective amounts
of Accrued Certificate Interest payable on such Distribution Date absent such
reductions. In addition to that portion of the reductions described in the
preceding sentence that are allocated to any Class of Class B Certificates or
any Class of Class M Certificates, Accrued Certificate Interest on such Class of
Class B Certificates or such Class of Class M Certificates will be reduced by
the interest portion (adjusted to the Net Mortgage Rate) of Realized Losses that
are allocated solely to such Class of Class B Certificates or such Class of
Class M Certificates pursuant to Section 4.05.
Addendum and Assignment Agreement: The Addendum and Assignment Agreement,
dated as of January 31, 1995, between MLCC and the Master Servicer.
Additional Collateral: Any of the following held, in addition to the
related Mortgaged Property, as security for a Mortgage Loan: (i) all money,
securities, security entitlements, accounts, general intangibles, instruments,
documents, certificates of deposit, commodities contracts and other investment
property and other property of whatever kind or description now existing or
hereafter acquired which is pledged as security for the repayment of such
Mortgage Loan, (ii) third-party guarantees, and (A) all money, securities,
security entitlements, accounts, general intangibles, instruments, documents,
certificates of deposit, commodities contracts and other investment property and
other property of whatever kind or description now existing or hereafter
acquired which is pledged as collateral for such guarantee or (B) any mortgaged
property securing the performance of such guarantee, or (iii) such other
collateral as may be set forth in the Series Supplement.
Additional Collateral Loan: Each Mortgage Loan that is supported by
Additional Collateral.
Adjusted Mortgage Rate: With respect to any Mortgage Loan and any date of
determination, the Mortgage Rate borne by the related Mortgage Note, less the
rate at which the related Subservicing Fee accrues.
Advance: As to any Mortgage Loan, any advance made by the Master Servicer,
pursuant to Section 4.04.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Ambac: Ambac Assurance Corporation (formerly known as AMBAC Indemnity
Corporation).
3
<PAGE>
Amount Held for Future Distribution: As to any Distribution Date and, with
respect to any Mortgage Pool that is comprised of two or more Loan Groups, each
Loan Group, the total of the amounts held in the Custodial Account at the close
of business on the preceding Determination Date on account of (i) Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments, Mortgage Loan purchases
made pursuant to Section 2.02, 2.03, 2.04 or 4.07 and Mortgage Loan
substitutions made pursuant to Section 2.03 or 2.04 received or made in the
month of such Distribution Date (other than such Liquidation Proceeds, Insurance
Proceeds and purchases of Mortgage Loans that the Master Servicer has deemed to
have been received in the preceding month in accordance with Section 3.07(b))
and (ii) payments which represent early receipt of scheduled payments of
principal and interest due on a date or dates subsequent to the related Due
Date.
Appraised Value: As to any Mortgaged Property, the lesser of (i) the
appraised value of such Mortgaged Property based upon the appraisal made at the
time of the origination of the related Mortgage Loan, and (ii) the sales price
of the Mortgaged Property at such time of origination, except in the case of a
Mortgaged Property securing a refinanced or modified Mortgage Loan as to which
it is either the appraised value determined above or the appraised value
determined in an appraisal at the time of refinancing or modification, as the
case may be.
Assigned Contracts: With respect to any Pledged Asset Loan: the Credit
Support Pledge Agreement; the Funding and Pledge Agreement, among GMAC Mortgage
Corporation, National Financial Services Corporation and the Mortgagor or other
person pledging the related Pledged Assets; the Additional Collateral Agreement,
between GMAC Mortgage Corporation and the Mortgagor or other person pledging the
related Pledged Assets; or such other contracts as may be set forth in the
Series Supplement.
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the Trustee for the benefit of
Certificateholders, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law and accompanied by an Opinion of Counsel to that effect.
Assignment Agreement: The Assignment and Assumption Agreement, dated the
Closing Date, between Residential Funding and the Company relating to the
transfer and assignment of the Mortgage Loans.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, the
assignment of the related Cooperative Lease from the Mortgagor to the originator
of the Cooperative Loan.
Available Distribution Amount: As to any Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, each Loan
Group, an amount equal to (a) the sum of (i) the amount relating to the Mortgage
Loans on deposit in the Custodial Account as of the close of business on the
immediately preceding Determination Date 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
4
<PAGE>
Account Deposit Date, (iii) any amount deposited in the Certificate Account on
the related Certificate Account Deposit Date pursuant to the second paragraph of
Section 3.12(a), (iv) any amount deposited in the Certificate Account pursuant
to Section 4.07, (v) any amount that the Master Servicer is not permitted to
withdraw from the Custodial Account or the Certificate Account pursuant to
Section 3.16(e), (vi) any amount received by the Trustee pursuant to the Surety
Bond in respect of such Distribution Date and (vii) the proceeds of any Pledged
Assets received by the Master Servicer, reduced by (b) the sum as of the close
of business on the immediately preceding Determination Date of (w) aggregate
Foreclosure Profits, (x) the Amount Held for Future Distribution, and (y)
amounts permitted to be withdrawn by the Master Servicer from the Custodial
Account in respect of the Mortgage Loans pursuant to clauses (ii)-(x),
inclusive, of Section 3.10(a). Such amount shall be determined separately for
each Loan Group. Additionally, with respect to any Mortgage Pool that is
comprised of two or more Loan Groups, if on any Distribution Date Compensating
Interest provided pursuant to this Section 3.16(e) is less than Prepayment
Interest Shortfalls incurred on the Mortgage Loans in the related Prepayment
Period, such Compensating Interest shall be allocated on such Distribution Date
to the Available Distribution Amount for each Loan Group on a pro rata basis in
accordance with the respective amounts of Prepayment Interest Shortfalls
incurred on the Mortgage Loans in such Loan Group in respect of such
Distribution Date.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that neither a Deficient
Valuation nor a Debt Service Reduction shall be deemed a Bankruptcy Loss
hereunder so long as the Master Servicer has notified the Trustee in writing
that the Master Servicer is diligently pursuing any remedies that may exist in
connection with the representations and warranties made regarding the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any premiums on any applicable
primary hazard insurance policy and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Master Servicer
or a Subservicer, in either case without giving effect to any Debt Service
Reduction.
Book-Entry Certificate: Any Certificate registered in the name of the
Depository or its nominee, and designated as such in the Preliminary Statement
to the Series Supplement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York, the State of Michigan,
the State of California or the State of Illinois (and such other state or states
in which the Custodial Account or the Certificate Account are at the time
located) are required or authorized by law or executive order to be closed.
Buydown Funds: Any amount contributed by the seller of a Mortgaged
Property, the Company or other source in order to enable the Mortgagor to reduce
the payments required to be made from the Mortgagor's funds in the early years
of a Mortgage Loan. Buydown Funds are not part of the Trust Fund prior to
deposit into the Custodial or Certificate Account.
5
<PAGE>
Buydown Mortgage Loan: Any Mortgage Loan as to which a specified amount
of interest is paid out of related Buydown Funds in accordance with a related
buydown agreement.
Cash Liquidation: As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Master Servicer that it has received all Insurance Proceeds, Liquidation
Proceeds and other payments or cash recoveries which the Master Servicer
reasonably and in good faith expects to be finally recoverable with respect to
such Mortgage Loan.
Certificate Account Deposit Date: As to any Distribution Date, the Business
Day prior thereto.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that neither a Disqualified
Organization nor a Non-United States Person shall be a holder of a Class R
Certificate for purposes hereof and, solely for the purpose of giving any
consent or direction pursuant to this Agreement, any Certificate, other than a
Class R Certificate, registered in the name of the Company, the Master Servicer
or any Subservicer or any Affiliate thereof shall be deemed not to be
outstanding and the Percentage Interest or Voting Rights evidenced thereby shall
not be taken into account in determining whether the requisite amount of
Percentage Interests or Voting Rights necessary to effect any such consent or
direction has been obtained. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and participating members
thereof, except as otherwise specified herein; provided, however, that the
Trustee shall be required to recognize as a "Holder" or "Certificateholder" only
the Person in whose name a Certificate is registered in the Certificate
Register.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate, as reflected on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent, if any, and otherwise on the books of a Depository Participant, if any,
and otherwise on the books of the Depository.
Certificate Principal Balance: With respect to each Certificate (other than
any Interest Only Certificate), on any date of determination, an amount equal
to:
(i) the Initial Certificate Principal Balance of such Certificate as
specified on the face thereof, plus
(ii) in the case of each Accrual Certificate, an amount equal to the
aggregate Accrued Certificate Interest added to the Certificate
Principal Balance thereof prior to such date of determination,
minus
(iii) the sum of (x) the aggregate of all amounts previously
distributed with respect to such Certificate (or any predecessor
Certificate) and applied to reduce the Certificate Principal
Balance thereof pursuant to Section 4.02(a) and (y) the aggregate
of all reductions in Certificate Principal Balance deemed to have
occurred in connection with Realized Losses which were previously
allocated to such Certificate (or any predecessor Certificate)
pursuant to Section 4.05;
6
<PAGE>
provided, that the Certificate Principal Balance of the Class of Subordinate
Certificates with the Lowest Priority at any given time shall be calculated to
equal the Percentage Interest evidenced by such Certificate times 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 all other Classes
of Certificates then outstanding.
Certificate Register and Certificate Registrar: The register maintained and
the registrar appointed pursuant to Section 5.02.
Class: Collectively, all of the Certificates bearing the same designation.
The initial Class A-V Certificates and any Subclass thereof issued pursuant to
Section 5.01(c) shall be a single Class for purposes of this Agreement.
Class A-P Certificate: Any one of the Certificates designated as a Class
A-P Certificate.
Class A-P Collection Shortfall: With respect to the Cash Liquidation or REO
Disposition of a Discount Mortgage Loan and any Distribution Date, the excess of
the amount described in Section 4.02(b)(i)(C)(1) over the amount described in
Section 4.02(b)(i)(C)(2).
Class A-P Principal Distribution Amount: As defined in Section 4.02.
Class A-V Certificate: Any one of the Certificates designated as a Class
A-V Certificate, including any Subclass thereof.
Class B Certificate: Any one of the Certificates designated as a Class B-1
Certificate, Class B-2 Certificate or Class B-3 Certificate.
Class M Certificate: Any one of the Certificates designated as a Class M-1
Certificate, Class M-2 Certificate or Class M-3 Certificate.
Closing Date: As defined in the Series Supplement.
Code: The Internal Revenue Code of 1986.
Combined Collateral LLC: Combined Collateral LLC, a Delaware limited
liability company.
Compensating Interest: With respect to any Distribution Date, an amount
equal to Prepayment Interest Shortfalls resulting from Principal Prepayments in
Full during the related Prepayment Period, but not more than the lesser of (a)
one-twelfth of 0.125% of the Stated Principal Balance of the Mortgage Loans
immediately preceding such Distribution Date and (b) the sum of the Servicing
Fee, 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 and servicing compensation to which the Master Servicer may be
entitled pursuant to Section 3.10(a)(v) and (vi); provided that for purposes of
this definition the amount of the Servicing Fee will not be reduced pursuant to
Section 7.02 except as may be required pursuant to the last sentence of such
Section.
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Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment of the Cooperative Lease, (iv) financing statements and (v) a stock
power (or other similar instrument), and ancillary thereto, a recognition
agreement between the Cooperative and the originator of the Cooperative Loan,
each of which was transferred and assigned to the Trustee pursuant to Section
2.01 and are from time to time held as part of the Trust Fund.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Credit Support Depletion Date: The first Distribution Date on which the
Certificate Principal Balances of the Subordinate Certificates have been reduced
to zero.
Credit Support Pledge Agreement: The Credit Support Pledge Agreement, dated
as of November 24, 1998, among the Master Servicer, GMAC Mortgage Corporation,
Combined Collateral LLC and The First National Bank of Chicago, as custodian.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Account: The custodial account or accounts created and
maintained pursuant to Section 3.07 in the name of a depository institution, as
custodian for the holders of the Certificates, for the holders of certain other
interests in mortgage loans serviced or sold by the Master Servicer and for the
Master Servicer, into which the amounts set forth in Section 3.07 shall be
deposited directly. Any such account or accounts shall be an Eligible Account.
Custodial Agreement: An agreement that may be entered into among the
Company, the Master Servicer, the Trustee and a Custodian pursuant to which the
Custodian will hold certain documents relating to the Mortgage Loans on behalf
of the Trustee.
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Custodian: A custodian appointed pursuant to a Custodial Agreement.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof at the Cut-off Date after giving effect to all
installments of principal due on or prior thereto, whether or not received.
DCR: Duff & Phelps Credit Rating Company, or its successor in interest.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
in the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
constituting a Deficient Valuation or any reduction that results in a permanent
forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
Definitive Certificate: Any Certificate other than a Book-Entry
Certificate.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Delinquent: As used herein, a Mortgage Loan is considered to be: "30 to
59 days" or "30 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the next following monthly scheduled due date; "60 to 89
days" or "60 or more days" delinquent when a payment due on any scheduled due
date remains unpaid as of the close of business on the last business day
immediately prior to the second following monthly scheduled due date; and so on.
The determination as to whether a Mortgage Loan falls into these categories is
made as of the close of business on the last business day of each month. For
example, a Mortgage Loan with a payment due on July 1 that remained unpaid as of
the close of business on July 31 would then be considered to be 30 to 59 days
delinquent. Delinquency information as of the Cut-off Date is determined and
prepared as of the close of business on the last business day immediately prior
to the Cut-off Date.
Depository: The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York and
a "clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
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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.
Discount Fraction: With respect to each Discount Mortgage Loan, the
fraction expressed as a percentage, the numerator of which is the Discount Net
Mortgage Rate minus the Net Mortgage Rate (or the initial Net Mortgage Rate with
respect to any Discount Mortgage Loans as to which the Mortgage Rate is modified
pursuant to 3.07(a)) for such Mortgage Loan and the denominator of which is the
Discount Net Mortgage Rate. The Discount Fraction with respect to each Discount
Mortgage Loan is set forth as an exhibit attached to the Series Supplement.
Discount Mortgage Loan: Any Mortgage Loan having a Net Mortgage Rate (or
the initial Net Mortgage Rate) of less than the Discount Net Mortgage Rate per
annum and any Mortgage Loan deemed to be a Discount Mortgage Loan pursuant to
the definition of Qualified Substitute Mortgage Loan.
Discount Net Mortgage Rate: As defined in the Series Supplement.
Disqualified Organization: Any organization defined as a "disqualified
organization" under Section 860E(e)(5) of the Code, and if not otherwise
included, any of the following: (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for the
FHLMC, a majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code, (v) any "electing large partnership," as defined in Section 775(a) of the
Code and (vi) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Class R
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Class R
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
Distribution Date: The 25th day of any month beginning in the month
immediately following the month of the initial issuance of the Certificates or,
if such 25th day is not a Business Day, the Business Day immediately following
such 25th day.
Due Date: With respect to any Distribution Date and any Mortgage Loan, the
day during the related Due Period on which the Monthly Payment is due.
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Due Period: With respect to any Distribution Date, the one-month period set
forth in the Series Supplement.
Eligible Account: An account that is any of the following: (i)
maintained with a depository institution the debt obligations of which have been
rated by each Rating Agency in its highest rating available, or (ii) an account
or accounts in a depository institution in which such accounts are fully insured
to the limits established by the FDIC, provided that any deposits not so insured
shall, to the extent acceptable to each Rating Agency, as evidenced in writing,
be maintained such that (as evidenced by an Opinion of Counsel delivered to the
Trustee and each Rating Agency) the registered Holders of Certificates have a
claim with respect to the funds in such account or a perfected first security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, or (iii) in the case of the Custodial Account, a trust account or
accounts maintained in the corporate trust department of The First National Bank
of Chicago, or (iv) in the case of the Certificate Account, a trust account or
accounts maintained in the corporate trust division of the Trustee, or (v) an
account or accounts of a depository institution acceptable to each Rating Agency
(as evidenced in writing by each Rating Agency that use of any such account as
the Custodial Account or the Certificate Account will not reduce the rating
assigned to any Class of Certificates by such Rating Agency below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency).
Event of Default: As defined in Section 7.01.
Excess Bankruptcy Loss: Any Bankruptcy Loss, or portion thereof, which
exceeds the then applicable Bankruptcy Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, which exceeds the
then applicable Fraud Loss Amount.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion thereof,
that exceeds the then applicable Special Hazard Amount.
Excess Subordinate Principal Amount: With respect to any Distribution
Date on which the aggregate Certificate Principal Balance of the Class of
Subordinate Certificates then outstanding with the Lowest Priority is to be
reduced to zero and on which Realized Losses are to be allocated to such class
or classes, the excess, if any, of (i) the amount that would otherwise be
distributable in respect of principal on such class or classes of Certificates
on such Distribution Date over (ii) the excess, if any, of the aggregate
Certificate Principal Balance of such class or classes of Certificates
immediately prior to such Distribution Date over the aggregate amount of
Realized Losses to be allocated to such classes of Certificates on such
Distribution Date as reduced by any amount calculated pursuant to Section
4.02(b)(i)(E). With respect to any Mortgage Pool that is comprised of two or
more Loan Groups, the Excess Subordinate Principal Amount will be allocated
between each Loan Group on a pro rata basis in accordance with the amount of
Realized Losses attributable to each Loan Group and allocated to the
Certificates on such Distribution Date.
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Extraordinary Events: Any of the following conditions with respect to a
Mortgaged Property (or, with respect to a Cooperative Loan, the Cooperative
Apartment) or Mortgage Loan causing or resulting in a loss which causes the
liquidation of such Mortgage Loan:
(a) losses that are of the type that would be covered by the fidelity bond
and the errors and omissions insurance policy required to be maintained
pursuant to Section 3.12(b) but are in excess of the coverage maintained
thereunder;
(b) nuclear reaction or nuclear radiation or radioactive contamination, all
whether controlled or uncontrolled, and whether such loss be direct or
indirect, proximate or remote or be in whole or in part caused by,
contributed to or aggravated by a peril covered by the definition of the
term "Special Hazard Loss";
(c) hostile or warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or
expected attack:
1. by any government or sovereign power, de jure or de facto, or by any
authority maintaining or using military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or forces;
(d) any weapon of war employing atomic fission or radioactive force whether
in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped power or action
taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or
customs regulations, confiscation by order of any government or public
authority; or risks of contraband or illegal transportation or trade.
Extraordinary Losses: Any loss incurred on a Mortgage Loan caused by or
resulting from an Extraordinary Event.
FASIT: A "financial asset securitization investment trust" within the
meaning of Section 860L of the Code.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: Federal Home Loan Mortgage Corporation, a corporate instrumentality
of the United States created and existing under Title III of the Emergency Home
Finance Act of 1970, as amended, or any successor thereto.
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.
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Fitch IBCA: Fitch IBCA, Inc. or its successor in interest.
FNMA: Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
Foreclosure Profits: As to any Distribution Date or related
Determination Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds, Insurance Proceeds and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to Section 3.10(a)(ii)) in respect of each Mortgage Loan or
REO Property for which a Cash Liquidation or REO Disposition occurred in the
related Prepayment Period over the sum of the unpaid principal balance of such
Mortgage Loan or REO Property (determined, in the case of an REO Disposition, in
accordance with Section 3.14) plus accrued and unpaid interest at the Mortgage
Rate on such unpaid principal balance from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Cash Liquidation or REO Disposition occurred.
Fraud Losses: Losses on Mortgage Loans as to which there was fraud in the
origination of such Mortgage Loan.
Highest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the earliest priority for
payments pursuant to Section 4.02(a), in the following order: Class M-1, Class
M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates.
Independent: When used with respect to any specified Person, means such
a Person who (i) is in fact independent of the Company, the Master Servicer and
the Trustee, or any Affiliate thereof, (ii) does not have any direct financial
interest or any material indirect financial interest in the Company, the Master
Servicer or the Trustee or in an Affiliate thereof, and (iii) is not connected
with the Company, the Master Servicer or the Trustee as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
Initial Certificate Principal Balance: With respect to each Class of
Certificates, the Certificate Principal Balance of such Class of Certificates as
of the Cut-off Date, as set forth in the Series Supplement.
Initial Monthly Payment Fund: An amount representing scheduled principal
amortization and interest at the Net Mortgage Rate for the Due Date in the first
Due Period commencing subsequent to the Cut-off Date for those Mortgage Loans
for which the Trustee will not be entitled to receive such payment, and as more
specifically defined in the Series Supplement.
Initial Notional Amount: With respect to any Class or Subclass of
Interest Only Certificates, the amount initially used as the principal basis for
the calculation of any interest payment amount, as more specifically defined in
the Series Supplement.
Initial Subordinate Class Percentage: As defined in the Series Supplement.
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Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan (excluding any Certificate Policy (as defined in the
Series Supplement)), to the extent such proceeds are payable to the mortgagee
under the Mortgage, any Subservicer, the Master Servicer or the Trustee and are
not applied to the restoration of the related Mortgaged Property (or, with
respect to a Cooperative Loan, the related Cooperative Apartment) or released to
the Mortgagor in accordance with the procedures that the Master Servicer would
follow in servicing mortgage loans held for its own account.
Insurer: Any named insurer under any Primary Insurance Policy or any
successor thereto or the named insurer in any replacement policy.
Interest Accrual Period: As defined in the Series Supplement.
Interest Only Certificates: A Class or Subclass of Certificates not
entitled to payments of principal, and designated as such in the Series
Supplement. The Interest Only Certificates will have no Certificate Principal
Balance.
International Borrower: In connection with any Mortgage Loan, a borrower
who is (a) a United States citizen employed in a foreign country, (b) a
non-permanent resident alien employed in the United States or (c) a citizen of a
country other than the United States with income derived from sources outside
the United States.
Junior Certificateholder: The Holder of not less than 95% of the Percentage
Interests of the Junior Class of Certificates.
Junior Class of Certificates: The Class of Subordinate Certificates
outstanding as of the date of the repurchase of a Mortgage Loan pursuant to
Section 4.07 herein that has the Lowest Priority.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
Liquidation Proceeds: Amounts (other than Insurance Proceeds) received
by the Master Servicer in connection with the taking of an entire Mortgaged
Property by exercise of the power of eminent domain or condemnation or in
connection with the liquidation of a defaulted Mortgage Loan through trustee's
sale, foreclosure sale or otherwise, other than REO Proceeds.
Loan Group: Any group of Mortgage Loans designated as a separate loan
group in the Series Supplement. The Certificates relating to each Loan Group
will be designated in the Series Supplement.
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.
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Lower Priority: As of any date of determination and any Class of
Subordinate Certificates, any other Class of Subordinate Certificates then
outstanding with a later priority for payments pursuant to Section 4.02 (a).
Lowest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the latest priority for payments
pursuant to Section 4.02(a), in the following order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1 Certificates.
Maturity Date: The latest possible maturity date, solely for purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, by which the
Certificate Principal Balance of each Class of Certificates (other than the
Interest Only Certificates which have no Certificate Principal Balance) and each
Uncertificated REMIC Regular Interest would be reduced to zero, as designated in
the Series Supplement.
MLCC: Merrill Lynch Credit Corporation, or its successor in interest.
Modified Mortgage Loan: Any Mortgage Loan that has been the subject of a
Servicing Modification.
Modified Net Mortgage Rate: As to any Mortgage Loan that is the subject
of a Servicing Modification, the Net Mortgage Rate minus the rate per annum by
which the Mortgage Rate on such Mortgage Loan was reduced.
Monthly Payment: With respect to any Mortgage Loan (including any REO
Property) and any Due Date, the payment of principal and interest due thereon in
accordance with the amortization schedule at the time applicable thereto (after
adjustment, if any, for Curtailments and for Deficient Valuations occurring
prior to such Due Date but before any adjustment to such amortization schedule
by reason of any bankruptcy, other than a Deficient Valuation, or similar
proceeding or any moratorium or similar waiver or grace period and before any
Servicing Modification that constitutes a reduction of the interest rate on such
Mortgage Loan).
Moody's: Moody's Investors Service, Inc., or its successor in interest.
Mortgage: With respect to each Mortgage Note related to a Mortgage Loan
which is not a Cooperative Loan, the mortgage, deed of trust or other comparable
instrument creating a first lien on an estate in fee simple or leasehold
interest in real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as from time to time are held or deemed to
be held as a part of the Trust Fund, the Mortgage Loans originally so held being
identified in the initial Mortgage Loan Schedule, and Qualified Substitute
Mortgage Loans held or deemed held as part of the Trust Fund including, without
limitation, (i) with respect to each Cooperative Loan, the related Mortgage
Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock
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Certificate, Cooperative Lease and Mortgage File and all rights appertaining
thereto, and (ii) with respect to each Mortgage Loan other than a Cooperative
Loan, each related Mortgage Note, Mortgage and Mortgage File and all rights
appertaining thereto.
Mortgage Loan Schedule: As defined in the Series Supplement.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with any modification thereto.
Mortgage Pool: The pool of mortgage loans, including all Loan Groups, if
any, consisting of the Mortgage Loans.
Mortgage Rate: As to any Mortgage Loan, the interest rate borne by the
related Mortgage Note, or any modification thereto other than a Servicing
Modification.
Mortgaged Property: The underlying real property securing a Mortgage Loan
or, with respect to a Cooperative Loan, the related Cooperative Lease and
Cooperative Stock.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, a per annum rate of interest
equal to the Adjusted Mortgage Rate less the per annum rate at which the
Servicing Fee is calculated.
Non-Discount Mortgage Loan: A Mortgage Loan that is not a Discount Mortgage
Loan.
Non-Primary Residence Loans: The Mortgage Loans designated as secured by
second or vacation residences, or by non-owner occupied residences, on the
Mortgage Loan Schedule.
Non-United States Person: Any Person other than a United States Person.
Nonrecoverable Advance: Any Advance previously made or proposed to be
made by the Master Servicer in respect of a Mortgage Loan (other than a Deleted
Mortgage Loan) which, in the good faith judgment of the Master Servicer, will
not, or, in the case of a proposed Advance, would not, be ultimately recoverable
by the Master Servicer from related Late Collections, Insurance Proceeds,
Liquidation Proceeds, REO Proceeds or amounts reimbursable to the Master
Servicer pursuant to Section 4.02(a) hereof. The determination by the Master
Servicer that it has made a Nonrecoverable Advance or that any proposed Advance
would constitute a Nonrecoverable Advance, shall be evidenced by an Officers'
Certificate delivered to the Company and the Trustee.
Nonsubserviced Mortgage Loan: Any Mortgage Loan that, at the time of
reference thereto, is not subject to a Subservicing Agreement.
Notional Amount: With respect to any Class or Subclass of Interest Only
Certificates, an amount used as the principal basis for the calculation of any
interest payment amount, as more specifically defined in the Series Supplement.
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Officers' Certificate: A certificate signed by the Chairman of the
Board, the President or a Vice President or Assistant Vice President, or a
Director or Managing Director, and by the Treasurer, the Secretary, or one of
the Assistant Treasurers or Assistant Secretaries of the Company or the Master
Servicer, as the case may be, and delivered to the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee and the Master Servicer, who may be counsel for the Company or the
Master Servicer, provided that any opinion of counsel (i) referred to in the
definition of "Disqualified Organization" or (ii) relating to the qualification
of any REMIC formed under the Series Supplement or compliance with the REMIC
Provisions must, unless otherwise specified, be an opinion of Independent
counsel.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in Full, Cash Liquidation or REO Disposition and which was not purchased,
deleted or substituted for prior to such Due Date pursuant to Section 2.02,
2.03, 2.04 or 4.07.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: As defined in the Series Supplement.
Paying Agent: The Trustee or any successor Paying Agent appointed by the
Trustee.
Percentage Interest: With respect to any Certificate (other than a Class
R Certificate), the undivided percentage ownership interest in the related Class
evidenced by such Certificate, which percentage ownership interest shall be
equal to the Initial Certificate Principal Balance thereof or Initial Notional
Amount (in the case of any Interest Only Certificate) thereof divided by the
aggregate Initial Certificate Principal Balance or the aggregate of the Initial
Notional Amounts, as applicable, of all the Certificates of the same Class. With
respect to a Class R Certificate, the interest in distributions to be made with
respect to such Class evidenced thereby, expressed as a percentage, as stated on
the face of each such Certificate.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the United
States or any agency or instrumentality thereof when such obligations are
backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i) maturing not
more than one month from the date of acquisition thereof, provided that the
unsecured obligations of the party agreeing to repurchase such obligations
are at the time rated by each Rating Agency in its highest short-term
rating available;
(iii)federal funds, certificates of deposit, demand deposits, time deposits and
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity
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of more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution or
trust company incorporated under the laws of the United States or any state
thereof or of any domestic branch of a foreign depository institution or
trust company; provided that the debt obligations of such depository
institution or trust company (or, if the only Rating Agency is Standard &
Poor's, in the case of the principal depository institution in a depository
institution holding company, debt obligations of the depository institution
holding company) at the date of acquisition thereof have been rated by each
Rating Agency in its highest short-term rating available; and provided
further that, if the only Rating Agency is Standard & Poor's and if the
depository or trust company is a principal subsidiary of a bank holding
company and the debt obligations of such subsidiary are not separately
rated, the applicable rating shall be that of the bank holding company;
and, provided further that, if the original maturity of such short-term
obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the short-term rating of such
institution shall be A-1+ in the case of Standard & Poor's if Standard &
Poor's is the Rating Agency;
(iv) commercial paper and demand notes (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been rated
by each Rating Agency in its highest short-term rating available; provided
that such commercial paper shall have a remaining maturity of not more than
30 days;
(v) a money market fund or a qualified investment fund rated by each Rating
Agency in its highest long-term rating available; and
(vi) other obligations or securities that are acceptable to each Rating Agency
as a Permitted Investment hereunder and will not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency, as evidenced in writing;
provided, however, no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations. References herein to the highest rating available on unsecured
long-term debt shall mean AAA in the case of Standard & Poor's, Fitch IBCA and
DCR and Aaa in the case of Moody's, and references herein to the highest rating
available on unsecured commercial paper and short-term debt obligations shall
mean A-1 in the case of Standard & Poor's, P-1 in the case of Moody's, D-1 in
the case of DCR and either A-1 by Standard & Poor's, P-1 by Moody's or F-1 by
Fitch IBCA in the case of Fitch IBCA.
Permitted Transferee: Any Transferee of a Class R Certificate, other than a
Disqualified Organization or Non-United States Person.
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Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pledged Amount: With respect to any Pledged Asset Loan, the amount of money
remitted to Combined Collateral LLC, at the direction of or for the benefit of
the related Mortgagor.
Pledged Asset Loan: Any Mortgage Loan supported by Pledged Assets or
such other collateral, other than the related Mortgaged Property, set forth in
the Series Supplement.
Pledged Assets: With respect to any Mortgage Loan, all money,
securities, security entitlements, accounts, general intangibles, instruments,
documents, certificates of deposit, commodities contracts and other investment
property and other property of whatever kind or description pledged by Combined
Collateral LLC as security in respect of any Realized Losses in connection with
such Mortgage Loan up to the Pledged Amount for such Mortgage Loan, and any
related collateral, or such other collateral as may be set forth in the Series
Supplement.
Pledged Asset Mortgage Servicing Agreement: The Pledged Asset Mortgage
Servicing Agreement, dated as of February 28, 1996 between MLCC and the Master
Servicer.
Pooling and Servicing Agreement or Agreement: With respect to any
Series, this Standard Terms together with the related Series Supplement.
Pool Stated Principal Balance: As to any Distribution Date, the aggregate
of the Stated Principal Balances of each Mortgage Loan.
Pool Strip Rate: With respect to each Mortgage Loan, a per annum rate
equal to the excess of (a) the Net Mortgage Rate of such Mortgage Loan over (b)
the Discount Net Mortgage Rate (but not less than 0.00%) per annum.
Prepayment Distribution Trigger: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Certificate Principal Balances of such Class
and each Class of Subordinate Certificates with a Lower Priority than such Class
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date is greater than or equal to the sum
of the related Initial Subordinate Class Percentages of such Classes of
Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate (or Modified Net Mortgage Rate in the case of a Modified Mortgage
Loan) on the Stated Principal Balance of such Mortgage Loan over the amount of
interest (adjusted to the Net Mortgage Rate (or Modified Net Mortgage Rate in
the case of a Modified Mortgage Loan)) paid by the Mortgagor for such Prepayment
Period to the date of such Principal Prepayment in Full or (b) a Curtailment
during the prior calendar month,
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an amount equal to one month's interest at the Net Mortgage Rate (or Modified
Net Mortgage Rate in the case of a Modified Mortgage Loan) on the amount of such
Curtailment.
Prepayment Period: As to any Distribution Date, the calendar month
preceding the month of distribution.
Primary Insurance Policy: Each primary policy of mortgage guaranty
insurance or any replacement policy therefor referred to in Section 2.03(b)(iv)
and (v).
Principal Only Certificates: A Class of Certificates not entitled to
payments of interest, and more specifically designated as such in the Series
Supplement.
Principal Prepayment: Any payment of principal or other recovery on a
Mortgage Loan, including a recovery that takes the form of Liquidation Proceeds
or Insurance Proceeds, which is received in advance of its scheduled Due Date
and is not accompanied by an amount as to interest representing scheduled
interest on such payment due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Program Guide: Collectively, the Client Guide and the Servicer Guide for
Residential Funding's Expanded Criteria Mortgage Program.
Purchase Price: With respect to any Mortgage Loan (or REO Property)
required to be or otherwise purchased on any date pursuant to Section 2.02,
2.03, 2.04 or 4.07, an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof plus the principal portion of any related unreimbursed
Advances and (ii) unpaid accrued interest at the Adjusted Mortgage Rate (or
Modified Net Mortgage Rate plus the rate per annum at which the Servicing Fee is
calculated in the case of a Modified Mortgage Loan) (or at the Net Mortgage Rate
(or Modified Net Mortgage Rate in the case of a Modified Mortgage Loan) in the
case of a purchase made by the Master Servicer) on the Stated Principal Balance
thereof to the Due Date in the Due Period related to the Distribution Date
occurring in the month following the month of purchase from the Due Date to
which interest was last paid by the Mortgagor.
Qualified Substitute Mortgage Loan: A Mortgage Loan substituted by
Residential Funding or the Company for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in an Officers' Certificate
delivered to the Trustee, with a copy to the Custodian,
(i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of
substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate
outstanding principal balance, after such deduction), not in
excess of the Stated Principal Balance of the Deleted Mortgage
Loan (the amount of any shortfall to be deposited by Residential
Funding in the Custodial Account in the month of substitution);
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(ii) have a Mortgage Rate and a Net Mortgage Rate no lower than and
not more than 1% per annum higher than the Mortgage Rate and Net
Mortgage Rate, respectively, of the Deleted Mortgage Loan as of
the date of substitution;
(iii) have a Loan-to-Value Ratio at the time of substitution no higher
than that of the Deleted Mortgage Loan at the time of
substitution;
(iv) have a remaining term to stated maturity not greater than (and
not more than one year less than) that of the Deleted Mortgage
Loan;
(v) comply with each representation and warranty set forth in
Sections 2.03 and 2.04 hereof and Section 4 of the Assignment
Agreement; and
(vi) have a Pool Strip Rate equal to or greater than that of the
Deleted Mortgage Loan.
Notwithstanding any other provisions herein, (x) with respect to any Qualified
Substitute Mortgage Loan substituted for a Deleted Mortgage Loan which was a
Discount Mortgage Loan, such Qualified Substitute Mortgage Loan shall be deemed
to be a Discount Mortgage Loan and to have a Discount Fraction equal to the
Discount Fraction of the Deleted Mortgage Loan and (y) in the event that the
"Pool Strip Rate" of any Qualified Substitute Mortgage Loan as calculated
pursuant to the definition of "Pool Strip Rate" is greater than the Pool Strip
Rate of the related Deleted Mortgage Loan
(i) the Pool Strip Rate of such Qualified Substitute Mortgage Loan
shall be equal to the Pool Strip Rate of the related Deleted
Mortgage Loan for purposes of calculating the Pass-Through Rate
on the Class A-V Certificates and
(ii) the excess of the Pool Strip Rate on such Qualified Substitute
Mortgage Loan as calculated pursuant to the definition of "Pool
Strip Rate" over the Pool Strip Rate on the related Deleted
Mortgage Loan shall be payable to the Class R Certificates
pursuant to Section 4.02 hereof.
Rating Agency: Each of the statistical credit rating agencies specified
in the Preliminary Statement of the Series Supplement. If any agency or a
successor is no longer in existence, "Rating Agency" shall be such statistical
credit rating agency, or other comparable Person, designated by the Company,
notice of which designation shall be given to the Trustee and the Master
Servicer.
Realized Loss: With respect to each Mortgage Loan (or REO Property):
(a) as to which a Cash Liquidation or REO Disposition has occurred,
an amount (not less than zero) equal to (i) the Stated Principal
Balance of the Mortgage Loan (or REO Property) as of the date of
Cash Liquidation or REO Disposition, plus (ii) interest (and REO
Imputed Interest, if any) at the Net Mortgage Rate from the Due
Date as to which interest was last paid or advanced to
Certificateholders up to the Due Date in the Due Period related
to the Distribution Date on which such Realized Loss will be
allocated pursuant to Section 4.05 on the Stated Principal
Balance of such Mortgage Loan (or REO Property) outstanding
during each Due
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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 or expenses as to which the Master
Servicer or Subservicer is entitled to reimbursement thereunder
but which have not been previously reimbursed,
(b) which is the subject of a Servicing Modification, (i) the amount
by which the interest portion of a Monthly Payment or the
principal balance of such Mortgage Loan was reduced, and (ii) any
such amount with respect to a Monthly Payment that was or would
have been due in the month immediately following the month in
which a Principal Prepayment or the Purchase Price of such
Mortgage Loan is received or is deemed to have been received,
(c) which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the
Deficient Valuation, or
(d) which has become the object of a Debt Service Reduction, the
amount of such Debt Service Reduction.
Notwithstanding the above, neither a Deficient Valuation nor a Debt Service
Reduction shall be deemed a Realized Loss hereunder so long as the Master
Servicer has notified the Trustee in writing that the Master Servicer is
diligently pursuing any remedies that may exist in connection with the
representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by the Master Servicer or a
Subservicer, in either case without giving effect to any Debt Service Reduction.
Record Date: With respect to each Distribution Date, the close of
business on the last Business Day of the month next preceding the month in which
the related Distribution Date occurs.
Regular Certificate: Any of the Certificates other than a Class R
Certificate.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Administrator: Residential Funding Corporation. If Residential
Funding Corporation is found by a court of competent jurisdiction to no longer
be able to fulfill its obligations as REMIC Administrator under this Agreement
the Master Servicer or Trustee acting as Master Servicer shall appoint a
successor REMIC Administrator, subject to assumption of the REMIC Administrator
obligations under this Agreement.
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REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
temporary and final regulations (or, to the extent not inconsistent with such
temporary or final regulations, proposed regulations) and published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Acquisition: The acquisition by the Master Servicer on behalf of the
Trustee for the benefit of the Certificateholders of any REO Property pursuant
to Section 3.14.
REO Disposition: As to any REO Property, a determination by the Master
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds, REO
Proceeds and other payments and recoveries (including proceeds of a final sale)
which the Master Servicer expects to be finally recoverable from the sale or
other disposition of the REO Property.
REO Imputed Interest: As to any REO Property, for any period, an amount
equivalent to interest (at the Net Mortgage Rate that would have been applicable
to the related Mortgage Loan had it been outstanding) on the unpaid principal
balance of the Mortgage Loan as of the date of acquisition thereof for such
period.
REO Proceeds: Proceeds, net of expenses, received in respect of any REO
Property (including, without limitation, proceeds from the rental of the related
Mortgaged Property or, with respect to a Cooperative Loan, the related
Cooperative Apartment) which proceeds are required to be deposited into the
Custodial Account only upon the related REO Disposition.
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed in lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Request for Release: A request for release, the forms of which are
attached as Exhibit F hereto, or an electronic request in a form acceptable to
the Custodian.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement, the Program Guide or the related Subservicing Agreement in respect of
such Mortgage Loan.
Required Surety Payment: With respect to any Additional Collateral Loan
that becomes a Liquidated Mortgage Loan, the lesser of (i) the principal portion
of the Realized Loss with respect to such Mortgage Loan and (ii) the excess, if
any, of (a) the amount of Additional Collateral required at origination with
respect to such Mortgage Loan over (b) the net proceeds realized by the
Subservicer from the related Additional Collateral.
Residential Funding: Residential Funding Corporation, a Delaware
corporation, in its capacity as seller of the Mortgage Loans to the Company and
any successor thereto.
Responsible Officer: When used with respect to the Trustee, any officer
of the Corporate Trust Department of the Trustee, including any Senior Vice
President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by
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any of the above designated officers to whom, with respect to a particular
matter, such matter is referred.
Retail Certificates: A Senior Certificate, if any, offered in smaller
minimum denominations than other Senior Certificates, and designated as such in
the Series Supplement.
Schedule of Discount Fractions: The schedule setting forth the Discount
Fractions with respect to the Discount Mortgage Loans, attached as an exhibit to
the Series Supplement.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Seller: As to any Mortgage Loan, a Person, including any Subservicer, that
executed a Seller's Agreement applicable to such Mortgage Loan.
Seller's Agreement: An agreement for the origination and sale of
Mortgage Loans generally in the form of the Seller Contract referred to or
contained in the Program Guide, or in such other form as has been approved by
the Master Servicer and the Company, each containing representations and
warranties in respect of one or more Mortgage Loans consistent in all material
respects with those set forth in the Program Guide.
Senior Accelerated Distribution Percentage: With respect to any
Distribution Date occurring on or prior to the 60th Distribution Date and, with
respect to any Mortgage Pool comprised of two or more Loan Groups, any Loan
Group, 100%. With respect to any Distribution Date thereafter and any such Loan
Group, if applicable, as follows:
(i) for any Distribution Date after the 60th Distribution Date but on or
prior to the 72nd Distribution Date, the related Senior Percentage for
such Distribution Date plus 70% of the related Subordinate Percentage
for such Distribution Date;
(ii) for any Distribution Date after the 72nd Distribution Date but on or
prior to the 84th Distribution Date, the related Senior Percentage for
such Distribution Date plus 60% of the related Subordinate Percentage
for such Distribution Date;
(iii) for any Distribution Date after the 84th Distribution Date but on or
prior to the 96th Distribution Date, the related Senior Percentage for
such Distribution Date plus 40% of the related Subordinate Percentage
for such Distribution Date;
(iv) for any Distribution Date after the 96th Distribution Date but on or
prior to the 108th Distribution Date, the related Senior Percentage for
such Distribution Date plus 20% of the related Subordinate Percentage
for such Distribution Date; and
(v) for any Distribution Date thereafter, the Senior Percentage for such
Distribution Date;
provided, however,
(i) that any scheduled reduction to the Senior Accelerated Distribution
Percentage described above shall not occur as of any Distribution Date unless
either
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(a)(1)(X) the outstanding principal balance of the Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding Certificate Principal Balance of
the Subordinate Certificates, is less than 50% or (Y) the outstanding
principal balance of Mortgage Loans delinquent 60 days or more averaged
over the last six months, as a percentage of the aggregate outstanding
principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 2% and (2) Realized Losses on the Mortgage Loans
to date for such Distribution Date if occurring during the sixth,
seventh, eighth, ninth or tenth year (or any year thereafter) after the
Closing Date are less than 30%, 35%, 40%, 45% or 50%, respectively, of
the sum of the Initial Certificate Principal Balances of the Subordinate
Certificates or
(b)(1) the outstanding principal balance of Mortgage Loans
delinquent 60 days or more averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all
Mortgage Loans averaged over the last six months, does not exceed 4% and
(2) Realized Losses on the Mortgage Loans to date for such Distribution
Date, if occurring during the sixth, seventh, eighth, ninth or tenth
year (or any year thereafter) after the Closing Date are less than 10%,
15%, 20%, 25% or 30%, respectively, of the sum of the Initial
Certificate Principal Balances of the Subordinate Certificates, and
(ii) that for any Distribution Date on which the Senior Percentage is
greater than the Senior Percentage as of the Closing Date, the Senior
Accelerated Distribution Percentage for such Distribution Date shall be 100%,
or, if the Mortgage Pool is comprised of two or more Loan Groups, for any
Distribution Date on which the weighted average of the Senior Percentages for
each Loan Group, weighted on the basis of the Stated Principal Balances of the
Mortgage Loans in the related Loan Group, exceeds the weighted average of the
initial Senior Percentages (calculated on such basis) for each Loan Group, each
of the Senior Accelerated Distribution Percentages for such Distribution Date
will equal 100%.
Notwithstanding the foregoing, upon the reduction of the Certificate Principal
Balances of the related Senior Certificates (other than the Class A-P
Certificates, if any) to zero, the related Senior Accelerated Distribution
Percentage shall thereafter be 0%.
Senior Certificate: As defined in the Series Supplement.
Senior Percentage: As defined in the Series Supplement.
Senior Support Certificate: A Senior Certificate that provides additional
credit enhancement to certain other classes of Senior Certificates and
designated as such in the Preliminary Statement of the Series Supplement.
Series: All of the Certificates issued pursuant to a Pooling and Servicing
Agreement and bearing the same series designation.
Series Supplement: The agreement into which this Standard Terms is
incorporated and pursuant to which, together with this Standard Terms, a Series
of Certificates is issued.
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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 in the performance of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property or, with
respect to a Cooperative Loan, the related Cooperative Apartment, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) 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 Fee: With respect to any Mortgage Loan and Distribution Date,
the fee payable monthly to the Master Servicer in respect of master servicing
compensation that accrues at an annual rate designated on the Mortgage Loan
Schedule as the "MSTR SERV FEE" for such Mortgage Loan, as may be adjusted with
respect to successor Master Servicers as provided in Section 7.02.
Servicing Modification: Any reduction of the interest rate on or the
outstanding principal balance of a Mortgage Loan that is in default, or for
which, in the judgment of the Master Servicer, default is reasonably
foreseeable, pursuant to a modification of such Mortgage Loan in accordance with
Section 3.07(a).
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may from time to time be
amended.
Special Hazard Loss: Any Realized Loss not in excess of the cost of the
lesser of repair or replacement of a Mortgaged Property (or, with respect to a
Cooperative Loan, the related Cooperative Apartment) suffered by such Mortgaged
Property (or Cooperative Apartment) on account of direct physical loss,
exclusive of (i) any loss of a type covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged Property
pursuant to Section 3.12(a), except to the extent of the portion of such loss
not covered as a result of any coinsurance provision and (ii) any Extraordinary
Loss.
Standard & Poor's: Standard & Poor's, a division of The McGraw-Hill
Companies, Inc., or its successor in interest.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property, at any given time, (i) the Cut-off Date Principal Balance of the
Mortgage Loan, minus (ii) the sum of (a) the principal portion of the Monthly
Payments due with respect to such Mortgage Loan or REO Property during each Due
Period ending prior to the most recent Distribution Date which were received or
with respect to which an Advance was made, and (b) all Principal Prepayments
with respect to such Mortgage Loan or REO Property, and all Insurance Proceeds,
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Liquidation Proceeds and REO Proceeds, to the extent applied by the Master
Servicer as recoveries of principal in accordance with Section 3.14 with respect
to such Mortgage Loan or REO Property, in each case which were distributed
pursuant to Section 4.02 on any previous Distribution Date, and (c) any Realized
Loss allocated to Certificateholders with respect thereto for any previous
Distribution Date.
Subclass: With respect to the Class A-V Certificates, any Subclass
thereof issued pursuant to Section 5.01(c). Any such Subclass will represent the
Uncertificated Class A-V REMIC Regular Interest or Interests specified by the
initial Holder of the Class A-V Certificates pursuant to Section 5.01(c).
Subordinate Certificate: Any one of the Class M Certificates or Class B
Certificates, executed by the Trustee and authenticated by the Certificate
Registrar substantially in the form annexed hereto as Exhibit B and Exhibit C,
respectively.
Subordinate Class Percentage: With respect to any Distribution Date and
any Class of Subordinate Certificates, a fraction, expressed as a percentage,
the numerator of which is the aggregate Certificate Principal Balance of such
Class of Subordinate Certificates immediately prior to such date and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans (or related REO Properties) (other than the related Discount
Fraction of each Discount Mortgage Loan) immediately prior to such Distribution
Date.
Subordinate Percentage: As of any Distribution Date and, with respect to
any Mortgage Pool comprised of two or more Loan Groups, any Loan Group, 100%
minus the related Senior Percentage as of such Distribution Date.
Subserviced Mortgage Loan: Any Mortgage Loan that, at the time of reference
thereto, is subject to a Subservicing Agreement.
Subservicer: Any Person with whom the Master Servicer has entered into a
Subservicing Agreement and who generally satisfied the requirements set forth in
the Program Guide in respect of the qualification of a Subservicer as of the
date of its approval as a Subservicer by the Master Servicer.
Subservicer Advance: Any delinquent installment of principal and
interest on a Mortgage Loan which is advanced by the related Subservicer (net of
its Subservicing Fee) pursuant to the Subservicing Agreement.
Subservicing Account: An account established by a Subservicer in accordance
with Section 3.08.
Subservicing Agreement: The written contract between the Master Servicer
and any Subservicer relating to servicing and administration of certain Mortgage
Loans as provided in Section 3.02, generally in the form of the servicer
contract referred to or contained in the Program Guide or in such other form as
has been approved by the Master Servicer and the Company. With respect to
Additional Collateral Loans subserviced by MLCC, the Subservicing Agreement
shall also include the Addendum and Assignment Agreement and the Pledged Asset
Mortgage Servicing Agreement. With respect to any Pledged Asset Loan subserviced
by GMAC
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Mortgage Corporation, the Addendum and Assignment Agreement, dated as of
November 24, 1998, between the Master Servicer and GMAC Mortgage Corporation, as
such agreement may be amended from time to time.
Subservicing Fee: As to any Mortgage Loan, the fee payable monthly to
the related Subservicer (or, in the case of a Nonsubserviced Mortgage Loan, to
the Master Servicer) in respect of subservicing and other compensation that
accrues at an annual rate equal to the excess of the Mortgage Rate borne by the
related Mortgage Note over the rate per annum designated on the Mortgage Loan
Schedule as the "CURR NET" for such Mortgage Loan.
Surety: Ambac, or its successors in interest, or such other surety as may
be identified in the Series Supplement.
Surety Bond: The Limited Purpose Surety Bond (Policy No. AB0039BE),
dated February 28, 1996 in respect to Mortgage Loans originated by MLCC, or the
Surety Bond (Policy No. AB0240BE), dated March 17, 1999 in respect to Mortgage
Loans originated by Novus Financial Corporation, in each case issued by Ambac
for the benefit of certain beneficiaries, including the Trustee for the benefit
of the Holders of the Certificates, but only to the extent that such Surety Bond
covers any Additional Collateral Loans, or such other Surety Bond as may be
identified in the Series Supplement.
Tax Returns: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of any REMIC formed under the Series Supplement and under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation or
other form of assignment of any Ownership Interest in a Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership Interest
in a Certificate.
Transferor: Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
Trust Fund: The segregated pool of assets related to a Series, with respect
to which one or more REMIC elections are to be made pursuant to this Agreement,
consisting of:
(i) the Mortgage Loans and the related Mortgage Files and collateral securing
such Mortgage Loans,
(ii) all payments on and collections in respect of the Mortgage Loans due
after the Cut-off Date as shall be on deposit in the Custodial Account
or in the Certificate Account and identified as belonging to the Trust
Fund, including the proceeds from the
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liquidation of Additional Collateral for any Additional Collateral
Loan or Pledged Assets for any Pledged Asset Loan, but not including
amounts on deposit in the Initial Monthly Payment Fund,
(iii) property that secured a Mortgage Loan and that has been acquired for the
benefit of the Certificateholders by foreclosure or deed in lieu of
foreclosure,
(iv) the hazard insurance policies and Primary Insurance Policies, if any,
the Pledged Assets with respect to each Pledged Asset Loan, and the
interest in the Surety Bond transferred to the Trustee pursuant to
Section 2.01, and
(v) all proceeds of clauses (i) through (iv) above.
Uniform Single Attestation Program for Mortgage Bankers: The Uniform
Single Attestation Program for Mortgage Bankers, as published by the Mortgage
Bankers Association of America and effective with respect to fiscal periods
ending on or after December 15, 1995.
Uninsured Cause: Any cause of damage to property subject to a Mortgage
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies.
United States Person: A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any state thereof, or the District of Columbia
(except in the case of a partnership, to the extent provided in Treasury
regulations) or any political subdivision thereof, or an estate that is
described in Section 7701(a)(30)(D) of the Code, or a trust that is described in
Section 7701(a)(30)(E) of the Code.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate, and more specifically designated in
Article XI of the Series Supplement.
Section 1.02. Use of Words and Phrases.
"Herein," "hereby," "hereunder," `hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to the Pooling and Servicing Agreement as a
whole. All references herein to Articles, Sections or Subsections shall mean the
corresponding Articles, Sections and Subsections in the Pooling and Servicing
Agreement. The definition set forth herein include both the singular and the
plural.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Company, concurrently with the execution and delivery hereof, does
hereby assign to the Trustee without recourse all the right, title and interest
of the Company in and to the Mortgage Loans, including all interest and
principal received on or with respect to the Mortgage Loans after the Cut-off
Date (other than payments of principal and interest due on the Mortgage Loans on
or before the Cut-off Date). In connection with such transfer and assignment,
the Company does hereby deliver to the Trustee the Certificate Policy (as
defined in the Series Supplement), if any.
(b) In connection with such assignment, except as set forth in Section 2.01(c)
and subject to Section 2.01(d) below, the Company does hereby deliver to, and
deposit with, the Trustee, or to and with one or more Custodians, as the duly
appointed agent or agents of the Trustee for such purpose, the following
documents or instruments (or copies thereof as permitted by this Section) (I)
with respect to each Mortgage Loan so assigned (other than a Cooperative Loan):
(i) The original Mortgage Note, endorsed without recourse 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 with evidence of recording indicated thereon or a
copy of the Mortgage certified by the public recording office in which
such Mortgage has been recorded;
(iii) An original Assignment of the Mortgage to the Trustee with evidence of
recording indicated thereon or a copy of such assignment certified by
the public recording office in which such assignment has been recorded;
(iv) The original recorded assignment or assignments of the Mortgage showing
an unbroken chain of title from the originator thereof to the Person
assigning it to the Trustee or a copy of such assignment or assignments
of the Mortgage certified by the public recording office in which such
assignment or assignments have been recorded; 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 certified
by the public recording office in which such document has been recorded.
and (II) with respect to each Cooperative Loan so assigned:
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(i) The original Mortgage Note, endorsed without recourse to the order of
the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to the Trustee, or with
respect to any Destroyed Mortgage Note, an original lost note affidavit
from the related Seller or Residential Funding stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of
the related Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary
Lease to the originator of the Cooperative Loan with intervening
assignments showing an unbroken chain of title from such originator to
the Trustee;
(iii) The related Cooperative Stock Certificate, representing the related
Cooperative Stock pledged with respect to such Cooperative Loan,
together with an undated stock power (or other similar instrument)
executed in blank;
(iv) The original recognition agreement by the Cooperative of the interests
of the mortgagee with respect to the related Cooperative Loan;
(v) The Security Agreement;
(vi) Copies of the original UCC-1 financing statement, and any continuation
statements, filed by the originator of such Cooperative Loan as secured
party, each with evidence of recording thereof, evidencing the interest
of the originator under the Security Agreement and the Assignment of
Proprietary Lease;
(vii) Copies of the filed UCC-3 assignments of the security interest
referenced in clause (vi) above showing an unbroken chain of title from
the originator to the Trustee, each with evidence of recording thereof,
evidencing the interest of the originator under the Security Agreement
and the Assignment of Proprietary Lease;
(viii) An executed assignment of the interest of the originator in the Security
Agreement, Assignment of Proprietary Lease and the recognition agreement
referenced in clause (iv) above, showing an unbroken chain of title from
the originator to the Trustee;
(ix) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Cooperative Loan; and
(x) An executed UCC-1 financing statement showing the Master Servicer as
debtor, the Company as secured party and the Trustee as assignee and an
executed UCC-1 financing statement showing the Company as debtor and the
Trustee as secured party, each in a form sufficient for filing,
evidencing the interest of such debtors in the Cooperative Loans.
(c) The Company may, in lieu of delivering the documents set forth in Section
2.01(b)(I)(iv) and (v) and Section (b)(II)(ii), (iv), (vii), (ix) and (x) to the
Trustee or the Custodian or Custodians, deliver such documents to the Master
Servicer, and the Master Servicer shall hold such documents in trust for the use
and benefit of all present and future
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Certificateholders until such time as is set forth below. Within thirty Business
Days following the earlier of (i) the receipt of the original of each of the
documents or instruments set forth in Section 2.01(b)(I)(iv) and (v) and Section
(b)(II)(ii), (iv), (vii), (ix) and (x) (or copies thereof as permitted by such
Section) for any Mortgage Loan and (ii) a written request by the Trustee to
deliver those documents with respect to any or all of the Mortgage Loans then
being held by the Master Servicer, the Master Servicer shall deliver a complete
set of such documents to the Trustee or the Custodian or Custodians that are the
duly appointed agent or agents of the Trustee.
(d) In connection with any Mortgage Loan, if the Company cannot deliver the
Mortgage, any assignment, modification, assumption agreement or preferred loan
agreement (or copy thereof certified by the public recording office) with
evidence of recording thereon concurrently with the execution and delivery of
this Agreement because of (i) a delay caused by the public recording office
where such Mortgage, assignment, modification, assumption agreement or preferred
loan agreement as the case may be, has been delivered for recordation, or (ii) a
delay in the receipt of certain information necessary to prepare the related
assignments, the Company shall deliver or cause to be delivered to the Trustee
or the respective Custodian a true and correct photocopy of such Mortgage,
assignment, modification, assumption agreement or preferred loan agreement.
The Company shall promptly cause to be recorded in the appropriate
public office for real property records the Assignment referred to in clause
(I)(iii) of Section 2.01(b), except in states where, in the opinion of counsel
acceptable to the Trustee and the Master Servicer, such recording is not
required to protect the Trustee's interests in the Mortgage Loan against the
claim of any subsequent transferee or any successor to or creditor of the
Company or the originator of such Mortgage Loan and shall promptly cause to be
filed the Form UCC-3 assignment and UCC-1 financing statement referred to in
clause (II)(vii) and (x), respectively, of Section 2.01(b). If any Assignment,
Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded to the
Company because of any defect therein, the Company shall prepare a substitute
Assignment, Form UCC-3 or Form UCC-1, as applicable, or cure such defect, as the
case may be, and cause such Assignment to be recorded in accordance with this
paragraph. The Company shall promptly deliver or cause to be delivered to the
Trustee or the respective Custodian such Mortgage or Assignment or Form UCC-3 or
Form UCC-1, as applicable, (or copy thereof certified by the public recording
office) with evidence of recording indicated thereon upon receipt thereof from
the public recording office or from the related Subservicer. In connection with
its servicing of Cooperative Loans, the Master Servicer will use its best
efforts to file timely continuation statements with regard to each financing
statement and assignment relating to Cooperative Loans as to which the related
Cooperative Apartment is located outside of the State of New York.
If the Company delivers to the Trustee or Custodian any Mortgage Note or
Assignment of Mortgage in blank, the Company shall, or shall cause the Custodian
to, complete the endorsement of the Mortgage Note and the Assignment of Mortgage
in the name of the Trustee within 45 days after the Closing Date, as
contemplated by Section 2.02.
Any of the items set forth in Sections 2.01(b)(I)(iv) and (v) and
(II)(vi) and (vii) and that may be delivered as a copy rather than the original
may be delivered to the Trustee or the Custodian.
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(e) Residential Funding hereby assigns to the Trustee its security interest in
and to any Additional Collateral or Pledged Assets, its right to receive amounts
due or to become due in respect of any Additional Collateral or Pledged Assets
pursuant to the related Subservicing Agreement and its rights as beneficiary
under the Surety Bond in respect of any Additional Collateral Loans. With
respect to any Additional Collateral Loan or Pledged Asset Loan, Residential
Funding shall cause to be filed in the appropriate recording office a UCC-3
statement giving notice of the assignment of the related security interest to
the Trust Fund and shall thereafter cause the timely filing of all necessary
continuation statements with regard to such financing statements.
(f) It is intended that the conveyance by the Company to the Trustee of the
Mortgage Loans as provided for in this Section 2.01 be and the Uncertificated
REMIC Regular Interests, if any (as provided for in Section 2.06), be construed
as a sale by the Company to the Trustee of the Mortgage Loans and any
Uncertificated REMIC Regular Interests for the benefit of the
Certificateholders. Further, it is not intended that such conveyance be deemed
to be a pledge of the Mortgage Loans and any Uncertificated REMIC Regular
Interests by the Company to the Trustee to secure a debt or other obligation of
the Company. However, if the Mortgage Loans and any Uncertificated REMIC Regular
Interests are held to be property of the Company or of Residential Funding, or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans and any Uncertificated REMIC Regular Interests, then it is
intended that (a) this Agreement shall be a security agreement within the
meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance
provided for in Section 2.01 shall be deemed to be, and hereby is, (1) a grant
by the Company to the Trustee of a security interest in all of the Company's
right (including the power to convey title thereto), title and interest, whether
now owned or hereafter acquired, in and to any and all general intangibles,
accounts, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property and other property of whatever kind or description now
existing or hereafter acquired consisting of, arising from or relating to any of
the following: (A) the Mortgage Loans, including (i) with respect to each
Cooperative Loan, the related Mortgage Note, Security Agreement, Assignment of
Proprietary Lease, Cooperative Stock Certificate and Cooperative Lease, (ii)
with respect to each Mortgage Loan other than a Cooperative Loan, the related
Mortgage Note and Mortgage, and (iii) any insurance policies and all other
documents in the related Mortgage File, (B) all amounts payable pursuant to the
Mortgage Loans in accordance with the terms thereof, (C) any Uncertificated
REMIC Regular Interests and (D) all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held or
invested in the Certificate Account or the Custodial Account, whether in the
form of cash, instruments, securities or other property and (2) an assignment by
the Company to the Trustee of any security interest in any and all of
Residential Funding's right (including the power to convey title thereto), title
and interest, whether now owned or hereafter acquired, in and to the property
described in the foregoing clauses (1)(A), (B), (C) and (D) granted by
Residential Funding to the Company pursuant to the Assignment Agreement; (c) the
possession by the Trustee, the Custodian or any other agent of the Trustee of
Mortgage Notes or such other items of property as constitute instruments, money,
negotiable documents, goods, 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,
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for purposes of perfecting the security interest pursuant to the Minnesota
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Sections 8-106, 9-305 and 9-115
thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, securities intermediaries, bailees or agents of, or persons holding for
(as applicable) the Trustee for the purpose of perfecting such security interest
under applicable law.
The Company and, at the Company's direction, Residential Funding and the
Trustee shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
determined to create a security interest in the Mortgage Loans, any
Uncertificated REMIC Regular Interests and the other property described above,
such security interest would be determined to be a perfected security interest
of first priority under applicable law and will be maintained as such throughout
the term of this Agreement. Without limiting the generality of the foregoing,
the Company shall prepare and deliver to the Trustee not less than 15 days prior
to any filing date and, the Trustee shall forward for filing, or shall cause to
be forwarded for filing, at the expense of the Company, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in or lien on the Mortgage Loans and any Uncertificated REMIC
Regular Interests, as evidenced by an Officers' Certificate of the Company,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of Residential
Funding, the Company or the Trustee (such preparation and filing shall be at the
expense of the Trustee, if occasioned by a change in the Trustee's name), (2)
any change of location of the place of business or the chief executive office of
Residential Funding or the Company, (3) any transfer of any interest of
Residential Funding or the Company in any Mortgage Loan or (4) any transfer of
any interest of Residential Funding or the Company in any Uncertificated REMIC
Regular Interest.
(g) The Master Servicer hereby acknowledges the receipt by it of the Initial
Monthly Payment Fund. The Master Servicer shall hold such Initial Monthly
Payment Fund in the Custodial Account and shall include such Initial Monthly
Payment Fund in the Available Distribution Amount for the initial Distribution
Date. Notwithstanding anything herein to the contrary, the Initial Monthly
Payment Fund shall not be an asset of any REMIC. To the extent that the Initial
Monthly Payment Fund constitutes a reserve fund for federal income tax purposes,
(1) it shall be an outside reserve fund and not an asset of any REMIC, (2) it
shall be owned by the Seller and (3) amounts transferred by any REMIC to the
Initial Monthly Payment Fund shall be treated as transferred to the Seller or
any successor, all within the meaning of Section 1.860G-2(h) of the Treasury
Regulations.
(h) The Company agrees that the sale of each Pledged Asset Loan pursuant to this
Agreement will also constitute the assignment, sale, setting-over, transfer and
conveyance to the Trustee, without recourse (but subject to the Company's
covenants, representations and warranties specifically provided herein), of all
of the Company's obligations and all of the Company's right, title and interest
in, to and under, whether now existing or hereafter acquired as owner of the
Mortgage Loan with respect to all money, securities, security entitlements,
accounts, general intangibles, instruments, documents, certificates of deposit,
commodities
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contracts, and other investment property and other property of whatever kind or
description consisting of, arising from or related to (i) the Assigned
Contracts, (ii) all rights, powers and remedies of the Company as owner of such
Mortgage Loan under or in connection with the Assigned Contracts, whether
arising under the terms of such Assigned Contracts, by statute, at law or in
equity, or otherwise arising out of any default by the Mortgagor under or in
connection with the Assigned Contracts, including all rights to exercise any
election or option or to make any decision or determination or to give or
receive any notice, consent, approval or waiver thereunder, (iii) all security
interests in and lien of the Company as owner of such Mortgage Loan in the
Pledged Amounts and all money, securities, security entitlements, accounts,
general intangibles, instruments, documents, certificates of deposit,
commodities contracts, and other investment property and other property of
whatever kind or description and all cash and non-cash proceeds of the sale,
exchange, or redemption of, and all stock or conversion rights, rights to
subscribe, liquidation dividends or preferences, stock dividends, rights to
interest, dividends, earnings, income, rents, issues, profits, interest payments
or other distributions of cash or other property that is credited to the
Custodial Account, (iv) all documents, books and records concerning the
foregoing (including all computer programs, tapes, disks and related items
containing any such information) and (v) all insurance proceeds (including
proceeds from the Federal Deposit Insurance Corporation or the Securities
Investor Protection Corporation or any other insurance company) of any of the
foregoing or replacements thereof or substitutions therefor, proceeds of
proceeds and the conversion, voluntary or involuntary, of any thereof. The
foregoing transfer, sale, assignment and conveyance does not constitute and is
not intended to result in the creation, or an assumption by the Trustee, of any
obligation of the Company, or any other person in connection with the Pledged
Assets or under any agreement or instrument relating thereto, including any
obligation to the Mortgagor, other than as owner of the Mortgage Loan.
Section 2.02. Acceptance by Trustee.
The Trustee acknowledges receipt (or, with respect to Mortgage Loans
subject to a Custodial Agreement, and based solely upon a receipt or
certification executed by the Custodian, receipt by the respective Custodian as
the duly appointed agent of the Trustee) of the documents referred to in Section
2.01(b)(i) through (iii) 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, and the rights of
Residential Funding with respect to any Pledged Assets, Additional Collateral
and the Surety Bond assigned to the Trustee pursuant to Section 2.01, in trust
for the use and benefit of all present and future Certificateholders. The
Trustee or Custodian (such Custodian being so obligated under a Custodial
Agreement) agrees, for the benefit of Certificateholders, to review each
Mortgage File delivered to it pursuant to Section 2.01(b) within 45 days after
the Closing Date to ascertain that all required documents (specifically as set
forth in Section 2.01(b)), have been executed and received, and that such
documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule,
as supplemented, that have been conveyed to it. Upon delivery of the Mortgage
Files by the Company or the Master Servicer, the Trustee shall acknowledge
receipt (or, with respect to Mortgage Loans subject to a Custodial Agreement,
and based solely upon a receipt or certification executed by the Custodian,
receipt by the respective Custodian as the duly appointed
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agent of the Trustee) of the documents referred to in Section 2.01(c) above. The
Trustee or Custodian (such Custodian being so obligated under a Custodial
Agreement) agrees to review each Mortgage File delivered to it pursuant to
Section 2.01(c) within 45 days after receipt thereof to ascertain that all
documents required to be delivered pursuant to such Section have been received,
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, as supplemented, that have been conveyed to it.
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 in
any material respect, the Trustee shall promptly so notify the Master Servicer
and the Company. Pursuant to Section 2.3 of the Custodial Agreement, the
Custodian will notify the Master Servicer, the Company and the Trustee of any
such omission or defect found by it in respect of any Mortgage File held by it.
The Master Servicer shall promptly notify the related Subservicer or Seller of
such omission or defect and request that such Subservicer or Seller correct or
cure such omission or defect within 60 days from the date the Master Servicer
was notified of such omission or defect and, if such Subservicer or Seller does
not correct or cure such omission or defect within such period, that such
Subservicer or Seller purchase such Mortgage Loan from the Trust Fund at its
Purchase Price, in either case within 90 days from the date the Master Servicer
was notified of such omission or defect; provided that if the omission or defect
would cause the Mortgage Loan to be other than a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code, any such cure or repurchase must occur within
90 days from the date such breach was discovered. The Purchase Price for any
such Mortgage Loan, whether purchased by the Seller or the Subservicer, shall be
deposited or caused to be deposited by the Master Servicer in the Custodial
Account maintained by it pursuant to Section 3.07 and, upon receipt by the
Trustee of written notification of such deposit signed by a Servicing Officer,
the Trustee or any Custodian, as the case may be, shall release to the Master
Servicer the related Mortgage File and the Trustee shall execute and deliver
such instruments of transfer or assignment prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Seller or its
designee or the Subservicer or its designee, as the case may be, any Mortgage
Loan released pursuant hereto and thereafter such Mortgage Loan shall not be
part of the Trust Fund. It is understood and agreed that the obligation of the
Seller or the Subservicer, as the case may be, to so cure or purchase any
Mortgage Loan as to which a material defect in or omission of a constituent
document exists shall constitute the sole remedy respecting such defect or
omission available to Certificateholders or the Trustee on behalf of the
Certificateholders. Notwithstanding the foregoing, it is understood and agreed
that the Master Servicer shall use its best efforts to substitute, within 60
days of the Closing Date, Qualified Substitute Mortgage Loans to replace any of
the Mortgage Loans identified on Schedule I hereto with respect to which any
document or documents constituting a part of the Mortgage File are missing or
defective in any material respect if the Master Servicer cannot cure such
omission or defect within such 60 day period.
Section 2.03. Representations, Warranties and Covenants
of the Master Servicer and the Company.
(a) The Master Servicer hereby represents and warrants to the Trustee for the
benefit of the Certificateholders that:
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(i) The Master Servicer is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and is or will be in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan in accordance with the terms of
this Agreement;
(ii) The execution and delivery of this Agreement by the Master Servicer and
its performance and compliance with the terms of this Agreement will not
violate the Master Servicer's Certificate of Incorporation or Bylaws or
constitute a material default (or an event which, with notice or lapse
of time, or both, would constitute a material default) under, or result
in the material breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or which may be
applicable to the Master Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution and delivery by
the Trustee and the Company, constitutes a valid, legal and binding
obligation of the Master Servicer, enforceable against it in accordance
with the terms hereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(iv) The Master Servicer is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its
properties or might have consequences that would materially adversely
affect its performance hereunder;
(v) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit
its entering into this Agreement or performing its obligations under
this Agreement;
(vi) The Master Servicer will comply in all material respects in the
performance of this Agreement with all reasonable rules and requirements
of each insurer under each Required Insurance Policy;
(vii) No information, certificate of an officer, statement furnished in
writing or report delivered to the Company, any Affiliate of the Company
or the Trustee by the Master Servicer will, to the knowledge of the
Master Servicer, contain any untrue statement of a material fact or omit
a material fact necessary to make the information, certificate,
statement or report not misleading; and
(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.
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It is understood and agreed that the representations and warranties set forth in
this Section 2.03(a) shall survive delivery of the respective Mortgage Files to
the Trustee or any Custodian.
Upon discovery by either the Company, the Master Servicer, the Trustee
or any Custodian of a breach of any representation or warranty set forth in this
Section 2.03(a) which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties (any Custodian being so
obligated under a Custodial Agreement). Within 90 days of its discovery or its
receipt of notice of such breach, the Master Servicer shall either (i) cure such
breach in all material respects or (ii) to the extent that such breach is with
respect to a Mortgage Loan or a related document, purchase such Mortgage Loan
from the Trust Fund at the Purchase Price and in the manner set forth in Section
2.02; provided that if the omission or defect would cause the Mortgage Loan to
be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or repurchase must occur within 90 days from the date such
breach was discovered. The obligation of the Master Servicer to cure such breach
or to so purchase such Mortgage Loan shall constitute the sole remedy in respect
of a breach of a representation and warranty set forth in this Section 2.03(a)
available to the Certificateholders or the Trustee on behalf of the
Certificateholders.
(b) Representations and warranties relating to the Mortgage Loans are set forth
in Section 2.03(b) of the Series Supplement.
Section 2.04. Representations and Warranties of Sellers.
The Company, as assignee of Residential Funding under the Assignment
Agreement, hereby assigns to the Trustee for the benefit of Certificateholders
all of its right, title and interest in respect of the Assignment Agreement and
each Seller's Agreement applicable to a Mortgage Loan. Insofar as the Assignment
Agreement or such Seller's Agreement relates to the representations and
warranties made by Residential Funding or the related Seller in respect of such
Mortgage Loan and any remedies provided thereunder for any breach of such
representations and warranties, such right, title and interest may be enforced
by the Master Servicer on behalf of the Trustee and the Certificateholders. Upon
the discovery by the Company, the Master Servicer, the Trustee or any Custodian
of a breach of any of the representations and warranties made in a Seller's
Agreement or the Assignment Agreement (which, for purposes hereof, will be
deemed to include any other cause giving rise to a repurchase obligation under
the Assignment Agreement) in respect of any Mortgage Loan which materially and
adversely affects the interests of the Certificateholders in such Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties (any Custodian being so obligated under a Custodial Agreement). The
Master Servicer shall promptly notify the related Seller or Residential Funding,
as the case may be, of such breach and request that such Seller or Residential
Funding, as the case may be, either (i) cure such breach in all material
respects within 90 days from the date the Master Servicer was notified of such
breach or (ii) purchase such Mortgage Loan from the Trust Fund at the Purchase
Price and in the manner set forth in Section 2.02; provided that in the case of
a breach under the Assignment Agreement Residential Funding shall have the
option to substitute a Qualified Substitute Mortgage Loan or Loans for such
Mortgage Loan if such substitution occurs within two years following the Closing
Date; provided that if the breach would cause the Mortgage Loan to be other than
a "qualified
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mortgage" as defined in Section 860G(a)(3) of the Code, any such cure,
repurchase or substitution must occur within 90 days from the date the breach
was discovered. 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, and, if
the Deleted Mortgage Loan was a Discount Mortgage Loan, the Schedule of Discount
Fractions, for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Qualified Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the amended
Mortgage Loan Schedule, and, if the Deleted Mortgage Loan was a Discount
Mortgage Loan, the amended Schedule of Discount Fractions, to the Trustee. Upon
such substitution, the Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement and the related Subservicing Agreement in
all respects, the related Seller shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the related Seller's Agreement as of the date of substitution,
and the Company and the Master Servicer shall be deemed to have made with
respect to any Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the covenants, representations and warranties set forth in this
Section 2.04, in Section 2.03 hereof and in Section 4 of the Assignment
Agreement, and the Master Servicer shall be obligated to repurchase or
substitute for any Qualified Substitute Mortgage Loan as to which a Repurchase
Event (as defined in the Assignment Agreement) has occurred pursuant to Section
4 of the Assignment Agreement.
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to the
Certificateholders in the month of substitution). Residential Funding shall
deposit the amount of such shortfall into the Custodial Account on the day of
substitution, without any reimbursement therefor. Residential Funding shall give
notice in writing to the Trustee of such event, which notice shall be
accompanied by an Officers' Certificate as to the calculation of such shortfall
and (subject to Section 10.01(f)) by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on the Trust
Fund, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any portion of any
REMIC to fail to qualify as such at any time that any Certificate is
outstanding.
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It is understood and agreed that the obligation of the Seller or
Residential Funding, as the case may be, to cure such breach or purchase (or in
the case of Residential Funding to substitute for) such Mortgage Loan as to
which such a breach has occurred and is continuing shall constitute the sole
remedy respecting such breach available to the Certificateholders or the Trustee
on behalf of Certificateholders. If the Master Servicer is Residential Funding,
then the Trustee shall also have the right to give the notification and require
the purchase or substitution provided for in the second preceding paragraph in
the event of such a breach of a representation or warranty made by Residential
Funding in the Assignment Agreement. In connection with the purchase of or
substitution for any such Mortgage Loan by Residential Funding, the Trustee
shall assign to Residential Funding all of the right, title and interest in
respect of the Seller's Agreement and the Assignment Agreement applicable to
such Mortgage Loan.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicer to Act as Servicer.
(a) The Master Servicer shall service and administer the Mortgage Loans in
accordance with the terms of this Agreement and the respective Mortgage Loans
and shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do any and all things which it may deem necessary
or desirable in connection with such servicing and administration. Without
limiting the generality of the foregoing, the Master Servicer in its own name or
in the name of a Subservicer is hereby authorized and empowered by the Trustee
when the Master Servicer or the Subservicer, as the case may be, believes it
appropriate in its best judgment, to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
consent to assumption or modification in connection with a proposed conveyance,
or of assignment of any Mortgage and Mortgage Note in connection with the
repurchase of a Mortgage Loan and all other comparable instruments, or with
respect to the modification or re-recording of a Mortgage for the purpose of
correcting the Mortgage, the subordination of the lien of the Mortgage in favor
of a public utility company or government agency or unit with powers of eminent
domain, the taking of a deed in lieu of foreclosure, the 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. Notwithstanding
the foregoing, subject to Section 3.07(a), the Master Servicer shall not permit
any modification with respect to any Mortgage Loan that would both constitute a
sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the
Code and any proposed, temporary or final regulations promulgated thereunder
(other than in connection with a proposed conveyance or assumption of such
Mortgage Loan that is treated as a Principal Prepayment in Full pursuant to
Section 3.13(d) hereof) and cause any REMIC formed under the Series Supplement
to fail to qualify as a REMIC under the Code. The Trustee shall furnish the
Master Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Master Servicer to service and administer the Mortgage
Loans. The Trustee shall not be liable for any action taken by the Master
Servicer or any Subservicer pursuant to such powers of attorney. In servicing
and administering any Nonsubserviced Mortgage Loan, the Master Servicer shall,
to the extent not inconsistent with this Agreement, comply with the Program
Guide as if it were the originator of such Mortgage Loan and had retained the
servicing rights and obligations in respect thereof. In connection with
servicing and administering the Mortgage Loans, the Master Servicer and any
Affiliate of the Master Servicer (i) may perform services such as appraisals and
brokerage services that are not customarily provided by servicers of mortgage
loans, and shall be entitled to reasonable compensation therefor in accordance
with Section 3.10 and (ii) may, at its own discretion and on behalf of the
Trustee, obtain credit information in the form of a "credit score" from a credit
repository.
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(b) All costs incurred by the Master Servicer or by Subservicers in effecting
the timely payment of taxes and assessments on the properties subject to the
Mortgage Loans shall not, for the purpose of calculating monthly distributions
to the Certificateholders, be added to the amount owing under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loan so permit,
and such costs shall be recoverable to the extent permitted by Section
3.10(a)(ii).
(c) The Master Servicer may enter into one or more agreements in connection with
the offering of pass-through certificates evidencing interests in one or more of
the Certificates providing for the payment by the Master Servicer of amounts
received by the Master Servicer as servicing compensation hereunder and required
to cover certain Prepayment Interest Shortfalls on the Mortgage Loans, which
payment obligation will thereafter be an obligation of the Master Servicer
hereunder.
Section 3.02. Subservicing Agreements Between Master Servicer and Subservicers;
Enforcement of Subservicers' and Sellers' Obligations.
(a) The Master Servicer may continue in effect Subservicing Agreements entered
into by Residential Funding and Subservicers prior to the execution and delivery
of this Agreement, and may enter into new Subservicing Agreements with
Subservicers, for the servicing and administration of all or some of the
Mortgage Loans. Each Subservicer of a Mortgage Loan shall be entitled to receive
and retain, as provided in the related Subservicing Agreement and in Section
3.07, the related Subservicing Fee from payments of interest received on such
Mortgage Loan after payment of all amounts required to be remitted to the Master
Servicer in respect of such Mortgage Loan. For any Mortgage Loan that is a
Nonsubserviced Mortgage Loan, the Master Servicer shall be entitled to receive
and retain an amount equal to the Subservicing Fee from payments of interest.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Each Subservicing Agreement will be upon such terms and conditions as
are generally required or permitted by the Program Guide and are not
inconsistent with this Agreement and as the Master Servicer and the Subservicer
have agreed. A representative form of Subservicing Agreement is attached to this
Agreement as Exhibit E. With the approval of the Master Servicer, a Subservicer
may delegate its servicing obligations to third-party servicers, but such
Subservicer will remain obligated under the related Subservicing Agreement. The
Master Servicer and a Subservicer may enter into amendments thereto or a
different form of Subservicing Agreement, and the form referred to or included
in the Program Guide is merely provided for information and shall not be deemed
to limit in any respect the discretion of the Master Servicer to modify or enter
into different Subservicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of either this Agreement or the Program Guide in a manner which would
materially and adversely affect the interests of the Certificateholders.
(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
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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.
Section 3.03. Successor Subservicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Servicer or any Affiliate of
Residential Funding acts as servicer, it will not assume liability for the
representations and warranties of the Subservicer which it replaces. If the
Master Servicer enters into a Subservicing Agreement with a successor
Subservicer, the Master Servicer shall use reasonable efforts to have the
successor Subservicer assume liability for the representations and warranties
made by the terminated Subservicer in respect of the related Mortgage Loans and,
in the event of any such assumption by the successor Subservicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Subservicer from liability for such representations and warranties.
Section 3.04. Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or reference to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to the Trustee
and the Certificateholders for the servicing and administering of the Mortgage
Loans in accordance with the provisions of Section 3.01 without diminution of
such obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer or the Company
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Mortgage Loans. The Master
Servicer shall be entitled to enter into any agreement with a Subservicer or
Seller for indemnification of the Master Servicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification.
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Section 3.05. No Contractual Relationship Between Subservicer and
Trustee or Certificateholders.
Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Master Servicer alone and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer in
its capacity as such except as set forth in Section 3.06. The foregoing
provision shall not in any way limit a Subservicer's obligation to cure an
omission or defect or to repurchase a Mortgage Loan as referred to in Section
2.02 hereof.
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee.
(a) If the Master Servicer shall for any reason no longer be the master servicer
(including by reason of an Event of Default), the Trustee, its designee or its
successor shall thereupon assume all of the rights and obligations of the Master
Servicer under each Subservicing Agreement that may have been entered into. The
Trustee, its designee or the successor servicer for the Trustee shall be deemed
to have assumed all of the Master Servicer's interest therein and to have
replaced the Master Servicer as a party to the Subservicing Agreement to the
same extent as if the Subservicing Agreement had been assigned to the assuming
party except that the Master Servicer shall not thereby be relieved of any
liability or obligations under the Subservicing Agreement.
(b) The Master Servicer shall, upon request of the Trustee but at the expense of
the Master Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of each
Subservicing Agreement to the assuming party.
Section 3.07. Collection of Certain Mortgage Loan Payments;
Deposits to Custodial Account.
(a) The Master Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans, and shall, to
the extent such procedures shall be consistent with this Agreement and the terms
and provisions of any related Primary Insurance Policy, follow such collection
procedures as it would employ in its good faith business judgment and which are
normal and usual in its general mortgage servicing activities. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the Due Date for payments due
on a Mortgage Loan in accordance with the Program Guide; provided, however, that
the Master Servicer shall first determine that any such waiver or extension will
not impair the coverage of any related Primary Insurance Policy or materially
adversely affect the lien of the related Mortgage. 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
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agreed to by the Holders of the Classes of Certificates affected thereby;
provided, however, that no such extension shall be made if any such advance
would be a Nonrecoverable Advance. Consistent with the terms of this Agreement,
the Master Servicer may also waive, modify or vary any term of any Mortgage Loan
or consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in the Master Servicer's
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Certificateholders (taking into
account any estimated Realized Loss that might result absent such action);
provided, however, that the Master Servicer may not modify materially or permit
any Subservicer to modify any Mortgage Loan, including without limitation any
modification that would change the Mortgage Rate, forgive the payment of any
principal or interest (unless in connection with the liquidation of the related
Mortgage Loan or except in connection with prepayments to the extent that such
reamortization is not inconsistent with the terms of the Mortgage Loan), 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; and provided, further, that no such modification shall
reduce the interest rate on a Mortgage Loan below the sum of the Pool Strip Rate
and the sum of the rates at which the Servicing Fee and the Subservicing Fee
with respect to such Mortgage Loan accrues. In connection with any Curtailment
of a Mortgage Loan, the Master Servicer, to the extent not inconsistent with the
terms of the Mortgage Note and local law and practice, may permit the Mortgage
Loan to be reamortized such that the Monthly Payment is recalculated as an
amount that will fully amortize the remaining Stated Principal Balance thereof
by the original Maturity Date based on the original Mortgage Rate; provided,
that such re-amortization shall not be permitted if it would constitute a
reissuance of the Mortgage Loan for federal income tax purposes, except if such
reissuance is described in Treasury Regulation Section 1.860G-2(b)(3).
(b) The Master Servicer shall establish and maintain a Custodial Account in
which the Master Servicer shall deposit or cause to be deposited on a daily
basis, except as otherwise specifically provided herein, the following payments
and collections remitted by Subservicers or received by it in respect of the
Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due on or before the Cut-off Date):
(i) All payments on account of principal, including Principal Prepayments
made by Mortgagors on the Mortgage Loans and the principal component of
any Subservicer Advance or of any REO Proceeds received in connection
with an REO Property for which an REO Disposition has occurred;
(ii) All payments on account of interest at the Adjusted Mortgage Rate on the
Mortgage Loans, including Buydown Funds, if any, and the interest
component of any Subservicer Advance or of any REO Proceeds received in
connection with an REO Property for which an REO Disposition has
occurred;
(iii) Insurance Proceeds 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 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;
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(v) Any amounts required to be deposited pursuant to Section 3.07(c) or 3.21;
(vi) All amounts transferred from the Certificate Account to the Custodial
Account in accordance with Section 4.02(a);
(vii) Any amounts realized by the Subservicer and received by the Master
Servicer in respect of any Additional Collateral; and
(viii) Any amounts received by the Master Servicer in respect of Pledged Assets.
The foregoing requirements for deposit in the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments on the Mortgage Loans which are not part of the Trust
Fund (consisting of payments in respect of principal and interest on the
Mortgage Loans due on or before the Cut-off Date) and payments or collections in
the nature of prepayment charges or late payment charges or assumption fees may
but need not be deposited by the Master Servicer in the Custodial Account. In
the event any amount not required to be deposited in the Custodial Account is so
deposited, the Master Servicer may at any time withdraw such amount from the
Custodial Account, any provision herein to the contrary notwithstanding. The
Custodial Account may contain funds that belong to one or more trust funds
created for mortgage pass-through certificates of other series and may contain
other funds respecting payments on mortgage loans belonging to the Master
Servicer or serviced or master serviced by it on behalf of others.
Notwithstanding such commingling of funds, the Master Servicer shall keep
records that accurately reflect the funds on deposit in the Custodial Account
that have been identified by it as being attributable to the Mortgage Loans.
With respect to Insurance Proceeds, Liquidation Proceeds, REO Proceeds
and the proceeds of the purchase of any Mortgage Loan pursuant to Sections 2.02,
2.03, 2.04 and 4.07 received in any calendar month, the Master Servicer may
elect to treat such amounts as included in the Available Distribution Amount for
the Distribution Date in the month of receipt, but is not obligated to do so. If
the Master Servicer so elects, such amounts will be deemed to have been received
(and any related Realized Loss shall be deemed to have occurred) on the last day
of the month prior to the receipt thereof.
(c) The Master Servicer shall use its best efforts to cause the institution
maintaining the Custodial Account to invest the funds in the Custodial Account
attributable to the Mortgage Loans in Permitted Investments which shall mature
not later than the Certificate Account Deposit Date next following the date of
such investment (with the exception of the Amount Held for Future Distribution)
and which shall not be sold or disposed of prior to their maturities. All income
and gain realized from any such investment shall be for the benefit of the
Master Servicer as additional servicing compensation and shall be subject to its
withdrawal or order from time to time. The amount of any losses incurred in
respect of any such investments attributable to the investment of amounts in
respect of the Mortgage Loans shall be deposited in the Custodial Account by the
Master Servicer out of its own funds immediately as realized without any right
of reimbursement.
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(d) The Master Servicer shall give notice to the Trustee and the Company of any
change in the location of the Custodial Account and the location of the
Certificate Account prior to the use thereof.
Section 3.08. Subservicing Accounts; Servicing Accounts.
(a) In those cases where a Subservicer is servicing a Mortgage Loan pursuant to
a Subservicing Agreement, the Master Servicer shall cause the Subservicer,
pursuant to the Subservicing Agreement, to establish and maintain one or more
Subservicing Accounts which shall be an Eligible Account or, if such account is
not an Eligible Account, shall generally satisfy the requirements of the Program
Guide and be otherwise acceptable to the Master Servicer and each Rating Agency.
The Subservicer will be required thereby to deposit into the Subservicing
Account on a daily basis all proceeds of Mortgage Loans received by the
Subservicer, less its Subservicing Fees and unreimbursed advances and expenses,
to the extent permitted by the Subservicing Agreement. If the Subservicing
Account is not an Eligible Account, the Master Servicer shall be deemed to have
received such monies upon receipt thereof by the Subservicer. The Subservicer
shall not be required to deposit in the Subservicing Account payments or
collections in the nature of prepayment charges or late charges or assumption
fees. On or before the date specified in the Program Guide, but in no event
later than the Determination Date, the Master Servicer shall cause the
Subservicer, pursuant to the Subservicing Agreement, to remit to the Master
Servicer for deposit in the Custodial Account all funds held in the Subservicing
Account with respect to each Mortgage Loan serviced by such Subservicer that are
required to be remitted to the Master Servicer. The Subservicer will also be
required, pursuant to the Subservicing Agreement, to advance on such scheduled
date of remittance amounts equal to any scheduled monthly installments of
principal and interest less its Subservicing Fees on any Mortgage Loans for
which payment was not received by the Subservicer. This obligation to advance
with respect to each Mortgage Loan will continue up to and including the first
of the month following the date on which the related Mortgaged Property is sold
at a foreclosure sale or is acquired by the Trust Fund by deed in lieu of
foreclosure or otherwise. All such advances received by the Master Servicer
shall be deposited promptly by it in the Custodial Account.
(b) The Subservicer may also be required, pursuant to the Subservicing
Agreement, to remit to the Master Servicer for deposit in the Custodial Account
interest at the Adjusted Mortgage Rate (or Modified Net Mortgage Rate plus the
rate per annum at which the Servicing Fee accrues in the case of a Modified
Mortgage Loan) on any Curtailment received by such Subservicer in respect of a
Mortgage Loan from the related Mortgagor during any month that is to be applied
by the Subservicer to reduce the unpaid principal balance of the related
Mortgage Loan as of the first day of such month, from the date of application of
such Curtailment to the first day of the following month. Any amounts paid by a
Subservicer pursuant to the preceding sentence shall be for the benefit of the
Master Servicer as additional servicing compensation and shall be subject to its
withdrawal or order from time to time pursuant to Sections 3.10(a)(iv) and (v).
(c) In addition to the Custodial Account and the Certificate Account, the Master
Servicer shall for any Nonsubserviced Mortgage Loan, and shall cause the
Subservicers for Subserviced Mortgage Loans to, establish and maintain one or
more Servicing Accounts and deposit and retain therein all collections from the
Mortgagors (or advances from Subservicers)
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for the payment of taxes, assessments, hazard insurance premiums, Primary
Insurance Policy premiums, if applicable, or comparable items for the account of
the Mortgagors. Each Servicing Account shall satisfy the requirements for a
Subservicing Account and, to the extent permitted by the Program Guide or as is
otherwise acceptable to the Master Servicer, may also function as a Subservicing
Account. Withdrawals of amounts related to the Mortgage Loans from the Servicing
Accounts may be made only to effect timely payment of taxes, assessments, hazard
insurance premiums, Primary Insurance Policy premiums, if applicable, or
comparable items, to reimburse the Master Servicer or Subservicer out of related
collections for any payments made pursuant to Sections 3.11 (with respect to the
Primary Insurance Policy) and 3.12(a) (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required, to Mortgagors on balances in the Servicing Account or to
clear and terminate the Servicing Account at the termination of this Agreement
in accordance with Section 9.01 or in accordance with the Program Guide. As part
of its servicing duties, the Master Servicer shall, and the Subservicers will,
pursuant to the Subservicing Agreements, be required to pay to the Mortgagors
interest on funds in this account to the extent required by law.
(d) The Master Servicer shall advance the payments referred to in the preceding
subsection that are not timely paid by the Mortgagors or advanced by the
Subservicers on the date when the tax, premium or other cost for which such
payment is intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith judgment of the
Master Servicer, will be recoverable by the Master Servicer out of Insurance
Proceeds, Liquidation Proceeds or otherwise.
Section 3.09. Access to Certain Documentation and
Information Regarding the Mortgage Loans.
If compliance with this Section 3.09 shall make any Class of
Certificates legal for investment by federally insured savings and loan
associations, the Master Servicer shall provide, or cause the Subservicers to
provide, to the Trustee, the Office of Thrift Supervision or the FDIC and the
supervisory agents and examiners thereof access to the documentation regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices designated by the Master
Servicer. The Master Servicer shall permit such representatives to photocopy any
such documentation and shall provide equipment for that purpose at a charge
reasonably approximating the cost of such photocopying to the Master Servicer.
Section 3.10. Permitted Withdrawals from the Custodial Account.
(a) The Master Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant to
Section 3.07 that are attributable to the Mortgage Loans for the following
purposes:
(i) to make deposits into the Certificate Account in the amounts and in the
manner provided for in Section 4.01;
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(ii) to reimburse itself or the related Subservicer for previously unreimbursed
advances or 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
particular 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 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
Company or any other appropriate Person, as the case may be, with
respect to each Mortgage Loan or property acquired in respect thereof
that has been purchased or otherwise transferred pursuant to Section
2.02, 2.03, 2.04, 4.07 or 9.01, all amounts received thereon and not
required to be distributed to the Certificateholders as of the date on
which the related Stated Principal Balance or Purchase Price is
determined;
(vii) to reimburse itself or the related Subservicer for any Nonrecoverable
Advance or Advances in the manner and to the extent provided in
subsection (c) below, any Advance made in connection with a modification
of a 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 has been added to the
outstanding principal balance of the Mortgage Loan, or any Advance
reimbursable to the Master Servicer pursuant to Section 4.02(a);
(viii) to reimburse itself or the Company for expenses incurred by and
reimbursable to it or the Company pursuant to Sections 3.13, 3.14(c),
6.03, 10.01 or
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otherwise, or in connection with enforcing any repurchase,
substitution or indemnification obligation of any Seller (other than
an Affiliate of the Company) pursuant to the related Seller's
Agreement;
(ix) to reimburse itself for 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.
(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 on any such Certificate Account Deposit Date shall be limited to an
amount not exceeding the portion of such advance previously paid to
Certificateholders (and not theretofore reimbursed to the Master Servicer or the
related Subservicer).
Section 3.11. Maintenance of the Primary Insurance
Policies; Collections Thereunder.
(a) The Master Servicer shall not take, or permit any Subservicer to take,
any action which would result in non-coverage under any applicable Primary
Insurance Policy of any loss which, but for the actions of the Master Servicer
or Subservicer, would have been covered thereunder. To the extent coverage is
available, the Master Servicer shall keep or cause to be kept in full force and
effect each such Primary Insurance Policy until the principal balance of the
related Mortgage Loan secured by a Mortgaged Property is reduced to 80% or less
of the Appraised Value in the case of such a Mortgage Loan having a
Loan-to-Value Ratio at origination in excess of 80%, provided that such Primary
Insurance Policy was in place as of the Cut-off Date and the Company had
knowledge of such Primary Insurance Policy. The Master Servicer shall be
entitled to cancel or permit the discontinuation of any Primary Insurance Policy
as to any Mortgage Loan, if the Stated Principal Balance of the Mortgage Loan is
reduced below an amount equal to 80% of the appraised value of the related
Mortgaged Property as determined in any appraisal thereof after the Closing
Date, or if the Loan-to-Value Ratio is reduced below 80% as a result of
principal payments on the Mortgage Loan after the Closing Date. In the event
that the Company gains knowledge that as of the Closing Date, a Mortgage Loan
had a Loan-to-Value Ratio at origination in excess of 80% and is not the subject
of a Primary Insurance Policy
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(and was not included in any exception to the representation in Section
2.03(b)(iv)) and that such Mortgage Loan has a current Loan-to-Value Ratio in
excess of 80% then the Master Servicer shall use its reasonable efforts to
obtain and maintain a Primary Insurance Policy to the extent that such a policy
is obtainable at a reasonable price. The Master Servicer shall not cancel or
refuse to renew any such Primary Insurance Policy applicable to a Nonsubserviced
Mortgage Loan, or consent to any Subservicer canceling or refusing to renew any
such Primary Insurance Policy applicable to a Mortgage Loan subserviced by it,
that is in effect at the date of the initial issuance of the Certificates and is
required to be kept in force hereunder unless the replacement Primary Insurance
Policy for such canceled or non-renewed policy is maintained with an insurer
whose claims-paying ability is acceptable to each Rating Agency for mortgage
pass-through certificates having a rating equal to or better than the lower of
the then-current rating or the rating assigned to the Certificates as of the
Closing Date by such Rating Agency.
(b) In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present or to cause the related
Subservicer to present, on behalf of the Master Servicer, the Subservicer, if
any, the Trustee and Certificateholders, claims to the related Insurer under any
Primary Insurance Policies, in a timely manner in accordance with such policies,
and, in this regard, to take or cause to be taken such reasonable action as
shall be necessary to permit recovery under any Primary Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Section 3.07, any Insurance
Proceeds collected by or remitted to the Master Servicer under any Primary
Insurance Policies shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.10.
Section 3.12. Maintenance of Fire Insurance and
Omissions and Fidelity Coverage.
(a) The Master Servicer shall cause to be maintained for each Mortgage Loan
(other than a Cooperative Loan) fire insurance with extended coverage in an
amount which is equal to the lesser of the principal balance owing on such
Mortgage Loan or 100 percent of the insurable value of the improvements;
provided, however, that such coverage may not be less than the minimum amount
required to fully compensate for any loss or damage on a replacement cost basis.
To the extent it may do so without breaching the related Subservicing Agreement,
the Master Servicer shall replace any Subservicer that does not cause such
insurance, to the extent it is available, to be maintained. The Master Servicer
shall also cause to be maintained on property acquired upon foreclosure, or deed
in lieu of foreclosure, of any Mortgage Loan (other than a Cooperative Loan),
fire insurance with extended coverage in an amount which is at least equal to
the amount necessary to avoid the application of any co-insurance clause
contained in the related hazard insurance policy. Pursuant to Section 3.07, any
amounts collected by the Master Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or property thus acquired or amounts released to the Mortgagor in
accordance with the Master Servicer's normal servicing procedures) shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
3.10. Any cost incurred by the Master Servicer in maintaining any such insurance
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the amount owing under the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs shall
be recoverable by the Master Servicer out of related late payments by the
Mortgagor or out of Insurance Proceeds and Liquidation Proceeds to the extent
permitted by Section 3.10. It is
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understood and agreed that no earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage Loan other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
Whenever the improvements securing a Mortgage Loan (other than a Cooperative
Loan) are located at the time of origination of such Mortgage Loan in a
federally designated special flood hazard area, the Master Servicer shall cause
flood insurance (to the extent available) to be maintained in respect thereof.
Such flood insurance shall be in an amount equal to the lesser of (i) the amount
required to compensate for any loss or damage to the Mortgaged Property on a
replacement cost basis and (ii) the maximum amount of such insurance available
for the related Mortgaged Property under the national flood insurance program
(assuming that the area in which such Mortgaged Property is located is
participating in such program).
If the Master Servicer shall obtain and maintain a blanket fire
insurance policy with extended coverage insuring against hazard losses on all of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.12(a), it being
understood and agreed that such policy may contain a deductible clause, in which
case the Master Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with the first
sentence of this Section 3.12(a) and there shall have been a loss which would
have been covered by such policy, deposit in the Certificate Account the amount
not otherwise payable under the blanket policy because of such deductible
clause. Any such deposit by the Master Servicer shall be made on the Certificate
Account Deposit Date next preceding the Distribution Date which occurs in the
month following the month in which payments under any such policy would have
been deposited in the Custodial Account. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Master Servicer agrees to
present, on behalf of itself, the Trustee and the Certificateholders, claims
under any such blanket policy.
(b) The Master Servicer shall obtain and maintain at its own expense and
keep in full force and effect throughout the term of this Agreement a blanket
fidelity bond and an errors and omissions insurance policy covering the Master
Servicer's officers and employees and other persons acting on behalf of the
Master Servicer in connection with its activities under this Agreement. The
amount of coverage shall be at least equal to the coverage that would be
required by FNMA or FHLMC, whichever is greater, with respect to the Master
Servicer if the Master Servicer were servicing and administering the Mortgage
Loans for FNMA or FHLMC. In the event that any such bond or policy ceases to be
in effect, the Master Servicer shall obtain a comparable replacement bond or
policy from an issuer or insurer, as the case may be, meeting the requirements,
if any, of the Program Guide and acceptable to the Company. Coverage of the
Master Servicer under a policy or bond obtained by an Affiliate of the Master
Servicer and providing the coverage required by this Section 3.12(b) shall
satisfy the requirements of this Section 3.12(b).
Section 3.13. Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Master
Servicer or Subservicer, to the extent it has knowledge of such conveyance,
shall enforce any due-on-sale
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clause contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing:
(i) the Master Servicer shall not be deemed to be in default under this
Section 3.13(a) by reason of any transfer or assumption which the Master
Servicer is restricted by law from preventing; and
(ii) if the Master Servicer determines that it is reasonably likely that any
Mortgagor will bring, or if any Mortgagor does bring, legal action to
declare invalid or otherwise avoid enforcement of a due-on-sale clause
contained in any Mortgage Note or Mortgage, the Master Servicer shall
not be required to enforce the due-on-sale clause or to contest such
action.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a Mortgaged
Property is to be conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption or modification agreement or supplement to the Mortgage
Note or Mortgage which requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the Mortgagor
from liability on the Mortgage Loan, the Master Servicer is authorized, subject
to the requirements of the sentence next following, to execute and deliver, on
behalf of the Trustee, the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person; provided, however, none of
such terms and requirements shall either (i) both (A) constitute a "significant
modification" effecting an exchange or reissuance of such Mortgage Loan under
the REMIC Provisions and (B) cause any portion of any REMIC formed under the
Series Supplement to fail to qualify as a REMIC under the Code or (subject to
Section 10.01(f)), result in the imposition of any tax on "prohibited
transactions" or (ii) constitute "contributions" after the start-up date under
the REMIC Provisions. The Master Servicer shall execute and deliver such
documents only if it reasonably determines that (i) its execution and delivery
thereof will not conflict with or violate any terms of this Agreement or cause
the unpaid balance and interest on the Mortgage Loan to be uncollectible in
whole or in part, (ii) any required consents of insurers under any Required
Insurance Policies have been obtained and (iii) subsequent to the closing of the
transaction involving the assumption or transfer (A) the Mortgage Loan will
continue to be secured by a first mortgage lien pursuant to the terms of the
Mortgage, (B) such transaction will not adversely affect the coverage under any
Required Insurance Policies, (C) the Mortgage Loan will fully amortize over the
remaining term thereof, (D) no material term of the Mortgage Loan (including the
interest rate on the Mortgage Loan) will be altered nor will the term of the
Mortgage Loan be changed and (E) if the seller/transferor of the Mortgaged
Property is to be released from liability on the Mortgage Loan, such release
will not (based on the Master Servicer's or Subservicer's good faith
determination) adversely affect the collectability of the Mortgage Loan. Upon
receipt of appropriate instructions from the Master Servicer in accordance with
the foregoing, the Trustee shall execute any necessary instruments for such
assumption or substitution of liability
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as directed in writing by the Master Servicer. Upon the closing of the
transactions contemplated by such documents, the Master Servicer shall cause the
originals or true and correct copies of the assumption agreement, the release
(if any), or the modification or supplement to the Mortgage Note or Mortgage to
be delivered to the Trustee or the Custodian and deposited with the Mortgage
File for such Mortgage Loan. Any fee collected by the Master Servicer or such
related Subservicer for entering into an assumption or substitution of liability
agreement will be retained by the Master Servicer or such Subservicer as
additional servicing compensation.
(c) The Master Servicer or the related Subservicer, as the case may be,
shall be entitled to approve a request from a Mortgagor for a partial release of
the related Mortgaged Property, the granting of an easement thereon in favor of
another Person, any alteration or demolition of the related Mortgaged Property
(or, with respect to a Cooperative Loan, the related Cooperative Apartment)
without any right of reimbursement or other similar matters if it has
determined, exercising its good faith business judgment in the same manner as it
would if it were the owner of the related Mortgage Loan, that the security for,
and the timely and full collectability of, such Mortgage Loan would not be
adversely affected thereby and that any portion of any REMIC formed under the
Series Supplement would not fail to continue to qualify as a REMIC under the
Code as a result thereof and (subject to Section 10.01(f)) that no tax on
"prohibited transactions" or "contributions" after the startup day would be
imposed on any such REMIC as a result thereof. Any fee collected by the Master
Servicer or the related Subservicer for processing such a request will be
retained by the Master Servicer or such Subservicer as additional servicing
compensation.
(d) Subject to any other applicable terms and conditions of this Agreement,
the Trustee and Master Servicer shall be entitled to approve an assignment in
lieu of satisfaction with respect to any Mortgage Loan, provided the obligee
with respect to such Mortgage Loan following such proposed assignment provides
the Trustee and Master Servicer with a "Lender Certification for Assignment of
Mortgage Loan" in the form attached hereto as Exhibit M, in form and substance
satisfactory to the Trustee and Master Servicer, providing the following: (i)
that the substance of the assignment is, and is intended to be, a refinancing of
such Mortgage; (ii) that the Mortgage Loan following the proposed assignment
will have a rate of interest at least 0.25 percent below or above the rate of
interest on such Mortgage Loan prior to such proposed assignment; and (iii) that
such assignment is at the request of the borrower under the related Mortgage
Loan. Upon approval of an assignment in lieu of satisfaction with respect to any
Mortgage Loan, the Master Servicer shall receive cash in an amount equal to the
unpaid principal balance of and accrued interest on such Mortgage Loan and the
Master Servicer shall treat such amount as a Principal Prepayment in Full with
respect to such Mortgage Loan for all purposes hereof.
Section 3.14. Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall foreclose upon or otherwise comparably
convert (which may include an REO Acquisition) the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. In connection with such foreclosure or other
conversion, the Master Servicer shall, consistent with Section 3.11, follow such
practices and procedures as it shall deem necessary or advisable, as shall be
normal and
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usual in its general mortgage servicing activities and as shall be required or
permitted by the Program Guide; provided that the Master Servicer shall not be
liable in any respect hereunder if the Master Servicer is acting in connection
with any such foreclosure or other conversion in a manner that is consistent
with the provisions of this Agreement. The Master Servicer, however, shall not
be required to expend its own funds or incur other reimbursable charges in
connection with any foreclosure, or attempted foreclosure which is not
completed, or towards the restoration of any property unless it shall determine
(i) that such restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Holders of Certificates of one or more
Classes after reimbursement to itself for such expenses or charges and (ii) that
such expenses or charges will be recoverable to it through Liquidation Proceeds,
Insurance Proceeds, or REO Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 3.10,
whether or not such expenses and charges are actually recoverable from related
Liquidation Proceeds, Insurance Proceeds or REO Proceeds). In the event of such
a determination by the Master Servicer pursuant to this Section 3.14(a), the
Master Servicer shall be entitled to reimbursement of such amounts pursuant to
Section 3.10.
In addition to the foregoing, the Master Servicer shall use its best
reasonable efforts to realize upon any Additional Collateral for such of the
Additional Collateral Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07; provided that the Master Servicer shall not, on behalf
of the Trustee, obtain title to any such Additional Collateral as a result of or
in lieu of the disposition thereof or otherwise; and provided further that (i)
the Master Servicer shall not proceed with respect to such Additional Collateral
in any manner that would impair the ability to recover against the related
Mortgaged Property, and (ii) the Master Servicer shall proceed with any REO
Acquisition in a manner that preserves the ability to apply the proceeds of such
Additional Collateral against amounts owed under the defaulted Mortgage Loan.
Any proceeds realized from such Additional Collateral (other than amounts to be
released to the Mortgagor or the related guarantor in accordance with procedures
that the Master Servicer would follow in servicing loans held for its own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note and to the terms and conditions of any security agreement,
guarantee agreement, mortgage or other agreement governing the disposition of
the proceeds of such Additional Collateral) shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 3.10. Any other payment
received by the Master Servicer in respect of such Additional Collateral shall
be deposited in the Custodial Account subject to withdrawal pursuant to Section
3.10.
For so long as the Master Servicer is the Master Servicer under the Credit
Support Pledge Agreement, the Master Servicer shall perform its obligations
under the Credit Support Pledge Agreement in accordance with such Agreement and
in a manner that is in the best interests of the Certificateholders. Further,
the Master Servicer shall use its best reasonable efforts to realize upon any
Pledged Assets for such of the Pledged Asset Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 3.07; provided that the Master
Servicer shall not, on behalf of the Trustee, obtain title to any such Pledged
Assets as a result of or in lieu of the disposition thereof or otherwise; and
provided further that (i) the Master Servicer shall not proceed with respect to
such Pledged Assets in any manner that would impair the ability to
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recover against the related Mortgaged Property, and (ii) the Master Servicer
shall proceed with any REO Acquisition in a manner that preserves the ability to
apply the proceeds of such Pledged Assets against amounts owed under the
defaulted Mortgage Loan. Any proceeds realized from such Pledged Assets (other
than amounts to be released to the Mortgagor or the related guarantor in
accordance with procedures that the Master Servicer would follow in servicing
loans held for its own account, subject to the terms and conditions of the
related Mortgage and Mortgage Note and to the terms and conditions of any
security agreement, guarantee agreement, mortgage or other agreement governing
the disposition of the proceeds of such Pledged Assets) shall be deposited in
the Custodial Account, subject to withdrawal pursuant to Section 3.10. Any other
payment received by the Master Servicer in respect of such Pledged Assets shall
be deposited in the Custodial Account subject to withdrawal pursuant to Section
3.10.
Concurrently with the foregoing, the Master Servicer may pursue any
remedies that may be available in connection with a breach of a representation
and warranty with respect to any such Mortgage Loan in accordance with Sections
2.03 and 2.04. However, the Master Servicer is not required to continue to
pursue both foreclosure (or similar remedies) with respect to the Mortgage Loans
and remedies in connection with a breach of a representation and warranty if the
Master Servicer determines in its reasonable discretion that one such remedy is
more likely to result in a greater recovery as to the Mortgage Loan. Upon the
occurrence of a Cash Liquidation or REO Disposition, following the deposit in
the Custodial Account of all Insurance Proceeds, Liquidation Proceeds and other
payments and recoveries referred to in the definition of "Cash Liquidation" or
"REO Disposition," as applicable, upon receipt by the Trustee of written
notification of such deposit signed by a Servicing Officer, the Trustee or any
Custodian, as the case may be, shall release to the Master Servicer the related
Mortgage File and the Trustee shall execute and deliver such instruments of
transfer or assignment prepared by the Master Servicer, in each case without
recourse, as shall be necessary to vest in the Master Servicer or its designee,
as the case may be, the related Mortgage Loan, and thereafter such Mortgage Loan
shall not be part of the Trust Fund. Notwithstanding the foregoing or any other
provision of this Agreement, in the Master Servicer's sole discretion with
respect to any defaulted Mortgage Loan or REO Property as to either of the
following provisions, (i) a Cash Liquidation or REO Disposition may be deemed to
have occurred if substantially all amounts expected by the Master Servicer to be
received in connection with the related defaulted Mortgage Loan or REO Property
have been received, and (ii) for purposes of determining the amount of any
Liquidation Proceeds, Insurance Proceeds, REO Proceeds or any other unscheduled
collections or the amount of any Realized Loss, the Master Servicer may take
into account minimal amounts of additional receipts expected to be received or
any estimated additional liquidation expenses expected to be incurred in
connection with the related defaulted Mortgage Loan or REO Property.
(b) If title to any Mortgaged Property is acquired by the Trust Fund as an
REO Property by foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee or to its nominee on behalf
of Certificateholders. Notwithstanding any such acquisition of title and
cancellation of the related Mortgage Loan, such REO Property shall (except as
otherwise expressly provided herein) be considered to be an Outstanding Mortgage
Loan held in the Trust Fund until such time as the REO Property shall be
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sold. Consistent with the foregoing for purposes of all calculations hereunder
so long as such REO Property shall be considered to be an Outstanding Mortgage
Loan it shall be assumed that, notwithstanding that the indebtedness evidenced
by the related Mortgage Note shall have been discharged, such Mortgage Note and
the related amortization schedule in effect at the time of any such acquisition
of title (after giving effect to any previous Curtailments and before any
adjustment thereto by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period) remain in effect.
(c) If the Trust Fund acquires any REO Property as aforesaid or otherwise
in connection with a default or imminent default on a Mortgage Loan, the Master
Servicer on behalf of the Trust Fund shall dispose of such REO Property within
three full years after the taxable year of its acquisition by the Trust Fund for
purposes of Section 860G(a)(8) of the Code (or such shorter period as may be
necessary under applicable state (including any state in which such property is
located) law to maintain the status of any portion of any REMIC formed under the
Series Supplement as a REMIC under applicable state law and avoid taxes
resulting from such property failing to be foreclosure property under applicable
state law) or, at the expense of the Trust Fund, request, more than 60 days
before the day on which such grace period would otherwise expire, an extension
of such grace period unless the Master Servicer (subject to Section 10.01(f))
obtains for the Trustee an Opinion of Counsel, addressed to the Trustee and the
Master Servicer, to the effect that the holding by the Trust Fund of such REO
Property subsequent to such period will not result in the imposition of taxes on
"prohibited transactions" as defined in Section 860F of the Code or cause any
REMIC formed under the Series Supplement to fail to qualify as a REMIC (for
federal (or any applicable State or local) income tax purposes) at any time that
any Certificates are outstanding, in which case the Trust Fund may continue to
hold such REO Property (subject to any conditions contained in such Opinion of
Counsel). The Master Servicer shall be entitled to be reimbursed from the
Custodial Account for any costs incurred in obtaining such Opinion of Counsel,
as provided in Section 3.10. Notwithstanding any other provision of this
Agreement, no REO Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on behalf of the Trust
Fund in such a manner or pursuant to any terms that would (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) subject the Trust Fund to the imposition
of any federal income taxes on the income earned from such REO Property,
including any taxes imposed by reason of Section 860G(c) of the Code, unless the
Master Servicer has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
(d) The proceeds of any Cash Liquidation, REO Disposition or purchase or
repurchase of any Mortgage Loan pursuant to the terms of this Agreement, as well
as any recovery resulting from a collection of Liquidation Proceeds, Insurance
Proceeds or REO Proceeds, will be applied in the following order of priority:
first, to reimburse the Master Servicer or the related Subservicer in accordance
with Section 3.10(a)(ii); second, to the Certificateholders to the extent of
accrued and unpaid interest on the Mortgage Loan, and any related REO Imputed
Interest, at the Net Mortgage Rate (or the Modified Net Mortgage Rate in the
case of a Modified Mortgage Loan) to the Due Date prior to the Distribution Date
on which such amounts are to be distributed; third, to the Certificateholders as
a recovery of principal on the Mortgage Loan (or REO Property)(provided that, if
such recovery is of an amount previously allocated to one or more Classes of
Certificates as a Realized Loss, such recovery shall be allocated among such
Classes in the same proportions as the allocation of such Realized Losses
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and, if any such Class of Certificates to which such Realized Loss was allocated
is no longer outstanding, such subsequent recovery shall be distributed to the
persons who were the Holders of such Class of Certificates when it was retired);
fourth, to all Servicing Fees and Subservicing Fees payable therefrom (and the
Master Servicer and the Subservicer shall have no claims for any deficiencies
with respect to such fees which result from the foregoing allocation); and
fifth, to Foreclosure Profits.
(e) In the event of a default on a Mortgage Loan one or more of whose
obligors is not a United States Person, in connection with any foreclosure or
acquisition of a deed in lieu of foreclosure (together, "foreclosure") in
respect of such Mortgage Loan, the Master Servicer will cause compliance with
the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any successor
thereto) necessary to assure that no withholding tax obligation arises with
respect to the proceeds of such foreclosure except to the extent, if any, that
proceeds of such foreclosure are required to be remitted to the obligors on such
Mortgage Loan.
Section 3.15. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
upon the receipt by the Master Servicer of a notification that payment in full
will be escrowed in a manner customary for such purposes, the Master Servicer
will immediately notify the Trustee (if it holds the related Mortgage File) or
the Custodian by a certification of a Servicing Officer (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Custodial Account pursuant to Section 3.07 have been or will be so
deposited), substantially in one of the forms attached hereto as Exhibit F, or,
in the case of the Custodian, an electronic request in a form acceptable to the
Custodian, requesting delivery to it of the Mortgage File. Within two Business
Days of receipt of such certification and request, the Trustee shall release, or
cause the Custodian to release, the related Mortgage File to the Master
Servicer. The Master Servicer is authorized to execute and deliver to the
Mortgagor the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage,
together with the Mortgage Note with, as appropriate, written evidence of
cancellation thereon. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account or the Certificate Account.
(b) From time to time as is appropriate for the servicing or foreclosure of
any Mortgage Loan, the Master Servicer shall deliver to the Custodian, with a
copy to the Trustee, a certificate of a Servicing Officer substantially in one
of the forms attached as Exhibit F hereto, or, in the case of the Custodian, an
electronic request in a form acceptable to the Custodian, requesting that
possession of all, or any document constituting part of, the Mortgage File be
released to the Master Servicer and certifying as to the reason for such release
and that such release will not invalidate any insurance coverage provided in
respect of the Mortgage Loan under any Required Insurance Policy. Upon receipt
of the foregoing, the Trustee shall deliver, or cause the Custodian to deliver,
the Mortgage File or any document therein to the Master Servicer. The Master
Servicer shall cause each Mortgage File or any document therein so released to
be returned to the Trustee, or the Custodian as agent for the Trustee when the
need therefor by the Master Servicer no longer exists, unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in
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the Custodial Account or (ii) the Mortgage File or such document has been
delivered directly or through a Subservicer to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the Master Servicer
has delivered directly or through a Subservicer to the Trustee a certificate of
a Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. In the event of the liquidation of a Mortgage Loan, the Trustee
shall deliver the Request for Release with respect thereto to the Master
Servicer upon deposit of the related Liquidation Proceeds in the Custodial
Account.
(c) The Trustee or the Master Servicer on the Trustee's behalf shall
execute and deliver to the Master Servicer, if necessary, any court pleadings,
requests for trustee's sale or other documents necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity. Together with such documents or pleadings (if signed by the Trustee),
the Master Servicer shall deliver to the Trustee a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will not invalidate any
insurance coverage under any Required Insurance Policy or invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.16. Servicing and Other Compensation; Compensating Interest.
(a) The Master Servicer, as compensation for its activities hereunder,
shall be entitled to receive on each Distribution Date the amounts provided for
by clauses (iii), (iv), (v) and (vi) of Section 3.10(a), subject to clause (e)
below. The amount of servicing compensation provided for in such clauses shall
be accounted for on a Mortgage Loan-by-Mortgage Loan basis. In the event that
Liquidation Proceeds, Insurance Proceeds and REO Proceeds (net of amounts
reimbursable therefrom pursuant to Section 3.10(a)(ii)) in respect of a Cash
Liquidation or REO Disposition exceed the unpaid principal balance of such
Mortgage Loan plus unpaid interest accrued thereon (including REO Imputed
Interest) at a per annum rate equal to the related Net Mortgage Rate (or the
Modified Net Mortgage Rate in the case of a Modified Mortgage Loan), the Master
Servicer shall be entitled to retain therefrom and to pay to itself and/or the
related Subservicer, any Foreclosure Profits and any Servicing Fee or
Subservicing Fee considered to be accrued but unpaid.
(b) Additional servicing compensation in the form of prepayment charges,
assumption fees, late payment charges, investment income on amounts in the
Custodial Account or the Certificate Account or otherwise shall be retained by
the Master Servicer or the Subservicer to the extent provided herein, subject to
clause (e) below.
(c) The Master Servicer shall be required to pay, or cause to be paid, all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of premiums for the Primary Insurance Policies, if any, to
the extent such premiums are not
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required to be paid by the related Mortgagors, and the fees and expenses of the
Trustee and any Custodian) and shall not be entitled to reimbursement therefor
except as specifically provided in Sections 3.10 and 3.14.
(d) The Master Servicer's right to receive servicing compensation may not
be transferred in whole or in part except in connection with the transfer of all
of its responsibilities and obligations of the Master Servicer under this
Agreement.
(e) Notwithstanding any other provision herein, the amount of servicing
compensation that the Master Servicer shall be entitled to receive for its
activities hereunder for the period ending on each Distribution Date shall be
reduced (but not below zero) by an amount equal to Compensating Interest (if
any) for such Distribution Date. Such reduction shall be applied during such
period as follows: first, to any Servicing Fee or Subservicing Fee to which the
Master Servicer is entitled pursuant to Section 3.10(a)(iii); 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; and third, to any amounts
of servicing compensation to which the Master Servicer is entitled pursuant to
Section 3.10(a)(v) or (vi). In making such reduction, the Master Servicer (i)
will not withdraw from the Custodial Account any such amount representing all or
a portion of the Servicing Fee to which it is entitled pursuant to Section
3.10(a)(iii); (ii) will not withdraw from the Custodial Account or Certificate
Account any such amount to which it is entitled pursuant to Section 3.07(c) or
4.01(b) and (iii) will not withdraw from the Custodial Account any such amount
of servicing compensation to which it is entitled pursuant to Section 3.10(a)(v)
or (vi).
Section 3.17. Reports to the Trustee and the Company.
Not later than fifteen days after each Distribution Date, the Master
Servicer shall forward to the Trustee and the Company a statement, certified by
a Servicing Officer, setting forth the status of the Custodial Account as of the
close of business on such Distribution Date as it relates to the Mortgage Loans
and showing, for the period covered by such statement, the aggregate of deposits
in or withdrawals from the Custodial Account in respect of the Mortgage Loans
for each category of deposit specified in Section 3.07 and each category of
withdrawal specified in Section 3.10.
Section 3.18. Annual Statement as to Compliance.
The Master Servicer will deliver to the Company and the Trustee on or
before March 31 of each year, beginning with the first March 31 that occurs at
least six months after the Cut-off Date, an Officers' Certificate stating, as to
each signer thereof, that (i) a review of the activities of the Master Servicer
during the preceding calendar year related to its servicing of mortgage loans
and its performance under pooling and servicing agreements, including this
Agreement, has been made under such officers' supervision, (ii) to the best of
such officers' knowledge, based on such review, the Master Servicer has complied
in all material respects with the minimum servicing standards set forth in the
Uniform Single Attestation Program for Mortgage Bankers and has fulfilled all of
its material obligations relating to this Agreement in all material respects
throughout such year, or, if there has been material noncompliance with such
servicing standards or a default in the fulfillment in all material respects of
any such obligation relating to
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this Agreement, such statement shall include a description of such noncompliance
or specify each such default, as the case may be, known to such officer and the
nature and status thereof and (iii) to the best of such officers' knowledge,
each Subservicer has complied in all material respects with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers and has fulfilled all of its material obligations under its
Subservicing Agreement in all material respects throughout such year, or, if
there has been material noncompliance with such servicing standards or a
material default in the fulfillment of such obligations relating to this
Agreement, such statement shall include a description of such noncompliance or
specify each such default, as the case may be, known to such officer and the
nature and status thereof.
Section 3.19. Annual Independent Public Accountants' Servicing Report.
On or before March 31 of each year, beginning with the first March 31
that occurs at least six months after the Cut-off Date, the Master Servicer at
its expense shall cause a firm of independent public accountants, which shall be
members of the American Institute of Certified Public Accountants, to furnish a
report to the Company and the Trustee stating its opinion that, on the basis of
an examination conducted by such firm substantially in accordance with standards
established by the American Institute of Certified Public Accountants, the
assertions made pursuant to Section 3.18 regarding compliance with the minimum
servicing standards set forth in the Uniform Single Attestation Program for
Mortgage Bankers during the preceding calendar year are fairly stated in all
material respects, subject to such exceptions and other qualifications that, in
the opinion of such firm, such accounting standards require it to report. In
rendering such statement, such firm may rely, as to matters relating to the
direct servicing of mortgage loans by Subservicers, upon comparable statements
for examinations conducted by independent public accountants substantially in
accordance with standards established by the American Institute of Certified
Public Accountants (rendered within one year of such statement) with respect to
such Subservicers.
Section 3.20. Rights of the Company in Respect of the Master Servicer.
The Master Servicer shall afford the Company, upon reasonable notice,
during normal business hours access to all records maintained by the Master
Servicer in respect of its rights and obligations hereunder and access to
officers of the Master Servicer responsible for such obligations. Upon request,
the Master Servicer shall furnish the Company with its most recent financial
statements and such other information as the Master Servicer possesses regarding
its business, affairs, property and condition, financial or otherwise. The
Master Servicer shall also cooperate with all reasonable requests for
information including, but not limited to, notices, tapes and copies of files,
regarding itself, the Mortgage Loans or the Certificates from any Person or
Persons identified by the Company or Residential Funding. The Company may, but
is not obligated to, enforce the obligations of the Master Servicer hereunder
and may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer hereunder or exercise the rights of
the Master Servicer hereunder; provided that the Master Servicer shall not be
relieved of any of its obligations hereunder by virtue of such performance by
the Company or its designee. The Company shall not have any responsibility or
liability for any action or failure to act by the Master Servicer and is not
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
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Section 3.21. Administration of Buydown Funds
(a) With respect to any Buydown Mortgage Loan, the Subservicer has
deposited Buydown Funds in an account that satisfies the requirements for a
Subservicing Account (the "Buydown Account"). The Master Servicer shall cause
the Subservicing Agreement to require that upon receipt from the Mortgagor of
the amount due on a Due Date for each Buydown Mortgage Loan, the Subservicer
will withdraw from the Buydown Account the predetermined amount that, when added
to the amount due on such date from the Mortgagor, equals the full Monthly
Payment and transmit that amount in accordance with the terms of the
Subservicing Agreement to the Master Servicer together with the related payment
made by the Mortgagor or advanced by the Subservicer.
(b) If the Mortgagor on a Buydown Mortgage Loan prepays such loan in its
entirety during the period (the "Buydown Period") when Buydown Funds are
required to be applied to such Buydown Mortgage Loan, the Subservicer shall be
required to withdraw from the Buydown Account and remit any Buydown Funds
remaining in the Buydown Account in accordance with the related buydown
agreement. The amount of Buydown Funds which may be remitted in accordance with
the related buydown agreement may reduce the amount required to be paid by the
Mortgagor to fully prepay the related Mortgage Loan. If the Mortgagor on a
Buydown Mortgage Loan defaults on such Mortgage Loan during the Buydown Period
and the property securing such Buydown Mortgage Loan is sold in the liquidation
thereof (either by the Master Servicer or the insurer under any related Primary
Insurance Policy), the Subservicer shall be required to withdraw from the
Buydown Account the Buydown Funds for such Buydown Mortgage Loan still held in
the Buydown Account and remit the same to the Master Servicer in accordance with
the terms of the Subservicing Agreement for deposit in the Custodial Account or,
if instructed by the Master Servicer, pay to the insurer under any related
Primary Insurance Policy if the Mortgaged Property is transferred to such
insurer and such insurer pays all of the loss incurred in respect of such
default. Any amount so remitted pursuant to the preceding sentence will be
deemed to reduce the amount owed on the Mortgage Loan.
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Article IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Certificate Account.
(a) The Master Servicer on behalf of the Trustee shall establish and
maintain a Certificate Account in which the Master Servicer shall cause to be
deposited on behalf of the Trustee on or before 2:00 P.M. New York time on each
Certificate Account Deposit Date by wire transfer of immediately available funds
an amount equal to the sum of (i) any Advance for the immediately succeeding
Distribution Date, (ii) any amount required to be deposited in the Certificate
Account pursuant to Section 3.12(a), (iii) any amount required to be deposited
in the Certificate Account pursuant to Section 3.16(e) or Section 4.07, (iv) any
amount required to be paid pursuant to Section 9.01 and (v) all other amounts
constituting the Available Distribution Amount for the immediately succeeding
Distribution Date.
(b) The Trustee shall, upon written request from the Master Servicer,
invest or cause the institution maintaining the Certificate Account to invest
the funds in the Certificate Account in Permitted Investments designated in the
name of the Trustee for the benefit of the Certificateholders, which shall
mature or be payable on demand not later than the Business Day next preceding
the Distribution Date next following the date of such investment (except that
(i) any investment in the institution with which the Certificate Account is
maintained may mature or be payable on demand on such Distribution Date and (ii)
any other investment may mature or be payable on demand on such Distribution
Date if the Trustee shall advance funds on such Distribution Date to the
Certificate Account in the amount payable on such investment on such
Distribution Date, pending receipt thereof to the extent necessary to make
distributions on the Certificates) and shall not be sold or disposed of prior to
maturity. Subject to Section 3.16(e), all income and gain realized from any such
investment shall be for the benefit of the Master Servicer and shall be subject
to its withdrawal or order from time to time. The amount of any losses incurred
in respect of any such investments shall be deposited in the Certificate Account
by the Master Servicer out of its own funds immediately as realized without any
right of reimbursement.
Section 4.02. Distributions.
As provided in Section 4.02 of the Series Supplement.
Section 4.03. Statements to Certificateholders.
(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 to each Holder and
the Company a statement setting forth information as to each Class of
Certificates, the Mortgage Pool and, if the Mortgage Pool is comprised of two or
more Loan Groups, each Loan Group, to the extent applicable. This statement will
include the information set forth in an exhibit to the Series Supplement. In
addition, the Master Servicer shall provide to any manager of a trust fund
consisting of some or all of the Certificates, upon reasonable request, such
additional information as is reasonably obtainable by the Master
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Servicer at no additional expense to the Master Servicer.
(b) Within a reasonable period of time after the end of each calendar
year, the Master Servicer shall prepare, or cause to be prepared, and shall
forward, or cause to be forwarded, to each Person who at any time during the
calendar year was the Holder of a Certificate, other than a Class R Certificate,
a statement containing the information set forth in clauses (i) and (ii) of
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.
Section 4.04. Distribution of Reports to the Trustee and the
Company; Advances by the Master Servicer.
(a) Prior to the close of business on the Business Day next succeeding each
Determination Date, the Master Servicer shall furnish a written statement to the
Trustee, any Paying Agent and the Company (the information in such statement to
be made available to Certificateholders by the Master Servicer on request)
setting forth (i) the Available Distribution Amount and (ii) the amounts
required to be withdrawn from the Custodial Account and deposited into the
Certificate Account on the immediately succeeding Certificate Account Deposit
Date pursuant to clause (iii) of Section 4.01(a). The determination by the
Master Servicer of such amounts shall, in the absence of obvious error, be
presumptively deemed to be correct for all purposes hereunder and the Trustee
shall be protected in relying upon the same without any independent check or
verification.
(b) On or before 2:00 P.M. New York time on each Certificate Account
Deposit Date, the Master Servicer shall either (i) deposit in the Certificate
Account from its own funds, or funds received therefor from the Subservicers, an
amount equal to the Advances to be made by the Master Servicer in respect of the
related Distribution Date, which shall be in an aggregate amount equal to the
aggregate amount of Monthly Payments (with each interest portion thereof
adjusted to the Net Mortgage Rate), less the amount of any related Servicing
Modifications, Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, or similar legislation
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or regulations then in effect, on the Outstanding Mortgage Loans as of the
related Due Date, which Monthly Payments were delinquent as of the close of
business as of the related Determination Date; provided that no Advance shall be
made if it would be a Nonrecoverable Advance, (ii) withdraw from amounts on
deposit in the Custodial Account and deposit in the Certificate Account all or a
portion of the Amount Held for Future Distribution in discharge of any such
Advance, or (iii) make advances in the form of any combination of (i) and (ii)
aggregating the amount of such Advance. Any portion of the Amount Held for
Future Distribution so used shall be replaced by the Master Servicer by deposit
in the Certificate Account on or before 11:00 A.M. New York time on any future
Certificate Account Deposit Date to the extent that funds attributable to the
Mortgage Loans that are available in the Custodial Account for deposit in the
Certificate Account on such Certificate Account Deposit Date shall be less than
payments to Certificateholders required to be made on the following Distribution
Date. The Master Servicer shall be entitled to use any Advance made by a
Subservicer as described in Section 3.07(b) that has been deposited in the
Custodial Account on or before such Distribution Date as part of the Advance
made by the Master Servicer pursuant to this Section 4.04. The amount of any
reimbursement pursuant to Section 4.02(a) in respect of outstanding Advances on
any Distribution Date shall be allocated to specific Monthly Payments due but
delinquent for previous Due Periods, which allocation shall be made, to the
extent practicable, to Monthly Payments which have been delinquent for the
longest period of time. Such allocations shall be conclusive for purposes of
reimbursement to the Master Servicer from recoveries on related Mortgage Loans
pursuant to Section 3.10.
The determination by the Master Servicer that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by an Officers' Certificate of the
Master Servicer delivered to the Company and the Trustee.
If the Master Servicer determines as of the Business Day preceding any
Certificate Account Deposit Date that it will be unable to deposit in the
Certificate Account an amount equal to the Advance required to be made for the
immediately succeeding Distribution Date, it shall give notice to the Trustee of
its inability to advance (such notice may be given by telecopy), not later than
3:00 P.M., New York time, on such Business Day, specifying the portion of such
amount that it will be unable to deposit. Not later than 3:00 P.M., New York
time, on the Certificate Account Deposit Date the Trustee shall, unless by 12:00
Noon, New York time, on such day the Trustee shall have been notified in writing
(by telecopy) that the Master Servicer shall have directly or indirectly
deposited in the Certificate Account such portion of the amount of the Advance
as to which the Master Servicer shall have given notice pursuant to the
preceding sentence, pursuant to Section 7.01, (a) terminate all of the rights
and obligations of the Master Servicer under this Agreement in accordance with
Section 7.01 and (b) assume the rights and obligations of the Master Servicer
hereunder, including the obligation to deposit in the Certificate Account an
amount equal to the Advance for the immediately succeeding Distribution Date.
The Trustee shall deposit all funds it receives pursuant to this Section
4.04 into the Certificate Account.
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Section 4.05. Allocation of Realized Losses.
As provided in Section 4.05 of the Series Supplement.
Section 4.06. Reports of Foreclosures and Abandonment of Mortgaged Property.
The Master Servicer or the Subservicers shall file information returns
with respect to the receipt of mortgage interests received in a trade or
business, the reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P,
respectively, of the Code, and deliver to the Trustee an Officers' Certificate
on or before March 31 of each year stating that such reports have been filed.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
Section 4.07. Optional Purchase of Defaulted Mortgage Loans.
As to any Mortgage Loan which is delinquent in payment by 90 days or
more, the Master Servicer may, at its option, purchase such Mortgage Loan from
the Trustee at the Purchase Price therefor. If at any time the Master Servicer
makes a payment to the Certificate Account covering the amount of the Purchase
Price for such a Mortgage Loan, and the Master Servicer provides to the Trustee
a certification signed by a Servicing Officer stating that the amount of such
payment has been deposited in the Certificate Account, then the Trustee shall
execute the assignment of such Mortgage Loan at the request of the Master
Servicer without recourse to the Master Servicer, which shall succeed to all the
Trustee's right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an assignment
outright and not for security. The Master Servicer will thereupon own such
Mortgage, and all such security and documents, free of any further obligation to
the Trustee or the Certificateholders with respect thereto.
If, however, the Master Servicer shall have exercised its right to
repurchase a Mortgage Loan pursuant to this Section 4.07 upon the written
request of and with funds provided by the Junior Certificateholder and thereupon
transferred such Mortgage Loan to the Junior Certificateholder, the Master
Servicer shall so notify the Trustee in writing.
Section 4.08. Surety Bond.
(a) If a Required Surety Payment is payable pursuant to the Surety Bond
with respect to any Additional Collateral Loan, the Master Servicer shall so
notify the Trustee as soon as reasonably practicable and the Trustee shall
promptly complete the notice in the form of Attachment 1 to the Surety Bond and
shall promptly submit such notice to the Surety as a claim for a Required
Surety. The Master Servicer shall upon request assist the Trustee in completing
such notice and shall provide any information requested by the Trustee in
connection therewith.
(b) Upon receipt of a Required Surety Payment from the Surety on behalf of
the Holders of Certificates, the Trustee shall deposit such Required Surety
Payment in the Certificate
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Account and shall distribute such Required Surety Payment, or the proceeds
thereof, in accordance with the provisions of Section 4.02.
(c) The Trustee shall (i) receive as attorney-in-fact of each Holder of a
Certificate any Required Surety Payment from the Surety and (ii) disburse the
same to the Holders of such Certificates as set forth in Section 4.02.
<PAGE>
Article V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Senior, Class M, Class B and Class R Certificates shall be
substantially in the forms set forth in Exhibits A, B, C and D, respectively,
and shall, on original issue, be executed and delivered by the Trustee to the
Certificate Registrar for authentication and delivery to or upon the order of
the Company upon receipt by the Trustee or one or more Custodians of the
documents specified in Section 2.01. The Certificates shall be issuable in the
minimum denominations designated in the Preliminary Statement to the Series
Supplement.
The Certificates shall be executed by manual or facsimile signature on
behalf of an authorized officer of the Trustee. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Trustee shall bind the Trustee, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificate or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Certificate Registrar by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) Except as provided below, registration of Book-Entry Certificates may
not be transferred by the Trustee except to another Depository that agrees to
hold such Certificates for the respective Certificate Owners with Ownership
Interests therein. The Holders of the Book-Entry Certificates shall hold their
respective Ownership Interests in and to each of such Certificates through the
book-entry facilities of the Depository and, except as provided below, shall not
be entitled to Definitive Certificates in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall transfer the Ownership
Interests only in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
The Trustee, the Master Servicer and the Company may for all purposes
(including the making of payments due on the respective Classes of Book-Entry
Certificates) deal with the Depository as the authorized representative of the
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the respective
Classes of Book-Entry Certificates shall be limited to those established by law
and agreements between such Certificate Owners and the Depository Participants
and brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of any Class of
Book-Entry Certificates with respect to any particular
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matter shall not be deemed inconsistent if they are made with respect to
different Certificate Owners. The Trustee may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If (i)(A) the Company advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository and (B) the Company is unable to locate a qualified successor or (ii)
the Company at its option advises the Trustee in writing that it elects to
terminate the book-entry system through the Depository, the Trustee shall notify
all Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall issue the
Definitive Certificates. Neither the Company, the Master Servicer nor the
Trustee shall be liable for any actions taken by the Depository or its nominee,
including, without limitation, any delay in delivery of such instructions 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 Company 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) From time to time Residential Funding, as the initial Holder of the
Class A-V Certificates, may exchange such Holder's Class A-V Certificates for
Subclasses of Class A-V Certificates to be issued under this Agreement by
delivering a "Request for Exchange" substantially in the form attached hereto as
Exhibit N executed by an authorized officer, which Subclasses, in the aggregate,
will represent the Uncertificated Class A-V REMIC Regular Interests
corresponding to the Class A-V Certificates so surrendered for exchange. Any
Subclass so issued shall bear a numerical designation commencing with Class
A-V-1 and continuing sequentially thereafter, and will evidence ownership of the
Uncertificated REMIC Regular Interest or Interests specified in writing by such
initial Holder to the Trustee. The Trustee may conclusively, without any
independent verification, rely on, and shall be protected in relying on,
Residential Funding's determinations of the Uncertificated Class A-V REMIC
Regular Interests corresponding to any Subclass, the Initial Notional Amount and
the initial Pass-Through Rate on a Subclass as set forth in such Request for
Exchange and the Trustee shall have no duty to determine if any Uncertificated
Class A-V REMIC Regular Interest designated on a Request for Exchange
corresponds to a Subclass which has previously been issued. Each Subclass so
issued shall be substantially in the form set forth in Exhibit A and shall, on
original issue, be executed and delivered by the Trustee to the Certificate
Registrar for authentication and delivery in accordance with Section 5.01(a).
Every Certificate presented or surrendered for exchange by the initial Holder
shall (if so required by the Trustee or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer attached to
such Certificate and shall be completed to the satisfaction of the Trustee and
the Certificate Registrar duly executed by, the initial Holder thereof or his
attorney duly authorized in writing. The Certificates of any Subclass of Class
A-V Certificates may be transferred in whole, but not in part, in accordance
with the provisions of Section 5.02.
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Section 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or agencies to
be appointed by the Trustee in accordance with the provisions of Section 8.12 a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee is
initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar, or the Trustee, shall provide the Master Servicer with a
certified list of Certificateholders as of each Record Date prior to the related
Determination Date.
(b) Upon surrender for registration of transfer of any Certificate at any
office or agency of the Trustee maintained for such purpose pursuant to Section
8.12 and, in the case of any Class M, Class B or Class R Certificate, upon
satisfaction of the conditions set forth below, the Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of a like
Class (or Subclass) and aggregate Percentage Interest.
(c) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class (or Subclass)
and aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange the Trustee shall execute and the Certificate Registrar
shall authenticate and deliver the Certificates of such Class which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall (if so required by the
Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(d) No transfer, sale, pledge or other disposition of a Class B Certificate
shall be made unless such transfer, sale, pledge or other disposition is exempt
from the registration requirements of the Securities Act of 1933, as amended,
and any applicable state securities laws or is made in accordance with said Act
and laws. In the event that a transfer of a Class B Certificate is to be made
either (i)(A) the Trustee shall require a written Opinion of Counsel acceptable
to and in form and substance satisfactory to the Trustee and the Company that
such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not be an expense
of the Trustee, the Company or the Master Servicer (except that, if such
transfer is made by the Company or the Master Servicer or any Affiliate thereof,
the Company or the Master Servicer shall provide such Opinion of Counsel at
their own expense); provided that such Opinion of Counsel will not be required
in connection with the initial transfer of any such Certificate by the Company
or any Affiliate thereof to the Company or an Affiliate of the Company and (B)
the Trustee shall require the transferee to execute a representation letter,
substantially in the form of Exhibit H-1 hereto, and the Trustee shall require
the transferor to execute a representation letter, substantially in the form of
Exhibit I hereto, each acceptable to and in form and substance satisfactory to
the Company and the Trustee certifying to the Company and the Trustee the facts
surrounding such transfer, which representation letters
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shall not be an expense of the Trustee, the Company or the Master Servicer;
provided, however, that such representation letters will not be required in
connection with any transfer of any such Certificate by the Company or any
Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee
shall be entitled to conclusively rely upon a representation (which, upon the
request of the Trustee, shall be a written representation) from the Company, of
the status of such transferee as an Affiliate of the Company or (ii) the
prospective transferee of such a Certificate shall be required to provide the
Trustee, the Company and the Master Servicer with an investment letter
substantially in the form of Exhibit J attached hereto (or such other form as
the Company in its sole discretion deems acceptable), which investment letter
shall not be an expense of the Trustee, the Company or the Master Servicer, and
which investment letter states that, among other things, such transferee (A) is
a "qualified institutional buyer" as defined under Rule 144A, acting for its own
account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (B) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A. The Holder of any such Certificate
desiring to effect any such transfer, sale, pledge or other disposition shall,
and does hereby agree to, indemnify the Trustee, the Company, the Master
Servicer and the Certificate Registrar against any liability that may result if
the transfer, sale, pledge or other disposition is not so exempt or is not made
in accordance with such federal and state laws.
(e) (i) In the case of any Senior Support, Class M, Class B or Class R
Certificate presented for registration in the name of any Person, either
(A) the Trustee shall require an Opinion of Counsel acceptable to and in
form and substance satisfactory to the Trustee, the Company and the Master
Servicer to the effect that the purchase or holding of such Senior Support,
Class M, Class B or Class R Certificate is permissible under applicable
law, will not constitute or result in any non-exempt prohibited transaction
under Section 406 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Code (or comparable provisions
of any subsequent enactments), and will not subject the Trustee, the
Company or the Master Servicer to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Trustee, the Company or the Master Servicer
or (B) the prospective Transferee shall be required to provide the Trustee,
the Company and the Master Servicer with a certification to the effect set
forth in paragraph six of Exhibit H-1 (with respect to any Class B
Certificate), Exhibit H-2 (with respect to any Senior Support Certificate
or Class M Certificate) or paragraph fourteen of Exhibit G-1 (with respect
to any Class R Certificate), which the Trustee may rely upon without
further inquiry or investigation, or such other certifications as the
Trustee may deem desirable or necessary in order to establish that such
Transferee or the Person in whose name such registration is requested
either (a) is not an employee benefit plan or other plan subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code, or
any Person (including an investment manager, a named fiduciary or a trustee
of any such plan) who is using "plan assets" of any such plan to effect
such acquisition (each, a "Plan Investor") or (b) in the case of any Class
M Certificate or Class B Certificate, the following conditions are
satisfied: (i) such
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Transferee is an insurance company, (ii) the source of funds used to
purchase or hold such Certificate (or interest therein) is an "insurance
company general account" (as defined in U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60, and (iii) the conditions set
forth in Sections I and III of PTCE 95-60 have been satisfied (each entity
that satisfies this clause (b), a "Complying Insurance Company").
(ii) Notwithstanding the foregoing, an Opinion of Counsel or
certification will not be required with respect to the transfer
of any Senior Support Certificate or Class M Certificate to a
Depository, or for any subsequent transfer of any interest in a
Senior Support Certificate or Class M Certificate for so long as
such Certificate is a Book-Entry Certificate (each such Senior
Support Certificate or Class M Certificate, a "Book-Entry
Mezzanine Certificate"). Any Transferee of a Book-Entry Mezzanine
Certificate will be deemed to have represented by virtue of its
purchase or holding of such Certificate (or interest therein)
that either (a) such Transferee is not a Plan Investor or (b)
such Transferee is a Complying Insurance Company.
(iii) (A) If any Senior Support Certificate or Class M
Certificate (or any interest therein) is acquired or held in
violation of the provisions of Section (ii) above, then the last
preceding Transferee that either (i) is not a Plan Investor or
(ii) is a Complying Insurance Company shall be restored, to the
extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such
Transfer of such Senior Support Certificate or Class M
Certificate. The Trustee shall be under no liability to any
Person for making any payments due on such Certificate to such
preceding Transferee.
(B) Any purported Certificate Owner whose acquisition or
holding of any Book-Entry Mezzanine Certificate (or interest
therein) was effected in violation of the restrictions in this
Section 5.02(e) shall indemnify and hold harmless the Company,
the Trustee, the Master Servicer, any Subservicer, 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.
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(B) In connection with any proposed Transfer of any Ownership Interest in a
Class R Certificate, the Trustee shall require delivery to it, and shall
not register the Transfer of any Class R Certificate until its receipt of,
(I) an affidavit and agreement (a "Transfer Affidavit and Agreement," in
the form attached hereto as Exhibit G-1) from the proposed Transferee, in
form and substance satisfactory to the Master Servicer, representing and
warranting, among other things, that it is a Permitted Transferee, that it
is not acquiring its Ownership Interest in the Class R Certificate that is
the subject of the proposed Transfer as a nominee, trustee or agent for any
Person who is not a Permitted Transferee, that for so long as it retains
its Ownership Interest in a Class R Certificate, it will endeavor to remain
a Permitted Transferee, and that it has reviewed the provisions of this
Section 5.02(f) and agrees to be bound by them, and (II) a certificate, in
the form attached hereto as Exhibit G-2, from the Holder wishing to
transfer the Class R Certificate, in form and substance satisfactory to the
Master Servicer, representing and warranting, among other things, that no
purpose of the proposed Transfer is to impede the assessment or collection
of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a
proposed Transferee under clause (B) above, if a Responsible Officer of the
Trustee who is assigned to this Agreement has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R
Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its
Ownership Interest in a Class R Certificate and (y) not to transfer its
Ownership Interest unless it provides a certificate to the Trustee in the
form attached hereto as Exhibit G-2.
(E) Each Person holding or acquiring an Ownership Interest in a Class R
Certificate, by purchasing an Ownership Interest in such Certificate,
agrees to give the Trustee written notice that it is a "pass-through
interest holder" within the meaning of Temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Class R Certificate, if it is, or is holding an Ownership
Interest in a Class R Certificate on behalf of, a "pass-through interest
holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only
if it shall have received the Transfer Affidavit and Agreement, a
certificate of the Holder requesting such transfer in the form attached
hereto as Exhibit G-2 and all of such other documents as shall have been
reasonably required by the Trustee as a condition to such registration.
Transfers of the Class R Certificates to Non-United States Persons and
Disqualified Organizations (as defined in Section 860E(e)(5) of the
Code) are prohibited.
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(iii)(A) If any Disqualified Organization shall become a holder of a Class R
Certificate, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations as
Holder thereof retroactive to the date of registration of such Transfer of
such Class R Certificate. If a Non-United States Person shall become a
holder of a Class R Certificate, then the last preceding United States
Person shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
such Transfer of such Class R Certificate. If a transfer of a Class R
Certificate is disregarded pursuant to the provisions of Treasury
Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding
Permitted Transferee shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Class R Certificate. The Trustee
shall be under no liability to any Person for any registration of Transfer
of a Class R Certificate that is in fact not permitted by this Section
5.02(f) or for making any payments due on such Certificate to the holder
thereof or for taking any other action with respect to such holder under
the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R Certificate
in violation of the restrictions in this Section 5.02(f) and to the extent
that the retroactive restoration of the rights of the Holder of such Class
R Certificate as described in clause (iii)(A) above shall be invalid,
illegal or unenforceable, then the Master Servicer shall have the right,
without notice to the holder or any prior holder of such Class R
Certificate, to sell such Class R Certificate to a purchaser selected by
the Master Servicer on such terms as the Master Servicer may choose. Such
purported Transferee shall promptly endorse and deliver each Class R
Certificate in accordance with the instructions of the Master Servicer.
Such purchaser may be the Master Servicer itself or any Affiliate of the
Master Servicer. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Master Servicer or its Affiliates),
expenses and taxes due, if any, will be remitted by the Master Servicer to
such purported Transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of the Master
Servicer, and the Master Servicer shall not be liable to any Person having
an Ownership Interest in a Class R Certificate as a result of its exercise
of such discretion.
(iv) The Master Servicer, on behalf of the Trustee, shall make available, upon
written request from the Trustee, all information necessary to compute any
tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Class R Certificate to any Person who is a Disqualified Organization,
including the information regarding "excess inclusions" of such Class R
Certificates required to be provided to the Internal Revenue Service and
certain Persons as described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the
Code that holds an Ownership Interest in a Class R Certificate having as
among its record holders at any time any Person who is a
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Disqualified Organization. Reasonable compensation for providing such
information may be required by the Master Servicer from such Person.
(v) The provisions of this Section 5.02(f) set forth prior to this clause
(v) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee the following:
(A) written notification from each Rating Agency to the effect that the
modification, addition to or elimination of such provisions will not cause
such Rating Agency to downgrade its then-current ratings, if any, of any
Class of the Senior, Class M or Class B Certificates below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency; and
(B) subject to Section 10.01(f), an Officers' Certificate of the Master
Servicer stating that the Master Servicer has received an Opinion of
Counsel, in form and substance satisfactory to the Master Servicer, to the
effect that such modification, addition to or absence of such provisions
will not cause any portion of any REMIC formed under the Series Supplement
to cease to qualify as a REMIC and will not cause (x) any portion of any
REMIC formed under the Series Supplement to be subject to an entity-level
tax caused by the Transfer of any Class R Certificate to a Person that is a
Disqualified Organization or (y) a Certificateholder or another Person to
be subject to a REMIC-related tax caused by the Transfer of a Class R
Certificate to a Person that is not a Permitted Transferee.
(g) No service charge shall be made for any transfer or exchange of
Certificates of any Class, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) there is delivered to the Trustee and the Certificate Registrar such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including
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the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Company, the Master Servicer, the Trustee, the Certificate Registrar and any
agent of the Company, the Master Servicer, the Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.02 and for all other purposes whatsoever, except as and to
the extent provided in the definition of "Certificateholder," and neither the
Company, the Master Servicer, the Trustee, the Certificate Registrar nor any
agent of the Company, 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 the Certificateholders pursuant to Section 4.02. In the event
of any such appointment, on or prior to each Distribution Date the Master
Servicer on behalf of the Trustee shall deposit or cause to be deposited with
the Paying Agent a sum sufficient to make the payments to the Certificateholders
in the amounts and in the manner provided for in Section 4.02, such sum to be
held in trust for the benefit of the Certificateholders.
The Trustee shall cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee
that such Paying Agent will hold all sums held by it for the payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. Any sums so
held by such Paying Agent shall be held only in Eligible Accounts to the extent
such sums are not distributed to the Certificateholders on the date of receipt
by such Paying Agent.
Section 5.06. Optional Purchase of Certificates.
(a) On any Distribution Date on which the Pool Stated Principal Balance,
prior to giving effect to distributions to be made on such Distribution Date, is
less than ten percent of the Cut-off Date Principal Balance of the Mortgage
Loans, either the Master Servicer or the Company shall have the right, at its
option, to purchase the Certificates in whole, but not in part, at a price equal
to the outstanding Certificate Principal Balance of such Certificates plus the
sum of Accrued Certificate Interest thereon for the related Interest Accrual
Period and any previously unpaid Accrued Certificate Interest.
(b) The Master Servicer or the Company, as applicable, shall give the
Trustee not less than 60 days' prior notice of the Distribution Date on which
the Master Servicer or the Company, as applicable, anticipates that it will
purchase the Certificates pursuant to Section 5.06(a). Notice of any such
purchase, specifying the Distribution Date upon which the Holders may surrender
their Certificates to the Trustee for payment in accordance with this Section
5.06,
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shall be given promptly by the Master Servicer or the Company, as applicable, by
letter to Certificateholders (with a copy to the Certificate Registrar and each
Rating Agency) 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 Distribution Date upon which purchase of the Certificates is
anticipated to be made upon presentation and surrender of such
Certificates at the office or agency of the Trustee therein designated,
(ii) the purchase price therefor, if known, and
(iii) that the Record Date otherwise applicable to such Distribution Date is
not applicable, payments being made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein
specified.
If either the Master Servicer or the Company gives the notice specified above,
the Master Servicer or the Company, as applicable, shall deposit in the
Certificate Account before the Distribution Date on which the purchase pursuant
to Section 5.06(a) is to be made, in immediately available funds, an amount
equal to the purchase price for the Certificates computed as provided above.
(c) Upon presentation and surrender of the Certificates to be purchased
pursuant to Section 5.06(a) by the Holders thereof, the Trustee shall distribute
to such Holders an amount equal to the outstanding Certificate Principal Balance
thereof plus the sum of Accrued Certificate Interest thereon for the related
Interest Accrual Period and any previously unpaid Accrued Certificate Interest
with respect thereto.
(d) If any Certificateholders do not surrender their Certificates on or
before the Distribution Date on which a purchase pursuant to this Section 5.06
is to be made, the Trustee shall on such date cause all funds in the Certificate
Account deposited therein by the Master Servicer or the Company, as applicable,
pursuant to Section 5.06(b) to be withdrawn therefrom and deposited in a
separate escrow account for the benefit of such Certificateholders, and the
Master Servicer or the Company, as applicable, 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 or the Company, as
applicable, 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 5.06, the Trustee shall pay to the Master Servicer or the Company,
as applicable, all amounts distributable to the Holders thereof and the Master
Servicer or the Company, as applicable, 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 or the Company, as applicable, as a result of such Certificateholder's
failure to surrender its Certificate(s) for payment in accordance with this
Section 5.06. Any Certificate that is not surrendered on the Distribution Date
on which a
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purchase pursuant to this Section 5.06 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 or the
Company, as applicable, shall be for all purposes the Holder thereof as of such
date.
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Article VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Company and the Master Servicer.
The Company and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Company and the Master Servicer herein. By
way of illustration and not limitation, the Company is not liable for the
servicing and administration of the Mortgage Loans, nor is it obligated by
Section 7.01 or Section 10.01 to assume any obligations of the Master Servicer
or to appoint a designee to assume such obligations, nor is it liable for any
other obligation hereunder that it may, but is not obligated to, assume unless
it elects to assume such obligation in accordance herewith.
Section 6.02. Merger or Consolidation of the Company or the Master Servicer;
Assignment of Rights and Delegation of Duties by Master Servicer.
(a) The Company and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Any Person into which the Company or the Master Servicer may be merged
or consolidated, or any corporation resulting from any merger or consolidation
to which the Company or the Master Servicer shall be a party, or any Person
succeeding to the business of the Company or the Master Servicer, shall be the
successor of the Company or the Master Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Master Servicer
shall be qualified to service mortgage loans on behalf of FNMA or FHLMC; and
provided further that each Rating Agency's ratings, if any, of the Senior, Class
M or Class B Certificates in effect immediately prior to such merger or
consolidation will not be qualified, reduced or withdrawn as a result thereof
(as evidenced by a letter to such effect from each Rating Agency).
(c) Notwithstanding anything else in this Section 6.02 and Section 6.04 to
the contrary, the Master Servicer may assign its rights and delegate its duties
and obligations under this Agreement; provided that the Person accepting such
assignment or delegation shall be a Person which is qualified to service
mortgage loans on behalf of FNMA or FHLMC, is reasonably satisfactory to the
Trustee and the Company, is willing to service the Mortgage Loans and executes
and delivers to the Company and the Trustee an agreement, in form and substance
reasonably satisfactory to the Company and the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Master Servicer
under this Agreement; provided further that each Rating Agency's rating of the
Classes of Certificates that have been rated in effect
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immediately prior to such assignment and delegation will not be qualified,
reduced or withdrawn as a result of such assignment and delegation (as evidenced
by a letter to such effect from each Rating Agency). In the case of any such
assignment and delegation, the Master Servicer shall be released from its
obligations under this Agreement, except that the Master Servicer shall remain
liable for all liabilities and obligations incurred by it as Master Servicer
hereunder prior to the satisfaction of the conditions to such assignment and
delegation set forth in the next preceding sentence.
Section 6.03. Limitation on Liability of the Company,
the Master Servicer and Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Company, the Master Servicer or any such Person
against any breach of warranties or representations made herein or any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Company, the Master Servicer and any
director, officer, employee or agent of the Company or the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company,
the Master Servicer and any director, officer, employee or agent of the Company
or the Master Servicer shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder.
Neither the Company nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal or administrative action,
proceeding, hearing or examination that is not incidental to its respective
duties under this Agreement and which in its opinion may involve it in any
expense or liability; provided, however, that the Company or the Master Servicer
may in its discretion undertake any such action, proceeding, hearing or
examination that it may deem necessary or desirable in respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, proceeding, hearing or examination and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Company and the Master Servicer shall be entitled to be reimbursed therefor out
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.
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Section 6.04. Company and Master Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Company nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Company or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities and
obligations in accordance with Section 7.02.
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Article VII
DEFAULT
Section 7.01. Events of Default.
Event of Default, wherever used herein, means any one of the following
events (whatever reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the Master Servicer shall fail to distribute or cause to be distributed to
the Holders of Certificates of any Class any distribution required to be
made under the terms of the Certificates of such Class and this Agreement
and, in either case, such failure shall continue unremedied for a period of
5 days after the date upon which written notice of such failure, requiring
such failure to be remedied, shall have been given to the Master Servicer
by the Trustee or the Company or to the Master Servicer, the Company and
the Trustee by the Holders of Certificates of such Class evidencing
Percentage Interests aggregating not less than 25%; or
(ii) the Master Servicer shall fail to observe or perform in any material
respect any other of the covenants or agreements on the part of the Master
Servicer contained in the Certificates of any Class or in this Agreement
and such failure shall continue unremedied for a period of 30 days (except
that such number of days shall be 15 in the case of a failure to pay the
premium for any Required Insurance Policy) after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Master Servicer by the Trustee or the Company, or to the
Master Servicer, the Company and the Trustee by the Holders of Certificates
of any Class evidencing, in the case of any such Class, Percentage
Interests aggregating not less than 25%; or
(iii) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or
appointing a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
days; or
(iv) the Master Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of, or
relating to, the Master Servicer or of, or relating to, all or
substantially all of the property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an
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assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vi) the Master Servicer shall notify the Trustee pursuant to Section 4.04(b)
that it is unable to deposit in the Certificate Account an amount equal
to the Advance.
If an Event of Default described in clauses (i)-(v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, either the Company or the Trustee may, and
at the direction of Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, by notice in writing to the Master Servicer
(and to the Company if given by the Trustee or to the Trustee if given by the
Company), terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder. If an Event of Default
described in clause (vi) hereof shall occur, the Trustee shall, by notice to the
Master Servicer and the Company, immediately terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder as provided in Section 4.04(b). On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder thereof) or the Mortgage Loans or
otherwise, shall subject to Section 7.02 pass to and be vested in the Trustee or
the Trustee's designee appointed pursuant to Section 7.02; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee or its designee for administration by it of all cash
amounts which shall at the time be credited to the Custodial Account or the
Certificate Account or thereafter be received with respect to the Mortgage
Loans. No such termination shall release the Master Servicer for any liability
that it would otherwise have hereunder for any act or omission prior to the
effective time of such termination.
Notwithstanding any termination of the activities of Residential Funding
in its capacity as Master Servicer hereunder, Residential Funding shall be
entitled to receive, out of any late collection of a Monthly Payment on a
Mortgage Loan which was due prior to the notice terminating Residential
Funding's rights and obligations as Master Servicer hereunder and received after
such notice, that portion to which Residential Funding would have been entitled
pursuant to Sections 3.10(a)(ii), (vi) and (vii) as well as its Servicing Fee in
respect thereof, and any other amounts payable to Residential Funding hereunder
the entitlement to which arose prior to the termination of its activities
hereunder. Upon the termination of Residential Funding as Master Servicer
hereunder the Company shall deliver to the Trustee a copy of the Program Guide.
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Section 7.02. Trustee or Company to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 or resigns in accordance with Section 6.04,
the Trustee or, upon notice to the Company and with the Company's consent (which
shall not be unreasonably withheld) a designee (which meets the standards set
forth below) of the Trustee, shall be the successor in all respects to the
Master Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer (except for the responsibilities, duties and liabilities contained in
Sections 2.02 and 2.03(a), excluding the duty to notify related Subservicers or
Sellers as set forth in such Sections, and its obligations to deposit amounts in
respect of losses incurred prior to such notice or termination on the investment
of funds in the Custodial Account or the Certificate Account pursuant to
Sections 3.07(c) and 4.01(b) by the terms and provisions hereof); provided,
however, that any failure to perform such duties or responsibilities caused by
the preceding Master Servicer's failure to provide information required by
Section 4.04 shall not be considered a default by the Trustee hereunder. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to charge
to the Custodial Account or the Certificate Account if the Master Servicer had
continued to act hereunder and, in addition, shall be entitled to the income
from any Permitted Investments made with amounts attributable to the Mortgage
Loans held in the Custodial Account or the Certificate Account. If the Trustee
has become the successor to the Master Servicer in accordance with Section 6.04
or Section 7.01, then notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution, which is also a FNMA- or FHLMC-approved mortgage servicing
institution, having a net worth of not less than $10,000,000 as the successor to
the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall become successor to the Master Servicer and shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
initial Master Servicer hereunder. The Company, the Trustee, the Custodian and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. The Servicing Fee for any
successor Master Servicer appointed pursuant to this Section 7.02 will be
lowered with respect to those Mortgage Loans, if any, where the Subservicing Fee
accrues at a rate of less than 0.20% per annum in the event that the successor
Master Servicer is not servicing such Mortgage Loans directly and it is
necessary to raise the related Subservicing Fee to a rate of 0.20% per annum in
order to hire a Subservicer with respect to such Mortgage Loans.
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.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66% of the Voting Rights affected by a
default or Event of Default hereunder may waive such default or Event of
Default; provided, however, that (a) a default or Event of Default under clause
(i) of Section 7.01 may be waived only by all of the Holders of Certificates
affected by such default or Event of Default and (b) no waiver pursuant to this
Section 7.04 shall affect the Holders of Certificates in the manner set forth in
Section 11.01(b)(i) or (ii). Upon any such waiver of a default or Event of
Default by the Holders representing the requisite percentage of Voting Rights
affected by such default or Event of Default, such default or Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon except to the extent
expressly so waived.
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Article VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement. The Trustee shall notify the
Certificateholders of any such documents which do not materially conform to the
requirements of this Agreement in the event that the Trustee, after so
requesting, does not receive satisfactorily corrected documents.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 4.03, 4.06, 7.03 and 10.01. The Trustee shall furnish in a
timely fashion to the Master Servicer such information as the Master Servicer
may reasonably request from time to time for the Master Servicer to fulfill its
duties as set forth in this Agreement. The Trustee covenants and agrees that it
shall perform its obligations hereunder in a manner so as to maintain the status
of any portion of any REMIC formed under the Series Supplement as a REMIC under
the REMIC Provisions and (subject to Section 10.01(f)) to prevent the imposition
of any federal, state or local income, prohibited transaction, contribution or
other tax on the Trust Fund to the extent that maintaining such status and
avoiding such taxes are reasonably within the control of the Trustee and are
reasonably within the scope of its duties under this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or
waiver of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad 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
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to the Trustee by the Company or the Master Servicer and which on their
face, do not contradict the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests
aggregating not less than 25% as to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement;
(iv) The Trustee shall not be charged with knowledge of any default (other
than a default in payment to the Trustee) specified in clauses (i) and
(ii) of Section 7.01 or an Event of Default under clauses (iii), (iv)
and (v) of Section 7.01 unless a Responsible Officer of the Trustee
assigned to and working in the Corporate Trust Office obtains actual
knowledge of such failure or event or the Trustee receives written
notice of such failure or event at its Corporate Trust Office from the
Master Servicer, the Company or any Certificateholder; and
(v) Except to the extent provided in Section 7.02, no provision in this
Agreement shall require the Trustee to expend or risk its own funds
(including, without limitation, the making of any Advance) or otherwise
incur any personal financial liability in the performance of any of its
duties as Trustee hereunder, or in the exercise of any of its rights or
powers, if the Trustee shall have reasonable grounds for believing that
repayment of funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) The Trustee shall timely pay, from its own funds, the amount of any and
all federal, state and local taxes imposed on the Trust Fund or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
Section 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, Officers' Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(ii) The Trustee may consult with counsel and any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii)The Trustee shall be under no obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend
any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their exercise as a prudent
investor would exercise or use under the circumstances in the conduct of
such investor's own affairs;
(iv) The Trustee shall not be personally liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests, aggregating not less than 50%; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a
condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Master Servicer, if an Event of Default
shall have occurred and is continuing, and otherwise by the
Certificateholder requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys;
and
(vii)To the extent authorized under the Code and the regulations promulgated
thereunder, each Holder of a Class R Certificate hereby irrevocably
appoints and authorizes the Trustee to be its attorney-in-fact for purposes
of signing any Tax Returns required to be filed on behalf of the Trust
Fund. The Trustee shall sign on behalf of the Trust Fund and deliver to the
Master Servicer in a timely manner any Tax Returns prepared by or on behalf
of the Master Servicer that the Trustee is required to sign as determined
by the Master Servicer pursuant to applicable federal, state or local tax
laws,
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provided that the Master Servicer shall indemnify the Trustee for signing
any such Tax Returns that contain errors or omissions.
(b) Following the issuance of the Certificates, the Trustee shall not
accept any contribution of assets to the Trust Fund unless (subject to Section
10.01(f)) it shall have obtained or been furnished with an Opinion of Counsel to
the effect that such contribution will not (i) cause any portion of any REMIC
formed under the Series Supplement to fail to qualify as a REMIC at any time
that any Certificates are outstanding or (ii) cause the Trust Fund to be subject
to any federal tax as a result of such contribution (including the imposition of
any federal tax on "prohibited transactions" imposed under Section 860F(a) of
the Code).
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of the Certificates and relating to the acceptance and receipt of the
Mortgage Loans) shall be taken as the statements of the Company or the Master
Servicer as the case may be, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (except that the
Certificates shall be duly and validly executed and authenticated by it as
Certificate Registrar) or of any Mortgage Loan or related document. Except as
otherwise provided herein, the Trustee shall not be accountable for the use or
application by the Company or the Master Servicer of any of the Certificates or
of the proceeds of such Certificates, or for the use or application of any funds
paid to the Company or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Custodial Account or the Certificate Account
by the Company or the Master Servicer.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights it would have if it were not
Trustee.
Section 8.05. Master Servicer to Pay Trustee's Fees
and Expenses; Indemnification.
(a) The Master Servicer covenants and agrees to pay to the Trustee and any
co-trustee from time to time, and the Trustee and any co-trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by each of them in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee and any co-trustee, and the Master Servicer will pay or
reimburse the Trustee and any co-trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or any
co-trustee in accordance with any of the provisions of this Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ, and the expenses incurred by the
Trustee or any co-trustee in connection with the appointment of an office or
agency pursuant to Section 8.12) except any such expense, disbursement or
advance as may arise from its negligence or bad faith.
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(b) The Master Servicer agrees to indemnify the Trustee for, and to hold
the Trustee harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on the Trustee's part, arising out of, or in
connection with, the acceptance and administration of the Trust Fund, including
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against any claim in connection with the exercise or
performance of any of its powers or duties under this Agreement and the
Custodial Agreement, provided that:
(i) with respect to any such claim, the Trustee shall have given the Master
Servicer written notice thereof promptly after the Trustee shall have
actual knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Master Servicer in preparing such
defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Master
Servicer shall not be liable for settlement of any claim by the Trustee
entered into without the prior consent of the Master Servicer which
consent shall not be unreasonably withheld.
No termination of this Agreement shall affect the obligations created by this
Section 8.05(b) of the Master Servicer to indemnify the Trustee under the
conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 8.05(b) shall not pertain to any loss, liability
or expense of the Trustee, including the costs and expenses of defending itself
against any claim, incurred in connection with any actions taken by the Trustee
at the direction of the Certificateholders pursuant to the terms of this
Agreement.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or a national
banking association having its principal office in a state and city acceptable
to the Company and organized and doing business under the laws of such state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
Section 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Company. Upon receiving
such notice of
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resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Company, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Company may
remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee. In addition, in the event that
the Company determines that the Trustee has failed (i) to distribute or cause to
be distributed to the Certificateholders any amount required to be distributed
hereunder, if such amount is held by the Trustee or its Paying Agent (other than
the Master Servicer or the Company) for distribution or (ii) to otherwise
observe or perform in any material respect any of its covenants, agreements or
obligations hereunder, and such failure shall continue unremedied for a period
of 5 days (in respect of clause (i) above) or 30 days (in respect of clause (ii)
above) after the date on which written notice of such failure, requiring that
the same be remedied, shall have been given to the Trustee by the Company, then
the Company may remove the Trustee and appoint a successor trustee by written
instrument delivered as provided in the preceding sentence. In connection with
the appointment of a successor trustee pursuant to the preceding sentence, the
Company shall, on or before the date on which any such appointment becomes
effective, obtain from each Rating Agency written confirmation that the
appointment of any such successor trustee will not result in the reduction of
the ratings on any class of the Certificates below the lesser of the then
current or original ratings on such Certificates.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Company, one complete set to the Trustee so removed
and one complete set to the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally
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named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held by a Custodian, which
shall become the agent of any successor trustee hereunder), and the Company, the
Master Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Company fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation or national banking association into which the Trustee
may be merged or converted or with which it may be consolidated or any
corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or national banking association shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall mail notice of any such merger or
consolidation to the Certificateholders at their address as shown in the
Certificate Register.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
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(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee, and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer and the
Company, appoint one or more Custodians who are not Affiliates of the Company,
the Master Servicer or any Seller to hold all or a portion of the Mortgage Files
as agent for the Trustee, by entering into a Custodial Agreement. Subject to
Article VIII, the Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $15,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File. Each
Custodial Agreement may be amended only as provided in Section 11.01. The
Trustee shall notify the Certificateholders of the appointment of any Custodian
(other than the Custodian appointed as of the Closing Date) pursuant to this
Section 8.11.
Section 8.12. Appointment of Office or Agency.
The Trustee will maintain an office or agency in the City of New York at
the address designated in Section 11.05 of the Series Supplement where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee will maintain an office at the address stated in
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Section 11.05 of the Series Supplement where notices and demands to or upon the
Trustee in respect of this Agreement may be served.
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ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Purchase by the Master Servicer
or the Company or Liquidation of All Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities of the Company, the Master Servicer and the Trustee created
hereby in respect of the Certificates (other than the obligation of the Trustee
to make certain payments after the Final Distribution Date to Certificateholders
and the obligation of the Company to send certain notices as hereinafter set
forth) shall terminate upon the last action required to be taken by the Trustee
on the Final Distribution Date pursuant to this Article IX following the earlier
of:
(i) the later of the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund or
the disposition of all property acquired upon foreclosure or deed in lieu
of foreclosure of any Mortgage Loan, or
(ii) the purchase by the Master Servicer or the Company of all Mortgage Loans
and all property acquired in respect of any Mortgage Loan remaining in the
Trust Fund at a price equal to 100% of the unpaid principal balance of each
Mortgage Loan or, if less than such unpaid principal balance, the fair
market value of the related underlying property of such Mortgage Loan with
respect to Mortgage Loans as to which title has been acquired if such fair
market value is less than such unpaid principal balance (net of any
unreimbursed Advances attributable to principal) on the day of repurchase
plus accrued interest thereon at the Net Mortgage Rate (or Modified Net
Mortgage Rate in the case of any Modified Mortgage Loan) to, but not
including, the first day of the month in which such repurchase price is
distributed, provided, however, that in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador
of the United States to the Court of St. James, living on the date hereof
and provided further that the purchase price set forth above shall be
increased as is necessary, as determined by the Master Servicer, to avoid
disqualification of any portion of any REMIC formed under the Series
Supplement as a REMIC.
The right of the Master Servicer or the Company to purchase all the
assets of the Trust Fund pursuant to clause (ii) above is conditioned upon the
Pool Stated Principal Balance as of the Final Distribution Date, prior to giving
effect to distributions to be made on such Distribution Date, being less than
ten percent of the Cut-off Date Principal Balance of the Mortgage Loans. If such
right is exercised by the Master Servicer, the Master Servicer shall be deemed
to have been reimbursed for the full amount of any unreimbursed Advances
theretofore made by it with respect to the Mortgage Loans. In addition, the
Master Servicer or the Company, as applicable, shall provide to the Trustee the
certification required by Section 3.15 and the Trustee and any Custodian shall,
promptly following payment of the purchase price, release to the Master Servicer
or the Company, as applicable, the Mortgage Files pertaining to the Mortgage
Loans being purchased.
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(b) The Master Servicer or, in the case of a final distribution as a result
of the exercise by the Company of its right to purchase the assets of the Trust
Fund, the Company shall give the Trustee not less than 60 days' prior notice of
the Distribution Date on which the Master Servicer or the Company, as
applicable, anticipates that the final distribution will be made to
Certificateholders (whether as a result of the exercise by the Master Servicer
or the Company of its right to purchase the assets of the Trust Fund or
otherwise). 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, shall be given promptly by the Master Servicer or
the Company, as applicable (if it is exercising its right to purchase the assets
of the Trust Fund), or by the Trustee (in any other case) by letter to the
Certificateholders 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,
(ii) the amount of any such final payment, if known, and
(iii)that the Record Date otherwise applicable to such Distribution Date is not
applicable, and in the case of the Senior Certificates and Class M
Certificates, that payment will be made only upon presentation and
surrender of the Certificates at the office or agency of the Trustee
therein specified.
If the Master Servicer or the Company, as applicable, is obligated to give
notice to Certificateholders as aforesaid, it shall give such notice to the
Certificate Registrar at the time such notice is given to Certificateholders. In
the event such notice is given by the Master Servicer or the Company, the Master
Servicer or the Company, as applicable, shall deposit in the Certificate Account
before the Final Distribution Date in immediately available funds an amount
equal to the purchase price for the assets of the Trust Fund computed as above
provided.
(c) In the case of the Senior, Class M or Class B Certificates, upon
presentation and surrender of the Certificates by the Certificateholders
thereof, the Trustee shall distribute to the Certificateholders (i) the amount
otherwise distributable on such Distribution Date, if not in connection with the
Master Servicer's or the Company's election to repurchase, or (ii) if the Master
Servicer or the Company elected to so repurchase, an amount determined as
follows: (A) with respect to each Certificate the outstanding Certificate
Principal Balance thereof, plus Accrued Certificate Interest for the related
Interest Accrual Period thereon and any previously unpaid Accrued Certificate
Interest, subject to the priority set forth in Section 4.02(a), and (B) with
respect to the Class R Certificates, any excess of the amounts available for
distribution (including the repurchase price specified in clause (ii) of
subsection (a) of this Section) over the total amount distributed under the
immediately preceding clause (A).
(d) If any Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before the Final Distribution Date (if so
required by the terms hereof), the Trustee shall on such date cause all funds in
the Certificate Account not distributed in final
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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 or
the Company, as applicable (if it exercised its right to purchase the assets of
the Trust Fund), or the Trustee (in any other case) shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee shall take appropriate steps as
directed by the Master Servicer or the Company, as applicable, 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 or the Company, as applicable, all amounts distributable to the holders
thereof and the Master Servicer or the Company, as applicable, 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 or the Company, as applicable, as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01.
Section 9.02. Additional Termination Requirements.
(a) Each REMIC that comprises the Trust Fund shall be terminated in
accordance with the following additional requirements, unless (subject to
Section 10.01(f)) the Trustee and the Master Servicer have received an Opinion
of Counsel (which Opinion of Counsel shall not be an expense of the Trustee) to
the effect that the failure of each such REMIC to comply with the requirements
of this Section 9.02 will not (i) result in the imposition on the Trust of taxes
on "prohibited transactions," as described in Section 860F of the Code, or (ii)
cause any such REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding:
(i) The Master Servicer shall establish a 90-day liquidation period for each
such REMIC and specify the first day of such period in a statement
attached to the Trust Fund's final Tax Return pursuant to Treasury
regulations Section 1.860F-1. The Master Servicer also shall satisfy all
of the requirements of a qualified liquidation for a REMIC under Section
860F of the Code and regulations thereunder;
(ii) The Master Servicer shall notify the Trustee at the commencement of such
90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell or otherwise
dispose of all of the remaining assets of the Trust Fund in accordance
with the terms hereof; and
(iii) If the Master Servicer or the Company is exercising its right to
purchase the assets of the Trust Fund, the Master Servicer shall, during
the 90-day liquidation period and at or prior to the Final Distribution
Date, purchase all of the assets of the Trust Fund for cash.
(b) Each Holder of a Certificate and the Trustee hereby irrevocably
approves and appoints the Master Servicer as its attorney-in-fact to adopt a
plan of complete liquidation for
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each REMIC at the expense of the Trust Fund in accordance with the terms and
conditions of this Agreement.
Section 9.03. Termination of Multiple REMICs.
If the REMIC Administrator makes two or more separate REMIC elections,
the applicable REMIC shall be terminated on the earlier of the Final
Distribution Date and the date on which it is deemed to receive the last deemed
distributions on the related Uncertificated REMIC Regular Interests and the last
distribution due on the Certificates is made.
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Article X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The REMIC Administrator shall make an election to treat the Trust Fund
as one or more REMICs under the Code and, if necessary, under applicable state
law. The assets of each such REMIC will be set forth in the Series Supplement.
Such election will be made on Form 1066 or other appropriate federal tax or
information return (including Form 8811) or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. For the purposes of each REMIC election in respect of
the Trust Fund, Certificates and interests to be designated as the "regular
interests" and the sole class of "residual interests" in the REMIC will be set
forth in Section 10.03 of the Series Supplement. The REMIC Administrator and the
Trustee shall not permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in any REMIC elected in respect of the Trust Fund
other than the "regular interests" and "residual interests" so designated.
(b) The Closing Date is hereby designated as the "startup day" of the Trust
Fund within the meaning of Section 860G(a)(9) of the Code.
(c) The REMIC Administrator shall hold a Class R Certificate representing a
0.01% Percentage Interest each Class of the Class R Certificates and shall be
designated as "the tax matters person" with respect to each REMIC in the manner
provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)-1. The REMIC Administrator, as tax matters person, shall
(i) act on behalf of each REMIC in relation to any tax matter or controversy
involving the Trust Fund and (ii) represent the Trust Fund in any administrative
or judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The legal expenses, including without
limitation attorneys' or accountants' fees, and costs of any such proceeding and
any liability resulting therefrom shall be expenses of the Trust Fund and the
REMIC Administrator shall be entitled to reimbursement therefor out of amounts
attributable to the Mortgage Loans on deposit in the Custodial Account as
provided by Section 3.10 unless such legal expenses and costs are incurred by
reason of the REMIC Administrator's willful misfeasance, bad faith or gross
negligence. If the REMIC Administrator is no longer the Master Servicer
hereunder, at its option the REMIC Administrator may continue its duties as
REMIC Administrator and shall be paid reasonable compensation not to exceed
$3,000 per year by any successor Master Servicer hereunder for so acting as the
REMIC Administrator.
(d) The REMIC Administrator shall prepare or cause to be prepared all of
the Tax Returns that it determines are required with respect to each REMIC
created hereunder and deliver such Tax Returns in a timely manner to the Trustee
and the Trustee shall sign and file such Tax Returns in a timely manner. The
expenses of preparing such returns shall be borne by the REMIC Administrator
without any right of reimbursement therefor. The REMIC Administrator agrees to
indemnify and hold harmless the Trustee with respect to any tax or liability
arising from the Trustee's signing of Tax Returns that contain errors or
omissions. The Trustee and Master Servicer shall promptly provide the REMIC
Administrator with such
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information as the REMIC Administrator may from time to time request for the
purpose of enabling the REMIC Administrator to prepare Tax Returns.
(e) The REMIC Administrator shall provide (i) to any Transferor of a Class
R Certificate such information as is necessary for the application of any tax
relating to the transfer of a Class R Certificate to any Person who is not a
Permitted Transferee, (ii) to the Trustee, and the Trustee shall forward to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each REMIC.
(f) The Master Servicer and the REMIC Administrator shall take such actions
and shall cause each REMIC created hereunder to take such actions as are
reasonably within the Master Servicer's or the REMIC Administrator's control and
the scope of its duties more specifically set forth herein as shall be necessary
or desirable to maintain the status of each REMIC as a REMIC under the REMIC
Provisions (and the Trustee shall assist the Master Servicer and the REMIC
Administrator, to the extent reasonably requested by the Master Servicer and the
REMIC Administrator to do so). The Master Servicer and the REMIC Administrator
shall not knowingly or intentionally take any action, cause the Trust Fund to
take any action or fail to take (or fail to cause to be taken) any action
reasonably within their respective control that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of any
portion of any REMIC formed under the Series Supplement as a REMIC or (ii)
result in the imposition of a tax upon any such REMIC (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, in the absence of an Opinion of Counsel or the
indemnification referred to in this sentence, an "Adverse REMIC Event") unless
the Master Servicer or the REMIC Administrator, as applicable, has received an
Opinion of Counsel (at the expense of the party seeking to take such action or,
if such party fails to pay such expense, and the Master Servicer or the REMIC
Administrator, as applicable, determines that taking such action is in the best
interest of the Trust Fund and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Master Servicer, the REMIC
Administrator or the Trustee) to the effect that the contemplated action will
not, with respect to each REMIC created hereunder, endanger such status or,
unless the Master Servicer, the REMIC Administrator or both, as applicable,
determine in its or their sole discretion to indemnify the Trust Fund against
the imposition of such a tax, result in the imposition of such a tax. Wherever
in this Agreement a contemplated action may not be taken because the timing of
such action might result in the imposition of a tax on the Trust Fund, or may
only be taken pursuant to an Opinion of Counsel that such action would not
impose a tax on the Trust Fund, such action may nonetheless be taken provided
that the indemnity given in the preceding sentence with respect to any taxes
that might be imposed on the Trust Fund has been given and that all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to any REMIC created hereunder
or any related assets thereof, or causing any such REMIC to take any action,
which is
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not expressly permitted under the terms of this Agreement, the Trustee will
consult with the Master Servicer or the REMIC Administrator, as applicable, or
its designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any such REMIC, and the Trustee
shall not take any such action or cause any such REMIC to take any such action
as to which the Master Servicer or the REMIC Administrator, as applicable, has
advised it in writing that an Adverse REMIC Event could occur. The Master
Servicer or the REMIC Administrator, as applicable, may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the expense of the Master Servicer or the REMIC Administrator. At all
times as may be required by the Code, the Master Servicer will to the extent
within its control and the scope of its duties more specifically set forth
herein, maintain substantially all of the assets of each REMIC created hereunder
as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited transactions" of
any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of any such REMIC as defined in Section
860G(c) of the Code, on any contributions to any such REMIC after the Startup
Day therefor pursuant to Section 860G(d) of the Code, or any other tax is
imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Master Servicer, if such tax arises out of
or results from a breach by the Master Servicer of any of its obligations under
this Agreement or the Master Servicer has in its sole discretion determined to
indemnify the Trust Fund against such tax, (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its obligations
under this Article X, or (iii) otherwise against amounts on deposit in the
Custodial Account as provided by Section 3.10 and on the Distribution Date(s)
following such reimbursement the aggregate of such taxes shall be allocated in
reduction of the Accrued Certificate Interest on each Class entitled thereto in
the same manner as if such taxes constituted a Prepayment Interest Shortfall.
(h) The Trustee and the Master Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis or as otherwise may be
required by the REMIC Provisions.
(i) Following the Startup Day, neither the Master Servicer nor the Trustee
shall accept any contributions of assets to any REMIC created hereunder unless
(subject to Section 10.01(f)) the Master Servicer and the Trustee shall have
received an Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in such REMIC will
not cause the REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject the REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(j) Neither the Master Servicer nor the Trustee shall (subject to Section
10.01(f)) enter into any arrangement by which any REMIC created hereunder will
receive a fee or other compensation for services nor permit any such REMIC to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
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(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Principal Balance of each Class of Certificates (other than the Interest Only
Certificates) representing a regular interest in the applicable REMIC and the
Uncertificated Principal Balance of each Uncertificated REMIC Regular Interest
(other than each Uncertificated Class A-V REMIC Regular Interest, if any) and
the rights to the Interest Only Certificates and Uncertificated Class A-V REMIC
Regular Interest would be reduced to zero is the Maturity Date for each such
Certificate and Interest.
(l) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for each REMIC created hereunder.
(m) Neither the Trustee nor the Master Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by deed in
lieu of foreclosure, (ii) the bankruptcy of any REMIC created hereunder, (iii)
the termination of any such REMIC pursuant to Article IX of this Agreement or
(iv) a purchase of Mortgage Loans pursuant to Article II or III of this
Agreement) nor acquire any assets for any such REMIC, nor sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain nor
accept any contributions to any such REMIC after the Closing Date unless it has
received an Opinion of Counsel that such sale, disposition, substitution or
acquisition will not (a) affect adversely the status of such REMIC as a REMIC or
(b) unless the Master Servicer has determined in its sole discretion to
indemnify the Trust Fund against such tax, cause such REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions.
Section 10.02. Master Servicer, REMIC Administrator and Trustee Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the Company, the REMIC
Administrator and the Master Servicer for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Company or the Master Servicer, as a result of a breach of the
Trustee's covenants set forth in Article VIII or this Article X.
(b) The REMIC Administrator agrees to indemnify the Trust Fund, the
Company, the Master Servicer and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the Master Servicer or the Trustee, as a result of
a breach of the REMIC Administrator's covenants set forth in this Article X with
respect to compliance with the REMIC Provisions, including without limitation,
any penalties arising from the Trustee's execution of Tax Returns prepared by
the REMIC Administrator that contain errors or omissions; provided, however,
that such liability will not be imposed to the extent such breach is a result of
an error or omission in information provided to the REMIC Administrator by the
Master Servicer in which case Section 10.02(c) will apply.
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(c) The Master Servicer agrees to indemnify the Trust Fund, the Company,
the REMIC Administrator and the Trustee for any taxes and costs (including,
without limitation, any reasonable attorneys' fees) imposed on or incurred by
the Trust Fund, the Company, the REMIC Administrator or the Trustee, as a result
of a breach of the Master Servicer's covenants set forth in this Article X or in
Article III with respect to compliance with the REMIC Provisions, including
without limitation, any penalties arising from the Trustee's execution of Tax
Returns prepared by the Master Servicer that contain errors or omissions.
Section 10.03. Designation of REMIC(s).
As provided in Section 10.03 of the Series Supplement.
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Article XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement or any Custodial Agreement may be amended from time to
time by the Company, the Master Servicer and the Trustee, without the consent of
any of the Certificateholders:
(i) to cure any ambiguity,
(ii) to correct or supplement any provisions herein or therein, which may be
inconsistent with any other provisions herein or therein or to correct any
error,
(iii)to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or desirable to maintain the qualification of the Trust
Fund as a REMIC at all times that any Certificate is outstanding or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
pursuant to the Code that would be a claim against the Trust Fund, provided
that the Trustee has received an Opinion of Counsel to the effect that (A)
such action is necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax and (B) such
action will not adversely affect in any material respect the interests of
any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Custodial Account
or the Certificate Account or to change the name in which the Custodial
Account is maintained, provided that (A) the Certificate Account Deposit
Date shall in no event be later than the related Distribution Date, (B)
such change shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder and
(C) such change shall not result in a reduction of the rating assigned to
any Class of Certificates below the lower of the then-current rating or the
rating assigned to such Certificates as of the Closing Date, as evidenced
by a letter from each Rating Agency to such effect,
(v) to modify, eliminate or add to the provisions of Section 5.02(f) or any
other provision hereof restricting transfer of the Class R Certificates, by
virtue of their being the "residual interests" in a REMIC, provided that
(A) such change shall not result in reduction of the rating assigned to any
such Class of Certificates below the lower of the then-current rating or
the rating assigned to such Certificates as of the Closing Date, as
evidenced by a letter from each Rating Agency to such effect, and (B) such
change shall not (subject to Section 10.01(f)), as evidenced by an Opinion
of Counsel (at the expense of the party seeking so to modify, eliminate or
add such provisions), cause any REMIC created hereunder or any of the
Certificateholders (other than the transferor) to be subject to a federal
tax caused by a transfer to a Person that is not a Permitted Transferee,
(vi) to make any other provisions with respect to matters or questions
arising under this Agreement or such Custodial Agreement which shall not
be materially
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inconsistent with the provisions of this Agreement, provided that such
action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder
or
(vii) to amend any provision herein or therein that is not
material to any of the Certificateholders.
(b) This Agreement or any Custodial Agreement may also be amended from time
to time by the Company, the Master Servicer and the Trustee with the consent of
the Holders of Certificates evidencing in the aggregate not less than 66% of the
Percentage Interests of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or such Custodial Agreement or of modifying
in any manner the rights of the Holders of Certificates of such Class; provided,
however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate,
(ii) reduce the aforesaid percentage of Certificates of any Class the Holders
of which are required to consent to any such amendment, in any such case
without the consent of the Holders of all Certificates of such Class
then outstanding.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (subject to Section 10.01(f) and at the expense
of the party seeking such amendment) to the effect that such amendment or the
exercise of any power granted to the Master Servicer, the Company or the Trustee
in accordance with such amendment will not result in the imposition of a federal
tax on the Trust Fund or cause any REMIC created under the Series Supplement to
fail to qualify as a REMIC at any time that any Certificate is outstanding.
(d) Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to the Custodian
and each Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(e) The Company shall have the option, in its sole discretion, to obtain
and deliver to the Trustee any corporate guaranty, payment obligation,
irrevocable letter of credit, surety bond, insurance policy or similar
instrument or a reserve fund, or any combination of the foregoing, for the
purpose of protecting the Holders of the Class B Certificates against any or all
Realized Losses or other shortfalls. Any such instrument or fund shall be held
by the Trustee for the benefit of the Class B Certificateholders, but shall not
be and shall not be deemed to be under any circumstances included in the Trust
Fund. To the extent that any such instrument or fund constitutes a reserve fund
for federal income tax purposes, (i) any reserve fund so established
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shall be an outside reserve fund and not an asset of the Trust Fund, (ii) any
such reserve fund shall be owned by the Company, and (iii) amounts transferred
by the Trust Fund to any such reserve fund shall be treated as amounts
distributed by the Trust Fund to the Company or any successor, all within the
meaning of Treasury Regulations Section 1.860G-2(h) as it reads as of the
Cut-off Date. In connection with the provision of any such instrument or fund,
this Agreement and any provision hereof may be modified, added to, deleted or
otherwise amended in any manner that is related or incidental to such instrument
or fund or the establishment or administration thereof, such amendment to be
made by written instrument executed or consented to by the Company but without
the consent of any Certificateholder and without the consent of the Master
Servicer or the Trustee being required unless any such amendment would impose
any additional obligation on, or otherwise adversely affect the interests of the
Senior Certificateholders, the Class M Certificateholders, the Master Servicer
or the Trustee, as applicable; provided that the Company obtains (subject to
Section 10.01(f)) an Opinion of Counsel (which need not be an opinion of
Independent counsel) to the effect that any such amendment will not cause (a)
any federal tax to be imposed on the Trust Fund, including without limitation,
any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of
the Code or on "contributions after the startup date" under Section 860G(d)(1)
of the Code and (b) any REMIC created hereunder to fail to qualify as a REMIC at
any time that any Certificate is outstanding. In the event that the Company
elects to provide such coverage in the form of a limited guaranty provided by
General Motors Acceptance Corporation, the Company may elect that the text of
such amendment to this Agreement shall be substantially in the form attached
hereto as Exhibit K (in which case Residential Funding's Subordinate Certificate
Loss Obligation as described in such exhibit shall be established by Residential
Funding's consent to such amendment) and that the limited guaranty shall be
executed in the form attached hereto as Exhibit L, with such changes as the
Company shall deem to be appropriate; it being understood that the Trustee has
reviewed and approved the content of such forms and that the Trustee's consent
or approval to the use thereof is not required.
Section 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer and at its expense on direction by the Trustee (pursuant to the
request of Holders of Certificates entitled to at least 25% of the Voting
Rights), but only upon direction accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
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Section 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of any of the parties
hereto.
(b) No Certificateholder shall have any right to vote (except as expressly
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
Certificates of any Class evidencing in the aggregate not less than 25% of the
related Percentage Interests of such Class, shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
of any Class shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates of such Class or any other Class, or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the common benefit of Certificateholders of such Class
or all Classes, as the case may be. For the protection and enforcement of the
provisions of this Section 11.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04. Governing Law.
This agreement and the Certificates shall be governed by and construed
in accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
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Section 11.05. Notices.
As provided in Section 11.05 of the Series Supplement.
Section 11.06. Required Notices to Rating Agency and Subservicer.
The Company, the Master Servicer or the Trustee, as applicable, shall
notify each Rating Agency and the Subservicer at such time as it is otherwise
required pursuant to this Agreement to give notice of the occurrence of, any of
the events described in clause (a), (b), (c), (d), (g), (h), (i) or (j) below or
provide a copy to each Rating Agency at such time as otherwise required to be
delivered pursuant to this Agreement of any of the statements described in
clauses (e) and (f) below:
(a) a material change or amendment to this Agreement,
(b) the occurrence of an Event of Default,
(c) the termination or appointment of a successor Master Servicer or Trustee
or a change in the majority ownership of the Trustee,
(d) the filing of any claim under the Master Servicer's blanket fidelity
bond and the errors and omissions insurance policy required by Section
3.12 or the cancellation or modification of coverage under any such
instrument,
(e) the statement required to be delivered to the Holders of each Class of
Certificates pursuant to Section 4.03,
(f) the statements required to be delivered pursuant to Sections 3.18 and 3.19,
(g) a change in the location of the Custodial Account or the Certificate
Account,
(h) the occurrence of any monthly cash flow shortfall to the Holders of any
Class of Certificates resulting from the failure by the Master Servicer
to make an Advance pursuant to Section 4.04,
(i) the occurrence of the Final Distribution Date, and
(j) the repurchase of or substitution for any Mortgage Loan,
provided, however, that with respect to notice of the occurrence of the events
described in clauses (d), (g) or (h) above, the Master Servicer shall provide
prompt written notice to each Rating Agency and the Subservicer of any such
event known to the Master Servicer.
Section 11.07. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or
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terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.08. Supplemental Provisions for Resecuritization.
This Agreement may be supplemented by means of the addition of a
separate Article hereto (a "Supplemental Article") for the purpose of
resecuritizing any of the Certificates issued hereunder, under the following
circumstances. With respect to any Class or Classes of Certificates issued
hereunder, or any portion of any such Class, as to which the Company or any of
its Affiliates (or any designee thereof) is the registered Holder (the
"Resecuritized Certificates"), the Company may deposit such Resecuritized
Certificates into a new REMIC, grantor trust, FASIT or custodial arrangement (a
"Restructuring Vehicle") to be held by the Trustee pursuant to a Supplemental
Article. The instrument adopting such Supplemental Article shall be executed by
the Company, the Master Servicer and the Trustee; provided, that neither the
Master Servicer nor the Trustee shall withhold their consent thereto if their
respective interests would not be materially adversely affected thereby. To the
extent that the terms of the Supplemental Article do not in any way affect any
provisions of this Agreement as to any of the Certificates initially issued
hereunder, the adoption of the Supplemental Article shall not constitute an
"amendment" of this Agreement.
Each Supplemental Article shall set forth all necessary provisions
relating to the holding of the Resecuritized Certificates by the Trustee, the
establishment of the Restructuring Vehicle, the issuing of various classes of
new certificates by the Restructuring Vehicle and the distributions to be made
thereon, and any other provisions necessary for the purposes thereof. In
connection with each Supplemental Article, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that (i) the Restructuring Vehicle
will qualify as a REMIC, grantor trust, FASIT or other entity not subject to
taxation for federal income tax purposes and (ii) the adoption of the
Supplemental Article will not endanger the status of the Trust Fund as a REMIC
or (subject to Section 10.01(f)) result in the imposition of a tax upon the
Trust Fund (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC as set forth in Section 860G(d) of the Code).
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EXHIBIT A
FORM OF CLASS A CERTIFICATE, [PRINCIPAL ONLY/CLASS A-P] CERTIFICATE AND
[INTEREST ONLY/CLASS A-V] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________ __, ____.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT [___]% OF THE PREPAYMENT SPEED
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), [AND ASSUMING A CONSTANT
PASS-THROUGH RATE EQUAL TO THE INITIAL PASS-THROUGH RATE,] THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $[ ] OF OID PER [$1,000] [$100,000] OF [INITIAL
CERTIFICATE PRINCIPAL BALANCE] [NOTIONAL AMOUNT], THE YIELD TO MATURITY IS [ ]%
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$[ ] PER [$1,000] [$100,000] OF [INITIAL CERTIFICATE PRINCIPAL BALANCE]
[NOTIONAL AMOUNT], COMPUTED USING THE APPROXIMATE METHOD. NO REPRESENTATION IS
MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT SPEED
ASSUMPTION OR AT ANY OTHER RATE OR AS TO THE CONSTANCY OF THE PASS-THROUGH
RATE.]
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Certificate No. [ %][Variable] Pass-Through Rate
[based on a Notional Amount]
Class A- Senior
Date of Pooling and Servicing [Percentage Interest: %]
Agreement and Cut-off Date:
___________ 1, ____ Aggregate Initial [Certificate Principal
Balance] [[Interest Only/Class A-V] Notional
First Distribution Date: Amount] [Subclass Notional Amount] of the
_________ 25, ____ Class A- Certificates:
Master Servicer: [Initial] [Certificate Principal
Residential Funding Balance] [Interest Only/Class A-V] [Subclass]
Corporation Notional Amount] of this Certificate:
$ ]
Assumed Final
Distribution Date: CUSIP 76110F-
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES ____-___
evidencing a percentage interest in the distributions allocable
to the Class A- Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to
four-family fixed interest rate first mortgage loans formed and
sold by RESIDENTIAL ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust
Fund, and does not represent an obligation of or interest in Residential
Accredit Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC
Mortgage Group, Inc. or any of their affiliates. Neither this Certificate nor
the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Accredit Loans, Inc., the Master
Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates.
None of the Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that ____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate [(obtained by dividing the
[Initial Certificate Principal Balance] [Initial [Interest Only/Class A-V]
Notional Amount] of this Certificate by the aggregate [Initial Certificate
Principal Balance of all Class A- Certificates] [Initial [Interest Only/Class
A-V] Notional Amounts of all [Interest Only/Class A-V] Certificates], both as
specified above)] in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of conventional one- to
four-family fixed interest rate first mortgage loans (the "Mortgage Loans"),
formed and sold by Residential Accredit Loans, Inc. (hereinafter called the
"Company," which term includes any successor entity under the Agreement referred
to below). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as specified
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above (the "Agreement") among the Company, the Master Servicer and
__________________, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount [(of interest
and principal, if any)] required to be distributed to Holders of Class A-
Certificates on such Distribution Date. [The [Interest Only/Class A-V] Notional
Amount of the [Interest Only/Class A-V] Certificates as of any date of
determination is equal to the aggregate Stated Principal Balance of the Mortgage
Loans corresponding to the Uncertificated REMIC Regular Interests represented by
such [Interest Only/Class A-V] Certificates.] [The Subclass Notional Amount of
the [Interest Only/Class A-V]- Certificates as of any date of determination is
equal to the aggregate Stated Principal Balance of the Mortgage Loans
corresponding to the Uncertificated REMIC Regular Interests represented by such
[Interest Only/Class A-V]- Certificates immediately prior to such date.] [The
[Interest Only/Class A-V][- ] Certificates have no Certificate Principal
Balance.]
Distributions on this Certificate will be made either by the
Master Servicer acting on behalf of the Trustee or by a Paying Agent appointed
by the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The [Initial Certificate Principal Balance] [Initial [Interest Only/Class
A-V] Notional Amount] [initial Subclass Notional Amount] of this Certificate is
set forth above.] [The Certificate Principal Balance hereof will be reduced to
the extent of distributions allocable to principal and any Realized Losses
allocable hereto.]
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage
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Loan, such advance is reimbursable to the Master Servicer, to the extent
provided in the Agreement, from related recoveries on such Mortgage Loan or from
other cash that would have been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided,
the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and
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neither the Company, the Master Servicer, the Trustee nor any such agent shall
be affected by notice to the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [_________________________],
as Trustee
By:
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A- Certificates referred to in the
within-mentioned Agreement.
[________________________,]
as Certificate Registrar
By:
Authorized Signatory
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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.
<PAGE>
EXHIBIT B
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
CERTIFICATES [CLASS M-1 CERTIFICATES] [AND CLASS M-2 CERTIFICATES] AS DESCRIBED
IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF
APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO
THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________ __, ____.
ASSUMING THAT THE MORTGAGE LOANS PREPAY AT [___]% OF THE PREPAYMENT SPEED
ASSUMPTION (AS DESCRIBED IN THE PROSPECTUS SUPPLEMENT), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $[____] OF OID PER $[1,000] OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, THE YIELD TO MATURITY IS [_____]% AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $[____] PER $[1,000]
OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE APPROXIMATE METHOD.
NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE PREPAYMENT SPEED ASSUMPTION OR AT ANY OTHER RATE.
No transfer of this Class M Certificate will be made unless the Trustee
has received either (A) an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee, the Company and the Master Servicer with
respect to the permissibility of such transfer under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and Section 4975 of the Code
and stating, among other things, that the transferee's acquisition of THIS
Certificate will not constitute or result in a non-exempt prohibited transaction
<PAGE>
under Section 406 of ERISA or Section 4975 of the Code or (B) a representation
letter, in the form described IN the Agreement, either stating that the
transferee is not an employee benefit or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code (a "Plan"), or any
other person (including an investment manager, a named fiduciary or a trustee of
any Plan) acting, directly or indirectly, on behalf of or purchasing any
Certificate with "plan assets" of any Plan (a "plan investor"), or stating that
(I) the transferee is an insurance company, (II) the source of funds to be used
by it to purchase the Certificate is an "insurance company general account"
(within the meaning of Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60), and (iii) the CONDITIONS SET FORTH IN SECTIONS I AND
III OF PTCE 95-60 HAVE BEEN SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE
(B), A "cOMPLYING INSURANCE COMPANY").
NOTWITHSTANDING THE ABOVE, WITH RESPECT TO THE TRANSFER OF THIS
CERTIFICATE TO A DEPOSITORY OR ANY SUBSEQUENT TRANSFER OF ANY INTEREST IN THIS
CERTIFICATE FOR SO LONG AS THIS CERTIFICATE IS HELD BY A DEPOSITORY, (I) NEITHER
AN OPINION OF COUNSEL NOR A CERTIFICATION, EACH AS DESCRIBED IN THE FOREGOING
PARAGRAPH, SHALL BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL APPLY:
1. Any Transferee of this Certificate will be deemed to have
represented by virtue of its purchase or holding of this Certificate (or
interest herein) that either (a) such Transferee is not a Plan Investor
or (b) SUCH TRANSFEREE IS a Complying Insurance Company; and
2. If this Certificate (OR ANY INTEREST HEREIN) IS ACQUIRED OR
HELD IN VIOLATION OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, then the
last preceding Transferee that either (i) is not a Plan Investor or (ii)
is a Complying Insurance Company shall be restored, to the extent
permitted by law, to all rights and obligations as Certificate Owner
thereof retroactive to the date of such Transfer of this Certificate.
The Trustee shall be under no liability to any Person for making any
payments due on this Certificate to such preceding Transferee.
Any purported Certificate Owner whose acquisition or holding of this
Certificate (or interest herein) was effected in violation of the restrictions
in Section 5.02(e) of the Pooling and Servicing Agreement shall indemnify and
hold harmless the Company, the Trustee, the Master Servicer, any Subservicer,
and the Trust Fund from and against any and all liabilities, claims, costs or
expenses
B-2
<PAGE>
incurred by such parties as a result of such acquisition or holding.
Certificate No. [ ]% Pass-Through Rate
Class M- Subordinate Aggregate Certificate
Principal Balance
Date of Pooling and Servicing of the Class M Certificates:
Agreement and Cut-off Date: $
___________ 1, ____
Initial Certificate Principal
First Distribution Date: Balance of this Certificate:
_________ 25, ____ $
Master Servicer: CUSIP: 76110F-
Residential Funding Corporation
Assumed Final Distribution Date:
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE,
SERIES ____-___
evidencing a percentage interest in any distributions allocable to the
Class M- Certificates with respect to the Trust Fund consisting
primarily of a pool of conventional one- to four-family fixed interest
rate first mortgage loans formed and sold by RESIDENTIAL ACCREDIT LOANS,
INC.
This Certificate is payable solely from the assets of the Trust
Fund, and does not represent an obligation of or interest in Residential
Accredit Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC
Mortgage Group, Inc. or any of their affiliates. Neither this Certificate nor
the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Accredit Loans, Inc., the Master
Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates.
None of the Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that _______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Certificate Principal Balance of this Certificate by the aggregate Certificate
Principal Balance of all Class M- Certificates, both as specified above) in
certain distributions with respect to a Trust Fund consisting primarily of a
pool of conventional one- to four-family fixed interest rate first mortgage
loans (the "Mortgage Loans"), formed and sold by Residential Accredit Loans,
Inc. (hereinafter called the "Company," which term includes any successor entity
under the Agreement referred to below). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as specified above (the "Agreement") among
the Company, the Master
B-3
<PAGE>
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 M-
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the
Master Servicer acting on behalf of the Trustee or by a Paying Agent appointed
by the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The Initial Certificate Principal Balance of this Certificate is set forth
above. The Certificate Principal Balance hereof will be reduced to the extent of
the distributions allocable to principal and any Realized Losses allocable
hereto.
As described above, no transfer of this Class M Certificate will
be made unless (i) the Trustee has received either an opinion of counsel or a
representation letter, each as described in the Agreement, relating to the
permissibility of such transfer under ERISA and Section 4975 of the Code, or
(ii) this Certificate is held by a Depository, in which case the Transferee will
be deemed to have made representations relating to the permissibility of such
transfer under ERISA and Section 4975 of the Code, as described in Section
5.02(e) of the Agreement. In addition, any purported Certificate Owner whose
acquisition or holding of this Certificate (or interest herein) was effected in
violation of the restrictions in Section 5.02(e) of the Agreement shall
indemnify and hold harmless the Company, the Trustee, the Master Servicer, any
Subservicer, and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
B-4
<PAGE>
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided,
the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
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.
B-5
<PAGE>
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [____________________________],
as Trustee
By:___________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M- Certificates referred to in the
within-mentioned Agreement.
[_________________________],
as Certificate Registrar
By:________________________
Authorized Signatory
B-7
<PAGE>
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.
<PAGE>
EXHIBIT C
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND CLASS M CERTIFICATES [AND CLASS B-1] [CLASS B-2 CERTIFICATES] DESCRIBED IN
THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE COMPANY AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS ___________ __, ____. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT 100% OF THE PREPAYMENT SPEED ASSUMPTION (AS DESCRIBED IN THE
PROSPECTUS SUPPLEMENT), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $[ ]
OF OID PER $[1,000] OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO
MATURITY IS [ ]% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $[ ] PER $[1,000] OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE APPROXIMATE METHOD. NO REPRESENTATION IS MADE THAT
THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT SPEED
ASSUMPTION OR AT ANY OTHER RATE.
<PAGE>
Certificate No. [ ]% Pass-Through Rate
Class B- Subordinate Aggregate Certificate
Principal Balance
Date of Pooling and Servicing of the Class B-
Agreement and Cut-off Date: Certificates as of
___________ 1, ____ the Cut-off Date:
$
First Distribution Date:
_________ 25, ____ Initial Certificate Principal
Balance of this Certificate:
Master Servicer: $
Residential Funding Corporation
Assumed Final Distribution Date:
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE,
SERIES ____-___
evidencing a percentage interest in any distributions allocable to the
Class B- Certificates with respect to the Trust Fund consisting primarily
of a pool of conventional one- to four-family fixed interest rate first
mortgage loans formed and sold by RESIDENTIAL ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust
Fund, and does not represent an obligation of or interest in Residential
Accredit Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC
Mortgage Group, Inc. or any of their affiliates. Neither this Certificate nor
the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Accredit Loans, Inc., the Master
Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates.
None of the Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that Residential Accredit Loans, Inc. is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the Certificate Principal Balance of this Certificate by
the aggregate Certificate Principal Balance of all Class B- Certificates, both
as specified above) in certain distributions with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family fixed
interest rate first mortgage loans (the "Mortgage Loans"), formed and sold by
Residential Accredit Loans, Inc. (hereinafter called the "Company," which term
includes any successor entity under the Agreement referred to below). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as
specified above (the "Agreement") among the Company, the Master Servicer and
__________________, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the
C-2
<PAGE>
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if such
last day is not a Business Day, the Business Day immediately preceding such last
day) of the month next preceding the month of such distribution (the "Record
Date"), from the Available Distribution Amount in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount (of
interest and principal, if any) required to be distributed to Holders of Class B
Certificates on such Distribution Date.
Distributions on this Certificate will be made either by the
Master Servicer acting on behalf of the Trustee or by a Paying Agent appointed
by the Trustee in immediately available funds (by wire transfer or otherwise)
for the account of the Person entitled thereto if such Person shall have so
notified the Master Servicer or such Paying Agent, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The Initial Certificate Principal Balance of this Certificate is set forth
above. The Certificate Principal Balance hereof will be reduced to the extent of
the distributions allocable to principal and any Realized Losses allocable
hereto.
No transfer of this Class B Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is to be
made, (i) the Trustee or the Company may require an opinion of counsel
acceptable to and in form and substance satisfactory to the Trustee and the
Company that such transfer is exempt (describing the applicable exemption and
the basis therefor) from or is being made pursuant to the registration
requirements of the Securities Act of 1933, as amended, and of any applicable
statute of any state and (ii) the transferee shall execute an investment letter
in the form described by the Agreement. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee, the
Company, the Master Servicer and the Certificate Registrar acting on behalf of
the Trustee against any liability that may result if the transfer is not so
exempt or is not made in accordance with such Federal and state laws. In
connection with any such transfer, the Trustee will also require either (i) an
opinion of counsel acceptable to and in form and substance satisfactory to the
Trustee, the Company and the Master Servicer with respect to the permissibility
of such transfer under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and Section 4975 of the Internal Revenue Code (the "Code")
and stating, among other things, that the transferee's acquisition of a Class B
Certificate will not constitute or result in a non-exempt prohibited transaction
under Section 406
C-3
<PAGE>
of ERISA or Section 4975 of the Code or (ii) a representation letter, in the
form as described by the Agreement, either stating that the transferee is not an
employee benefit or other plan subject to the prohibited transaction provisions
of ERISA or Section 4975 of the Code (a "Plan"), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with "plan
assets" of any Plan, or stating that the transferee is an insurance company, the
source of funds to be used by it to purchase the Certificate is an "insurance
company general account" (within the meaning of Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60), and the purchase is being made in
reliance upon the availability of the exemptive relief afforded under Sections I
and III of PTCE 95-60.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided,
the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly
C-4
<PAGE>
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [_____________________________],
as Trustee
By:___________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M- Certificates referred to in the
within-mentioned Agreement.
[________________________________],
as Certificate Registrar
By:__________________________
Authorized Signatory
C-6
<PAGE>
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.
<PAGE>
EXHIBIT D
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(e) OF THE AGREEMENT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE COMPANY AND THE
TRUSTEE THAT THE PURCHASE OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE MASTER SERVICER, THE COMPANY OR THE TRUSTEE TO ANY
OBLIGATION OR LIABILITY IN ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER
AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE
OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR THE FHLMC, 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
<PAGE>
THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT OF A
DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY
ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH.
Certificate No. [ ]% Pass-Through Rate
Class R Senior Aggregate Initial Certificate
Principal Balance of the
Date of Pooling and Servicing Class R Certificates:
Agreement and Cut-off Date: $100.00
___________ 1, ____
Initial Certificate Principal
First Distribution Date: Balance of this Certificate:
_________ 25, ____ $___________________________
Master Servicer: Percentage Interest:
Residential Funding Corporation ____________________________%
Assumed Final Distribution Date: CUSIP 76110F-
___________ 25, ____
MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATE,
SERIES ____-___
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to the Trust Fund consisting primarily
of a pool of conventional one- to four-family fixed interest rate first
mortgage loans formed and sold by RESIDENTIAL ACCREDIT LOANS, INC.
This Certificate is payable solely from the assets of the Trust
Fund, and does not represent an obligation of or interest in Residential
Accredit Loans, Inc., the Master Servicer, the Trustee referred to below or GMAC
Mortgage Group, Inc. or any of their affiliates. Neither this Certificate nor
the underlying Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality or by Residential Accredit Loans, Inc., the Master
Servicer, the Trustee or GMAC Mortgage Group, Inc. or any of their affiliates.
None of the Company, the Master Servicer, GMAC Mortgage Group, Inc. or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
D-2
<PAGE>
This certifies that _________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class R Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of a pool of conventional one- to four-family fixed
interest rate first mortgage loans (the "Mortgage Loans"), formed and sold by
Residential Accredit Loans, Inc. (hereinafter called the "Company," which term
includes any successor entity under the Agreement referred to below). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as
specified above (the "Agreement") among the Company, the Master Servicer and
__________________, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last day (or if such last day is not
a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount (of interest
and principal, if any) required to be distributed to Holders of Class R
Certificates on such Distribution Date.
Each Holder of this Certificate will be deemed to have agreed to
be bound by the restrictions set forth in the Agreement to the effect that (i)
each person holding or acquiring any Ownership Interest in this Certificate must
be a United States Person and a Permitted Transferee, (ii) the transfer of any
Ownership Interest in this Certificate will be conditioned upon the delivery to
the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Company will have the right, in its
sole discretion and without notice to the Holder of this Certificate, to sell
this Certificate to a purchaser selected by the Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this
Certificate will be made after due notice of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency appointed by the Trustee for that purpose in the City and State of New
York. The Initial Certificate Principal Balance of this Certificate is set forth
above. The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal and any Realized Losses allocable hereto.
Notwithstanding the reduction of the Certificate Principal Balance hereof to
zero, this Certificate will remain outstanding under the
D-3
<PAGE>
Agreement and the Holder hereof may have additional obligations with respect to
this Certificate, including tax liabilities, and may be entitled to certain
additional distributions hereon, in accordance with the terms and provisions of
the Agreement.
No transfer of this Class R Certificate will be made unless the
Trustee has received either (i) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee, the Company and the Master Servicer
with respect to the permissibility of such transfer under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and Section 4975
of the Internal Revenue Code (the "Code") and stating, among other things, that
the transferee's acquisition of a Class R Certificate will not constitute or
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or (ii) a representation letter, in the form as
described by the Agreement, stating that the transferee is not an employee
benefit or other plan subject to the prohibited transaction provisions of ERISA
or Section 4975 of the Code (a "Plan"), or any other person (including an
investment manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan.
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Asset-Backed
Pass-Through Certificates of the Series specified hereon (herein collectively
called the "Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event Master Servicer
funds are advanced with respect to any Mortgage Loan, such advance is
reimbursable to the Master Servicer, to the extent provided in the Agreement,
from related recoveries on such Mortgage Loan or from other cash that would have
been distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Custodial
Account and/or the Certificate Account created for the benefit of
Certificateholders may be made by the Master Servicer from time to time for
purposes other than distributions to Certificateholders, such purposes including
without limitation reimbursement to the Company and the Master Servicer of
advances made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided,
the amendment of the Agreement and the modification of the rights and
obligations of the Company, the Master Servicer and the Trustee and the rights
of the Certificateholders under the Agreement at any time by the Company, the
Master Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66% of the Percentage Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
D-4
<PAGE>
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Trustee in the City and
State of New York, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same Class and aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate
Registrar and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Company, the
Master Servicer, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Certificate shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations created by the Agreement in respect of the
Certificates and the Trust Fund created thereby shall terminate upon the payment
to Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the maturity or other liquidation of the last Mortgage Loan subject thereto
or the disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and (ii) the purchase by the Master Servicer or
the Company from the Trust Fund of all remaining Mortgage Loans and all property
acquired in respect of such Mortgage Loans, thereby effecting early retirement
of the Certificates. The Agreement permits, but does not require, the Master
Servicer or the Company to (i) purchase at a price determined as provided in the
Agreement all remaining Mortgage Loans and all property acquired in respect of
any Mortgage Loan or (ii) purchase in whole, but not in part, all of the
Certificates from the Holders thereof; provided, that any such option may only
be exercised if the Pool Stated Principal Balance of the Mortgage Loans as of
the Distribution Date upon which the proceeds of any such purchase are
distributed is less than ten percent of the Cut-off Date Principal Balance of
the Mortgage Loans.
D-5
<PAGE>
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purpose have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
D-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: [____________________________],
as Trustee
By:__________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
[_______________________________],
as Certificate Registrar
By:__________________________
Authorized Signatory
D-7
<PAGE>
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.
<PAGE>
EXHIBIT E
FORM OF SELLER/SERVICER CONTRACT
This Seller/Servicer Contract (as may be amended, supplemented or
otherwise modified from time to time, this "Contract") is made this day of , 19
, by and between Residential Funding Corporation, its successors and assigns
("Residential Funding") and (the "Seller/Servicer," and, together with
Residential Funding, the "parties" and each, individually, a "party").
WHEREAS, the Seller/Servicer desires to sell Loans to, and/or service
Loans for, Residential Funding, and Residential Funding desires to purchase
Loans from the Seller/Servicer and/or have the Seller/Servicer service various
of its Loans, pursuant to the terms of this Contract and the Residential Funding
Seller and Servicer Guides incorporated herein by reference, as amended,
supplemented or otherwise modified, from time to time (together, the "Guides").
NOW, THEREFORE, in consideration of the premises, and the terms,
conditions and agreements set forth below, the parties agree as follows:
1. Incorporation of Guides by Reference.
The Seller/Servicer acknowledges that it has received and read the
Guides. All provisions of the Guides are incorporated by reference into and made
a part of this Contract, and shall be binding upon the parties; provided,
however, that the Seller/Servicer shall be entitled to sell Loans to and/or
service Loans for Residential Funding only if and for so long as it shall have
been authorized to do so by Residential Funding in writing. Specific reference
in this Contract to particular provisions of the Guides and not to other
provisions does not mean that those provisions of the Guides not specifically
cited in this Contract are not applicable. All terms used herein shall have the
same meanings as such terms have in the Guides, unless the context clearly
requires otherwise.
2. Amendments.
This Contract may not be amended or modified orally, and no provision of
this Contract may be waived or amended except in writing signed by the party
against whom enforcement is sought. Such a written waiver or amendment must
expressly reference this Contract. However, by their terms, the Guides may be
amended or supplemented by Residential Funding from time to time. Any such
amendment(s) to the Guides shall be binding upon the parties hereto.
3. Representations and Warranties.
a. Reciprocal Representations and Warranties.
The Seller/Servicer and Residential Funding each represents and
warrants to the other that as of the date of this Contract:
<PAGE>
(1) Each party is duly organized, validly existing, and in good standing under
the laws of its jurisdiction of organization, is qualified, if necessary,
to do business and in good standing in each jurisdiction in which it is
required to be so qualified, and has the requisite power and authority to
enter into this Contract and all other agreements which are contemplated by
this Contract and to carry out its obligations hereunder and under the
Guides and under such other agreements.
(2) This Contract has been duly authorized, executed and delivered by each
party and constitutes a valid and legally binding agreement of each party
enforceable in accordance with its terms.
(3) There is no action, proceeding or investigation pending or threatened, and
no basis therefor is known to either party, that could affect the validity
or prospective validity of this Contract.
(4) Insofar as its capacity to carry out any obligation under this Contract is
concerned, neither party is in violation of any charter, articles of
incorporation, bylaws, mortgage, indenture, indebtedness, agreement,
instrument, judgment, decree, order, statute, rule or regulation and none
of the foregoing adversely affects its capacity to fulfill any of its
obligations under this Contract. Its execution of, and performance pursuant
to, this Contract will not result in a violation of any of the foregoing.
b. Seller/Servicer's Representations, Warranties and Covenants.
In addition to the representations, warranties and covenants made
by the Seller/Servicer pursuant to subparagraph (a) of this
paragraph 3, the Seller/Servicer makes the representations,
warranties and covenants set forth in the Guides and, upon
request, agrees to deliver to Residential Funding the certified
Resolution of Board of Directors which authorizes the execution
and delivery of this Contract.
4. Remedies of Residential Funding.
If an Event of Seller Default or an Event of Servicer Default shall
occur, Residential Funding may, at its option, exercise one or more of those
remedies set forth in the Guides.
5. Seller/Servicer's Status as Independent Contractor.
At no time shall the Seller/Servicer represent that it is acting as an
agent of Residential Funding. The Seller/Servicer shall, at all times, act as an
independent contractor.
6. Prior Agreements Superseded.
This Contract restates, amends and supersedes any and all prior Seller
Contracts or Servicer Contracts between the parties except that any subservicing
agreement executed by the Seller/Servicer in connection with any loan-security
exchange transaction shall not be affected.
E-2
<PAGE>
7. Assignment.
This Contract may not be assigned or transferred, in whole or in part,
by the Seller/Servicer without the prior written consent of Residential Funding.
Residential Funding may sell, assign, convey, hypothecate, pledge or in any
other way transfer, in whole or in part, without restriction, its rights under
this Contract and the Guides with respect to any Commitment or Loan.
8. Notices.
All notices, requests, demands or other communications that are to be
given under this Contract shall be in writing, addressed to the appropriate
parties and sent by telefacsimile or by overnight courier or by United States
mail, postage prepaid, to the addresses and telefacsimile numbers specified
below. However, another name, address and/or telefacsimile number may be
substituted by the Seller/Servicer pursuant to the requirements of this
paragraph 8, or Residential Funding pursuant to an amendment to the Guides.
If to Residential Funding, notices must be sent to the appropriate address or
telefacsimile number specified in the Guides.
If to the Seller/Servicer, notice must be sent to:
____________________________________________________
____________________________________________________
Attention:__________________________________________
Telefacsimile Number: (_____ ) _____ -___________
9. Jurisdiction and Venue.
Each of the parties irrevocably submits to the jurisdiction of any state
or federal court located in Hennepin County, Minnesota, over any action, suit or
proceeding to enforce or defend any right under this Contract or otherwise
arising from any loan sale or servicing relationship existing in connection with
this Contract, and each of the parties irrevocably agrees that all claims in
respect of any such action or proceeding may be heard or determined in such
state or federal court. Each of the parties irrevocably waives the defense of an
inconvenient forum to the maintenance of any such action or proceeding and any
other substantive or procedural rights or remedies it may have with respect to
the maintenance of any such action or proceeding in any such forum. Each of the
parties agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law. Each of the parties further agrees not
to institute any legal actions or proceedings against the other party or any
director, officer, employee, attorney, agent or property of the other party,
arising out of or relating to this Contract in any court other than as
hereinabove specified in this paragraph 9.
10. Miscellaneous.
E-3
<PAGE>
This Contract, including all documents incorporated by reference herein,
constitutes the entire understanding between the parties hereto and supersedes
all other agreements, covenants, representations, warranties, understandings and
communications between the parties, whether written or oral, with respect to the
transactions contemplated by this Contract. All paragraph headings contained
herein are for convenience only and shall not be construed as part of this
Contract. Any provision of this Contract that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction, and, to this end, the provisions hereof are severable. This
Contract shall be governed by, and construed and enforced in accordance with,
applicable federal laws and the laws of the State of Minnesota.
` E-4
<PAGE>
IN WITNESS WHEREOF, the duly authorized officers of the Seller/Servicer
and Residential Funding have executed this Seller/Servicer Contract as of the
date first above written.
ATTEST: SELLER/SERVICER
[Corporate Seal]
(Name of Seller/Servicer)
By:_____________________ By:__________________________
(Signature) (Signature)
By:_____________________ By:__________________________
(Typed Name) (Typed Name)
Title:__________________ Title:_______________________
======================================= =======================================
ATTEST: RESIDENTIAL FUNDING CORPORATION
[Corporate Seal]
By:_____________________ By:__________________________
(Signature) (Signature)
By:_____________________ By:__________________________
(Typed Name) (Typed Name)
Title:__________________ Title:_______________________
E-5
<PAGE>
EXHIBIT F
FORMS OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
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:
<PAGE>
EXHIBIT G-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or beneficial owner
of the Mortgage Asset-Backed Pass-Through Certificates, Series ____-___, Class R
(the "Owner")), a [savings institution] [corporation] duly organized and
existing under the laws of [the State of ] [the United States], on behalf of
which he makes this affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified organization" or an
electing large partnership as of [date of transfer] within the meaning of
Sections 860E(e)(5) and 775, respectively, of the Internal Revenue Code of 1986,
as amended (the "Code") or an electing large partnership under Section 775(a) of
the Code, (ii) will endeavor to remain other than a disqualified organization
for so long as it retains its ownership interest in the Class R Certificates,
and (iii) is acquiring the Class R Certificates for its own account or for the
account of another Owner from which it has received an affidavit and agreement
in substantially the same form as this affidavit and agreement. (For this
purpose, a "disqualified organization" means an electing large partnership under
Section 775 of the Code, the United States, any state or political subdivision
thereof, any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity) or any foreign
government, international organization or any agency or instrumentality of such
foreign government or organization, any rural electric or telephone cooperative,
or any organization (other than certain farmers' cooperatives) that is generally
exempt from federal income tax unless such organization is subject to the tax on
unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on transfers of
Class R Certificates to disqualified organizations or electing large
partnerships, under the Code, that applies to all transfers of Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
(or, with respect to transfers to electing large partnerships, on each such
partnership), or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a disqualified organization, on the agent;
(iii) that the person (other than with respect to transfers to electing large
partnerships) otherwise liable for the tax shall be relieved of liability for
the tax if the transferee furnishes to such person an affidavit that the
transferee is not a disqualified organization and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Class R Certificates may be "noneconomic residual interests" within the
meaning of Treasury regulations promulgated pursuant to the Code and that the
transferor of a noneconomic residual interest will remain liable
<PAGE>
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 if at any time during the taxable year of
the pass-through entity a disqualified organization is the record holder of an
interest in such entity. (For this purpose, a "pass through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof (except in the case of a
partnership, to the extent provided in Treasury regulations), 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.
6. 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.
7. 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.
8. 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.
9. The Owner's Taxpayer Identification Number is .
10. 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.
11. 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.
12. 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
G-1-2
<PAGE>
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.
13. 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.
14. The Purchaser is not an employee benefit plan or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or an investment manager, named fiduciary or a
trustee of any such plan, or any other Person acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any such plan.
<PAGE>
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 , 199 .
[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______,199__ .
______________________________
NOTARY PUBLIC
COUNTY OF_____________________
STATE OF______________________
My Commission expires the ___
day of , 19__.
G-1-4
<PAGE>
EXHIBIT G-2
FORM OF TRANSFEROR CERTIFICATE
, 19
Residential Accredit Loans, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, Minnesota 55437
Attention: Residential Funding Corporation Series ____-___
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___, Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Seller") to ____________________ (the "Purchaser") of $
Initial Certificate Principal Balance of Mortgage Asset-Backed Pass-Through
Certificates, Series ____-___, Class R (the "Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of ___________ 1, ____ among Residential Accredit Loans,
Inc., as seller (the "Company"), Residential Funding Corporation, as master
servicer, 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:
15. 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.
16. The Seller understands that the Purchaser has delivered to the Trustee and
the Master Servicer a transfer affidavit and agreement in the form attached to
the Pooling and Servicing Agreement as Exhibit G-1. The Seller does not know or
believe that any representation contained therein is false.
17. 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
<PAGE>
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.
18. 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:______________________
G-2-2
<PAGE>
EXHIBIT H-1
FORM OF INVESTOR REPRESENTATION LETTER
, 19
Residential Accredit Loans, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, MN 55437
Residential Funding Corporation
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, MN 55437
Attention: Residential Funding Corporation Series ____-___
RE: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___, [Class B-]
Ladies and Gentlemen:
_________________________ (the "Purchaser") intends to purchase from
_______________________- (the "Seller") $ Initial Certificate Principal Balance
of Mortgage Asset-Backed Pass-Through Certificates, Series ____-___, Class (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of ___________ 1, ____ among
Residential Accredit Loans, Inc., as seller (the "Company"), Residential Funding
Corporation, as master servicer (the "Master Servicer"), and __________________,
as trustee (the "Trustee"). All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Purchaser hereby certifies, represents and warrants to, and covenants with, the
Company, the Trustee and the Master Servicer that:
1. The Purchaser understands that (a) the Certificates have not been and will
not be registered or qualified under the Securities Act of 1933, as amended
(the "Act") or any state securities law, (b) the Company is not required to
so register or qualify the Certificates, (c) the Certificates may be resold
only if registered and qualified pursuant to the provisions of the Act or
any state securities law, or if an exemption from such registration and
qualification is available, (d) the Pooling and Servicing Agreement
contains restrictions regarding
<PAGE>
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 , 19 , 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
H-1-2
<PAGE>
other action, that (as to any of (a) through (e) above) would constitute a
distribution of any Certificate under the Act, that would render the
disposition of any Certificate a violation of Section 5 of the Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the Pooling
and Servicing Agreement.
6. The Purchaser
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any Plan) acting, directly or
indirectly, on behalf of or purchasing any Certificate with "plan assets"
of any Plan within the meaning of the Department of Labor ("DOL")
regulation at 29 C.F.R. ss.2510.3-101; or
(b) is an insurance company, the source of funds to be used by it to purchase
the Certificates is an "insurance company general account" (within the
meaning of DOL Prohibited Transaction Class Exemption ("PTCE") 95-60), and
the purchase is being made in reliance upon the availability of the
exemptive relief afforded under Sections I and III of PTCE 95-60.
In addition, the Purchaser hereby certifies, represents and warrants to,
and covenants with, the Company, the Trustee and the Master Servicer that the
Purchaser will not transfer such Certificates to any Plan or person unless such
Plan or person meets the requirements set forth in either 6(a) or (b) above.
Very truly yours,
By:
Name:
Title:
H-1-3
<PAGE>
EXHIBIT H-2
FORM OF ERISA REPRESENTATION LETTER
, 199
Residential Funding Corporation
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, Minnesota 55437
Residential Accredit Loans, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, Minnesota 55437
Attention: Residential Funding Corporation Series ____-___
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___, Class M-___
Ladies and Gentlemen:
____________________(the "Purchaser") intends to purchase from
___________________-- (the "Seller") $____________________ Initial Certificate
Principal Balance of Mortgage Asset-Backed Pass-Through Certificates, Series
____-___, Class M- (the "Certificates"), issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
___________ 1, ____, among Residential Accredit Loans, Inc., as seller (the
"Company"), Residential Funding Corporation, as master servicer (the "Master
Servicer") and __________________, as (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 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 (a "Plan"), or any other person (including
an investment manager, a named fiduciary or a trustee of any Plan) acting,
directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan within the meaning of the Department of Labor
("DOL") regulation at 29 C.F.R. ss.2510.3-101; or
<PAGE>
(b) The Purchaser is an insurance company, the source of funds to be used by it
to purchase the Certificates is an "insurance company general account"
(within the meaning of DOL Prohibited Transaction Class Exemption ("PTCE")
95-60), ), and the conditions set forth 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 Company, the Trustee and the Master Servicer that the
Purchaser will not transfer such Certificates to any Plan or person unless such
Plan or person meets the requirements set forth in either (a) or (b) above.
Very truly yours,
___________________________
By:_________________________
Name:_______________________
Title:______________________
H-2-2
<PAGE>
EXHIBIT H-3
FORM OF ERISA LEGEND
Each beneficial owner of a book-entry Class M Certificate (or any
interest therein) shall be deemed to have represented, by virtue of its
acquisition or holding of such Certificate (or interest therein), that either:
(a) it is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (a "Plan"), or any other
person (including an investment manager, a named fiduciary or a trustee
of any Plan) acting, directly or indirectly, on behalf of or purchasing
any Certificate with "plan assets" of any Plan; or
(b) (i) the transferee is an insurance company, (ii) the source
of funds to be used by it to purchase the Certificate is an "insurance
company general account" (within the meaning of Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60), and (iii) the
conditions set forth in Sections I and III of PTCE 95-60 have been
satisfied.
Any purported beneficial owner of a book-entry Class M Certificate (or
interest therein) to whom either (a) or (b) above does not apply shall indemnify
and hold harmless the Company, the Trustee, the Master Servicer, any
Subservicer, and the Trust Fund from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of its
acquisition or holding of such Certificate.
<PAGE>
EXHIBIT I
FORM OF TRANSFEROR REPRESENTATION LETTER
, 19
Residential Accredit Loans, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, MN 55437
Attention: Residential Funding Corporation Series ____-___
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___, [Class B-___]
Ladies and Gentlemen:
In connection with the sale by _________ (the "Seller") to ________________
(the "Purchaser") of $_______________- Initial Certificate Principal Balance of
Mortgage Asset-Backed Pass-Through Certificates, Series ____-___, Class (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of ___________ 1, ____ among
Residential Accredit Loans, Inc., as seller (the "Company"), Residential Funding
Corporation, as master servicer, and __________________, as trustee (the
"Trustee"). The Seller hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, or (e) has taken any other action, that (as to any of (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933 (the "Act"), that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities law, or
that would require registration or qualification pursuant thereto. The Seller
will not act, in any manner set forth in the foregoing sentence with respect to
any Certificate. The Seller has not and will not sell or otherwise transfer any
of the Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
<PAGE>
Very truly yours,
___________________________
(Seller)
By:_________________________
Name:_______________________
Title:______________________
I-2
<PAGE>
EXHIBIT J
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
The undersigned seller, as registered holder (the "Seller"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby
certifies the following facts: Neither the Seller nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 1933 Act.
2. The Buyer warrants and represents to, and covenants with, the Seller, the
Trustee and the Master Servicer (as defined in the Pooling and Servicing
Agreement (the "Agreement"), dated as of ___________ 1, ____ among Residential
Funding Corporation as Master Servicer, Residential Accredit Loans, Inc. as
depositor pursuant to Section 5.02 of the Agreement and __________________, as
trustee, as follows:
(a) The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
(b) The Buyer considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of
investment in the Rule 144A Securities.
<PAGE>
(c) The Buyer has been furnished with all information regarding the Rule 144A
Securities that it has requested from the Seller, the Trustee or the
Servicer.
(d) Neither the Buyer nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any
interest in the Rule 144A Securities or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the
Rule 144A Securities or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising or
in any other manner, or taken any other action, that would constitute a
distribution of the Rule 144A Securities under the 1933 Act or that would
render the disposition of the Rule 144A Securities a violation of Section 5
of the 1933 Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the 1933 Act and has completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. The
Buyer is aware that the sale to it is being made in reliance on Rule 144A.
The Buyer is acquiring the Rule 144A Securities for its own account or the
accounts of other qualified institutional buyers, understands that such
Rule 144A Securities may be resold, pledged or transferred only (i) to a
person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the 1933 Act.
[3. The Buyer
(a) is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (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. ss. 2510.3-101; or
(b) is an insurance company, the source of funds to be used by it to
purchase the Certificates is an "insurance company general account"
(within the meaning of DOL Prohibited Transaction Class Exemption
("PTCE") 95-60), and the purchase is being made in reliance upon the
availability of the exemptive relief afforded under Sections I and III
of PTCE 95-60.]
4. This document may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which,
when so executed, shall
J-2
<PAGE>
be deemed to be an original; such counterparts, together, shall constitute
one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this
document as of the date set forth below.
____________________________________ __________________________
Print Name of Seller Print Name of Buyer
By:_________________________________ By:_______________________
Name:____________________________ Name:__________________
Title:___________________________ Title:_________________
Taxpayer Identification Taxpayer Identification:
No._________________________________ No:_______________________
Date:_______________________________ Date:_____________________
J-4
<PAGE>
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $___________in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
- -- Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code.
- -- Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
- -- Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements.
- -- Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
- -- Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency
of a State or territory or the District of Columbia.
J-5
<PAGE>
- -- State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
- -- ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
- -- Investment Adviser. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940.
- -- SBIC. The Buyer is a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
- -- Business Development Company. The Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
- -- Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit
of its employees, or (b) employee benefit plans within the meaning of Title
I of the Employee Retirement Income Security Act of 1974, but is not a
trust fund that includes as participants individual retirement accounts or
H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and understands
that the seller to it and other parties related to the Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Buyer may be in reliance on Rule 144A.
J-6
<PAGE>
______ ______ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that, in
connection with any purchase of securities sold to the Buyer for the account of
a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time is a
"qualified institutional buyer" within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
______________________________
Print Name of Buyer
By:____________________________
Name:_____________________
Title:____________________
Date:__________________________
J-7
<PAGE>
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with
the Rule 144A Investment Representation to which this Certification is attached:
8. As indicated below, the undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
9. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
- -- The Buyer owned $____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
- -- The Buyer is part of a Family of Investment Companies which owned in the
aggregate $ ______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
10. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
11. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
12. The Buyer is familiar with Rule 144A and understands that each of the
parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
J-9
<PAGE>
13. The undersigned will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
_______________________________
Print Name of Buyer
By:____________________________
Name:_____________________
Title:____________________
IF AN ADVISER:
_______________________________
Print Name of Buyer
Date:__________________________
J-10
<PAGE>
EXHIBIT K
[TEXT OF AMENDMENT TO POOLING AND SERVICING
AGREEMENT PURSUANT TO SECTION 11.01(E) FOR A
LIMITED GUARANTY]
ARTICLE XII
Subordinate Certificate Loss Coverage; Limited Guaranty
Section 12.01. Subordinate Certificate Loss Coverage; Limited
Guaranty. (a) Subject to subsection (c) below, prior to the later of the third
Business Day prior to each Distribution Date or the related Determination Date,
the Master Servicer shall determine whether it or any Sub-Servicer will be
entitled to any reimbursement pursuant to Section 4.02(a) on such Distribution
Date for Advances or Sub-Servicer Advances previously made, (which will not be
Advances or Sub-Servicer Advances that were made with respect to delinquencies
which were subsequently determined to be Excess Special Hazard Losses, Excess
Fraud Losses, Excess Bankruptcy Losses or Extraordinary Losses) and, if so, the
Master Servicer shall demand payment from Residential Funding of an amount equal
to the amount of any Advances or Sub-Servicer Advances reimbursed pursuant to
Section 4.02(a), to the extent such Advances or Sub-Servicer Advances have not
been included in the amount of the Realized Loss in the related Mortgage Loan,
and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a).
(b) Subject to subsection (c) below, prior to the later of the
third Business Day prior to each Distribution Date or the related Determination
Date, the Master Servicer shall determine whether any Realized Losses (other
than Excess Special Hazard Losses, Excess Bankruptcy Losses, Excess Fraud Losses
and Extraordinary Losses) will be allocated to the Class B Certificates on such
Distribution Date pursuant to Section 4.05, and, if so, the Master Servicer
shall demand payment from Residential Funding of the amount of such Realized
Loss and shall distribute the same to the Class B Certificateholders in the same
manner as if such amount were to be distributed pursuant to Section 4.02(a);
provided, however, that the amount of such demand in respect of any Distribution
Date shall in no event be greater than the sum of (i) the additional amount of
Accrued Certificate Interest that would have been paid for the Class B
Certificateholders on such Distribution Date had such Realized Loss or Losses
not occurred plus (ii) the amount of the reduction in the Certificate Principal
Balances of the Class B Certificates on such Distribution Date due to such
Realized Loss or Losses. Notwithstanding such payment, such Realized Losses
shall be deemed to have been borne by the Certificateholders for purposes of
Section 4.05. Excess Special Hazard Losses, Excess Fraud Losses, Excess
Bankruptcy Losses and Extraordinary Losses allocated to the Class B Certificates
will not be covered by the Subordinate Certificate Loss Obligation.
(c) Demands for payments pursuant to this Section shall be made
prior to the later of the third Business Day prior to each Distribution Date or
the related Determination Date by the Master Servicer with written notice
thereof to the Trustee. The maximum amount that Residential Funding shall be
required to pay pursuant to this Section on any Distribution Date
<PAGE>
(the "Amount Available") shall be equal to the lesser of (X) minus the sum of
(i) all previous payments made under subsections (a) and (b) hereof and (ii) all
draws under the Limited Guaranty made in lieu of such payments as described
below in subsection (d) and (Y) the then outstanding Certificate Principal
Balances of the Class B Certificates, or such lower amount as may be established
pursuant to Section 12.02. Residential Funding's obligations as described in
this Section are referred to herein as the "Subordinate Certificate Loss
Obligation."
(d) The Trustee will promptly notify General Motors Acceptance
Corporation of any failure of Residential Funding to make any payments hereunder
and shall demand payment pursuant to the limited guaranty (the "Limited
Guaranty"), executed by General Motors Acceptance Corporation, of Residential
Funding's obligation to make payments pursuant to this Section, in an amount
equal to the lesser of (i) the Amount Available and (ii) such required payments,
by delivering to General Motors Acceptance Corporation a written demand for
payment by wire transfer, not later than the second Business Day prior to the
Distribution Date for such month, with a copy to the Master Servicer.
(e) All payments made by Residential Funding pursuant to this
Section or amounts paid under the Limited Guaranty shall be deposited directly
in the Certificate Account, for distribution on the Distribution Date for such
month to the Class B Certificateholders.
(f) The Company shall have the option, in its sole discretion, to
substitute for either or both of the Limited Guaranty or the Subordinate
Certificate Loss Obligation another instrument in the form of a corporate
guaranty, an irrevocable letter of credit, a surety bond, insurance policy or
similar instrument or a reserve fund; provided that (i) the Company obtains
(subject to the provisions of Section 10.01(f) as if the Company was substituted
for the Master Servicer solely for the purposes of such provision) an Opinion of
Counsel (which need not be an opinion of Independent counsel) to the effect that
obtaining such substitute corporate guaranty, irrevocable letter of credit,
surety bond, insurance policy or similar instrument or reserve fund will not
cause either (a) any federal tax to be imposed on the Trust Fund, including
without limitation, any federal tax imposed on "prohibited transactions" under
Section 860(F)(a)(1) of the Code or on "contributions after the startup date"
under Section 860(G)(d)(1) of the Code or (b) the Trust Fund to fail to qualify
as a REMIC at any time that any Certificate is outstanding, and (ii) no such
substitution shall be made unless (A) the substitute Limited Guaranty or
Subordinate Certificate Loss Obligation is for an initial amount not less than
the then current Amount Available and contains provisions that are in all
material respects equivalent to the original Limited Guaranty or Subordinate
Certificate Loss Obligation (including that no portion of the fees,
reimbursements or other obligations under any such instrument will be borne by
the Trust Fund), (B) the long term debt obligations of any obligor of any
substitute Limited Guaranty or Subordinate Certificate Loss Obligation (if not
supported by the Limited Guaranty) shall be rated at least the lesser of (a) the
rating of the long term debt obligations of General Motors Acceptance
Corporation as of the date of issuance of the Limited Guaranty and (b) the
rating of the long term debt obligations of General Motors Acceptance
Corporation at the date of such substitution and (C) the Company obtains written
confirmation from each nationally recognized credit rating agency that rated the
Class B Certificates at the request of the Company that such substitution shall
not lower the rating on the Class B Certificates below the lesser of (a) the
then-current rating assigned to the Class B Certificates by such rating agency
and (b) the original rating assigned to the Class B Certificates by such rating
agency. Any replacement of
K-2
<PAGE>
the Limited Guaranty or Subordinate Certificate Loss Obligation pursuant to this
Section shall be accompanied by a written Opinion of Counsel to the substitute
guarantor or obligor, addressed to the Master Servicer and the Trustee, that
such substitute instrument constitutes a legal, valid and binding obligation of
the substitute guarantor or obligor, enforceable in accordance with its terms,
and concerning such other matters as the Master Servicer and the Trustee shall
reasonably request. Neither the Company, the Master Servicer nor the Trustee
shall be obligated to substitute for or replace the Limited Guaranty or
Subordinate Certificate Loss Obligation under any circumstance.
Section 12.02. Amendments Relating to the Limited Guaranty.
Notwithstanding Sections 11.01 or 12.01: (i) the provisions of this Article XII
may be amended, superseded or deleted, (ii) the Limited Guaranty or Subordinate
Certificate Loss Obligation may be amended, reduced or canceled, and (iii) any
other provision of this Agreement which is related or incidental to the matters
described in this Article XII may be amended in any manner; in each case by
written instrument executed or consented to by the Company and Residential
Funding but without the consent of any Certificateholder and without the consent
of the Master Servicer or the Trustee being required unless any such amendment
would impose any additional obligation on, or otherwise adversely affect the
interests of, the Master Servicer or the Trustee, as applicable; provided that
the Company shall also obtain a letter from each nationally recognized credit
rating agency that rated the Class B Certificates at the request of the Company
to the effect that such amendment, reduction, deletion or cancellation will not
lower the rating on the Class B Certificates below the lesser of (a) the
then-current rating assigned to the Class B Certificates by such rating agency
and (b) the original rating assigned to the Class B Certificates by such rating
agency, unless (A) the Holder of 100% of the Class B Certificates is Residential
Funding or an Affiliate of Residential Funding, or (B) such amendment,
reduction, deletion or cancellation is made in accordance with Section 11.01(e)
and, provided further that the Company obtains (subject to the provisions of
Section 10.01(f) as if the Company was substituted for the Master Servicer
solely for the purposes of such provision), in the case of a material amendment
or supercession (but not a reduction, cancellation or deletion of the Limited
Guaranty or the Subordinate Certificate Loss Obligation), an Opinion of Counsel
(which need not be an opinion of Independent counsel) to the effect that any
such amendment or supercession will not cause either (a) any federal tax to be
imposed on the Trust Fund, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code or
(b) the Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is outstanding. A copy of any such instrument shall be provided to
the Trustee and the Master Servicer together with an Opinion of Counsel that
such amendment complies with this Section 12.02.
K-3
<PAGE>
EXHIBIT L
[FORM OF LIMITED GUARANTY]
LIMITED GUARANTY
RESIDENTIAL ACCREDIT LOANS, INC.
Mortgage Asset-Backed Pass-Through Certificates
Series ____-___
, 199
__________________
__________________
__________________
Attention: Residential Funding Corporation Series ____-___
Ladies and Gentlemen:
WHEREAS, Residential Funding Corporation, a Delaware corporation
("Residential Funding"), an indirect wholly-owned subsidiary of General Motors
Acceptance Corporation, a New York corporation ("GMAC"), plans to incur certain
obligations as described under Section 12.01 of the Pooling and Servicing
Agreement dated as of ___________ 1, ____ (the "Servicing Agreement"), among
Residential Accredit Loans, Inc. (the "Company"), Residential Funding and
__________________ (the "Trustee") as amended by Amendment No. thereto, dated as
of ________________ , with respect to the Mortgage Asset-Backed Pass-Through
Certificates, Series ____-___ (the "Certificates"); and
WHEREAS, pursuant to Section 12.01 of the Servicing Agreement,
Residential Funding agrees to make payments to the Holders of the Class B
Certificates with respect to certain losses on the Mortgage Loans as described
in the Servicing Agreement; and
WHEREAS, GMAC desires to provide certain assurances with respect
to the ability of Residential Funding to secure sufficient funds and faithfully
to perform its Subordinate Certificate Loss Obligation;
NOW THEREFORE, in consideration of the premises herein contained
and certain other good and valuable consideration, the receipt of which is
hereby acknowledged, GMAC agrees as follows:
14. Provision of Funds. (a) GMAC agrees to contribute and deposit in the
Certificate Account on behalf of Residential Funding (or otherwise provide to
Residential Funding, or to cause to be made available to Residential Funding),
either directly or through a subsidiary, in any case prior to the related
Distribution Date, such moneys as may be required by
<PAGE>
Residential Funding to perform its Subordinate Certificate Loss Obligation when
and as the same arises from time to time upon the demand of the Trustee in
accordance with Section 12.01 of the Servicing Agreement.
(b) The agreement set forth in the preceding clause (a) shall be
absolute, irrevocable and unconditional and shall not be affected by the
transfer by GMAC or any other person of all or any part of its or their interest
in Residential Funding, by any insolvency, bankruptcy, dissolution or other
proceeding affecting Residential Funding or any other person, by any defense or
right of counterclaim, set-off or recoupment that GMAC may have against
Residential Funding or any other person or by any other fact or circumstance.
Notwithstanding the foregoing, GMAC's obligations under clause (a) shall
terminate upon the earlier of (x) substitution for this Limited Guaranty
pursuant to Section 12.01(f) of the Servicing Agreement, or (y) the termination
of the Trust Fund pursuant to the Servicing Agreement.
15. Waiver. GMAC hereby waives any failure or delay on the part of Residential
Funding, the Trustee or any other person in asserting or enforcing any rights or
in making any claims or demands hereunder. Any defective or partial exercise of
any such rights shall not preclude any other or further exercise of that or any
other such right. GMAC further waives demand, presentment, notice of default,
protest, notice of acceptance and any other notices with respect to this Limited
Guaranty, including, without limitation, those of action or nonaction on the
part of Residential Funding or the Trustee.
16. Modification, Amendment and Termination. This Limited Guaranty may be
modified, amended or terminated only by the written agreement of GMAC and the
Trustee and only if such modification, amendment or termination is permitted
under Section 12.02 of the Servicing Agreement. The obligations of GMAC under
this Limited Guaranty shall continue and remain in effect so long as the
Servicing Agreement is not modified or amended in any way that might affect the
obligations of GMAC under this Limited Guaranty without the prior written
consent of GMAC.
17. Successor. Except as otherwise expressly provided herein, the guarantee
herein set forth shall be binding upon GMAC and its respective successors.
18. Governing Law. This Limited Guaranty shall be governed by the laws of the
State of New York.
19. Authorization and Reliance. GMAC understands that a copy of this Limited
Guaranty shall be delivered to the Trustee in connection with the execution of
Amendment No. 1 to the Servicing Agreement and GMAC hereby authorizes the
Company and the Trustee to rely on the covenants and agreements set forth
herein.
20. Definitions. Capitalized terms used but not otherwise defined herein shall
have the meaning given them in the Servicing Agreement.
21. Counterparts. This Limited Guaranty may be executed in any number of
counterparts, each of which shall be deemed to be an original and such
counterparts shall constitute but one and the same instrument.
L-2
<PAGE>
IN WITNESS WHEREOF, GMAC has caused this Limited Guaranty to be
executed and delivered by its respective officers thereunto duly authorized as
of the day and year first above written.
GENERAL MOTORS ACCEPTANCE
CORPORATION
By:__________________________
Name:________________________
Title:_______________________
Acknowledged by:
___________________________,
as Trustee
By:_________________________
Name:_______________________
Title:______________________
RESIDENTIAL ACCREDIT LOANS, INC.
By:________________________
Name:______________________
Title:_____________________
L-3
<PAGE>
EXHIBIT M
FORM OF LENDER CERTIFICATION FOR ASSIGNMENT OF MORTGAGE LOAN
, 19
Residential Accredit Loans, Inc.
8400 Normandale Lake Boulevard
Suite 600
Minneapolis, Minnesota 55437
_______________
_______________
_______________
Attention: Residential Funding Corporation Series ____-___
Re: Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___ Assignment of Mortgage Loan
Ladies and Gentlemen:
This letter is delivered to you in connection with the assignment by (the
"Trustee") to __________________ (the "Lender") of _______________ (the
"Mortgage Loan") pursuant to Section 3.13(d) of the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of ___________ 1,
____ among Residential Accredit Loans, Inc., as seller (the "Company"),
Residential Funding Corporation, as master servicer, and the Trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Lender hereby certifies, represents and
warrants to, and covenants with, the Master Servicer and the Trustee that:
(i) the Mortgage Loan is secured by Mortgaged Property located in a jurisdiction
in which an assignment in lieu of satisfaction is required to preserve lien
priority, minimize or avoid mortgage recording taxes or otherwise comply with,
or facilitate a refinancing under, the laws of such jurisdiction;
(ii) the substance of the assignment is, and is intended to be, a refinancing of
such Mortgage Loan and the form of the transaction is solely to comply with, or
facilitate the transaction under, such local laws;
(iii) the Mortgage Loan following the proposed assignment will be modified to
have a rate of interest at least 0.25 percent below or above the rate of
interest on such Mortgage Loan prior to such proposed assignment; and
(iv) such assignment is at the request of the borrower under the related
Mortgage Loan.
<PAGE>
Very truly yours,
_____________________________
(Lender)
By:___________________________
Name:_________________________
Title:________________________
M-2
<PAGE>
EXHIBIT N
FORM OF REQUEST FOR EXCHANGE
[DATE]
________________
________________
________________
Re: Residential Accredit Loans, Inc.,
Mortgage Asset-Backed Pass-Through Certificates,
Series ____-___
Residential Funding Corporation, as the Holder of a ___% Percentage
Interest of the [Interest Only/Class A-V][-1] Certificates, hereby requests the
Trustee to exchange the above-referenced Certificates for the Subclasses
referred to below:
1. [Interest Only/Class A-V]- Certificates, corresponding to the following
Uncertificated REMIC Regular Interests: [List numbers corresponding to the
related loans and Pool Strip Rates from the Mortgage Loan Schedule]. The
initial Subclass Notional Amount and the Initial Pass-Through Rate on the
[Interest Only/Class A-V]- Certificates will be $___________ and _____%,
respectively.
2. [Repeat as appropriate.]
The Subclasses requested above will represent in the aggregate
all of the Uncertificated REMIC Regular Interests represented by the [Interest
Only/Class A-V][-1] Certificates surrendered for exchange.
All capitalized terms used but not defined herein shall have the meanings
set forth in the Pooling and Servicing Agreement, dated as of ___________ 1,
____, among Residential Accredit Loans, Inc., Residential Funding Corporation
and __________________, as trustee.
RESIDENTIAL FUNDING CORPORATION
By:________________________
Name:________________________
Title:________________________
<PAGE>
