EXECUTION COPY
RESIDENTIAL ASSET SECURITIES CORPORATION,
Depositor,
RESIDENTIAL FUNDING CORPORATION,
Master Servicer,
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 1,2005
Home Equity Mortgage Asset-Backed Pass-Through Certificates
Series 2005-EMX5
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.......................................................................2
Section 1.01.
Definitions.......................................................2
Section 1.02.
Determination of LIBOR...........................................35
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.................37
Section 2.01.
Conveyance of Mortgage Loans.....................................37
Section 2.02.
Acceptance by Trustee............................................40
Section 2.03.
Representations, Warranties and Covenants of the Master
Servicer and the Depositor.......................................41
Section 2.04.
Representations and Warranties of Sellers........................43
Section 2.05.
Execution and Authentication of Certificates; Conveyance of
REMIC-I Regular Interests........................................45
Section 2.06.
Purposes and Powers of the Trust.................................46
Section 2.07.
Agreement Regarding Ability to Disclose..........................46
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS.................................47
Section 3.01.
Master Servicer to Act as Servicer...............................47
Section 3.02.
Subservicing Agreements Between Master Servicer and
Subservicers; Enforcement of Subservicers Obligations...........49
Section 3.03.
Successor Subservicers...........................................50
Section 3.04.
Liability of the Master Servicer.................................50
Section 3.05.
No Contractual Relationship Between Subservicer and Trustee
or Certificateholders............................................51
Section 3.06.
Assumption or Termination of Subservicing Agreements by
Trustee..........................................................51
Section 3.07.
Collection of Certain Mortgage Loan Payments; Deposits to
Custodial Account................................................51
Section 3.08.
Subservicing Accounts; Servicing Accounts........................54
Section 3.09.
Access to Certain Documentation and Information Regarding
the Mortgage Loans...............................................55
Section 3.10.
Permitted Withdrawals from the Custodial Account.................55
Section 3.11.
Maintenance of Primary Insurance Coverage........................57
Section 3.12.
Maintenance of Fire Insurance and Omissions and Fidelity
Coverage.........................................................57
Section 3.13.
Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.....................58
Section 3.14.
Realization Upon Defaulted Mortgage Loans........................60
Section 3.15.
Trustee to Cooperate; Release of Mortgage Files..................62
Section 3.16.
Servicing and Other Compensation; Compensating Interest..........63
Section 3.17.
Reports to the Trustee and the Depositor.........................64
Section 3.18.
Annual Statement as to Compliance................................65
Section 3.19.
Annual Independent Public Accountants' Servicing Report..........65
Section 3.20.
Right of the Depositor in Respect of the Master Servicer.........66
Section 3.21.
[Reserved].......................................................66
Section 3.22.
Advance Facility.................................................66
ARTICLE IV PAYMENTS TO
CERTIFICATEHOLDERS..................................................70
Section 4.01.
Certificate Account..............................................70
Section 4.02.
Distributions....................................................70
Section 4.03.
Statements to Certificateholders; Statements to Rating
Agencies; Exchange Act Reporting.................................72
Section 4.04.
Distribution of Reports to the Trustee and the Depositor;
Advances by the Master Servicer..................................75
Section 4.05.
Allocation of Realized Losses....................................77
Section 4.06.
Reports of Foreclosures and Abandonment of Mortgaged
Property.........................................................78
Section 4.07.
Optional Purchase of Defaulted Mortgage Loans....................78
Section 4.08.
Limited Mortgage Loan Repurchase Right...........................78
Section 4.09.
Derivative Contracts.............................................79
Section 4.10.
Yield Maintenance Agreement......................................79
Section 4.11.
The Certificate Guaranty Insurance Policy........................80
ARTICLE V THE
CERTIFICATES.................................................................81
Section 5.01.
The Certificates.................................................81
Section 5.02.
Registration of Transfer and Exchange of Certificates............82
Section 5.03.
Mutilated, Destroyed, Lost or Stolen Certificates................86
Section 5.04.
Persons Deemed Owners............................................87
Section 5.05.
Appointment of Paying Agent......................................87
ARTICLE VI THE DEPOSITOR AND THE MASTER
SERVICER...........................................88
Section 6.01.
Respective Liabilities of the Depositor and the Master
Servicer.........................................................88
Section 6.02.
Merger or Consolidation of the Depositor or the Master
Servicer; Assignment of Rights and Delegation of Duties by
Master Servicer..................................................88
Section 6.03.
Limitation on Liability of the Depositor, the Master
Servicer and Others..............................................89
Section 6.04.
Depositor and Master Servicer Not to Resign......................89
ARTICLE VII
DEFAULT........................................................................90
Section 7.01.
Events of Default................................................90
Section 7.02.
Trustee or Depositor to Act; Appointment of Successor............91
Section 7.03.
Notification to Certificateholders...............................93
Section 7.04.
Waiver of Events of Default......................................93
Section 7.05.
Servicing Trigger; Removal of Master Servicer....................93
ARTICLE VIII CONCERNING THE
TRUSTEE........................................................95
Section 8.01.
Duties of Trustee................................................95
Section 8.02.
Certain Matters Affecting the Trustee............................96
Section 8.03.
Trustee Not Liable for Certificates or Mortgage Loans............97
Section 8.04.
Trustee May Own Certificates.....................................98
Section 8.05.
Master Servicer to Pay Trustee's Fees and Expenses;
Indemnification..................................................98
Section 8.06.
Eligibility Requirements for Trustee.............................99
Section 8.07.
Resignation and Removal of the Trustee...........................99
Section 8.08.
Successor Trustee...............................................100
Section 8.09.
Merger or Consolidation of Trustee..............................100
Section 8.10.
Appointment of Co-Trustee or Separate Trustee...................101
Section 8.11.
Appointment of Custodians.......................................101
Section 8.12.
Appointment of Office or Agency.................................102
Section 8.13.
DTC Letter of Representations...................................102
Section 8.14.
Yield Maintenance Agreement.....................................102
ARTICLE IX
TERMINATION....................................................................103
Section 9.01.
Termination Upon Purchase or Liquidation of All Mortgage
Loans...........................................................103
Section 9.02.
Additional Termination Requirements.............................106
ARTICLE X REMIC
PROVISIONS................................................................107
Section 10.01.
REMIC Administration............................................107
Section 10.02.
Master Servicer, REMIC Administrator and Trustee
Indemnification.................................................110
ARTICLE XI MISCELLANEOUS
PROVISIONS.......................................................111
Section 11.01.
Amendment.......................................................111
Section 11.02.
Recordation of Agreement; Counterparts..........................113
Section 11.03.
Limitation on Rights of Certificateholders......................113
Section 11.04.
Governing Law...................................................114
Section 11.05.
Notices.........................................................114
Section 11.06.
Notices to Rating Agencies and the Certificate Insurer..........115
Section 11.07.
Severability of Provisions......................................115
Section 11.08.
Supplemental Provisions for Resecuritization....................116
Section 11.09.
Third-Party Beneficiary.........................................116
Section 11.10.
Rights of the Certificate Insurer...............................116
Exhibit A
Form of Class A
Certificate................................................A-1
Exhibit B
[Reserved].................................................................B-1
Exhibit C
Form of Class SB
Certificate...............................................C-1
Exhibit D
Form of Class R
Certificate................................................D-1
Exhibit E
Form of Custodial
Agreement................................................E-1
Exhibit F
Loan
Schedule..............................................................F-1
Exhibit G
Form of Request for
Release................................................G-1
Exhibit H-1
Form of Transfer Affidavit and
Agreement.................................H-1-1
Exhibit H-2
Form of Transferor
Certificate...........................................H-2-1
Exhibit I
Form of Investor Representation
Letter.....................................I-1
Exhibit J
Form of Transferor Representation
Letter...................................J-1
Exhibit K
Text of Amendment to Pooling and Servicing Agreement Pursuant to
Section 11.01(e) for a Limited
Guaranty....................................K-1
Exhibit L
Form of Limited
Guaranty...................................................L-1
Exhibit M
Form of Lender Certification for Assignment of Mortgage
Loan...............M-1
Exhibit N
Form of Rule 144A Investment
Representation................................N-1
Exhibit O
[Reserved].................................................................O-1
Exhibit P
Form of ERISA
Letter.......................................................P-1
Exhibit Q
Policy.....................................................................Q-1
Exhibit R
Assignment
Agreement......................................................R-1
Exhibit S
[Reserved].................................................................S-1
Exhibit T-1
Form of 10-K
Certification...............................................T-1-1
Exhibit T-2
Form of Back-Up
Certification............................................T-2-1
Exhibit U
Information to be Provided by the Master Servicer to the Rating
Agencies Relating to Reportable Modified Mortgage
Loans....................U-1
This
Pooling
and
Servicing
Agreement,
effective
as
of
December 1, 2005,
among
RESIDENTIAL
ASSET
SECURITIES
CORPORATION,
as the
depositor
(together
with its permitted
successors
and
assigns,
the
"Depositor"),
RESIDENTIAL
FUNDING
CORPORATION,
as
master
servicer
(together with its permitted
successors and assigns,
the "Master
Servicer"),
and
U.S. BANK NATIONAL
ASSOCIATION,
a banking association organized under the laws of the United
States, as trustee (together with its permitted successors and
assigns, the "Trustee").
PRELIMINARY STATEMENT:
The
Depositor
intends
to
sell
mortgage
asset-backed
pass-through
certificates
(collectively,
the "Certificates"),
to be issued hereunder in fifteen Classes,
which in the
aggregate
will evidence the entire
beneficial
ownership
interest in the Mortgage Loans (as
defined herein) and certain other related assets.
REMIC I
As
provided
herein,
the
REMIC
Administrator
will make an
election
to treat the
segregated
pool of assets
consisting of the Mortgage
Loans and certain other related assets
(exclusive
of the Yield
Maintenance
Agreement)
subject to this
Agreement as a real estate
mortgage
investment conduit (a "REMIC") for federal income tax purposes,
and such segregated
pool of assets will be designated as "REMIC I."
The
Class R-I
Certificates
will
represent
the sole Class of
"residual
interests" in REMIC I for purposes of the REMIC
Provisions
(as
defined
herein) under
federal
income tax law. The following
table
irrevocably
sets forth
the
designation,
remittance
rate
(the
"Uncertificated
REMIC I
Pass-Through
Rate")
and
initial
Uncertificated
Principal Balance for each of the "regular interests" in REMIC I
(the
"REMIC I Regular
Interests").
The "latest
possible
maturity date"
(determined
solely for
purposes of
satisfying
Treasury
regulation
Section 1.860G-1(a)(4)(iii))
for each
REMIC I
Regular
Interest shall be the Maturity Date.
None of the REMIC I
Regular
Interests will be
certificated.
Uncertificated
REMIC I
Initial Uncertificated
-------------------
REMIC I
Latest Possible
Designation
Pass-Through Rate
Principal Balance
Maturity Date
LT-1
Variable(1)
$399,937,171.25
December 25, 2035
LT-2
Variable(1)
$
17,126.89
December 25, 2035
LT-3
0.00%
$
22,873.12
December 25, 2035
LT-4
Variable(1)
$
22,873.12
December 25, 2035
_______________
(1) Calculated as provided in the definition of Uncertificated
REMIC I Pass-Through Rate.
REMIC II
As
provided
herein,
the
REMIC
Administrator
will make an
election
to treat the
segregated pool of assets
consisting of the REMIC I Regular
Interests as a REMIC for federal
income tax purposes,
and such segregated
pool of assets will be designated as REMIC II.
The
Class R-II
Certificates
will
represent the sole Class of
"residual
interests" in REMIC II
for
purposes of the REMIC
Provisions
under
federal
income tax law.
The
following
table
irrevocably sets forth the
designation,
Pass-Through
Rate,
aggregate
Initial
Certificate
Principal Balance,
certain features,
month of Final Scheduled
Distribution Date and initial
ratings
for
each
Class of
Certificates
comprising
the
interests
representing
"regular
interests" in REMIC II.
The "latest possible maturity date"
(determined
solely for purposes
of satisfying
Treasury
Regulation
Section 1.860G-1(a)(4)(iii))
for each Class of
REMIC II
Regular Interests shall be the Maturity Date.
Month of
Final
Aggregate Initial
Scheduled
Pass-Through
Certificate
Distribution
Designation
Type
Rate
Principal Balance
Features
Date
S&P
Moody's
Class A-1
Regular(1)
Adjustable(2)(3)$
151,768,000.00
Senior/Adjustable
May 2023
AAA
Aaa
Rate
Class A-2
Regular(1)
Adjustable(2)(3)$
179,685,000.00
Senior/Adjustable
January 2035
AAA
Aaa
Rate
Class A-3
Regular(1)
Adjustable(2)(3)$
48,547,000.00
Senior/Adjustable
November 2035
AAA
Aaa
Rate
Class SB
Regular
(4)
$
20,000,044.37
Subordinate
November 2035
N/R
N/R
(4)
_______________
(1)
The Class A
Certificates
will
represent
ownership
of REMIC II
Regular
Interests
together with certain rights to payments to be made from amounts
received under the Yield
Maintenance
Agreement
which will be deemed made for federal income tax purposes
outside
of
REMIC II
by the
holder
of the
Class SB
Certificates
as the
owner
of the
Yield
Maintenance Agreement.
(2)
The
REMIC II
Regular
Interests
ownership
of which is
represented
by the Class A
Certificates,
will accrue
interest at a per annum rate equal to the lesser of
(i) LIBOR
plus the
applicable
Margin
and
(ii) the
Net WAC Cap Rate and the
provisions
for the
payment
of
Basis
Risk
Shortfalls
herein,
which
payments
will
not be
part
of the
entitlement of the REMIC II Regular Interests related to such
Certificates.
(3)
The Class A
Certificates will also entitle their holders to certain payments
from the
Holder of the Class SB
Certificates
from
amounts to which the related
REMIC II Regular
Interest is entitled
and from amounts
received
under the Yield
Maintenance
Agreement,
which will not be a part of their ownership of the REMIC II Regular
Interests.
(4)
The Class SB
Certificates
will accrue
interest as described
in the
definition
of
Accrued
Certificate
Interest.
The
Class SB
Certificates
will not accrue
interest on
their Certificate
Principal Balance.
The Class SB
Certificates will represent ownership
of two REMIC II Regular Interests,
a principal only regular interest
designated REMIC II
Regular Interest SB-PO and an interest only regular
interest
designated REMIC II Regular
Interest SB-IO,
which will be entitled to distributions
as set forth herein.
The rights
of the
Holder
of the
Class SB
Certificates
to
payments
from the
Yield
Maintenance
Agreement shall be outside and apart from its rights under the
REMIC II Regular
Interests
SB-IO and SB-PO.
In consideration of the mutual agreements herein contained,
the Depositor, the Master
Servicer and the Trustee agree as follows:
ARTICLE I......
DEFINITIONS
Section 1.01...Definitions.
Whenever used in this Agreement,
the following words and phrases,
unless the context
otherwise requires, shall have the meanings specified in this
Article.
Accrued
Certificate
Interest:
With
respect
to each
Distribution
Date
and
each
Class of Class A Certificates,
interest accrued during the related Interest Accrual Period on
the Certificate
Principal Balance thereof
immediately prior to such Distribution Date at the
Pass-Through Rate for that Distribution Date.
The amount of Accrued
Certificate
Interest on each
Class of
Certificates
shall be
reduced by the amount of Prepayment
Interest
Shortfalls on the related Mortgage Loans during
the prior
calendar
month to the extent not
covered by
Compensating
Interest
pursuant
to
Section 3.16,
and by Relief Act
Shortfalls on the related
Mortgage Loans during the related
Due
Period.
All
such
reductions
with
respect
to the
related
Mortgage
Loans
will
be
allocated among the Certificates in proportion to the amount of
Accrued
Certificate
Interest
payable on such Certificates on such Distribution Date absent such
reductions.
Accrued
Certificate
Interest for any
Distribution
Date shall further be reduced by
the interest
portion of Realized Losses
allocated to any Class of
Certificates
pursuant to
Section 4.05.
Accrued
Certificate
Interest
shall
accrue on the
basis of a 360-day
year and the
actual number of days in the related Interest Accrual Period.
With
respect
to each
Distribution
Date
and the
Class SB
Certificates,
interest
accrued
during
the
preceding
Interest
Accrual
Period
at the
Pass-Through
Rate
on the
Notional
Amount as specified in the definition of
Pass-Through
Rate,
immediately
prior to
such
Distribution
Date,
reduced by any
interest
shortfalls
with
respect to the Mortgage
Loans,
including
Prepayment
Interest
Shortfalls to the extent not covered by
Compensating
Interest pursuant to Section 3.16 or by Excess Cash Flow pursuant
to
Section 4.02(c)(iv)
and
(v). Accrued
Certificate
Interest on the Class SB
Certificates shall accrue on the basis of
a 360-day year and the actual number of days in the related
Interest Accrual Period.
Adjusted
Mortgage
Rate:
With
respect
to
any
Mortgage
Loan
and
any
date
of
determination,
the Mortgage Rate borne by the related
Mortgage Note,
less the rate at which
the related Subservicing Fee accrues.
Adjustment
Date:
With respect to each
adjustable-rate
Mortgage Loan, each date set
forth in the
related
Mortgage
Note on
which an
adjustment
to the
interest
rate on such
Mortgage Loan becomes effective.
Advance:
With respect to any Mortgage Loan, any advance made by the Master
Servicer,
pursuant to Section 4.04.
Affiliate:
With respect to any Person,
any other Person
controlling,
controlled by
or under common
control with such first Person.
For purposes of this
definition,
"control"
means
the
power
to
direct
the
management
and
policies
of
such
Person,
directly
or
indirectly,
whether
through the
ownership of voting
securities,
by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agreement:
This
Pooling
and
Servicing
Agreement
and all
amendments
hereof
and
supplements hereto.
Amount
Held for Future
Distribution:
With
respect to any
Distribution
Date,
the
total of the amounts held in the
Custodial
Account at the close of business on the preceding
Determination Date on account of (i) Liquidation
Proceeds,
Subsequent Recoveries,
Insurance
Proceeds,
REO
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,
Subsequent
Recoveries,
Insurance Proceeds, REO Proceeds and purchases
of Mortgage
Loans that the Master
Servicer has deemed to have been received in the preceding
month in accordance with
Section 3.07(b))
and (ii) payments which represent early receipt of
scheduled
payments of principal
and interest
due on a date or dates
subsequent
to the Due
Date in the related Due Period.
Appraised
Value:
With
respect
to any
Mortgaged
Property,
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 based upon
the appraisal
made at the time of
origination
of the loan which was
refinanced or modified
or
the
appraised
value
determined
in
an
appraisal
at
the
time
of
refinancing
or
modification, as the case may be.
Assignment:
An
assignment
of
the
Mortgage,
notice
of
transfer
or
equivalent
instrument,
in recordable form,
sufficient
under the laws of the
jurisdiction
wherein the
related
Mortgaged
Property is located to reflect of record the sale of the Mortgage
Loan to
the Trustee for the benefit of
Certificateholders,
which
assignment,
notice of transfer or
equivalent
instrument
may
be in
the
form
of one or
more
blanket
assignments
covering
Mortgages
secured by Mortgaged
Properties
located in the same
county,
if permitted by law
and accompanied by an Opinion of Counsel to that effect.
Assignment
Agreement:
The
Assignment and
Assumption
Agreement,
dated the Closing
Date,
between
Residential
Funding and the Depositor relating to the transfer and assignment
of the Mortgage Loans, attached hereto as Exhibit R.
Available
Distribution Amount: With respect to any Distribution Date, an
amount equal
to (a) the sum of (i) the amount
relating to the Mortgage
Loans on deposit in the
Custodial
Account
as of
the
close
of
business
on the
immediately
preceding
Determination
Date,
including
any
Subsequent
Recoveries,
and amounts
deposited
in the
Custodial
Account in
connection with the substitution of Qualified
Substitute
Mortgage Loans,
(ii) the amount of
any Advance made on the immediately
preceding
Certificate
Account Deposit Date with respect
to the Mortgage Loans,
(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)
in
respect of the Mortgage
Loans,
(iv) any amount that the Master
Servicer is not permitted to
withdraw from the Custodial
Account
pursuant to
Section 3.16(e)
in respect of the Mortgage
Loans,
(v) any amount
deposited in the Certificate
Account pursuant to Section 4.07 or 9.01
in respect of the Mortgage Loans,
and (vi) amounts on deposit in the
Certificate
Account in
respect of an Insured
Payment
pursuant to Section 4.11(b) in accordance with the Certificate
Guaranty
Insurance
Policy,
reduced
by (b)
the
sum as of the
close
of
business
on the
immediately
preceding
Determination Date of (x) the Amount Held for Future Distribution
with
respect to the Mortgage
Loans,
(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) and (z) the Certificate Insurer
Premium payable.
Balloon Loan:
Each of the Mortgage
Loans having an original term to maturity that is
shorter than the related amortization term.
Balloon
Payment:
With
respect to any
Balloon
Loan,
the related
Monthly
Payment
payable on the stated maturity date of such Balloon Loan.
Bankruptcy Code:
The Bankruptcy Code of 1978, as amended.
Basis Risk
Shortfalls:
With respect to each Class of the Class A
Certificates,
and
any Distribution
Date, the sum of (a) with respect to any Distribution
Date on which the Net
WAC Cap Rate is used to
determine
the
Pass-Through
Rate of such Class,
an amount equal to
the excess of (x) Accrued
Certificate Interest for such
Class calculated at a per annum rate
equal to LIBOR plus the related
Margin for such
Distribution
Date
(which
shall not exceed
14.000% per annum),
over (y) Accrued
Certificate
Interest for such
Class calculated
using
the Net WAC Cap Rate,
(b) any
shortfalls
for such
Class calculated
pursuant to clause (a)
above remaining
unpaid from prior
Distribution
Dates,
and (c) one month's
interest on the
amount in clause (b)
(based on the number of days in the preceding
Interest
Accrual Period)
at a per annum rate equal to LIBOR plus the related Margin for such
Distribution
Date (which
shall not exceed 14.000% per annum).
Book-Entry
Certificate:
Any Certificate
registered in the name of the Depository or
its nominee.
Business
Day:
Any day other than (i) a
Saturday
or a Sunday or (ii) a day on which
banking institutions in the State of California,
the State of Minnesota,
the State of Texas,
the State of New York 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.
Capitalization
Reimbursement
Amount:
With
respect to any
Distribution
Date,
the
amount of Advances or Servicing
Advances that were added to the Stated
Principal
Balance of
the Mortgage Loans during the prior
calendar
month and reimbursed to the Master
Servicer or
Subservicer on or prior to such Distribution Date pursuant to
Section 3.10(a)(vii).
Cash
Liquidation:
With respect to any defaulted
Mortgage Loan other than a Mortgage
Loan as to which an REO Acquisition
occurred,
a determination by the Master Servicer that it
has
received
all
Insurance
Proceeds,
Liquidation
Proceeds
and
other
payments
or cash
recoveries
which the
Master
Servicer
reasonably
and in good
faith
expects to be finally
recoverable with respect to such Mortgage Loan.
Certificate:
Any Class A Certificate, Class SB Certificate or Class R
Certificate.
Certificate
Account:
The account or
accounts
created
and
maintained
pursuant to
Section 4.01,
which shall be entitled "U.S. Bank National
Association,
as trustee, in trust
for the registered holders of Residential Asset Securities
Corporation,
Home Equity Mortgage
Asset-Backed
Pass-Through
Certificates,
Series 2005-EMX5 and Financial
Guaranty
Insurance
Company" and which
account
shall be held for the benefit of the
Certificateholders
and the
Certificate
Insurer
and which must be an
Eligible
Account.
Any such
account or
accounts
created and
maintained
subsequent
to the Closing
Date shall be subject to the
approval of
the Certificate Insurer, which approval shall not be unreasonably
withheld.
Certificate
Account
Deposit
Date:
With
respect
to
any
Distribution
Date,
the
Business Day prior thereto.
Certificate
Guaranty Insurance Policy:
The Surety Bond, Policy No. 05030153,
issued
by the
Certificate
Insurer
in
respect
of the
Class A
Certificates,
a copy of
which is
attached hereto as Exhibit Q.
Certificateholder
or Holder:
The Person in whose name a Certificate is registered in
the Certificate
Register,
except that neither a Disqualified
Organization
nor a Non-United
States Person shall be a holder of a Class R
Certificate for any purpose
hereof.
Solely for
the purpose of giving any consent or direction
pursuant to this Agreement,
any
Certificate,
other
than a
Class R
Certificate,
registered
in the
name of the
Depositor,
the
Master
Servicer or any
Subservicer
or any Affiliate
thereof shall be deemed not to be
outstanding
and the
Percentage
Interest
or Voting
Rights
evidenced
thereby
shall not be taken
into
account in determining
whether the requisite amount of Percentage
Interests or Voting Rights
necessary to effect any such consent or direction has been
obtained.
All
references
herein
to "Holders" or
"Certificateholders"
shall reflect the rights of Certificate
Owners as they
may
indirectly
exercise
such
rights
through
the
Depository
and
participating
members
thereof,
except as otherwise specified herein;
provided,
however, that the Trustee shall be
required to
recognize
as a "Holder" or
"Certificateholder"
only the Person in whose name a
Certificate is registered in the
Certificate
Register.
Unless
otherwise
indicated in this
Agreement,
the Custodial
Agreement or the Assignment
Agreement,
whenever reference is made
to the actions
taken by the Trustee on behalf of the
Certificateholders,
such
reference to
Certificateholders
shall include the
Certificate
Insurer as long as there is no Certificate
Insurer Default.
Certificate
Insurer:
Financial
Guaranty
Insurance
Company,
a New
York-domiciled
stock insurance corporation or its successors in interest.
Certificate
Insurer
Account:
An account of the
Certificate
Insurer
maintained at
U.S.
Bank National
Association
(ABA No.
[________]),
Account No.
[________],
Attention:
Policy No.
05030153,
or such other account as may be designated by the
Certificate
Insurer
to the Trustee in writing not less than five Business
Days prior to the related
Distribution
Date.
Certificate
Insurer
Default:
The existence and continuance of any of the following:
(a) a failure by the
Certificate
Insurer to make a payment
required
under the
Certificate
Guaranty
Insurance
Policy in accordance with its terms;
or (b)(i) the
Certificate
Insurer
(A) files any petition or commences any case or
proceeding
under any provision or chapter of
the
Bankruptcy
Code or any other
similar
federal
or state
law
relating
to
insolvency,
bankruptcy,
rehabilitation,
liquidation or
reorganization,
(B) makes a general
assignment
for the
benefit of its
creditors,
or (C) has an order for relief
entered
against it under
the
Bankruptcy
Code or any other
similar
federal
or state
law
relating
to
insolvency,
bankruptcy,
rehabilitation,
liquidation or reorganization
which is final and nonappealable;
or (ii) a court
of
competent
jurisdiction,
the New
York
insurance
department
or
other
competent
regulatory
authority enters a final and
nonappealable
order,
judgment or decree
(A)
appointing a custodian,
trustee,
agent or receiver for the
Certificate
Insurer or for
all or any material
portion of its property or (B)
authorizing the taking of possession by a
custodian,
trustee,
agent
or
receiver
of
the
Certificate
Insurer
(or
the
taking
of
possession of all or any material portion of the property of the
Certificate Insurer).
Certificate
Insurer
Premium:
The premium payable in accordance with the Certificate
Guaranty
Insurance
Policy,
which shall be payable in
accordance
with
Section
4.02 in an
amount equal to (i) on the first
Distribution
Date, an amount
calculated by multiplying the
Certificate
Insurer
Premium
Rate
converted
to a
daily
rate
by
the
aggregate
initial
Certificate
Principal
Balance
of the Class A
Certificates
for the number of days from and
including
the
Closing
Date to but
excluding
the
first
Distribution
Date,
and (ii) for
subsequent
Distribution
Dates, one twelfth of the product of (A) the Premium
Percentage and
(B) the aggregate
Certificate
Principal
Balance of the Class A Certificates on the previous
Distribution
Date (after giving effect to any
distributions
of principal to be made on such
previous Distribution Date).
Certificate
Insurer
Premium
Modified Rate: With respect to any
Distribution
Date,
the Certificate
Insurer
Premium Rate for the Class A Certificates
times a fraction equal to
(x) the aggregate
Certificate
Principal
Balance of the Class A Certificates as of such date
over (y) the aggregate Stated Principal Balance of the Mortgage
Loans as of such date.
Certificate
Insurer
Premium
Rate:
Shall
have
the
meaning
assigned
to the term
"Premium Percentage" in the Insurance Agreement.
Certificate
Owner:
With respect to a Book-Entry
Certificate,
the Person who is the
beneficial owner of such Certificate,
as reflected on the books of an indirect
participating
brokerage
firm for which a Depository
Participant
acts as agent,
if any, and
otherwise on
the books of a Depository Participant, if any, and otherwise on the
books of the Depository.
Certificate
Principal Balance:
With respect to any Class A Certificate,
on any date
of
determination,
an amount equal to (i) the Initial
Certificate
Principal Balance of such
Certificate
as specified on the face thereof,
minus (ii) the sum of (x) the aggregate of all
amounts
previously
distributed
with
respect
to
such
Certificate
(or
any
predecessor
Certificate) and applied to reduce the Certificate
Principal Balance thereof
(including such
amounts
paid
pursuant to the
Certificate
Guaranty
Insurance
Policy)
pursuant to Section
4.02(c) 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
(other
than any
amounts
included
in an
Insured
Payment
and
paid
pursuant
to the
Certificate
Guaranty
Insurance
Policy);
provided,
that with respect to any
Distribution
Date, the
Certificate
Principal
Balance
of any
outstanding
Class of
Class A
Certificates,
on a pro rata basis
based
on
the
amount
of
Realized
Loss
previously
allocated
thereto
and
remaining
unreimbursed,
to which a Realized
Loss was
previously
allocated
and remains
unreimbursed
will be
increased,
to the
extent
of
Realized
Losses
previously
allocated
thereto
and
remaining
unreimbursed,
but only to the extent of Subsequent
Recoveries received during the
preceding
calendar
month.
With
respect
to
any
Class SB
Certificate,
on
any
date
of
determination,
an amount equal to the
Percentage
Interest
evidenced
by such
Certificate,
multiplied
by an amount
equal to (i) the excess,
if any, of (A) the then
aggregate
Stated
Principal
Balance of the Mortgage
Loans over (B) the then
aggregate
Certificate
Principal
Balance of the Class A
Certificates
then
outstanding,
which
represents the sum of (i) the
Initial
Principal
Balance of the REMIC II Regular
Interest
SB-PO,
as reduced by
Realized
Losses
allocated
thereto and
payments
deemed
made
thereon,
and (ii)
accrued and unpaid
interest
on the REMIC II Regular
Interest
SB-IO,
as reduced by Realized
Losses
allocated
thereto.
The Class R Certificates will not have a Certificate Principal
Balance.
Certificate
Register
and
Certificate
Registrar:
The register
maintained
and the
registrar appointed pursuant to Section 5.02.
Class:
Collectively,
all of the Certificates or uncertificated interests bearing the
same designation.
Class A
Certificates:
Collectively,
the
Class A-1
Certificates,
Class A-2
Certificates and Class A-3 Certificates.
Class A-1
Certificate:
Any one of the Class A-1 Certificates executed by the Trustee
and
authenticated
by the Certificate
Registrar
substantially in the form annexed hereto as
Exhibit A,
senior
to
Class
SB
Certificates
and
Class R
Certificates
with
respect
to
distributions
and the
allocation
of
Realized
Losses
as set
forth in
Section 4.05,
and
evidencing
an interest
designated
as a "regular
interest"
in REMIC II for purposes of the
REMIC Provisions.
Class A-1 Margin:
0.080% per annum.
Class A-2
Certificate:
Any one of the Class A-2 Certificates executed by the Trustee
and
authenticated
by the Certificate
Registrar
substantially in the form annexed hereto as
Exhibit A,
senior
to
Class SB
Certificates
and
Class R
Certificates
with
respect
to
distributions
and the
allocation
of
Realized
Losses
as set
forth in
Section 4.05,
and
evidencing
an interest
designated
as a "regular
interest"
in REMIC II for purposes of the
REMIC Provisions.
Class A-2 Margin:
0.230% per annum.
Class A-3
Certificate:
Any one of the Class A-3 Certificates executed by the Trustee
and
authenticated
by the Certificate
Registrar
substantially in the form annexed hereto as
Exhibit A,
senior to
Class
SB
Certificates
and
Class R
Certificates
with
respect
to
distributions
and the
allocation
of
Realized
Losses
as set
forth in
Section 4.05,
and
evidencing
an interest
designated
as a "regular
interest" in REMIC III for purposes of the
REMIC Provisions.
Class A-3
Margin:
Initially,
0.330% per annum, and on any Distribution
Date on and
after the
second
Distribution
Date
after the first
possible
Optional
Termination
Date,
0.660% per annum.
Class R
Certificate:
Collectively,
the
Class R-I
Certificates
and
Class R-II
Certificates.
Class R-I
Certificate:
Any one of the Class R-I Certificates executed by the Trustee
and
authenticated
by the Certificate
Registrar
substantially in the form annexed hereto as
Exhibit D
and
evidencing
an interest
designated
as a "residual
interest"
in REMIC I for
purposes of the REMIC Provisions.
Class R-II
Certificate:
Any
one
of the
Class R-II
Certificates
executed
by the
Trustee and
authenticated
by the
Certificate
Registrar
substantially
in the form annexed
hereto as
Exhibit D
and
evidencing
an
interest
designated
as a "residual
interest"
in
REMIC II for purposes of the REMIC Provisions.
Class SB
Certificate:
Any one of the Class SB
Certificates
executed by the Trustee
and
authenticated
by the Certificate
Registrar
substantially in the form annexed hereto as
Exhibit C,
subordinate
to the Class A
Certificates
with respect to
distributions
and the
allocation
of
Realized
Losses as set forth in Section
4.05,
and
evidencing
an
interest
comprised of "regular
interests" in REMIC II
together with certain
rights to payments under
the Yield Maintenance Agreement for purposes of the REMIC
Provisions.
Closing Date:
November 17, 2005.
Code:
The Internal Revenue Code of 1986.
Commission:
The Securities and Exchange Commission.
Compensating
Interest:
With respect to any Distribution Date, any amount paid by the
Master Servicer in accordance with Section 3.16(f).
Corporate
Trust
Office:
The
principal
office
of
the
Trustee
at
which
at any
particular
time
its
corporate
trust
business
with
respect
to this
Agreement
shall be
administered,
which
office at the date of the
execution
of this
instrument
is located at
U.S. Bank National
Association,
EP-MN-WS3D,
60 Livingston
Avenue, St. Paul MN 55107, Attn:
RASC 2005-EMX5.
Credit Repository:
Equifax, Transunion and Experian, or their successors in interest.
Cumulative Insurance Payments:
As of any time of determination,
the aggregate amount
of all Insured
Payments
previously
paid by the
Certificate
Insurer under the
Certificate
Guaranty
Insurance
Policy minus (a) the
aggregate of all
payments
previously
made to the
Certificate
Insurer
pursuant
to
Sections
4.02(c)(iii)
hereof as
reimbursement
for such
Insured
Payments,
plus (b) interest thereon from the date such amounts became due
until paid
in full, at a rate of interest equal to the rate set forth in the
Insurance Agreement.
Curtailment:
Any Principal
Prepayment
made by a Mortgagor
which is not a Principal
Prepayment in Full.
Custodial Account:
The custodial account or accounts created and maintained
pursuant
to Section 3.07 in the name of a depository
institution,
as custodian for the holders of the
Certificates,
for the holders of certain other
interests in mortgage
loans serviced or sold
by the Master
Servicer
and for the Master
Servicer,
into
which the
amounts
set forth in
Section 3.07
shall be deposited
directly.
Any such account or accounts shall be an Eligible
Account.
Custodial
Agreement:
An agreement that may be entered into among the Depositor,
the
Master Servicer, the Trustee and a Custodian in substantially the
form of Exhibit E hereto.
Custodian:
Wells Fargo Bank, N.A., or any successor
custodian
appointed pursuant to
a Custodial Agreement and reasonably acceptable to the Certificate
Insurer.
Cut-off Date:
December 1, 2005.
Cut-off Date Balance:
$400,000,044.37.
Cut-off
Date
Principal
Balance:
With
respect
to any
Mortgage
Loan,
the unpaid
principal
balance
thereof at the Cut-off Date after
giving
effect to all
installments
of
principal
due on or prior thereto (or due in the month of the Cut-off
Date),
whether or not
received.
Debt
Service
Reduction:
With
respect to any
Mortgage
Loan,
a
reduction
in the
scheduled
Monthly
Payment for such Mortgage Loan by a court of competent
jurisdiction
in a
proceeding
under the
Bankruptcy
Code,
except
such a
reduction
constituting
a Deficient
Valuation or any reduction that results in a permanent forgiveness
of principal.
Deficient
Valuation:
With
respect to any
Mortgage
Loan, a valuation by a court of
competent
jurisdiction of the Mortgaged
Property in an amount less than the then outstanding
indebtedness
under the Mortgage
Loan, or any reduction in the amount of principal to be paid
in connection with any scheduled
Monthly Payment that constitutes a permanent
forgiveness of
principal, which valuation or reduction results from a proceeding
under the Bankruptcy Code.
Definitive Certificate:
Any definitive, fully registered Certificate.
Deleted
Mortgage
Loan: A Mortgage
Loan
replaced or to be replaced with a Qualified
Substitute Mortgage Loan.
Delinquent:
As used herein,
a Mortgage
Loan is considered to be: "30 to 59 days" or
"30 or more days"
delinquent
when a payment due on any scheduled due date remains
unpaid as
of the close of business on the next
following
monthly
scheduled due date;
"60 to 89 days"
or "60 or more days"
delinquent
when a payment due on any scheduled due date remains
unpaid
as of the close of business on the second
following
monthly
scheduled due date;
and so on.
The
determination
as to whether a Mortgage
Loan falls into these
categories
is made as of
the close of business on the last
business day of each month.
For example,
a Mortgage
Loan
with a payment
due on July 1 that
remained
unpaid as of the close of
business on August 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.
Depositor:
As defined in the preamble hereto.
Depository:
The
Depository
Trust
Company,
or any successor
Depository
hereafter
named. The nominee of the initial
Depository for purposes of registering
those
Certificates
that are to be Book-Entry
Certificates
is Cede & Co. The Depository
shall at all times be a
"clearing
corporation" as defined in
Section 8-102(a)(5)
of the Uniform
Commercial Code of
the
State of New York and a
"clearing
agency"
registered
pursuant
to the
provisions
of
Section 17A of the Exchange Act.
Depository
Participant:
A broker,
dealer,
bank or other
financial
institution or
other
Person
for whom
from
time to time a
Depository
effects
book-entry
transfers
and
pledges of securities deposited with the Depository.
Derivative
Contract:
Any ISDA Master
Agreement,
together with the related Schedule
and
Confirmation,
entered into by the Trustee and a Derivative
Counterparty
in
accordance
with Section 4.09.
Derivative
Counterparty:
Any
counterparty
to a Derivative
Contract as provided in
Section 4.09
Destroyed
Mortgage Note: A Mortgage Note the original of which was
permanently
lost
or destroyed and has not been replaced.
Determination
Date: With respect to any
Distribution
Date, the 20th day (or if such
20th day is not a Business Day, the Business Day
immediately
following such 20th day) of the
month of the related Distribution Date.
Disqualified Organization:
Any organization defined as a "disqualified
organization"
under
Section 860E(e)(5)
of the
Code,
including,
if not
otherwise
included,
any of the
following:
(i)
the
United
States,
any
State
or
political
subdivision
thereof,
any
possession
of the United
States,
or any agency or
instrumentality
of any of the foregoing
(other than an
instrumentality
which is a corporation
if all of its
activities are subject
to tax and,
except for Freddie
Mac, a majority of its board of
directors is not selected by
such governmental unit), (ii) a foreign
government,
any international
organization,
or any
agency
or
instrumentality
of any of the
foregoing,
(iii)
any
organization
(other
than
certain farmers'
cooperatives
described in Section 521 of the Code) which is exempt from the
tax imposed by Chapter 1 of the Code
(including
the tax imposed by
Section 511
of the Code
on unrelated
business
taxable
income) and
(iv) rural
electric and telephone
cooperatives
described in
Section 1381(a)(2)(C)
of the Code. A
Disqualified
Organization
also includes
any
"electing
large
partnership,"
as defined in
Section 775(a)
of the Code and any other
Person so
designated
by the Trustee
based upon an Opinion of Counsel that the holding of an
Ownership
Interest in a Class R
Certificate by such Person may cause any REMIC or any Person
having an Ownership
Interest in any Class of
Certificates
(other than such Person) to incur
a liability
for any federal tax imposed
under the Code that would not
otherwise
be imposed
but for the Transfer of an Ownership
Interest in a Class R
Certificate
to such Person.
The
terms "United States," "State" and
"international
organization"
shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
Distribution
Date:
The 25th day of any month
beginning
in January 2006 or, if such
25th day is not a Business Day, the Business Day immediately
following such 25th day.
DTC Letter:
The Letter of
Representations,
dated
December
15,
2005,
between the
Trustee on behalf of the Trust Fund and the Depository.
Due Date:
With
respect
to any
Distribution
Date and any
Mortgage
Loan,
the day
during the related Due Period on which the Monthly Payment is due.
Due
Period:
With
respect
to any
Distribution
Date,
the
calendar
month of such
Distribution Date.
Eligible
Account:
An account that is any of the
following:
(i)
maintained
with a
depository
institution
the debt
obligations
of which have been rated by each Rating Agency
in its highest rating
available,
or (ii) an account or accounts in a depository
institution
in which such
accounts
are fully
insured to the limits
established
by the FDIC,
provided
that any deposits not so insured shall,
to the extent
acceptable to each Rating
Agency,
as
evidenced
in
writing,
be
maintained
such that (as
evidenced
by an
Opinion
of
Counsel
delivered to the Trustee and each Rating Agency) the registered
Holders of Certificates
have
a claim with
respect to the funds in such
account or a
perfected
first
security
interest
against any collateral (which shall be limited to Permitted
Investments)
securing such funds
that
is
superior
to
claims
of
any
other
depositors
or
creditors
of
the
depository
institution
with which
such
account is
maintained,
or (iii) in the case of the
Custodial
Account,
a trust account or accounts
maintained in the
corporate
trust
department of U.S.
Bank National
Association,
or (iv) in the case of the Certificate
Account,
a trust account
or accounts maintained in the corporate trust division of U.S. Bank
National
Association,
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
then-current
rating
assigned
to
such
Certificates by such Rating Agency).
Eligible Master Servicing
Compensation:
With respect to any
Distribution
Date, the
lesser of
(a) one-twelfth
of 0.125% of the Stated Principal
Balance of the related Mortgage
Loans
immediately
preceding such
Distribution Date and (b) the sum of the Servicing Fee and
all income and gain on amounts held in the Custodial
Account and the Certificate
Account and
payable to the
Certificateholders
with respect to such Distribution Date;
provided that for
purposes of this
definition
the amount of the Servicing Fee will not be reduced
pursuant to
Section 7.02(a) except as may be required pursuant to the last
sentence of such Section.
ERISA:
The Employee Retirement Income Security Act of 1974, as amended.
Event of Default:
As defined in Section 7.01.
Excess Cash Flow:
With respect to any
Distribution
Date, an amount equal to the sum
of (A) the excess of (i) the Available
Distribution
Amount for that
Distribution
Date over
(ii) the sum of (a) the Interest
Distribution
Amount for that
Distribution Date and (b) the
lesser
of
(1) the
aggregate
Certificate
Principal
Balance
of
Class A
Certificates
immediately prior to such
Distribution Date and (2) the Principal
Remittance Amount for that
Distribution
Date to the extent not applied to pay
interest on the Class A
Certificates
on
such
Distribution
Date, (B) the
Overcollateralization
Reduction
Amount,
if any, for that
Distribution
Date and (C) any Yield
Maintenance
Agreement
Payment
received by the Trustee
for that Distribution Date.
Excess
Overcollateralization
Amount:
With
respect to any
Distribution
Date,
the
excess,
if any, of (a) the
Overcollateralization
Amount on such
Distribution Date over (b)
the Required Overcollateralization Amount for such Distribution
Date.
Exchange Act:
The Securities Exchange Act of 1934, as amended.
Expense Fee Rate:
With respect to any Mortgage Loan as of any date of
determination,
the sum of (i) the
applicable
Servicing
Fee
Rate,
(ii) the per
annum
rate at which
the
applicable Subservicing Fee accrues and (iii) the Certificate
Insurer Premium Modified Rate.
Fannie
Mae:
Fannie
Mae, a
federally
chartered
and
privately
owned
corporation
organized and existing under the Federal
National
Mortgage
Association
Charter Act, or any
successor thereto.
FDIC:
Federal Deposit Insurance Corporation or any successor thereto.
Final
Distribution
Date: The
Distribution
Date on which the final
distribution in
respect of the Certificates
will be made pursuant to Section 9.01,
which Final
Distribution
Date shall in no event be later than the end of the 90-day
liquidation
period
described
in
Section 9.02.
Final
Scheduled
Distribution
Date:
Solely
for
purposes
of
the
face
of
the
Certificates,
as follows: with respect to the Class A-1
Certificates,
the Distribution Date
occurring in
December 2024;
with respect to the Class A-2 the Distribution Date occurring in
April 2034;
and with respect to the Class A-3
Certificates,
the Distribution Date occurring
in
December 2035.
No event of default under this Agreement
will arise or become
applicable
solely by reason of the
failure
to retire the entire
Certificate
Principal
Balance of any
Class of Class A Certificates on or before its Final Scheduled
Distribution Date.
Fitch:
Fitch Ratings, or its successors in interest.
Foreclosure
Profits:
With respect to any Distribution Date or related
Determination
Date and any Mortgage Loan, the excess, if any, of Liquidation
Proceeds,
Insurance
Proceeds
and REO Proceeds (net of all amounts reimbursable
therefrom pursuant to
Section 3.10(a)(ii))
in
respect
of each
Mortgage
Loan or REO
Property
for
which
a Cash
Liquidation
or REO
Disposition
occurred in the related
Prepayment
Period over the sum of the unpaid
principal
balance
of
such
Mortgage
Loan
or
REO
Property
(determined,
in
the
case
of
an
REO
Disposition,
in
accordance
with
Section 3.14)
plus
accrued
and unpaid
interest
at the
Mortgage Rate on such unpaid
principal
balance from the Due Date to which
interest was last
paid by the
Mortgagor
to the first day of the month
following
the month in which such Cash
Liquidation or REO Disposition occurred.
Form 10-K Certification:
As defined in Section 4.03(e).
Freddie Mac:
Freddie Mac, a corporate
instrumentality
of the United States
created
and existing
under Title III of the Emergency
Home Finance Act of 1970,
as amended,
or any
successor thereto.
Gross
Margin:
With
respect
to
each
adjustable-rate
Mortgage
Loan,
the
fixed
percentage
set
forth
in the
related
Mortgage
Note and
indicated
on the
Mortgage
Loan
Schedule
as the
"NOTE
MARGIN,"
which
percentage
is
added to the
related
Index on each
Adjustment
Date to determine
(subject to rounding in
accordance
with the related
Mortgage
Note,
the
Periodic
Cap,
the
Maximum
Mortgage
Rate and the
Minimum
Mortgage
Rate) the
interest rate to be borne by such Mortgage Loan until the next
Adjustment Date.
HUD:
The United States Department of Housing and Urban Development.
Independent:
When used with respect to any specified Person,
means such a Person who
(i) is in fact
independent
of the
Depositor,
the Master
Servicer and the Trustee,
or any
Affiliate
thereof,
(ii) does not have any direct financial interest or any material
indirect
financial
interest in the
Depositor,
the Master
Servicer or the Trustee or in an Affiliate
thereof,
and (iii) is not connected
with the Depositor,
the Master
Servicer or the Trustee
as
an
officer,
employee,
promoter,
underwriter,
trustee,
partner,
director
or
person
performing similar functions.
Index:
With respect to any
adjustable-rate
Mortgage
Loan and as to any
Adjustment
Date therefor, the related index as stated in the related Mortgage
Note.
Initial
Certificate
Principal
Balance:
With respect to each Class of
Certificates
(other than the Class R
Certificates),
the
Certificate
Principal
Balance of such Class of
Certificates as of the Closing Date as set forth in the Preliminary
Statement hereto.
Insurance
Account:
The
account or
accounts
created
and
maintained
pursuant
to
Section 4.11, which shall be entitled "U.S. Bank National
Association,
as trustee,
in trust
for the registered holders of Residential Asset Securities
Corporation,
Home Equity Mortgage
Asset-Backed
Pass-Through
Certificates,
Series
2005-EMX5,"
and which must be an
Eligible
Account.
Insurance Agreement:
The Insurance and Indemnity Agreement,
dated as of December 16,
2005, among the Certificate Insurer, the Trustee, the Master
Servicer and the Depositor.
Insurance
Proceeds:
Proceeds paid in respect of the Mortgage
Loans
pursuant to any
Primary
Insurance
Policy or any other related
insurance policy covering a Mortgage Loan, to
the extent such proceeds are payable to the mortgagee
under the
Mortgage,
any
Subservicer,
the Master
Servicer
or the Trustee
and are not
applied to the
restoration
of the related
Mortgaged
Property or released to the Mortgagor in accordance
with the
procedures
that the
Master Servicer would follow in servicing mortgage loans held for
its own account.
Insured Payment:
As defined in the Certificate Guaranty Insurance Policy.
Interest Accrual Period:
With respect to the Distribution
Date in January 2006,
the
period
commencing the Closing Date and ending on the day preceding the
Distribution
Date in
January 2006,
and with
respect
to any
Distribution
Date
after the
Distribution
Date in
January 2006,
the
period
commencing
on the
Distribution
Date
in the
month
immediately
preceding
the month in which such
Distribution
Date occurs and ending on the day
preceding
such Distribution Date.
Interest
Distribution
Amount:
For
any
Distribution
Date,
the
amounts
payable
pursuant to Section 4.02(c)(i).
Interim Certification:
As defined in Section 2.02.
Late
Collections:
With respect to any Mortgage Loan, all amounts received during any
Due
Period,
whether
as
late
payments
of
Monthly
Payments
or
as
Insurance
Proceeds,
Liquidation
Proceeds or otherwise,
which
represent
late payments or collections of Monthly
Payments due but delinquent for a previous Due Period and not
previously recovered.
LIBOR:
With
respect to any
Distribution
Date,
the
arithmetic
mean of the London
interbank
offered rate
quotations for one-month
U.S.
Dollar
deposits,
expressed on a per
annum basis, determined in accordance with Section 1.02.
LIBOR
Business
Day:
Any day other
than (i) a
Saturday
or Sunday or (ii) a day on
which
banking
institutions
in London,
England
are
required
or
authorized
by law to be
closed.
LIBOR Certificates:
The Class A Certificates.
LIBOR Rate Adjustment Date: With respect to each
Distribution
Date, the second LIBOR
Business Day immediately preceding the commencement of the related
Interest Accrual Period.
Limited Repurchase Right Holder:
RFC Asset Holdings II, Inc., or its successor.
Liquidation
Proceeds:
Amounts (other than Insurance Proceeds) received by the Master
Servicer
in
connection
with the taking of an entire
Mortgaged
Property by exercise of the
power of eminent domain or
condemnation
or in connection with the liquidation of a defaulted
Mortgage Loan through trustee's sale,
foreclosure sale or otherwise,
other than REO Proceeds
and Subsequent Recoveries.
Loan-to-Value
Ratio:
As of any date,
the fraction,
expressed as a percentage,
the
numerator of which is the current
principal
balance of the related Mortgage Loan at the date
of
determination
and
the
denominator
of
which
is the
Appraised
Value
of the
related
Mortgaged Property.
Margin:
The Class A-1 Margin, Class A-2 Margin or Class A-3 Margin, as
applicable.
Marker
Rate:
With
respect to the
Class SB
Certificates
or the
REMIC II
Regular
Interest
SB-IO
and any
Distribution
Date,
a per
annum
rate
equal to two (2)
times the
weighted
average
of the
Uncertificated
REMIC I
Pass-Through
Rates
for
REMIC I
Regular
Interest LT2 and REMIC I Regular Interest LT3.
Master Servicer:
As defined in the preamble hereto.
Maturity Date: With respect to each Class of
Certificates
representing
ownership of
REMIC II
Regular
Interests
or REMIC I
Regular
Interests
issued
by each of
REMIC I
and
REMIC II
the
latest
possible
maturity
date,
solely
for
purposes
of
Section 1.860G-1(a)(4)(iii)
of the Treasury
Regulations,
by which the Certificate Principal
Balance of each such Class of
Certificates
representing a regular interest in the Trust Fund
would be reduced to zero, which is, for each such regular
interest,
December 25, 2035, which
is the Distribution
Date occurring in the month following the last scheduled
monthly payment
of the Mortgage Loans.
Maximum
Mortgage
Rate:
With respect to any
adjustable-rate
Mortgage Loan, the per
annum rate
indicated on the Mortgage Loan Schedule as the "NOTE
CEILING,"
which rate is the
maximum
interest
rate that may be
applicable
to such
Mortgage Loan at any time during the
life of such Mortgage Loan.
Maximum Net Mortgage Rate: With respect to any
adjustable-rate
Mortgage Loan and any
date of
determination,
the Maximum
Mortgage
Rate minus the Expense Fee Rate.
With respect
to any fixed-rate Mortgage Loan and any date of determination, the
Net Mortgage Rate.
MERS:
Mortgage Electronic
Registration
Systems,
Inc., a corporation
organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R)System:
The
system
of
recording
transfers
of
Mortgages
electronically
maintained by MERS.
MIN: The Mortgage
Identification
Number for Mortgage Loans
registered
with MERS on
the MERS(R)System.
Minimum
Mortgage
Rate:
With
respect to any
adjustable-rate
Mortgage
Loan, a per
annum rate equal to the
greater of (i) the
Note
Margin and (ii) the rate
indicated
on the
Mortgage
Loan
Schedule as the "NOTE
FLOOR,"
which rate may be
applicable to such Mortgage
Loan at any time during the life of such Mortgage Loan.
Modified
Mortgage
Loan:
Any Mortgage
Loan that has been the subject of a Servicing
Modification.
Modified Net Mortgage
Rate:
With respect to any Mortgage Loan that is the subject of
a
Servicing
Modification,
the Net
Mortgage
Rate
minus
the rate per
annum by which
the
Mortgage Rate on such Mortgage Loan was reduced.
MOM Loan:
With respect to any
Mortgage
Loan,
MERS acting as the
mortgagee of such
Mortgage
Loan,
solely as nominee for the originator of such Mortgage Loan and its
successors
and assigns, at the origination thereof.
Monthly
Payment:
With respect to any Mortgage Loan
(including any REO Property) and
the Due Date in any Due
Period,
the
payment
of
principal
and
interest
due
thereon
in
accordance with the amortization
schedule at the time applicable
thereto (after
adjustment,
if any, for
Curtailments
and for Deficient
Valuations
occurring prior to such Due Date but
before any adjustment to such
amortization
schedule by reason of any bankruptcy,
other than
a Deficient
Valuation,
or similar
proceeding or any
moratorium or similar
waiver or grace
period and before any
Servicing
Modification
that
constitutes
a reduction of the interest
rate on such Mortgage Loan).
Moody's:
Moody's Investors Service, Inc., or its successors in interest.
Mortgage:
With respect to each Mortgage
Note,
the mortgage,
deed of trust or other
comparable
instrument
creating
a
first
or
junior
lien on an
estate
in fee
simple
or
leasehold interest in real property securing a Mortgage Note.
Mortgage
File:
The
mortgage
documents
listed
in
Section 2.01
pertaining
to
a
particular
Mortgage Loan and any
additional
documents
required to be added to the Mortgage
File pursuant to this Agreement.
Mortgage
Loans:
Such of the mortgage loans
transferred
and assigned to the Trustee
pursuant to
Section 2.01
as from time to time are held or deemed to be held as a part of the
Trust Fund, the Mortgage
Loans
originally so held being
identified in the initial
Mortgage
Loan
Schedule,
and Qualified
Substitute
Mortgage
Loans held or deemed held as part of the
Trust Fund including,
without
limitation,
each related Mortgage Note, Mortgage and Mortgage
File and all rights appertaining thereto.
Mortgage Loan Schedule:
The lists of the Mortgage Loans attached
hereto as Exhibit F
(as
amended
from time to time to reflect
the
addition
of
Qualified
Substitute
Mortgage
Loans),
which
lists
shall set
forth at a
minimum
the
following
information
as to each
Mortgage Loan:
(i)
the Mortgage Loan identifying number ("RFC LOAN #");
(ii)
[reserved];
(iii)
the maturity of the Mortgage Note ("MATURITY
DATE," or "MATURITY DT");
(iv)
for the
adjustable-rate
Mortgage Loans,
the Mortgage Rate as of origination
("ORIG
RATE");
(v)
the Mortgage Rate as of the Cut-off Date ("CURR RATE");
(vi)
the Net Mortgage Rate as of the Cut-off Date ("CURR NET");
(vii)
the scheduled
monthly
payment of
principal,
if any, and interest as of the Cut-off
Date ("ORIGINAL P & I" or "CURRENT P & I");
(viii)
the Cut-off Date Principal Balance ("PRINCIPAL BAL");
(ix)
the Loan-to-Value Ratio at origination ("LTV");
(x)
a code "T," "BT" or "CT" under the column "LN FEATURE,"
indicating
that the Mortgage
Loan is secured by a second or vacation
residence
(the absence of any such code
means the Mortgage Loan is secured by a primary residence);
(xi)
a code "N" under the column "OCCP CODE,"
indicating that the Mortgage Loan is secured
by a
non-owner
occupied
residence
(the
absence
of any such
code
means the
Mortgage Loan is secured by an owner occupied residence);
(xii)
for the adjustable-rate Mortgage Loans, the Maximum Mortgage Rate
("NOTE CEILING");
(xiii)
for
the
adjustable-rate
Mortgage
Loans,
the
maximum
Net
Mortgage
Rate
("NET
CEILING");
(xiv)
for the adjustable-rate Mortgage Loans, the Note Margin ("NOTE
MARGIN");
(xv)
for the
adjustable-rate
Mortgage Loans,
the first Adjustment Date after the Cut-off
Date ("NXT INT CHG DT");
(xvi)
for
the
adjustable-rate
Mortgage
Loans,
the
Periodic
Cap
("PERIODIC
DECR"
or
"PERIODIC INCR");
(xvii)
[reserved]; and
(xviii) for the
adjustable-rate
Mortgage
Loans,
the rounding of the
semi-annual or annual
adjustment to the Mortgage Rate ("NOTE METHOD").
Such schedules may consist of multiple reports that
collectively set forth all of the
information required.
Mortgage
Note:
The
originally
executed
note or
other
evidence
of
indebtedness
evidencing
the
indebtedness
of a
Mortgagor
under
a
Mortgage
Loan,
together
with
any
modification thereto.
Mortgage
Rate:
With respect to any
Mortgage
Loan,
the interest
rate borne by the
related Mortgage Note, or any modification
thereto other than a Servicing
Modification.
The
Mortgage Rate on the
adjustable-rate
Mortgage Loans will adjust on each
Adjustment
Date to
equal the sum (rounded to the nearest
multiple of
one-eighth
of one percent
(0.125%) or up
to the nearest
one-eighth
of one percent,
which are indicated by a "U" on the Mortgage Loan
Schedule,
except in the case of the
adjustable-rate
Mortgage
Loans
indicated by an "X" on
the Mortgage Loan Schedule
under the heading
"NOTE
METHOD"),
of the related Index plus the
Note Margin,
in each case subject to the applicable
Periodic Cap,
Maximum Mortgage Rate and
Minimum Mortgage Rate.
Mortgaged Property:
The underlying real property securing a Mortgage Loan.
Mortgagor:
The obligor on a Mortgage Note.
Net
Mortgage
Rate:
With
respect
to
any
Mortgage
Loan
as
of
any
date
of
determination,
a per annum rate equal to the Mortgage
Rate for such Mortgage Loan as of such
date minus the related Expense Fee Rate.
Net WAC Cap Rate:
With
respect to any
Distribution
Date,
the product of (i) a per
annum rate equal to the weighted
average of the Net Mortgage
Rates (or, if
applicable,
the
Modified Net Mortgage
Rates) using the Net Mortgage Rates in effect for the Monthly
Payments
due on such
Mortgage
Loans
during the
related
Due
Period,
weighted
on the basis of the
respective
Stated Principal
Balances thereof for such
Distribution Date and (ii) a fraction
equal to 30 divided by the actual number of days in the related
Interest Accrual Period.
Non-United States Person:
Any Person other than a United States Person.
Nonrecoverable
Advance:
Any
Advance
previously
made or proposed to be made by the
Master
Servicer or Subservicer
in respect of a Mortgage Loan (other than a Deleted
Mortgage
Loan) which, in the good faith judgment of the Master
Servicer,
will not, or, in the case of
a proposed Advance,
would not, be ultimately
recoverable by the Master Servicer from related
Late Collections,
Insurance
Proceeds,
Liquidation
Proceeds or REO Proceeds.
To the extent
that any Mortgagor is not obligated under the related
Mortgage
documents to pay or reimburse
any
portion of any
Servicing
Advances
that are
outstanding
with
respect to the
related
Mortgage Loan as a result of a
modification
of such
Mortgage
Loan by the Master
Servicer,
which forgives amounts which the Master Servicer or Subservicer had
previously
advanced,
and
the Master
Servicer
determines
that no other
source of payment or
reimbursement
for such
advances is
available to it, such
Servicing
Advances
shall be deemed to be
Nonrecoverable
Advances.
The
determination
by
the
Master
Servicer
that
it has
made a
Nonrecoverable
Advance shall be evidenced by a certificate
of a Servicing
Officer,
Responsible
Officer or
Vice President or its equivalent or senior
officer of the Master
Servicer,
delivered to the
Depositor,
the Trustee,
the Certificate
Insurer and the Master Servicer
setting forth such
determination,
which shall include any other
information
or reports
obtained by the Master
Servicer such as property operating
statements,
rent rolls,
property inspection reports and
engineering
reports,
which may support such
determinations.
Notwithstanding the above, the
Trustee
shall be
entitled to rely upon any
determination
by the Master
Servicer
that any
Advance
previously made is a Nonrecoverable
Advance or that any proposed
Advance,
if made,
would constitute a Nonrecoverable Advance.
Nonsubserviced
Mortgage
Loan:
Any
Mortgage
Loan
that,
at the time of
reference
thereto, is not subject to a Subservicing Agreement.
Note
Margin:
With
respect
to
each
adjustable-rate
Mortgage
Loan,
the
fixed
percentage
set
forth
in the
related
Mortgage
Note and
indicated
on the
Mortgage
Loan
Schedule
as the "NOTE
MARGIN,"
which
percentage
is added to the Index on each
Adjustment
Date to determine
(subject to rounding in
accordance
with the related
Mortgage
Note,
the
Periodic Cap, the Maximum
Mortgage Rate and the Minimum
Mortgage
Rate) the interest rate to
be borne by such Mortgage Loan until the next Adjustment Date.
Notice:
A Notice of
Nonpayment
and Demand for Insured
Payment,
a form of which is
attached as Exhibit A to the Certificate Guaranty Insurance Policy.
Notional
Amount:
With respect to the Class SB
Certificates or the REMIC II
Regular
Interest
SB-IO,
immediately
prior
to
any
Distribution
Date,
the
aggregate
of
the
Uncertificated Principal Balances of the REMIC I Regular Interests.
Officers'
Certificate:
A
certificate
signed
by the
Chairman
of the
Board,
the
President,
a Vice
President,
Assistant Vice President,
Director,
Managing
Director,
the
Treasurer,
the Secretary,
an Assistant
Treasurer or an Assistant Secretary of the Depositor
or the Master
Servicer,
as the case may be, and
delivered
to the
Trustee,
as required by
this Agreement.
Opinion of Counsel:
A written
opinion of counsel
acceptable
to the Trustee and the
Master
Servicer and which
counsel may be counsel for the
Depositor or the Master
Servicer,
provided
that any
Opinion of Counsel
(i)
referred to in the
definition
of
"Disqualified
Organization"
or (ii)
relating to the
qualification
of any REMIC
hereunder
as a REMIC or
compliance
with the REMIC
Provisions
must,
unless
otherwise
specified,
be an opinion of
Independent counsel.
Optional
Termination
Date:
Any
Distribution
Date on or
after
which
the
Stated
Principal
Balance
(after
giving
effect to
distributions
to be made on such
Distribution
Date) of the Mortgage Loans is less than 10.00% of the Cut-off Date
Balance.
Outstanding
Mortgage
Loan:
With
respect
to the
Due
Date in any
Due
Period,
a
Mortgage Loan
(including an REO Property) that was not the subject of a Principal
Prepayment
in
Full,
Cash
Liquidation
or REO
Disposition
and
that
was not
purchased,
deleted
or
substituted for prior to such Due Date pursuant to Section 2.02,
2.03, 2.04 or 4.07.
Overcollateralization
Amount:
With respect to any Distribution
Date, the excess, if
any, of (a) the
aggregate
Stated
Principal
Balance of the
Mortgage
Loans
before
giving
effect
to
distributions
of
principal
to be made on such
Distribution
Date
over (b) the
aggregate
Certificate
Principal
Balance of the Class A
Certificates
immediately
prior to
such date.
Overcollateralization
Floor:
An amount equal to the product of 0.50% and the Cut-off
Date Balance.
Overcollateralization
Increase
Amount:
With respect to any
Distribution
Date, the
lesser of (a)
Excess
Cash Flow for that
Distribution
Date (to the extent not used to cover
the amounts
described in clauses
(iv) and (v) of the
definition
of Principal
Distribution
Amount
as
of
such
Distribution
Date)
and
(b)
the
excess
of
(1)
the
Required
Overcollateralization
Amount for such
Distribution
Date over (2) the
Overcollateralization
Amount for such Distribution Date.
Overcollateralization
Reduction
Amount:
With
respect to any
Distribution
Date on
which the
Excess
Overcollateralization
Amount
is,
after
taking
into
account
all other
distributions
to
be
made
on
such
Distribution
Date,
greater
than
zero,
the
Overcollateralization
Reduction
Amount
shall
be
equal
to the
lesser
of (i) the
Excess
Overcollateralization
Amount for that
Distribution
Date and (ii) the
Principal
Remittance
Amount on such Distribution Date.
Ownership
Interest:
With
respect to any
Certificate,
any
ownership
or
security
interest
in such
Certificate,
including
any
interest
in such
Certificate
as the Holder
thereof and any other interest therein,
whether direct or indirect,
legal or beneficial,
as
owner or as pledgee.
Pass-Through
Rate:
With
respect
to
each
Class of
Class A
Certificates
and any
Distribution
Date,
the least of (i) a per annum rate equal to LIBOR plus the related
Margin
for such
Distribution
Date,
(ii) 14.000%
per annum and (iii) the Net WAC Cap Rate for such
Distribution Date.
With respect to the Class SB
Certificates and any
Distribution
Date or the REMIC II
Regular
Interest
SB-IO, a per annum rate equal to the
percentage
equivalent of a fraction,
the
numerator of which is the sum of the amounts
calculated
pursuant to clauses (i) through
(iii) below,
and the denominator of which is the aggregate
principal
balance of the REMIC I
Regular
Interests.
For
purposes
of
calculating
the
Pass-Through
Rate for the
Class SB
Certificates or the REMIC II
Regular Interest SB-IO, the numerator is equal to the sum of the
following components:
(i)
the
Uncertificated
Pass-Through
Rate for REMIC I Regular Interest LT1
minus
the
related
Marker
Rate,
applied
to
a
notional
amount
equal
to
the
Uncertificated Principal Balance of REMIC I Regular Interest LT1;
(ii)
the
Uncertificated
Pass-Through
Rate for REMIC I Regular Interest LT2
minus
the
related
Marker
Rate,
applied
to
a
notional
amount
equal
to
the
Uncertificated Principal Balance of REMIC I Regular Interest LT2;
and
(iii)
the
Uncertificated
Pass-Through
Rate for REMIC I Regular Interest LT4
minus
twice the
related
Marker
Rate,
applied
to a notional
amount
equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT4.
Paying Agent:
U.S. Bank National
Association or any successor Paying Agent appointed
by the Trustee.
Percentage
Interest:
With
respect
to
any
Class A
Certificate,
the
undivided
percentage
ownership
interest
in the related
Class evidenced
by such
Certificate,
which
percentage
ownership
interest shall be equal to the Initial
Certificate
Principal
Balance
thereof
divided
by
the
aggregate
Initial
Certificate
Principal
Balance
of
all of the
Certificates
of
the
same
Class.
The
Percentage
Interest
with
respect
to
a
Class SB
Certificate or Class R Certificate shall be stated on the face
thereof.
Periodic Cap: With respect to each
adjustable-rate
Mortgage
Loan, the periodic rate
cap that limits the increase or the decrease of the related
Mortgage
Rate on any
Adjustment
Date pursuant to the terms of the related Mortgage Note.
Permitted Investments:
One or more of the following:
(i)
obligations
of or guaranteed as to principal and interest by the United States
or any agency or
instrumentality
thereof when such
obligations are backed by
the full faith and credit of the United States;
(ii)
repurchase
agreements on obligations specified in clause (i) maturing not more
than
one
month
from
the
date of
acquisition
thereof,
provided
that the
unsecured
obligations of the party agreeing to repurchase such obligations
are
at the time
rated by each
Rating
Agency
in its
highest
short-term
rating
available;
(iii)
federal funds,
certificates
of deposit,
demand
deposits,
time deposits and
bankers'
acceptances
(which shall each have an original
maturity of not more
than 90 days and, in the case of bankers'
acceptances,
shall in no event have
an
original
maturity
of more than 365 days or a
remaining
maturity of more
than 30 days)
denominated
in United
States
dollars
of any U.S.
depository
institution or trust company
incorporated
under the laws of the United States
or any
state
thereof
or of
any
domestic
branch
of a
foreign
depository
institution
or trust
company;
provided
that the
debt
obligations
of such
depository
institution
or trust
company at the date of
acquisition
thereof
have
been
rated
by each
Rating
Agency
in its
highest
short-term
rating
available;
and,
provided
further
that,
if the
original
maturity
of such
short-term
obligations
of
a
domestic
branch
of
a
foreign
depository
institution
or trust company shall exceed 30 days,
the
short-term
rating of
such
institution
shall be A-1+ in the case of Standard & Poor's if Standard
&
Poor's is a Rating Agency;
(iv)
commercial paper and demand notes (having original
maturities of not more than
365 days) of any corporation
incorporated
under the laws of the United States
or any state
thereof which on the date of
acquisition
has been rated by each
Rating
Agency in its highest short term rating
available;
provided that such
commercial
paper and demand notes shall have a remaining
maturity of not more
than 30 days;
(v)
a money market fund or a qualified
investment fund rated by each Rating Agency
in its highest
long-term rating available (which may be managed by the Trustee
or one of its Affiliates); and
(vi)
other
obligations or securities
that are acceptable to each Rating Agency and
the
Certificate
Insurer
as a
Permitted
Investment
hereunder
and will not
reduce the rating
assigned to any Class of
Certificates by such Rating Agency
below the
then-current
rating
assigned to such
Certificates
by such Rating
Agency, as evidenced in writing;
provided,
however,
that no
instrument
shall be a Permitted
Investment
if it
represents,
either (1) the right to receive only
interest
payments with respect to the
underlying
debt
instrument
or (2) the right to receive
both
principal
and interest
payments
derived from
obligations
underlying such
instrument and the principal and interest
payments with respect
to such instrument
provide a yield to maturity
greater than 120% of the yield to maturity at
par of such
underlying
obligations.
References
herein to the highest
rating
available on
unsecured
long-term
debt shall mean AAA in the case of Standard & Poor's and Aaa in
the case
of Moody's,
and for purposes of this Agreement,
any references
herein to the highest rating
available
on
unsecured
commercial
paper and
short-term
debt
obligations
shall mean the
following:
A-1 in the case of
Standard
& Poor's and P-1 in the case of
Moody's;
provided,
however,
that any Permitted
Investment
that is a short-term
debt
obligation
rated A-1 by
Standard & Poor's must satisfy the following
additional
conditions:
(i) the total amount of
debt from A-1 issuers
must be limited to the
investment
of monthly
principal
and interest
payments
(assuming
fully
amortizing
collateral);
(ii) the total amount of A-1 investments
must not represent more than 20% of the aggregate
outstanding
Certificate
Principal Balance
of the
Certificates
and each investment
must not mature beyond 30 days;
(iii) the terms of
the debt must have a
predetermined
fixed
dollar
amount of principal
due at maturity
that
cannot vary;
and (iv) if the
investments
may be liquidated
prior to their
maturity or are
being
relied on to meet a certain
yield,
interest
must be tied to a single
interest
rate
index plus a single
fixed
spread
(if any) and must move
proportionately
with that
index.
Any Permitted Investment may be purchased by or through the Trustee
or its Affiliates.
Permitted
Transferee:
Any
Transferee
of
a
Class R
Certificate,
other
than
a
Disqualified Organization or Non-United States Person.
Person: Any individual,
corporation,
limited liability company,
partnership,
joint
venture,
association,
joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision thereof.
Prepayment
Assumption:
With
respect to the
Class A
Certificates,
the
prepayment
assumption to be used for
determining
the accrual of original issue discount and premium and
market discount on such
Certificates for federal income tax purposes,
which (a) with respect
to the fixed-rate
Mortgage Loans,
assumes a constant prepayment rate of one-tenth of 23% per
annum of the then
outstanding
Stated Principal
Balance of the fixed-rate
Mortgage Loans in
the first month of the life of such
Mortgage
Loans and an
additional
one-tenth
of 23% per
annum in each month
thereafter
until the tenth month,
and
beginning in the tenth month and
in each
month
thereafter
during
the life of the
fixed-rate
Mortgage
Loans,
a
constant
prepayment
rate
of 23% per
annum
each
month
("23%
HEP")
and (b)
with
respect
to the
adjustable-rate
Mortgage
Loans
assumes
a
prepayment
assumption
of
2% of
the
constant
prepayment
rate
in
month
one,
increasing
by
approximately
2.545%
from
month
2 until
month 12,
a constant
prepayment rate of 30% from month 12 to month 22, a constant
prepayment
rate of 50% from
month 23 to month 27,
and a
constant
prepayment
rate of 35%
thereafter,
used for
determining
the accrual of original issue discount and premium and market
discount
on the Class A
Certificates
for federal income tax purposes.
The constant
prepayment
rate
assumes
that the
stated
percentage
of the
outstanding
Stated
Principal
Balance
of the
adjustable-rate Mortgage Loans is prepaid over the course of a
year.
Prepayment
Interest
Shortfall:
With
respect
to
any
Distribution
Date
and
any
Mortgage Loan (other than a Mortgage
Loan
relating to an REO Property)
that was the subject
of (a) a Principal
Prepayment in Full during the related
Prepayment
Period, an amount equal
to the excess of one
month's
interest
at the related Net
Mortgage
Rate (or
Modified
Net
Mortgage
Rate in the case of a Modified
Mortgage
Loan) on the Stated
Principal
Balance of
such
Mortgage
Loan over the amount of interest
(adjusted to the related Net
Mortgage
Rate
(or
Modified
Net
Mortgage
Rate
in the
case of a
Modified
Mortgage
Loan))
paid by the
Mortgagor for such Prepayment
Period to the date of such Principal
Prepayment in Full or (b)
a Curtailment
during the prior
calendar
month,
an amount equal to one month's
interest at
the
related
Net
Mortgage
Rate (or
Modified
Net
Mortgage
Rate in the case of a Modified
Mortgage Loan) on the amount of such Curtailment.
Prepayment
Period:
With
respect
to
any
Distribution
Date,
the
calendar
month
preceding the month of distribution.
Primary
Insurance
Policy:
Each
primary
policy of mortgage
guaranty
insurance as
indicated by a numeric code on the Mortgage
Loan
Schedule
with the exception of code "A23,"
"A34" or "A96" under the column "MI CO CODE."
Principal
Distribution
Amount:
With respect to any Distribution Date, the lesser of
(a) the
excess of (x) the sum of (A) the Available
Distribution
Amount and (B) with respect
to
clauses
(b)(v)
and
(vi)
below,
the
Yield
Maintenance
Agreement
Payment
for
that
Distribution Date, over (y) the Interest Distribution Amount, and
(b) the sum of:
(i)
the
principal
portion of each Monthly
Payment
received or Advanced with respect to
the related Due Period on each Outstanding Mortgage Loan;
(ii)
the Stated
Principal
Balance of any
Mortgage
Loan
repurchased
during the related
Prepayment
Period
(or
deemed
to have been so
repurchased
in
accordance
with
Section 3.07(b))
pursuant to
Section 2.02,
2.03,
2.04 or 4.07 and the amount of
any
shortfall
deposited
in
the
Custodial
Account
in
connection
with
the
substitution
of a Deleted
Mortgage Loan pursuant to
Section 2.03
or 2.04 during
the related Prepayment Period;
(iii)
the principal
portion of all other
unscheduled
collections,
other than
Subsequent
Recoveries,
on
the
Mortgage
Loans
(including,
without
limitation,
Principal
Prepayments in Full,
Curtailments,
Insurance Proceeds,
Liquidation
Proceeds and
REO
Proceeds)
received
during the related
Prepayment
Period (or deemed to have
been so received) to the extent
applied by the Master
Servicer as
recoveries
of
principal of the Mortgage Loans pursuant to Section 3.14;
(iv)
the
lesser
of (1)
Subsequent
Recoveries
for
such
Distribution
Date and (2) the
principal
portion of any Realized
Losses
allocated to any Class of
Certificates
on a prior Distribution Date and remaining unpaid;
(v)
the lesser of (1) the Excess Cash Flow for such
Distribution
Date (to the extent not
used
pursuant
to clause
(iv) of this
definition
on such
Distribution
Date or
required
to pay
Cumulative
Insurance
Payments
on such
Distribution
Date) and
(2) the
principal
portion of any Realized Losses incurred (or deemed to have been
incurred) on any Mortgage Loans in the calendar month
preceding such
Distribution
Date; and
(vi)
the lesser of (1) the Excess Cash Flow for that
Distribution
Date (to the extent not
used
pursuant
to clauses
(iv) and (v) of this
definition
on such
Distribution
Date)
and (2) the
Overcollateralization
Increase
Amount
for such
Distribution
Date;
minus
(vii)
(A) the amount of any
Overcollateralization
Reduction
Amount for such
Distribution
Date
and (B) the
amount
of any
Capitalization
Reimbursement
Amount
for
such
Distribution Date.
Principal
Prepayment:
Any payment of principal or other recovery on a Mortgage Loan,
including
a recovery
that takes the form of
Liquidation
Proceeds
or
Insurance
Proceeds,
which is received in advance of its
scheduled
Due Date and is not
accompanied
by an amount
as to interest
representing
scheduled
interest on such
payment due on any date or dates in
any month or months subsequent to the month of prepayment.
Principal
Prepayment
in Full:
Any Principal
Prepayment
made by a Mortgagor of the
entire principal balance of a Mortgage Loan.
Principal
Remittance
Amount:
With
respect to any
Distribution
Date,
all amounts
described in clauses (b)(i) through (iii) of the definition of
Principal
Distribution
Amount
for that Distribution Date.
Program
Guide:
The
AlterNet
Seller
Guide as
incorporated
into
the
Residential
Funding
Seller
Guide
for
mortgage
collateral
sellers
that
participate
in
Residential
Funding's AlterNet Mortgage Program,
and Residential
Funding's Servicing Guide and any other
subservicing
arrangements
which
Residential
Funding
has
arranged
to
accommodate
the
servicing
of the
Mortgage
Loans and in each case all
supplements
and
amendments
thereto
published by Residential Funding.
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 either (a)
the Adjusted
Mortgage Rate (or Modified Net Mortgage Rate in the case of a
Modified
Mortgage
Loan) plus the rate per annum at which the Servicing Fee and the
Certificate
Insurer Premium
Modified Rate is
calculated,
or (b) in the case of a purchase
made by the Master
Servicer,
at the Net Mortgage
Rate (or Modified
Net Mortgage
Rate in the case of a Modified
Mortgage
Loan)
plus
the
Certificate
Insurer
Premium
Modified
Rate,
in each
case on the
Stated
Principal
Balance
thereof to the first day of the month following the month of
purchase from
the Due Date to which
interest was last paid by the
Mortgagor.
With respect to any Mortgage
Loan
(or REO
Property)
required
to be or
otherwise
purchased
on any
date
pursuant
to
Section 4.08,
an
amount
equal
to the
greater
of (i)
the sum of (a)
100% of the
Stated
Principal Balance thereof plus the principal portion of any related
unreimbursed
Advances of
such
Mortgage
Loan (or REO
Property)
and (b)
unpaid
accrued
interest
at either (1) the
Adjusted
Mortgage
Rate (or
Modified Net
Mortgage
Rate in the case of a Modified
Mortgage
Loan) plus the rate per annum at which the
Servicing
Fee is
calculated,
or (2) in the case
of a
purchase
made by the
Master
Servicer,
at the Net
Mortgage
Rate
(or
Modified
Net
Mortgage Rate in the case of a Modified
Mortgage Loan), in each case on the Stated
Principal
Balance
thereof to the first day of the month
following
the month of purchase
from the Due
Date to which
interest
was last paid by the
Mortgagor,
and (ii) the fair
market
value of
such Mortgage Loan (or REO Property).
Qualified
Substitute
Mortgage
Loan:
A Mortgage
Loan
substituted
by
Residential
Funding
or the
Depositor
for a
Deleted
Mortgage
Loan
which
must,
on the
date of such
substitution,
as confirmed in an Officers'
Certificate delivered to the Trustee, (i) have an
outstanding
principal
balance,
after
deduction
of the
principal
portion of the
monthly
payment due in the month of
substitution
(or in the case of a substitution
of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate outstanding
principal balance,
after
such deduction),
not in excess of the Stated
Principal
Balance of the Deleted Mortgage Loan
(the
amount of any
shortfall
to be
deposited
by
Residential
Funding,
in the
Custodial
Account in the month of
substitution);
(ii) have a Mortgage
Rate and a Net Mortgage Rate no
lower
than and not more than 1% per annum
higher
than the
Mortgage
Rate and Net
Mortgage
Rate,
respectively,
of the Deleted Mortgage Loan as of the date of substitution;
(iii) have
a
Loan-to-Value
Ratio
at the
time of
substitution
no
higher
than
that of the
Deleted
Mortgage Loan at the time of
substitution;
(iv) have a 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,
(other than the
representations
and warranties set
forth
therein
with
respect to the number of loans
(including
the related
percentage)
in
excess of zero which meet or do not meet a
specified
criteria);
(vi) not be 30 days or more
Delinquent;
(vii) not be subject to the
requirements
of HOEPA (as defined in the Assignment
Agreement);
(viii)
have a policy
of title
insurance,
in the
form and
amount
that is in
material
compliance
with the Program
Guide,
that was
effective
as of the closing of such
Mortgage
Loan,
is valid and
binding,
and
remains
in full
force and
effect,
unless the
Mortgage
Property is located in the State of Iowa where an
attorney's
certificate
has been
provided as described in the Program
Guide;
(ix) if the Deleted Loan is not a Balloon
Loan,
not be a Balloon Loan;
(x) with respect to adjustable
rate Mortgage
Loans,
have a Mortgage
Rate
that
adjusts
with the same
frequency
and
based
upon the same
Index as that of the
Deleted
Mortgage
Loan;
(xi) with respect to
adjustable
rate Mortgage
Loans,
have a Note
Margin not less than that of the
Deleted
Mortgage
Loan;
(xii) with
respect to
adjustable
rate Mortgage
Loans,
have a Periodic Rate Cap that is equal to that of the Deleted
Mortgage
Loan;
(xiii) with respect to adjustable rate Mortgage
Loans,
have a next Adjustment Date no
later than that of the
Deleted
Mortgage
Loan,
and (xiv) be secured by a lien with the same
lien priority as the Deleted Loan.
Rating
Agency:
Each of Standard & Poor's and
Moody's.
If any agency or a successor
is no longer in existence,
"Rating
Agency" shall be such
statistical
credit rating agency,
or other comparable
Person,
designated by the Depositor,
notice of which
designation shall
be given to the Trustee and the Master Servicer.
Realized
Loss:
With respect to each
Mortgage
Loan (or REO
Property) as to which a
Cash
Liquidation
or REO
Disposition
has occurred,
an amount (not less than zero) equal to
(i) the Stated
Principal
Balance of the
Mortgage
Loan (or REO
Property) as of the date of
Cash Liquidation or REO
Disposition,
plus (ii) interest (and REO Imputed
Interest,
if any)
at the Net Mortgage Rate plus the
Certificate
Insurer
Premium
Modified Rate,
from the Due
Date as to which interest was last paid or advanced to
Certificateholders
up to the last day
of the
month in which
the Cash
Liquidation
(or REO
Disposition)
occurred
on the
Stated
Principal Balance of such Mortgage Loan (or REO Property)
outstanding
during each Due Period
that such
interest
was not paid or
advanced,
minus (iii) the
proceeds,
if any,
received
during the month in which such Cash Liquidation (or REO
Disposition)
occurred,
to the extent
applied as
recoveries
of
interest at the Net
Mortgage
Rate plus the
Certificate
Insurer
Premium
Modified
Rate,
and to principal of the Mortgage
Loan,
net of the portion
thereof
reimbursable
to the Master
Servicer or any
Subservicer
with
respect to related
Advances,
Servicing
Advances
or other
expenses
as to which the Master
Servicer
or
Subservicer
is
entitled to
reimbursement
thereunder
but which have not been
previously
reimbursed.
With
respect to each
Mortgage Loan which is the subject of a Servicing
Modification,
(a) (1) the
amount by which the interest
portion of a Monthly
Payment or the
principal
balance of such
Mortgage
Loan was reduced or (2) the sum of any other
amounts
owing under the Mortgage Loan
that were
forgiven
and that
constitute
Servicing
Advances
that are
reimbursable
to the
Master
Servicer or a Subservicer,
and (b) any such amount with respect to a Monthly
Payment
that was or would
have
been due in the
month
immediately
following
the
month in which a
Principal
Prepayment or the Purchase
Price of such Mortgage Loan is received or is deemed to
have been
received.
With
respect to each
Mortgage
Loan which has become the
subject of a
Deficient
Valuation,
the
difference
between the
principal
balance of the
Mortgage
Loan
outstanding
immediately
prior to such Deficient
Valuation and the principal
balance of the
Mortgage
Loan as reduced by the
Deficient
Valuation.
With
respect to each
Mortgage
Loan
which has become
the
object of a Debt
Service
Reduction,
the amount of such Debt
Service
Reduction.
Notwithstanding
the
above,
neither a
Deficient
Valuation
nor a Debt
Service
Reduction
shall be deemed a
Realized
Loss
hereunder
so long as the
Master
Servicer
has
notified the Trustee in writing that the Master
Servicer is diligently
pursuing any remedies
that may exist in
connection
with the
representations
and
warranties
made
regarding the
related
Mortgage Loan and either (A) the related
Mortgage Loan is not in default with regard
to payments due
thereunder or (B)
delinquent
payments of principal
and interest
under the
related
Mortgage Loan and any premiums on any applicable
primary hazard insurance policy and
any related
escrow
payments in respect of such Mortgage Loan are being advanced on a
current
basis by the Master
Servicer or a
Subservicer,
in either case without
giving effect to any
Debt Service Reduction.
Realized
Losses
allocated to the Class SB
Certificates
shall be allocated first to
the REMIC II
Regular
Interest SB-IO in reduction of the accrued but unpaid interest
thereon
until
such
accrued
and
unpaid
interest
shall
have been
reduced to zero and then to the
REMIC II Regular Interest SB-PO in reduction of the Principal
Balance thereof.
To the extent the Master Servicer receives
Subsequent
Recoveries with respect to any
Mortgage
Loan,
the amount of the Realized
Loss with respect to that
Mortgage
Loan will be
reduced
to the extent
such
recoveries
are
applied
to reduce
the
Certificate
Principal
Balance of any Class of Certificates on any Distribution Date.
Record Date: With respect to each
Distribution Date and the LIBOR
Certificates,
the
Business
Day
immediately
preceding
such
Distribution
Date.
With
respect
to
each
Distribution
Date and the
Certificates
(other
than the LIBOR
Certificates),
the close of
business on the last
Business Day of the month next
preceding the month in which the related
Distribution
Date
occurs,
except in the case of the first
Record
Date which
shall be the
Closing Date.
Reference Bank Rate:
As defined in Section 1.02.
Regular Certificates:
The Class A Certificates and Class SB Certificates.
Relief Act: The
Servicemembers
Civil Relief Act, formerly known as the Soldiers' and
Sailors' Civil Relief Act of 1940.
Relief Act
Shortfalls:
Interest
shortfalls on the Mortgage Loans resulting from the
Relief Act or similar legislation or regulations.
REMIC:
A
"real
estate
mortgage
investment
conduit"
within
the
meaning
of
Section 860D of the Code.
As used herein, the term "REMIC" shall mean REMIC I or REMIC II.
REMIC
Administrator:
Residential
Funding
Corporation.
If
Residential
Funding
Corporation
is found by a court of
competent
jurisdiction
to no longer be able to
fulfill
its
obligations as REMIC
Administrator
under this Agreement the Master
Servicer or Trustee
acting as successor
Master
Servicer shall appoint a successor REMIC
Administrator,
subject
to assumption of the REMIC Administrator obligations under this
Agreement.
REMIC I:
The segregated pool of assets subject hereto,
constituting a portion of the
primary
trust
created
hereby
and to be
administered
hereunder,
exclusive
of the
Yield
Maintenance
Agreement,
which are not assets of any REMIC,
with
respect to which a separate
REMIC election is to be made, consisting of:
(i)
the Mortgage Loans and the related Mortgage Files;
(ii)
all payments on and
collections
in respect of the
Mortgage
Loans due
after the Cut-off
Date (other than
Monthly
Payments due in the month of the Cut-off
Date) as shall be on deposit in the Custodial
Account or in the
Certificate
Account
and identified as belonging to the Trust Fund;
(iii)
property
which
secured a Mortgage Loan and which has been acquired for
the benefit of the Certificateholders by foreclosure or deed in
lieu of foreclosure;
(iv)
the hazard insurance policies and Primary Insurance Policies
pertaining
to the Mortgage Loans, if any; and
(v)
all proceeds of clauses (i) through (iv) above.
REMIC
I Distribution
Amount: For any Distribution
Date, the Available
Distribution
Amount shall be
distributed to the REMIC I Regular
Interests and the Class R-I
Certificates
in the following amounts and priority:
(i)
to the extent of the Available
Distribution
Amount, to REMIC II as the
holder of REMIC I Regular
Interests
LT1,
LT2, LT3 and LT4, pro rata,
in an amount equal to
(A) their
Uncertificated
Accrued Interest for such
Distribution
Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution
Dates; and
(ii)
to the extent of the Available
Distribution
Amount remaining after the
distributions
made
pursuant
to clause (i)
above,
to REMIC II as the holder of the REMIC I
Regular Interests, in an amount equal to:
(A)
in respect
of the REMIC I Regular
Interests
LT2,
LT3 and LT4,
their respective Principal Distribution Amounts;
(B)
in
respect
of the REMIC I Regular
Interest
LT1 any
remainder
until the Uncertificated Principal Balance thereof is reduced to
zero;
(C)
any
remainder in respect of the REMIC I Regular
Interests
LT2,
LT3 and LT4,
pro rata
according to their
respective
Uncertificated
Principal
Balances as
reduced by the
distributions
deemed
made
pursuant
to (A) above,
until
their
respective
Uncertificated Principal Balances are reduced to zero; and
(iii)
any remaining amounts to the Holders of the Class R-I Certificates.
REMIC I Principal
Reduction Amounts:
For any Distribution Date, the amounts by which
the principal
balances of the REMIC I Regular Interests LT1, LT2, LT3 and LT4,
respectively,
will be
reduced
on such
Distribution
Date by the
allocation
of
Realized
Losses and the
distribution of principal, determined as follows:
For purposes of the succeeding
formulas the following symbols shall have the meanings
set forth below:
Y1 =
the
aggregate
principal
balance of the REMIC I
Regular
Interest
LT1 after
distributions on the prior Distribution Date.
Y2 =
the principal
balance of the REMIC I Regular Interest LT2 after
distributions
on the prior Distribution Date.
Y3 =
the principal
balance of the REMIC I Regular Interest LT3 after
distributions
on the prior Distribution Date.
Y4 =
the principal
balance of the REMIC I Regular Interest LT4 after
distributions
on the prior Distribution Date (note:
Y3 = Y4).
AY1 =
the REMIC I Regular Interest LT1 Principal Reduction Amount.
AY2 =
the REMIC I Regular Interest LT2 Principal Reduction Amount.
AY3 =
the REMIC I Regular Interest LT3 Principal Reduction Amount.
AY4 =
the REMIC I Regular Interest LT4 Principal Reduction Amount.
P0 =
the aggregate
principal balance of the REMIC I Regular Interests LT1, LT2, LT3
and LT4 after
distributions
and the allocation of Realized Losses on the prior
Distribution
Date.
P1 =
the aggregate
principal balance of the REMIC I Regular Interests LT1, LT2, LT3
and
LT4
after
distributions
and
the
allocation
of
Realized
Losses
to be made on such
Distribution Date.
AP =
P0 - P1 = the aggregate of the REMIC I Regular
Interests LT1, LT2, LT3 and LT4
Principal Reduction Amounts.
=the aggregate of the principal
portions of Realized Losses to be allocated to,
and the principal
distributions
to be made on, the
Certificates on such
Distribution
Date
(including
distributions
of accrued and unpaid
interest on the
Class SB
Certificates
for
prior Distribution Dates).
R0 =
the Net WAC Cap Rate (stated as a monthly
rate) after giving effect to amounts
distributed and Realized Losses allocated on the prior Distribution
Date.
R1 =
the Net WAC Cap Rate (stated as a monthly
rate) after giving effect to amounts
to be distributed and Realized Losses to be allocated on such
Distribution Date.
a =
(Y2 + Y3)/P0.
The initial
value of a on the Closing Date for use on the first
Distribution Date shall be 0.0001.
a0 =
the
lesser of (A) the sum for all
Classes
of
Certificates,
other
than the
Class SB
Certificates,
of the product for each Class of (i) the
monthly
interest
rate (as
limited
by
the
REMIC
Net
WAC
Rate,
if
applicable)
for
such
Class
applicable
for
distributions
to be made
on such
Distribution
Date
and
(ii)
the
aggregate
Certificate
Principal
Balance for such Class after
distributions
and the allocation of Realized
Losses
on the prior Distribution Date and (B) R0*P0.
a1
=
the
lesser of (A) the sum for all
Classes
of
Certificates,
other
than the
Class SB
Certificates,
of the product for each Class of (i) the
monthly
interest
rate (as
limited by the Net WAC Cap Rate, if applicable)
for such Class
applicable for
distributions
to be made on the
next
succeeding
Distribution
Date and
(ii)
the
aggregate
Certificate
Principal
Balance for such Class after
distributions
and the allocation of Realized
Losses
to be made on such Distribution Date and (B) R1*P1.
Then, based on the foregoing definitions:
AY1 =
AP - AY2 - AY3 - AY4;
AY2 =
a{ a0R1P1 - a1R0P0}/{2R1R0P1 -
a1R0};
AY3 =
aAP - AY2; and
AY4 =
AY3.
if both AY2 and AY3, as so determined, are non-negative numbers.
Otherwise:
(1)
If AY2, as so determined, is negative, then
AY2 = 0;
AY3 = a{a1R0P0 - a0R1P1}/{a1R0};
AY4 = AY3; and
AY1 = AP - AY2 - AY3 - AY4.
(2)
If AY3, as so determined, is negative, then
AY3 = 0;
AY2 = a{a1R0P0 - a0R1P1}/{2R1R0P1 -
a1R0};
AY4 = AY3; and
AY1 = AP - AY2 - AY3 - AY4.
REMIC I Realized
Losses:
Realized Losses on the Mortgage Loans shall be allocated to
the REMIC I Regular
Interests
as follows:
The
interest
portion of Realized
Losses on the
Mortgage Loans,
if any, shall be allocated
among the REMIC I Regular
Interests LT1, LT2 and
LT4 pro rata
according
to the amount of interest
accrued but unpaid
thereon,
in reduction
thereof.
Any
interest
portion of such
Realized
Losses in excess of the
amount
allocated
pursuant
to the
preceding
sentence
shall be treated
as a
principal
portion of
Realized
Losses
not
attributable
to
any
specific
Mortgage
Loan
and
allocated
pursuant
to the
succeeding
sentences.
The principal
portion of Realized
Losses on the Mortgage
Loans,
if
any,
shall be allocated
first,
to the REMIC I Regular
Interests
LT2, LT3 and LT4 pro rata
according to their respective
Principal
Reduction Amounts to the extent thereof in reduction
of the
Uncertificated
Principal Balance of such REMIC I Regular
Interests and, second,
the
remainder,
if any, of such
principal
portion of such Realized
Losses shall be allocated to
the
REMIC I
Regular
Interest
LT1 in
reduction
of the
Uncertificated
Principal
Balance
thereof.
REMIC I Regular
Interests:
REMIC I Regular
Interest LT1,
REMIC II Regular Interest
LT2, REMIC II Regular Interest LT3 and REMIC II Regular Interest
LT4.
REMIC I Regular
Interest LT1: A regular
interest in REMIC I that is held as an asset
of
REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I
Pass-Through
Rate, and that has such other terms as are described herein.
REMIC I
Regular
Interest LT1 Principal
Distribution
Amount:
For any
Distribution
Date, the excess,
if any, of the REMIC I Regular Interest LT1 Principal
Reduction Amount for
such
Distribution
Date over the Realized Losses
allocated to the REMIC I
Regular
Interest
LT1 on such Distribution Date.
REMIC I Regular
Interest LT2: A regular
interest in REMIC I that is held as an asset
of
REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I
Pass-Through
Rate, and that has such other terms as are described herein.
REMIC I
Regular
Interest LT2 Principal
Distribution
Amount:
For any
Distribution
Date, the excess,
if any, of the REMIC I Regular Interest LT2 Principal
Reduction Amount for
such
Distribution
Date over the Realized Losses
allocated to the REMIC I
Regular
Interest
LT2 on such Distribution Date.
REMIC I Regular
Interest LT3: A regular interest in REMIC II that is held as an
asset
of
REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I
Pass-Through
Rate, and that has such other terms as are described herein.
REMIC I
Regular
Interest LT3 Principal
Distribution
Amount:
For any
Distribution
Date, the excess,
if any, of the REMIC I Regular Interest LT3 Principal
Reduction Amount for
such
Distribution
Date over the Realized Losses
allocated to the REMIC I
Regular
Interest
LT3 on such Distribution Date.
REMIC I Regular
Interest LT4: A regular interest in REMIC II that is held as an
asset
of
REMIC II,
that has an
initial
principal
balance
equal to the
related
Uncertificated
Principal
Balance,
that bears interest at the related
Uncertificated
REMIC I
Pass-Through
Rate, and that has such other terms as are described herein.
REMIC I
Regular
Interest LT4 Principal
Distribution
Amount:
For any
Distribution
Date, the excess,
if any, of the REMIC I Regular Interest LT4 Principal
Reduction Amount for
such
Distribution
Date over the Realized Losses
allocated to the REMIC I
Regular
Interest
LT4 on such Distribution Date.
REMIC II: The segregated pool of assets subject hereto,
constituting a portion of the
primary
trust
created
hereby
and to be
administered
hereunder,
with
respect to which a
separate REMIC election is to be made, consisting of the REMIC I
Regular Interests.
REMIC II
Regular
Interest SB-PO: A separate
non-certificated
beneficial
ownership
interest
in
REMIC II
issued
hereunder
and
designated
as a REMIC
II
Regular
Interest.
REMIC II Regular
Interest SB-PO shall have no entitlement to interest,
and shall be entitled
to
distributions
of
principal
subject to the terms and
conditions
hereof,
in
aggregate
amount equal to the initial
Certificate
Principal
Balance of the Class SB
Certificates
as
set forth in the Preliminary Statement hereto.
REMIC II
Regular
Interest SB-IO: A separate
non-certificated
beneficial
ownership
interest
in
REMIC II
issued
hereunder
and
designated
as a REMIC
II
Regular
Interest.
REMIC II Regular Interest SB-IO shall have no entitlement to
principal,
and shall be entitled
to distributions of interest subject to the terms and conditions
hereof,
in aggregate amount
equal to the interest
distributable
with respect to the
Class SB
Certificates
pursuant to
the terms and conditions hereof.
REMIC II
Regular
Interests:
REMIC II
Regular
Interests SB-IO and SB-PO,
together
with the regular
interests in REMIC II represented by the Class A
Certificates
exclusive of
the rights of such
Certificates
to payments of Basis Risk Shortfall
Amounts and to payments
derived from the Yield Maintenance Agreement.
REMIC
Administrator:
Residential
Funding
Corporation.
If
Residential
Funding
Corporation
is found by a court of
competent
jurisdiction
to no longer be able to
fulfill
its
obligations as REMIC
Administrator
under this Agreement the Master
Servicer or Trustee
acting as successor
Master
Servicer shall appoint a successor REMIC
Administrator,
subject
to assumption of the REMIC Administrator obligations under this
Agreement.
REMIC
Provisions:
Provisions
of the federal
income tax law relating to real estate
mortgage
investment
conduits,
which appear at Sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and related
provisions,
and temporary and final
regulations
(or, to
the extent not inconsistent with such temporary or final
regulations,
proposed
regulations)
and published
rulings,
notices and announcements
promulgated
thereunder,
as the foregoing
may be in effect from time to time.
REO
Acquisition:
The acquisition by the Master Servicer on behalf of the Trustee for
the benefit of the Certificateholders of any REO Property pursuant
to Section 3.14.
REO
Disposition:
With respect to any REO
Property,
a
determination
by the Master
Servicer that it has received
substantially
all Insurance
Proceeds,
Liquidation
Proceeds,
REO Proceeds
and other
payments and
recoveries
(including
proceeds of a final sale) which
the Master Servicer expects to be finally
recoverable
from the sale or other
disposition of
the REO Property.
REO Imputed
Interest:
With respect to any REO
Property,
for any period,
an amount
equivalent
to
interest
(at a rate
equal
to the
sum of the
Net
Mortgage
Rate
and
the
Certificate
Insurer
Premium
Modified Rate,
that would have been
applicable to the related
Mortgage Loan had it been
outstanding) on the unpaid
principal
balance of the Mortgage Loan
as of the date of acquisition thereof for such period.
REO
Proceeds:
Proceeds,
net of
expenses,
received in respect of any REO
Property
(including,
without
limitation,
proceeds from the rental of the related Mortgaged Property)
which proceeds are required to be deposited
into the Custodial
Account only upon the related
REO Disposition.
REO Property:
A Mortgaged
Property
acquired by the Master Servicer on behalf of the
Trust Fund for the
benefit of the
Certificateholders
and the
Certificate
Insurer
through
foreclosure or deed in lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable
Modified
Mortgage Loan: Any Mortgage Loan that (a) has been subject to an
interest
rate
reduction,
(b) has been
subject to a term
extension
or (c) has had amounts
owing on such
Mortgage
Loan
capitalized
by
adding
such
amount to the
Stated
Principal
Balance
of
such
Mortgage
Loan;
provided,
however,
that
a
Mortgage
Loan
modified
in
accordance with (a) above for a temporary period shall not be a
Reportable
Modified
Mortgage
Loan if such Mortgage
Loan has not been
delinquent in payments of principal and interest for
six months since the date of such
modification
if that interest
rate
reduction is not made
permanent thereafter.
Repurchase Event:
As defined in the Assignment Agreement.
Request
for
Release:
A
request
for
release,
the form of which
is
attached
as
Exhibit G hereto, or an electronic request in a form acceptable to
the Custodian.
Required
Insurance
Policy:
With respect to any Mortgage Loan, any insurance
policy
which is required to be maintained from time to time under this
Agreement,
the Program Guide
or the related Subservicing Agreement in respect of such Mortgage
Loan.
Required
Overcollateralization
Amount:
With respect to any
Distribution
Date, (a)
prior to the
Stepdown
Date,
an
amount
equal to 5.00% of the
aggregate
Stated
Principal
Balance of the Mortgage
Loans as of the Cut-off Date,
(b) on or after the Stepdown Date if a
Trigger
Event
is not in
effect,
the
greater
of (i) an
amount
equal
to
10.00%
of the
aggregate
outstanding
Stated Principal
Balance of the Mortgage Loans after giving effect to
distributions
made on that
Distribution
Date and (ii) the
Overcollateralization
Floor and
(c) on or after the
Stepdown
Date if a Trigger
Event is in effect,
an amount
equal to the
Required
Overcollateralization
Amount from the immediately preceding
Distribution Date. The
Required
Overcollateralization
Amount may be reduced at any time
without
Certificateholder
consent,
with the prior written
consent of the Certificate
Insurer and
notification to the
Rating Agencies.
Residential Funding:
Residential Funding Corporation, a Delaware corporation,
in its
capacity as seller of the Mortgage Loans to the Depositor and any
successor thereto.
Responsible
Officer:
When used with
respect
to the
Trustee,
any
officer
of the
Corporate
Trust
Department
of the Trustee,
including any Senior Vice
President,
any Vice
President,
any
Assistant
Vice
President,
any
Assistant
Secretary,
any Trust Officer or
Assistant
Trust
Officer,
or any other
officer of the
Trustee,
in each case,
with direct
responsibility for the administration of this Agreement.
RFC Exemption:
As defined in Section 5.02(f)(ii).
Rule
144A:
Rule 144A under the
Securities
Act of 1933,
as in effect
from time to
time.
Seller: With respect to any Mortgage Loan, a Person,
including any Subservicer,
that
executed a Seller's Agreement applicable to such Mortgage Loan.
Seller's
Agreement:
An
agreement
for the
origination
and sale of Mortgage
Loans
generally in the form of the seller
contract
referred to or contained in the Program
Guide,
or in such other form as has been approved by the Master Servicer
and the Depositor.
Senior Enhancement Percentage:
For any Distribution Date, the fraction,
expressed as
a percentage,
the numerator of which is the Overcollateralization
Amount, in each case prior
to the distribution of the Principal
Distribution
Amount on such
Distribution
Date and the
denominator
of which is the aggregate
Stated
Principal
Balance of the Mortgage Loans after
giving effect to distributions to be made on that Distribution
Date.
Servicing
Accounts:
The
account or
accounts
created
and
maintained
pursuant to
Section 3.08.
Servicing
Advances:
All
customary,
reasonable
and necessary "out of pocket" costs
and expenses incurred in connection with a default,
delinquency or other
unanticipated event
by the Master
Servicer or a Subservicer
in the
performance
of its
servicing
obligations,
including,
but not limited to, the cost of (i) the
preservation,
restoration and protection
of a Mortgaged
Property
or, with
respect to a
cooperative
loan,
the related
cooperative
apartment,
(ii) any enforcement or judicial proceedings,
including
foreclosures,
including
any expenses
incurred in relation to any such
proceedings that result from the Mortgage Loan
being
registered
on the
MERS(R)System,
(iii) the
management
and
liquidation
of any REO
Property,
(iv) any mitigation
procedures
implemented in accordance with
Section 3.07,
and
(v) compliance
with the
obligations
under
Sections
3.01,
3.08,
3.11,
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 equal to the Servicing Fee Rate
multiplied by the Stated
Principal
Balance of such
Mortgage
Loan as of the related
Due Date in the related Due Period,
as may
be adjusted pursuant to Section 3.16(e).
Servicing Fee Rate:
With respect to any Mortgage Loan, the per annum rate
designated
on the
Mortgage
Loan
Schedule
as the "MSTR SERV FEE," as may be adjusted
with
respect to
successor
Master
Servicers
as provided in
Section 7.02,
which rate shall never be greater
than the Mortgage Rate of such Mortgage Loan.
Servicing
Modification:
Any
reduction
of the interest
rate on or the
outstanding
principal
balance of a Mortgage
Loan, any extension of the final maturity date of a Mortgage
Loan,
and any increase to the Stated
Principal
Balance of a Mortgage
Loan by adding to the
Stated
Principal
Balance
unpaid
principal
and interest and other
amounts owing under the
Mortgage
Loan,
in each
case
pursuant
to a
modification
of a
Mortgage
Loan
that is in
default,
or for
which,
in the
judgment
of the
Master
Servicer,
default
is
reasonably
foreseeable in accordance with Section 3.07(a).
Servicing
Officer:
Any officer of the Master
Servicer
involved in, or
responsible
for,
the
administration
and
servicing
of the
Mortgage
Loans
whose
name
and
specimen
signature
appear on a list of
servicing
officers
furnished
to the
Trustee
by the Master
Servicer on the Closing Date, as such list may from time to time be
amended.
Servicing
Trigger:
As of any Distribution Date, for purposes of Section 7.05 hereof,
the occurrence of any of the following scenarios:
(a)
the
Sixty-Plus
Delinquency
Percentage
is
greater
than
27.00%
for
the
then-current Distribution Date; or
(b)
on or after the
Distribution
Date in
December 2007,
the aggregate amount of
Realized
Losses on the
Mortgage
Loans as a percentage
of the Cut-Off Date Balance
exceeds
the applicable amount set forth below:
July 2008 to December 2008:
2.00%
with
respect
to
July 2008,
plus
an
additional
1/6th
of
1.50%
for
each
month
thereafter.
January 2009 to December 2009:
3.50%
with
respect
to
January 2009,
plus an
additional
1/12th
of
2.00%
for
each
month
thereafter.
January 2010 to December 2010:
5.50%
with
respect to
January
2010,
plus an
additional
1/12th
of
1.25%
for
each
month
thereafter.
January 2010 to December 2011:
6.75%
with
respect to
January
2010,
plus an
additional
1/12th
of
0.75%
for
each
month
thereafter.
January 2011 and thereafter:
7.50%.
Sixty-Plus
Delinquency
Percentage:
With
respect to any
Distribution
Date and the
Mortgage Loans, the arithmetic
average,
for each of the three Distribution Dates ending with
such
Distribution
Date,
of the
fraction,
expressed
as a
percentage,
equal
to (x)
the
aggregate Stated
Principal
Balance of the Mortgage Loans that are 60 or more days delinquent
in payment of principal and interest for that Distribution
Date,
including Mortgage Loans in
foreclosure and REO, over (y) the aggregate
Stated
Principal
Balance of all of the Mortgage
Loans immediately preceding that Distribution Date.
Standard & Poor's:
Standard & Poor's Ratings Services,
a division of The McGraw-Hill
Companies, Inc. or its successors in interest.
Startup Date:
The day designated as such pursuant to Article X hereof.
Stated Principal
Balance:
With respect to any Mortgage Loan or related REO Property,
as of any date of
determination,
(i) the sum of (a) the Cut-off
Date
Principal
Balance of
the Mortgage
Loan and (b) any
amount by which the Stated
Principal
Balance of the Mortgage
Loan has been increased
pursuant to a Servicing
Modification,
minus (ii) the sum of (a) the
principal
portion of the
Monthly
Payments
due with
respect to such
Mortgage
Loan or REO
Property
during
each Due Period
ending
with the Due
Period
relating
to the most
recent
Distribution
Date which were
received or with respect to which an Advance was made,
(b) all
Principal
Prepayments
with respect to such Mortgage Loan or REO Property,
and all Insurance
Proceeds,
Liquidation
Proceeds
and
REO
Proceeds,
to the
extent
applied
by the
Master
Servicer as
recoveries
of
principal
in
accordance
with Section 3.14 with respect to such
Mortgage Loan or REO Property,
in each case which were
distributed
pursuant to Section 4.02
on any previous
Distribution
Date,
and (c) any Realized
Loss incurred with respect to such
Mortgage
Loan
allocated
to
Certificateholders
with
respect
thereto
for
any
previous
Distribution Date.
Stepdown
Date:
That
Distribution
Date
which is the
later
to
occur
of
(i) the
Distribution
Date in
July 2008
and (ii) the first
Distribution
Date on which
the
Senior
Enhancement Percentage is equal to or greater than 10.00%.
Subordination:
The provisions
described in
Section 4.05
relating to the allocation
of Realized Losses.
Subsequent
Recoveries:
As of any Distribution
Date,
amounts received by the Master
Servicer (net of any related
expenses
permitted to be reimbursed
pursuant to
Section 3.10)
or surplus
amounts held by the Master Servicer to cover estimated
expenses
(including,
but
not
limited to,
recoveries
in respect of the
representations
and
warranties
made by the
related
Seller
pursuant to the
applicable
Seller's
Agreement
and assigned to the Trustee
pursuant to
Section 2.04)
specifically
related to a Mortgage Loan that was the subject of a
Cash
Liquidation
or an REO
Disposition
prior to the
related
Prepayment
Period
and that
resulted in a Realized Loss.
Subserviced
Mortgage Loan: Any Mortgage Loan that, at the time of reference
thereto,
is subject to a Subservicing Agreement.
Subservicer:
Any
Person
with
whom
the
Master
Servicer
has
entered
into
a
Subservicing
Agreement and who generally
satisfied the requirements set forth in the Program
Guide in respect of the
qualification
of a
Subservicer
as of the date of its approval as a
Subservicer by the Master Servicer.
Subservicer
Advance:
Any
delinquent
installment
of
principal
and
interest on a
Mortgage
Loan which is advanced
by the related
Subservicer
(net of its
Subservicing
Fee)
pursuant to the Subservicing Agreement.
Subservicing
Account:
An account
established
by a Subservicer
in accordance
with
Section 3.08.
Subservicing
Agreement:
The written
contract
between the Master
Servicer
and any
Subservicer
relating to servicing and
administration
of certain
Mortgage Loans as provided
in Section 3.02,
generally in the form of the servicer
contract
referred to or contained in
the Program
Guide or in such other form as has been
approved by the Master
Servicer and the
Depositor.
Subservicing
Fee: With respect to any Mortgage Loan,
the fee payable
monthly to the
related
Subservicer
(or,
in the
case of a
Nonsubserviced
Mortgage
Loan,
to the
Master
Servicer)
in respect of
subservicing
and other
compensation
that
accrues with respect to
each
Distribution
Date at an annual rate
designated
as "SUBSERV
FEE" on the Mortgage Loan
Schedule.
Tax
Returns:
The federal
income tax return on Internal
Revenue
Service Form 1066,
U.S.
Real
Estate
Mortgage
Investment
Conduit
Income
Tax
Return,
including
Schedule Q
thereto,
Quarterly
Notice to Residual
Interest
Holders of REMIC Taxable Income or Net Loss
Allocation,
or any successor
forms,
to be filed on behalf of any REMIC hereunder due to its
classification
as a REMIC
under
the
REMIC
Provisions,
together
with
any and all
other
information,
reports
or
returns
that
may
be
required
to
be
furnished
to
the
Certificateholders
or filed
with the
Internal
Revenue
Service
or any other
governmental
taxing authority under any applicable provisions of federal, state
or local tax laws.
Telerate Screen Page 3750:
As defined in Section 1.02.
Transfer: Any direct or indirect transfer,
sale, pledge,
hypothecation or other form
of assignment of any Ownership Interest in a Certificate.
Transfer Affidavit and Agreement: As defined in Section 5.02(f).
Transferee:
Any Person who is
acquiring
by
Transfer
any
Ownership
Interest in a
Certificate.
Transferor:
Any Person who is
disposing by Transfer of any
Ownership
Interest in a
Certificate.
Trigger Event: A Trigger Event is in effect with respect to any
Distribution
Date on
or after the Stepdown Date if (a) the
Certificate
Insurer pays any Insured Payment under the
Certificate
Guaranty
Insurance Policy, (b) the Sixty-Plus
Delinquency
Percentage equals or
exceeds
20.00%,
or (c) the aggregate
amount of Realized
Losses on the Mortgage
Loans as a
percentage of the Cut-Off Date Balance exceeds the applicable
amount set forth below:
July 2008 to December 2008:
1.75%
with
respect
to
January 2008,
plus an
additional
1/6th
of
1.25%
for
each
month
thereafter.
January 2009 to December 2009:
3.00%
with
respect
to
January 2009,
plus an
additional
1/12th
of
2.00%
for
each
month
thereafter.
January 2010 to December 2010:
5.00%
with
respect to
January
2010,
plus an
additional
1/12th
of
1.50%
for
each
month
thereafter.
January 2011 to December 2011:
6.50%
with
respect to
January
2011,
plus an
additional
1/12th
of
0.75%
for
each
month
thereafter.
January 2012 and thereafter:
7.25%.
Trustee:
As defined in the preamble hereto.
Trust Fund:
The
segregated
pool of assets
subject
hereto,
consisting of: (i) the
Mortgage
Loans and the
related
Mortgage
Files;
(ii) all
payments on and
collections
in
respect of the Mortgage
Loans due after the Cut-off Date (other than Monthly
Payments due in
the month of the
Cut-off
Date) as shall be on
deposit
in the
Custodial
Account or in the
Certificate
Account and
identified
as
belonging
to the Trust Fund;
(iii) property
which
secured
a
Mortgage
Loan
and
which
has
been
acquired
for
the
benefit
of
the
Certificateholders
by foreclosure or deed in lieu of foreclosure;
(iv) the hazard
insurance
policies and Primary
Insurance
Policies
pertaining to the Mortgage
Loans,
if any; (v) the
Yield Maintenance Agreement; and (vi) all proceeds of clauses (i)
through (v) above.
Uncertificated Accrued Interest:
With respect to any REMIC I Regular Interest for any
Distribution
Date, one month's
interest at the related
Uncertificated
REMIC I Pass-Through
Rate for such Distribution Date, accrued on its Uncertificated
Principal Balance
immediately
prior to such
Distribution
Date.
Uncertificated
Accrued
Interest
for the REMIC I Regular
Interests
shall accrue on the basis of a 360-day year
consisting
of twelve
30-day
months.
For purposes of
calculating
the amount of
Uncertificated
Accrued
Interest for the REMIC I
Regular
Interests for any Distribution
Date, any Prepayment
Interest
Shortfalls and Relief
Act Shortfalls (to the extent not covered by Compensating
Interest)
relating to the Mortgage
Loans for any Distribution
Date shall be allocated among REMIC I Regular
Interests LT1, LT2,
LT3 and LT4 pro rata,
based on, and to the extent of,
Uncertificated
Accrued
Interest,
as
calculated
without
application of this sentence.
Uncertificated
Accrued
Interest on REMIC
II
Regular
Interest
SB-PO
shall
be
zero.
Uncertificated
Accrued
Interest
on REMIC II
Regular
Interest SB-IO
for each Distribution Date shall equal Accrued
Certificate
Interest
for the Class SB Certificates.
Uncertificated
Principal
Balance:
The
principal
amount
of
any
REMIC I
Regular
Interest
outstanding as of any date of determination.
The
Uncertificated
Principal Balance
of each
REMIC I
Regular
Interest
shall never be less than zero.
With respect to the REMIC
II
Regular
Interest
SB-PO
the
initial
amount
set
forth
with
respect
thereto
in the
Preliminary
Statement as reduced by distributions
deemed made in respect thereof pursuant to
Section 4.02 and Realized Losses allocated thereto pursuant to
Section 4.05.
Uncertificated
REMIC I Pass-Through
Rate: With respect to any Distribution
Date and
(i) REMIC I Regular
Interests LT1 and LT2, the weighted
average of the Net Mortgage Rates of
the
Mortgage
Loans,
(ii) REMIC I Regular
Interest
LT3,
zero
(0.00%),
and (iii) REMIC I
Regular
Interest LT4,
twice the weighted
average of the Net Mortgage
Rates of the Mortgage
Loans.
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
(treated as a
corporation
or
partnership
for United
States
federal
income
tax
purposes)
created
or
organized
in, or under the laws of,
the United
States,
any state thereof,
or the District of Columbia (except in the case of a partnership,
to the extent
provided in Treasury
regulations)
provided that,
for purposes
solely of the
restrictions on the transfer of Class R
Certificates,
no partnership or other entity treated
as a partnership
for United States
federal
income tax purposes shall be treated as a United
States Person unless all persons that own an interest in such
partnership
either directly or
through any entity that is not a
corporation
for United States
federal
income tax purposes
are required by the applicable
operative
agreement to be United States Persons, or an estate
that is
described
in
Section 7701(a)(30)(D)
of the Code,
or a trust that is
described in
Section 7701(a)(30)(E) of the Code.
Voting Rights:
The portion of the voting rights of all of the
Certificates
which is
allocated to any
Certificate.
98.00% of all of the Voting
Rights
shall be allocated
among
Holders of the Class A
Certificates,
in proportion to the outstanding
Certificate Principal
Balances of their respective
Certificates;
1% of all of the Voting Rights shall be allocated
to the Holders of the Class SB
Certificates,
and 0.50% of all of the Voting
Rights shall be
allocated
to
each
of
the
Holders
of
the
Class R-I
Certificates
and
the
Class R-II
Certificates;
in
each
case
to
be
allocated
among
the
Certificates
of
such
Class in
accordance with their respective
Percentage
Interests provided,
that as long as there is no
Certificate
Insurer
Default,
the
Voting
Rights of the Class A
Certificateholders
may be
exercised
by the
Certificate
Insurer
without the
consent of such
Holders and may only be
exercised by such Holders with the prior written consent of the
Certificate Insurer..
Yield Maintenance Agreement:
The confirmation,
dated as of the Closing Date, between
the
Trustee,
on behalf of the Trust
Fund,
and the Yield
Maintenance
Agreement
Provider,
relating to the Class A
Certificates
or any
replacement,
substitute,
collateral
or other
arrangement in lieu thereof.
Yield Maintenance
Agreement Payment:
For any Distribution Date, the payment, if any,
due under the Yield Maintenance Agreement in respect of such
Distribution Date.
Yield
Maintenance
Agreement
Provider:
Deutsche
Bank AG, New York Branch,
and its
successors
and
assigns
or any party to any
replacement,
substitute,
collateral
or other
arrangement in lieu thereof.
Yield Maintenance
Agreement
Shortfall Amount: For any Distribution Date, the amount,
if any, by which the payment on the Class A
Certificates
pursuant to Section 4.02(c) is paid
from the Yield
Maintenance
Agreement
Payment
for such
Distribution
Date
pursuant to the
provisions
thereof
or would have been so paid but for the
failure of the Yield
Maintenance
Agreement Provider to make a payment required under the Yield
Maintenance Agreement.
Yield
Maintenance
Agreement
Shortfall
Carry-Forward
Amount:
For any Distribution
Date, the aggregate
Yield
Maintenance
Agreement
Shortfall
Amounts for prior
Distribution
Dates
to
the
extent
not
reimbursed
to
the
Class SB
Certificates
pursuant
to
Section 4.02(c)(x).
Section 1.02.
Determination of LIBOR.
LIBOR
applicable
to
the
calculation
of
the
Pass-Through
Rate
on
the
LIBOR
Certificates
for any
Interest
Accrual
Period
will be
determined
as of each
LIBOR
Rate
Adjustment
Date. On each LIBOR Rate
Adjustment
Date, or if such LIBOR Rate
Adjustment Date
is not a Business Day, then on the next
succeeding
Business Day,
LIBOR shall be established
by the
Trustee
and, as to any
Interest
Accrual
Period,
will equal the rate for one month
United
States
dollar
deposits
that
appears on the
Telerate
Screen Page 3750 as of 11:00
a.m.,
London time,
on such LIBOR Rate
Adjustment
Date.
"Telerate
Screen Page 3750" means
the
display
designated
as page 3750 on the Bridge
Telerate
Service (or such other page as
may replace page 3750 on that service for the purpose of displaying
London interbank
offered
rates of major
banks).
If such rate does not
appear on such page (or such other page as may
replace that page on that
service,
or if such service is no longer
offered,
LIBOR shall be
so established by use of such other service for
displaying
LIBOR or comparable
rates as may
be selected by the Trustee
after
consultation
with the Master
Servicer),
the rate will be
the
Reference
Bank Rate.
The
"Reference
Bank Rate" will be determined on the basis of the
rates at which
deposits in U.S.
Dollars are offered by the
reference
banks (which shall be
any three
major
banks that are
engaged in
transactions
in the
London
interbank
market,
selected
by the
Trustee
after
consultation
with the Master
Servicer)
as of 11:00
a.m.,
London time, on the LIBOR Rate Adjustment Date to prime banks in
the London
interbank
market
for a period
of one
month
in
amounts
approximately
equal
to the
aggregate
Certificate
Principal Balance of the LIBOR
Certificates
then outstanding.
The Trustee shall request the
principal
London
office of each of the
reference
banks to provide a quotation of its rate.
If at least two such
quotations
are provided,
the rate will be the
arithmetic
mean of the
quotations
rounded
up to the
next
multiple
of
1/16%.
If on such
date
fewer
than
two
quotations
are
provided
as
requested,
the rate will be the
arithmetic
mean of the rates
quoted
by
one or
more
major
banks
in New
York
City,
selected
by
the
Trustee
after
consultation
with the Master
Servicer,
as of 11:00 a.m.,
New York City time,
on such date
for loans in U.S.
Dollars
to
leading
European
banks for a period of one month in
amounts
approximately equal to the aggregate
Certificate
Principal Balance of the LIBOR Certificates
then
outstanding.
If no such
quotations
can be
obtained,
the rate
will be LIBOR for the
prior Distribution
Date;
provided however,
if, under the priorities
described above, LIBOR
for a
Distribution
Date would be based on LIBOR for the previous
Distribution
Date for the
third
consecutive
Distribution
Date, the Trustee,
shall select an
alternative
comparable
index (over
which the Trustee has no
control),
used for
determining
one-month
Eurodollar
lending
rates
that
is
calculated
and
published
(or
otherwise
made
available)
by
an
independent
party.
The
establishment
of LIBOR by the Trustee on any LIBOR Rate
Adjustment
Date and the Trustee's
subsequent
calculation of the
Pass-Through
Rates
applicable to the
LIBOR
Certificates
for the
relevant
Interest
Accrual
Period,
in the absence of manifest
error,
will be final and binding.
Promptly
following
each LIBOR Rate
Adjustment
Date the
Trustee
shall supply the Master
Servicer with the results of its
determination
of LIBOR on
such date.
Furthermore,
the Trustee shall supply to any
Certificateholder
so requesting by
calling
1-800-934-6802,
the Pass-Through Rate on the LIBOR
Certificates for the current and
the immediately preceding Interest Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01.
Conveyance of Mortgage Loans.
(a)
The
Depositor,
concurrently
with the
execution
and delivery
hereof,
does hereby
assign to the Trustee in respect of the Trust Fund without
recourse all the right,
title and
interest of the
Depositor
in and to (i) the
Mortgage
Loans,
including
all
interest
and
principal
on or with
respect to the
Mortgage
Loans due on or after the Cut-off Date (other
than
Monthly
Payments
due in the month of the Cut-off
Date);
and (ii) all proceeds of the
foregoing.
(b)
In connection with such assignment,
and
contemporaneously
with the delivery of this
Agreement,
the Depositor
delivered or caused to be delivered
hereunder to the Trustee,
the
Certificate
Guaranty
Insurance
Policy,
the Yield
Maintenance
Agreement
(the delivery of
which shall
evidence
that the fixed
payment for the Yield
Maintenance
Agreement
has been
paid and the Trustee and the Trust Fund shall have no further
payment
obligation
thereunder
and
that
such
fixed
payment
has been
authorized
hereby),
and
except
as set
forth in
Section 2.01(c) below and subject to Section 2.01(d)
below, the Depositor does hereby deliver
to,
and
deposit
with,
the
Trustee,
or to and
with one or more
Custodians,
as the duly
appointed
agent or agents
of the
Trustee
for such
purpose,
the
following
documents
or
instruments
(or copies
thereof as permitted by this
Section)
with respect to each Mortgage
Loan so assigned:
(i)
The original Mortgage Note,
endorsed without recourse to the order of the Trustee and
showing
an
unbroken
chain
of
endorsements
from
the
originator
thereof
to the
Person
endorsing
it to the Trustee,
or with respect to any
Destroyed
Mortgage
Note,
an original
lost note affidavit from the related Seller or Residential
Funding
stating that the original
Mortgage Note was lost,
misplaced or destroyed,
together with a copy of the related Mortgage
Note;
(ii)
The
original
Mortgage,
noting
the
presence
of the MIN of the
Mortgage
Loan and
language
indicating
that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan,
with
evidence of recording
indicated
thereon or, if the original
Mortgage has not yet been
returned from the public recording
office,
a copy of the original
Mortgage with evidence of
recording indicated thereon;
(iii)
Unless the Mortgage Loan is registered on the MERS(R)System,
the assignment (which may
be
included
in one or more
blanket
assignments
if
permitted
by
applicable
law) of the
Mortgage
to the
Trustee
with
evidence
of
recording
indicated
thereon or a copy of such
assignment with evidence of recording indicated thereon;
(iv)
The original
recorded
assignment or assignments of the Mortgage
showing an unbroken
chain of title from the
originator to the Person
assigning it to the Trustee (or to MERS, if
the
Mortgage
Loan is
registered
on the MERS(R)System and noting the presence of a MIN) with
evidence of recordation
noted thereon or attached
thereto,
or a copy of such
assignment or
assignments of the Mortgage with evidence of recording indicated
thereon; and
(v)
The original of each modification,
assumption
agreement or preferred loan agreement,
if any, relating to such Mortgage Loan, or a copy of each
modification,
assumption
agreement
or preferred loan agreement.
The Depositor
may, in lieu of
delivering
the original of the documents set forth in
Section 2.01(b)(ii),
(iii), (iv) and (v) (or copies thereof as permitted by
Section 2.01(b))
to
the
Trustee
or the
Custodian
or
Custodians,
deliver
such
documents
to the
Master
Servicer,
and the Master
Servicer shall hold such documents in trust for the use and benefit
of all
present
and
future
Certificateholders
until
such time as is set forth in the next
sentence.
Within
thirty
Business
Days
following
the
earlier
of (i) the
receipt of the
original of all of the
documents
or
instruments
set forth in
Section 2.01(b)(ii),
(iii),
(iv) and (v) (or copies
thereof as permitted by such
Section) for any Mortgage Loan and (ii)
a written
request by the Trustee to deliver
those
documents
with
respect to any or all of
the Mortgage Loans then being held by the Master
Servicer,
the Master Servicer shall deliver
a complete set of such
documents to the Trustee or the Custodian or
Custodians
that are the
duly appointed agent or agents of the Trustee.
(c)
Notwithstanding
the
provisions of
Section 2.01(b),
in the event that in connection
with any Mortgage
Loan, if the
Depositor
cannot
deliver the original of the Mortgage,
any
assignment,
modification,
assumption
agreement or preferred loan agreement (or copy thereof
as permitted by
Section 2.01(b))
with evidence of recording
thereon
concurrently
with the
execution
and
delivery
of this
Agreement
because
of (i) a
delay
caused
by the
public
recording
office
where such
Mortgage,
assignment,
modification,
assumption
agreement or
preferred
loan agreement as the case may be, has been
delivered for
recordation,
or (ii) a
delay in the receipt of certain
information
necessary
to prepare
the related
assignments,
the
Depositor
shall
deliver
or cause to be
delivered
to the
Trustee
or the
respective
Custodian
a
copy
of
such
Mortgage,
assignment,
modification,
assumption
agreement
or
preferred loan agreement.
The Depositor
shall
promptly cause to be recorded in the
appropriate
public office
for real
property
records the
Assignment
referred to in clause
(iii) of
Section 2.01(b),
except (a) in states where,
in an Opinion of Counsel
acceptable to the
Certificate
Insurer
and the Master
Servicer,
such
recording is not required to protect the Trustee's
interests
in the Mortgage Loan or (b) if MERS is
identified
on the Mortgage or on a properly
recorded
assignment of the Mortgage,
as
applicable,
as the mortgagee of record solely as nominee for
Residential
Funding and its
successors
and assigns.
If any
Assignment is lost or returned
unrecorded
to the Depositor
because of any defect
therein,
the
Depositor
shall prepare a
substitute
Assignment or cure such defect,
as the case may be, and cause such
Assignment to
be recorded in
accordance
with this
paragraph.
The
Depositor
shall
promptly
deliver or
cause
to
be
delivered
to
the
Trustee
or
the
respective
Custodian
such
Mortgage
or
Assignment,
as applicable
(or copy thereof as permitted by
Section 2.01(b)),
with evidence
of recording
indicated
thereon upon receipt thereof from the public recording office or
from
the related Subservicer or Seller.
If the Depositor
delivers to the Trustee or Custodian any Mortgage Note or
Assignment
of Mortgage in blank,
the Depositor
shall,
or shall cause the
Custodian
to,
complete the
endorsement
of the Mortgage
Note and the
Assignment
of Mortgage in the name of the Trustee
in conjunction
with the Interim
Certification
issued by the Custodian,
as
contemplated by
Section 2.02.
Any of the items set forth in Sections
2.01(b)(ii),
(iii), (iv) and (v) and that may
be
delivered
as a copy
rather
than the
original
may be
delivered
to the Trustee or the
Custodian.
In
connection
with the
assignment
of any
Mortgage
Loan
registered
on the MERS(R)
System,
the Depositor
further
agrees that it will cause,
at the
Depositor's
own expense,
within 30
Business
Days after the
Closing
Date,
the MERS(R)System to
indicate
that such
Mortgage
Loans have been
assigned by the
Depositor to the Trustee in
accordance
with this
Agreement for the benefit of the
Certificateholders
by including
(or deleting,
in the case
of Mortgage Loans which are
repurchased in accordance
with this
Agreement) in such computer
files (a) the code in the field which
identifies
the
specific
Trustee and (b) the
code in
the field "Pool Field" which
identifies the series of the
Certificates
issued in connection
with such
Mortgage
Loans.
The
Depositor
further
agrees
that it will
not,
and will not
permit the Master
Servicer
to, and the Master
Servicer
agrees that it will not,
alter the
codes
referenced in this
paragraph with respect to any Mortgage Loan during the term of this
Agreement
unless and until such Mortgage Loan is repurchased in accordance
with the terms of
this Agreement.
(d)
It is intended
that the
conveyances
by the Depositor to the Trustee of the Mortgage
