Financial Guaranty Insurance Policy between Financial Guaranty Insurance Company and RASC Series 2007-EMX1 Trust
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This agreement is a financial guaranty insurance policy issued by Financial Guaranty Insurance Company to the RASC Series 2007-EMX1 Trust, with U.S. Bank National Association as trustee. The policy guarantees payment of certain principal and interest amounts on specified mortgage-backed certificates if there are shortfalls or if payments are recovered in bankruptcy. Financial Guaranty agrees to pay these amounts to the trustee for distribution to certificate holders, subject to the terms of the policy and related agreements.
EX-10.4 6 exhibit_10-4.htm FINANCIAL GUARANTY INSURANCE POLICY
Financial Guaranty Insurance Company 125 Park Avenue New York, New York 10017 ###-###-#### ###-###-#### Financial Guaranty Insurance Policy Policy Number: 07030010 Control Number: 0010001 Issuing Entity: RASC Series 2007-EMX1 Trust Insured Obligations: $692,852,000 in aggregate certificate principal balance of Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2007-EMX1, Class A-I-1, Class A-I-2, Class A-I-3 and Class A-I-4 Certificates (collectively, the "Class A-I Certificates") and Class A-II Certificates (the "Class A-II Certificates," and together with the Class A-I Certificates, the "Class A Certificates") Trustee: U.S. Bank National Association Financial Guaranty Insurance Company ("Financial Guaranty"), a New York stock insurance company, in consideration of the right of Financial Guaranty to receive monthly premiums as provided in the Insurance Agreement (as defined below) and subject to the terms of this Financial Guaranty Insurance Policy (this "Policy"), hereby unconditionally and irrevocably agrees to pay each Insured Payment (as defined below) to the Trustee named above or its successor, as trustee for the Holders of the Class A Certificates, to the extent set forth in the Pooling and Servicing Agreement (as defined below). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Pooling and Servicing Agreement as in effect and executed on the date hereof, without giving effect to any subsequent amendment or modification to the Pooling and Servicing Agreement unless such amendment or modification has been approved in writing by Financial Guaranty. The following terms used herein shall have the meanings assigned to them below: "Deficiency Amount" shall mean (a) with respect to any Distribution Date and each class of Class A-I Certificates, an amount, if any, equal to the sum of (1) the excess, if any, of the Accrued Certificate Interest (without taking into account any reductions in the Accrued Certificate Interest in respect of Realized Losses) on such class of Class A-I Certificates for that Distribution Date over the amounts on deposit in the Certificate Account on that Distribution Date available for distribution to such class of Class A-I Certificates in accordance with the Class A Interest Distribution Priority on that Distribution Date (other than any portion thereof consisting of an Insured Payment payable as interest on such class of Class A-I Certificates), and (2) (i) with respect to any Distribution Date that is not the Distribution Date in January 2037, the principal portion of any Realized Losses allocated to each class of Class A-I Certificates, if any, for that Distribution Date and (ii) on the Distribution Date in January 2037, the aggregate Certificate Principal Balance of each class of Class A-I Certificates on that Distribution Date after giving effect to all distributions to be made thereon on that Distribution Date other than any portion thereof consisting of an Insured Payment payable as principal on the Class A-I Certificates, and (b) with respect to any Distribution Date and the Class A-II Certificates, an amount, if any, equal to the sum of (1) the excess, if any, of the Accrued Certificate Interest (without taking into account any reductions in the Accrued Certificate Interest in respect of Realized Losses) on the Class A-II Certificates for that Distribution Date over the amounts on deposit in the Certificate Account on that Distribution Date available for distribution to the Class A-II Certificates in accordance with the Class A Interest Distribution Priority on that Distribution Date (other than any portion thereof consisting of an Insured Payment payable as interest on the Class A-II Certificates), and (2) (i) with respect to any Distribution Date that is not the Distribution Date in January 2037, the principal portion of any Realized Losses allocated to the Class A-II Certificates, if any, for that Distribution Date and (ii) on the Distribution Date in January 2037, the aggregate Certificate Principal Balance of the Class A-II Certificates on that Distribution Date after giving effect to all distributions to be made thereon on that Distribution Date other than any portion thereof consisting of an Insured Payment payable as principal on the Class A Certificates. "Insured Payment" means with respect to (a) any Distribution Date, (i) any Deficiency Amount and (ii) any Preference Amount (as defined in this Policy) and (b) any other date, any Preference Amount. Financial Guaranty will pay a Deficiency Amount with respect to the Class A Certificates by 12:00 noon New York City time in immediately available funds to the Trustee on the later of (i) the second Business Day following receipt in New York, New York on a Business Day by Financial Guaranty of a Notice from the Trustee specifying the Deficiency Amount which is due in respect of the Class A Certificates and (ii) the Distribution Date on which the related Deficiency Amount is payable to the Holders of the Class A Certificates pursuant to the Pooling and Servicing Agreement, for disbursement to the Holders of the Class A Certificates in the same manner as other payments with respect to the Class A Certificates are required to be made. Any Notice received by Financial Guaranty after 12:00 noon New York City time on a given Business Day or on any day that is not a Business Day shall be deemed to have been received by Financial Guaranty on the next succeeding Business Day. In addition, if any Notice received by Financial Guaranty is not in proper form or is otherwise insufficient for the purpose of making a claim under this Policy, it will be deemed not to have been received by Financial Guaranty, and Financial Guaranty will promptly so advise the Trustee, and the Trustee may submit an amended Notice. If any portion or all of any amount that is insured hereunder that was previously distributed to a Holder of Class A Certificates is recoverable and sought to be recovered from such Holder as a voidable preference by a trustee in bankruptcy pursuant to the U.S. Bankruptcy Code, pursuant to a final non-appealable order of a court exercising proper jurisdiction in an insolvency proceeding (a "Final Order") (such recovered amount, a "Preference Amount"), Financial Guaranty will pay on the guarantee described in the first paragraph hereof, an amount equal to each such Preference Amount by 12:00 noon New York City time on the second Business Day following receipt by Financial Guaranty on a Business Day of (w) a certified copy of the Final Order, (x) an opinion of counsel satisfactory to Financial Guaranty that the Final Order is final and not subject to appeal, (y) an assignment, in form reasonably satisfactory to Financial Guaranty, irrevocably assigning to Financial Guaranty all rights and claims of the Trustee and/or such Holder of the Class A Certificates relating to or arising under such Preference Amount and constituting an appropriate instrument, in form reasonably satisfactory to Financial Guaranty, appointing Financial Guaranty as the agent of the Trustee and/or such Holder in respect of such Preference Amount, including without limitation in any legal proceeding related to the Preference Amount, and (z) a Notice appropriately completed and executed by the Trustee or such Holder, as the case may be. Such payment shall be made to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order and not to the Trustee or Holder of the Class A Certificates directly (unless the Holder has previously paid such amount to such receiver, conservator, debtor-in-possession or trustee in bankruptcy named in such Final Order in which case payment shall be made to the Trustee for distribution to the Holder upon delivery of proof of such payment reasonably satisfactory to Financial Guaranty). Notwithstanding the foregoing, in no event shall Financial Guaranty be (i) required to make any payment under this Policy in respect of any Preference Amount to the extent such Preference Amount is comprised of amounts previously paid by Financial Guaranty hereunder, or (ii) obligated to make any payment in respect of any Preference Amount, which payment represents a payment of the principal amount of any Class A Certificates, prior to the time Financial Guaranty otherwise would have been required to make a payment in respect of such principal, in which case Financial Guaranty shall pay the balance of the Preference Amount when such amount otherwise would have been required. Any of the documents required under clauses (w) through (z) of the preceding paragraph that are received by Financial Guaranty after 12:00 noon New York City time on a given Business Day or on any day that is not a Business Day shall be deemed to have been received by Financial Guaranty on the next succeeding Business Day. If any notice received by Financial Guaranty is not in proper form or is otherwise insufficient for the purpose of making a claim under this Policy with respect to a Deficiency Amount or a Preference Amount, as applicable, it will be deemed not to have been received by Financial Guaranty, and Financial Guaranty will promptly so advise the Trustee, and the Trustee may submit an amended Notice. All payments made by Financial Guaranty hereunder in respect of Preference Amounts will be made with Financial Guaranty's own funds. Upon payment of any Insured Payment hereunder, Financial Guaranty shall be fully subrogated to the rights of the Holders of the Class A Certificates to receive the amount so paid. Financial Guaranty's obligations with respect to the Class A Certificates hereunder with respect to each Distribution Date shall be discharged to the extent funds consisting of the related Deficiency Amount are received by the Trustee on behalf of the Holders of the Class A Certificates for payment to such Holders, as provided in the Pooling and Servicing Agreement and herein, whether or not such funds are properly applied by the Trustee. This Policy is non-cancelable for any reason, including nonpayment of any premium. The premium on this Policy is not refundable for any reason, including the payment of any Class A Certificates prior to their respective maturities. This Policy shall expire and terminate without any action on the part of Financial Guaranty or any other Person on the date that is the later of (i) the date that is one year and one day following the date on which the Class A Certificates shall have been paid in full and (ii) if any insolvency proceeding referenced in the third preceding paragraph with respect to which the Depositor is the debtor has been commenced on or prior to the date specified in clause (i) above, the 30th day after the entry of a final, non-appealable order in resolution or settlement of such proceeding. This Policy does not cover payments under the Swap Agreement, Basis Risk Shortfalls, Prepayment Interest Shortfalls or Relief Act Shortfalls, as applicable, with respect to the Class A Certificates, nor does the Policy cover any reductions in the Pass-Through Rates resulting from application of the Net WAC Cap Rate or Swap Termination Payments. The Policy does not guarantee to the holders of the Class A Certificates any particular rate of principal payment. In addition, this Policy does not cover shortfalls, if any, attributable to the liability of the Depositor, the Issuing Entity, any REMIC, the Trustee or any Holder for withholding taxes, if any (including interest and penalties in respect of any liability for withholding taxes). This Policy also does not cover the failure of the Trustee to make any payment required under the Pooling and Servicing Agreement to any Holder of a Class A Certificate. To the fullest extent permitted by applicable law, Financial Guaranty hereby waives, solely for the benefit of Holders of the Class A Certificates, all defenses of any kind (including, without limitation, the defense of fraud in inducement or fact, any defense based on any duty claimed to arise from the doctrine of "utmost good faith" or any similar or related doctrine or any other circumstances that would have the effect of discharging a surety, guarantor or any other person in law or in equity) that Financial Guaranty otherwise might have asserted as a defense to its obligation to pay in full any amounts that have become due and payable in accordance with the terms and conditions of this Policy. Nothing in this paragraph, however, shall be deemed to constitute a waiver of any rights, remedies, claims or counterclaims that Financial Guaranty may have with respect to Residential Funding Corporation, the Issuing Entity, or any of their affiliates, whether acquired by subrogation, assignment or otherwise. A monthly Premium shall be due and payable in arrears as provided in the Pooling and Servicing Agreement and the Insurance Agreement. This Policy is subject to and shall be governed by the laws of the State of New York. The proper venue for any action or proceeding on this Policy shall be the County of New York, State of New York. THE INSURANCE PROVIDED BY THIS POLICY IS NOT COVERED BY THE NEW YORK PROPERTY/CASUALTY INSURANCE SECURITY FUND (NEW YORK INSURANCE CODE, ARTICLE 76). "Notice" means a written notice in the form of Exhibit A to this Policy by registered or certified mail or telephonic or telegraphic notice, subsequently confirmed by written notice delivered via telecopy, telex or hand delivery from the Trustee to Financial Guaranty specifying the information set forth therein. "Holder" means, as to a particular Class A Certificate, the person, other than Residential Asset Securities Corporation (the "Depositor"), Residential Funding Company, LLC (the "Sponsor" and the "Master Servicer"), any subservicer retained by the Master Servicer or the Trustee and, in each case, any of their respective affiliates, who, on the applicable Distribution Date, is entitled under the terms of such Class A Certificate to a payment thereon. "Pooling and Servicing Agreement" means the Pooling and Servicing Agreement relating to the Class A Certificates by and among, the Depositor, the Sponsor, the Master Servicer and the Trustee, dated as of February 1, 2007. "Insurance Agreement" means the Insurance and Indemnity Agreement, among Financial Guaranty, the Depositor, the Sponsor, the Master Servicer and the Trustee, dated as of March 12, 2007. In the event that payments under any Class A Certificate are accelerated, nothing herein contained shall obligate Financial Guaranty to make any payment of principal or interest on such Class A Certificate on an accelerated basis, unless such acceleration of payment by Financial Guaranty is at the sole option of Financial Guaranty; it being understood that a payment shortfall in respect of the retirement of any Class A Certificate by reason of the optional termination of any group of Mortgage Loans pursuant to Section 9.01 of the Pooling and Servicing Agreement does not constitute acceleration for the purposes hereof. IN WITNESS WHEREOF, Financial Guaranty has caused this Policy to be affixed with its corporate seal and to be signed by its duly authorized officer in facsimile to become effective and binding upon Financial Guaranty by virtue of the countersignature of its duly authorized representative. President Authorized Representative Effective Date: March 12, 2007
EXHIBIT A NOTICE OF NONPAYMENT AND DEMAND FOR INSURED PAYMENT To: Financial Guaranty Insurance Company 125 Park Avenue New York, New York 10017 ###-###-#### Attention: Structured Finance Surveillance - RASC - 2007-EMX1 Telephone: (212) 312-3000 Telecopier: (212) 312-3220 Re: $692,852,000 in aggregate certificate principal balance of Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2007-EMX1, Class A-I-1, Class A-I-2, Class A-I-3 and Class A-I-4 Certificates (collectively, the "Class A-I Certificates") and Class A-II Certificates (the "Class A-II Certificates," and together with the Class A-I Certificates, the "Class A Certificates") Policy No: 07030010 (the "Policy") Distribution Date: ________________ We refer to that certain Pooling and Servicing Agreement, dated as of February 1, 2007, by and among Residential Asset Securities Corporation, as Depositor, Residential Funding Company, LLC, as Master Servicer and U.S. Bank National Association. as Trustee (the "Pooling and Servicing Agreement"), relating to the above referenced Class A Certificates. All capitalized terms not otherwise defined herein or in the Policy shall have the same respective meanings assigned to such terms in the Pooling and Servicing Agreement. (a) The Trustee has determined under the Pooling and Servicing Agreement that in respect of the Distribution Date: (1) The Deficiency Amount on the Class A-I Certificates in respect of the Distribution Date that is due to be received on the Distribution Date specified above under the Pooling and Servicing Agreement, is equal to $_____________, consisting of (A) $ ___________ in respect of interest on the Class A-I Certificates, which is calculated as the amount by which: (i) $____________, constituting the Accrued Certificate Interest on the Class A-I Certificates for the Distribution Date (without taking into account any reductions in the Accrued Certificate Interest in respect of Realized Losses); exceeds (ii) $___________, constituting the amounts on deposit in the Certificate Account on the Distribution Date available for distribution to the Class A-I Certificates in accordance with the Class A Interest Distribution Priority (other than any portion thereof consisting of an Insured Payment payable as interest on the Class A-I Certificates); plus (B) $______________ in respect of principal of the Class A-I Certificates which with respect to (i) any Distribution Date that is not the Distribution Date in January 2037, constitutes the principal portion of any Realized Losses allocated to the Class A-I Certificates, if any, for that Distribution Date and (ii) on the Distribution Date in January 2037, constitutes the aggregate Certificate Principal Balance of the Class A-I Certificates on such Distribution Date after giving effect to all distributions to be made thereon on that Distribution Date other than any portion thereof consisting of an Insured Payment payable as principal on the Class A-I Certificates. (2) The Deficiency Amount on the Class A-II Certificates in respect of the Distribution Date that is due to be received on the Distribution Date specified above under the Pooling and Servicing Agreement, is equal to $_____________, consisting of (A) $ ___________ in respect of interest on the Class A-II Certificates, which is calculated as the amount by which: (i) $____________, constituting the Accrued Certificate Interest on the Class A-II Certificates for the Distribution Date (without taking into account any reductions in the Accrued Certificate Interest in respect of Realized Losses); exceeds (ii) $___________, constituting the amounts on deposit in the Certificate Account on the Distribution Date available for distribution to the Class A-II Certificates in accordance with the Class A Interest Distribution Priority (other than any portion thereof consisting of an Insured Payment payable as interest on the Class A-II Certificates); plus (B) $______________ in respect of principal of the Class A-II Certificates which with respect to (i) any Distribution Date that is not the Distribution Date in January 2037, constitutes the principal portion of any Realized Losses allocated to the Class A-II Certificates, if any, for that Distribution Date and (ii) the Distribution Date in January 2037, constitutes the aggregate Certificate Principal Balance of the Class A-II Certificates on such Distribution Date after giving effect to all distributions to be made thereon on that Distribution Date other than any portion thereof consisting of an Insured Payment payable as principal on the Class A-II Certificates. Please be advised that, accordingly, a Deficiency Amount exists for the Distribution Date identified above for the Class A Certificates in the amount of $________. This Deficiency Amount constitutes an Insured Payment payable by Financial Guaranty under the Policy. [In addition, attached hereto is a copy of the Final Order in connection with a Preference Amount in the amount set forth therein, together with an assignment of rights and appointment of agent and other documents required by the Policy in respect of the Preference Amounts. The amount of the Preference Amount is $______________. This Preference Amount constitutes an Insured Payment payable by Financial Guaranty under the Policy.] Accordingly, pursuant to the Pooling and Servicing Agreement, this statement constitutes a notice for payment of an Insured Payment by the Insurer in the amount of $__________ under the Policy. (b) No payment claimed hereunder is in excess of the amount payable under the Policy. The amount requested in this Notice should be paid to: [Payment Instructions] Any person who knowingly and with intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false information or conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime, and shall also be subject to a civil penalty not to exceed Five Thousand Dollars ($5,000.00) and the stated value of the claim for each such violation. IN WITNESS WHEREOF, the Trustee has executed and delivered this Notice of Nonpayment and Demand for Insured Payments this _____ day of ______________________. ________________________________________, as Trustee By: ___________________________________ Title: ___________________________________