Fill and Sign the Arkansas Affidavit Repossession Form

EXECUTION COPY FEDERAL NATIONAL MORTGAGE ASSOCIATION (“FANNIE MAE”) as Issuer, Master Servicer, Guarantor and Trustee AMENDED AND RESTATED 2007 MULTIFAMILY MASTER TRUST AGREEMENT for GUARANTEED MORTGAGE PASS-THROUGH CERTIFICATES evidencing undivided beneficial interests in POOLS OF MULTIFAMILY MORTGAGE LOANS February 1, 2009 TABLE OF CONTENTS Page ARTICLE I DEFINED TERMS AND RULES OF CONSTRUCTION ..........................1 Section 1.1 Definitions..........................................................................................................1 Section 1.2 Rules of Construction ......................................................................................19 1.2(1) 1.2(2) 1.2(3) 1.2(4) 1.2(5) 1.2(6) 1.2(7) 1.2(8) 1.2(9) 1.2(10) 1.2(11) 1.2(12) 1.2(13) 1.2(14) 1.2(15) 1.2(16) 1.2(17) Singular and Plural; Gender...............................................................19 Sections and Other Subdivisions .......................................................19 Headings and Examples.....................................................................19 Recitals...............................................................................................19 Written Statements.............................................................................19 Counsel; Accountants ........................................................................19 Inclusionary Language.......................................................................20 Fannie Mae.........................................................................................20 Individual Trusts ................................................................................20 Primary Servicing ..............................................................................20 Rating Agency ...................................................................................20 Changes in Laws ................................................................................21 Changes to Servicing Contracts and the Guide..................................21 Delegates, Agents, Successors and Assigns ......................................21 Substantial Compliance .....................................................................21 Will ....................................................................................................22 Court ..................................................................................................22 ARTICLE II CREATION OF TRUST; CONVEYANCE OF LOANS; PURCHASES OF LOANS ............................................................................22 Section 2.1 Declaration of Trust, Transfer and Conveyance of Mortgage Loans; Acceptance of Responsibilities. .......................................................................22 2.1(1) 2.1(2) 2.1(3) 2.1(4) 2.1(5) 2.1(6) 2.1(7) 2.1(8) 2.1(9) Declaration of Trust, Transfer and Conveyance of Mortgage Loans..................................................................................................22 Acceptance of Responsibilities ..........................................................22 Security Interest .................................................................................22 Equitable Interest ...............................................................................23 Prohibition Against Encumbrance .....................................................23 Accounting Treatment .......................................................................24 Status of Trust ....................................................................................24 Use of Information.............................................................................24 Payment for Services to Trusts ..........................................................24 Section 2.2 Issuance of Certificates ....................................................................................24 Section 2.3 Interests Held by the Issuer, Trustee or a Seller ..............................................25 Section 2.4 Determination of Pool......................................................................................25 i TABLE OF CONTENTS (continued) Section 2.5 Limited Purchase of Mortgage Loans or REO Property from Trusts..............25 2.5(1) 2.5(2) 2.5(3) 2.5(4) Mandatory Purchase by Issuer ...........................................................25 Optional Purchase by Issuer...............................................................27 Optional Purchase by Guarantor........................................................27 Purchase Price....................................................................................28 Section 2.6 Limited Right of Mortgage Loan Substitution.................................................29 Section 2.7 Removal of Mortgage Loan from Pool............................................................30 Section 2.8 Trust Administration Fee .................................................................................30 Section 2.9 Purchase Execution..........................................................................................30 ARTICLE III APPLICABLE DOCUMENTATION..........................................................31 Section 3.1 Issue Supplement .............................................................................................31 Section 3.2 Issue Supplement and Trust Agreement ..........................................................31 Section 3.3 Access to Information ......................................................................................31 Section 3.4 Custody of Mortgage Documents. ...................................................................32 3.4(1) 3.4(2) Delivery..............................................................................................32 Custodial Capacity .............................................................................34 Section 3.5 Review, Certification and Safekeeping of Mortgage Documents ...................34 Section 3.6 Defeasance and Mortgaged Property Substitution...........................................35 ARTICLE IV THE CERTIFICATES ..................................................................................35 Section 4.1 General Provisions ...........................................................................................35 Section 4.2 Issuance of Certificates. ...................................................................................35 4.2(1) 4.2(2) 4.2(3) 4.2(4) Book-Entry Form ...............................................................................35 Definitive Form..................................................................................35 Denominations ...................................................................................35 Transfer, Exchange and Pledge..........................................................36 ARTICLE V ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS............................................................................................................36 Section 5.1 Servicing of Mortgage Loans...........................................................................36 5.1(1) 5.1(2) General...............................................................................................36 Master Servicer Responsibilities........................................................36 ii TABLE OF CONTENTS (continued) 5.1(3) 5.1(4) 5.1(5) 5.1(6) 5.1(7) 5.1(8) Section 5.2 Servicing Advances. ........................................................................................41 5.2(1) 5.2(2) Section 5.3 5.3(4) 5.3(5) 5.5(3) Receipt of Mortgage Loan Payments.................................................48 Information and Reports ....................................................................48 Hazard or Property Insurance. .........................................................................49 5.7(1) 5.7(2) 5.7(3) 5.7(4) 5.7(5) Section 5.8 Delivery of Documents. .....................................................................47 Access to Certain Documentation and Information Regarding the Mortgage Loans ...........................................................................48 Pool Activity Records ........................................................................48 Reliance on Primary Servicer. .........................................................................48 5.6(1) 5.6(2) Section 5.7 Release, Satisfaction and Reconveyance ...........................................47 Documents, Records and Funds in Possession of the Primary Servicer or Custodian to Be Held for the Trustee on Behalf of the Trusts............................................................................................47 Additional Documents and Information. .........................................................47 5.5(1) 5.5(2) Section 5.6 Payments of Principal and Interest ....................................................42 Escrow and Other Accounts...............................................................42 Waiver of Prepayment Premiums and Other Ancillary Charges; Loss Mitigation Alternative; Relief Act. ............................44 Prohibition of Certain Modifications .................................................46 Initiation of Litigation........................................................................46 Mortgage Files. ................................................................................................47 5.4(1) 5.4(2) Section 5.5 Making and Reimbursement of Servicing Advances.........................41 Effect of Servicing Advances on Stated Principal Balance ...............42 Collection of Mortgage Loan Payments; Limitations on Changes..................42 5.3(1) 5.3(2) 5.3(3) Section 5.4 Primary Servicer Responsibilities......................................................37 Servicing Contracts............................................................................38 Successor Master Servicer Compensation .........................................40 Primary Servicer Compensation. .......................................................40 Servicing Terminations and Transfers ...............................................40 Special Servicers................................................................................41 Hazard or Property Insurance ............................................................49 Flood Insurance..................................................................................49 Other Insurance..................................................................................50 Application of Insurance Proceeds and Condemnation Proceeds .............................................................................................50 Cost of Insurance ...............................................................................50 Mortgage Insurance. ........................................................................................51 5.8(1) 5.8(2) 5.8(3) Mortgage Insurance Providers ...........................................................51 Maintenance of Mortgage Insurance .................................................51 Assignment of Trust Assets ...............................................................51 iii TABLE OF CONTENTS (continued) Section 5.9 Transfers of Ownership; Enforcement of Due-on-Transfer Provisions...........51 5.9(1) 5.9(2) Duty to Enforce..................................................................................51 Exceptions..........................................................................................51 Section 5.10 No Default; No Removal from Pool ................................................................53 Section 5.11 Realization upon Defaulted Mortgage Loans; Determination of Excess Proceeds and Realized Losses. ........................................................................53 5.11(1) Exercise of Remedies on Default.......................................................53 5.11(2) Acquisition of REO Property.............................................................54 5.11(3) Dispositions of and Limitations on Acts Relating to REO Property..............................................................................................54 5.11(4) Environmental Considerations...........................................................55 Section 5.12 Changes to Mortgaged Property and Other Collateral; Monitoring of Mortgaged Property. ........................................................................................55 5.12(1) 5.12(2) 5.12(3) 5.12(4) 5.12(5) 5.12(6) Collateral Substitutions......................................................................55 Releases..............................................................................................56 Collateral Additions. ..........................................................................57 Change in Use ....................................................................................58 Monitoring .........................................................................................58 Calculations of Substitutions, Releases or Collateral Additions for a MALA or Loan with Multiple Advances. ................58 5.12(7) Applicability of Article XIV..............................................................58 ARTICLE VI COLLECTIONS ............................................................................................59 Section 6.1 Custodial Accounts. .........................................................................................59 6.1(1) 6.1(2) 6.1(3) 6.1(4) 6.1(5) Establishment and Maintenance of Custodial Accounts....................59 Deposits to Custodial Accounts .........................................................60 Segregation of Funds .........................................................................60 Investments ........................................................................................61 Limitations on Permitted Sales ..........................................................61 Section 6.2 Permitted Withdrawals from a Custodial Account ..........................................62 Section 6.3 Latest Servicer Remittance Date......................................................................62 ARTICLE VII CERTIFICATE ACCOUNTS; DISTRIBUTION; GUARANTY .............63 Section 7.1 Payments ..........................................................................................................63 Section 7.2 Certificate Accounts.........................................................................................63 7.2(1) 7.2(2) Establishment and Maintenance of Certificate Accounts; Records ..............................................................................................63 Changes to Certificate Accounts; Control .........................................63 iv TABLE OF CONTENTS (continued) 7.2(3) 7.2(4) 7.2(5) Transfers of Funds .............................................................................63 Investment..........................................................................................64 Limitations on Permitted Sales ..........................................................64 Section 7.3 Calculation of Certificate Distribution Amount or Other Amounts ................64 Section 7.4 Payment from Certificate Accounts.................................................................64 7.4(1) 7.4(2) 7.4(3) 7.4(4) 7.4(5) Section 7.5 Fannie Mae Guaranty.......................................................................................66 7.5(1) 7.5(2) 7.5(3) 7.5(4) 7.5(5) Section 7.6 Limited Guaranty ...............................................................................66 Enforcement; Unconditional Obligation............................................67 Subrogation ........................................................................................67 Estimated Funding .............................................................................67 No United States Guaranty ................................................................67 Reports. ............................................................................................................68 7.6(1) 7.6(2) Section 7.7 Transfer to Paying Agent ...................................................................64 Receipt of Guaranty Payments...........................................................65 Instruction to Paying Agent ...............................................................65 Other Payments from Certificate Accounts .......................................65 Priority of Distribution.......................................................................66 Monthly Reports ................................................................................68 Annual Reports ..................................................................................68 Paying Agent....................................................................................................68 ARTICLE VIII LIMITATION OF LIABILITY ...................................................................68 Section 8.1 General Limitation ...........................................................................................68 Section 8.2 Measure of Liability.........................................................................................68 8.2(1) 8.2(2) 8.2(3) Good Faith .........................................................................................68 Standard of Care ................................................................................68 Acts of Parties ....................................................................................68 ARTICLE IX FANNIE MAE................................................................................................69 Section 9.1 Merger or Consolidation ..................................................................................69 Section 9.2 Fannie Mae as Holder ......................................................................................69 ARTICLE X TRUSTEE.......................................................................................................69 Section 10.1 Duties of Trustee..............................................................................................69 10.1(1) In the Absence of a Guarantor Event of Default................................69 10.1(2) When a Guarantor Event of Default Exists........................................69 v TABLE OF CONTENTS (continued) 10.1(3) Liability..............................................................................................69 Section 10.2 Certain Matters Affecting the Trustee. ............................................................70 10.2(1) Reliance; Limitation of Duties...........................................................70 10.2(2) No Obligation to Incur Liability; Indemnification of the Trustee................................................................................................71 10.2(3) Legal Action.......................................................................................72 10.2(4) Authority to Delegate.........................................................................72 10.2(5) Authority to Commingle ....................................................................72 10.2(6) Execution of Documents....................................................................72 Section 10.3 Trustee Not Liable ...........................................................................................72 Section 10.4 Trustee May Own Certificates .........................................................................72 Section 10.5 Eligibility Requirements for Trustee ...............................................................73 Section 10.6 Resignation and Removal of Trustee...............................................................73 10.6(1) 10.6(2) 10.6(3) 10.6(4) Resignation by Trustee ......................................................................73 Removal of Trustee for Cause. ..........................................................73 Removal of Successor Trustee Without Cause..................................75 Time of Effectiveness ........................................................................75 Section 10.7 Acceptance of Appointment by Successor Trustee .........................................75 Section 10.8 Merger or Consolidation of Trustee.................................................................75 Section 10.9 Appointment of Co-Trustee or Separate Trustee. ............................................76 10.9(1) 10.9(2) 10.9(3) 10.9(4) Authority to Appoint..........................................................................76 Authority Granted ..............................................................................76 Notices ...............................................................................................76 Agency Role.......................................................................................76 Section 10.10 Successor Trustee Fee......................................................................................76 ARTICLE XI MASTER SERVICER...................................................................................77 Section 11.1 Termination and Resignation of Master Servicer. ...........................................77 11.1(1) 11.1(2) 11.1(3) 11.1(4) 11.1(5) 11.1(6) 11.1(7) 11.1(8) Section 11.2 In the Absence of a Guarantor Event of Default................................77 Voluntary Resignation .......................................................................77 Servicing Events of Default ...............................................................77 Termination for Cause. ......................................................................78 Trustee to Succeed .............................................................................78 Cooperation; Transfer of Documents and Records............................78 Duty to Reimburse .............................................................................79 Limitation of Liability........................................................................79 Appointment of Successor Master Servicer.....................................................79 vi TABLE OF CONTENTS (continued) 11.2(1) 11.2(2) 11.2(3) 11.2(4) 11.2(5) 11.2(6) 11.2(7) Trustee to Appoint .............................................................................79 Temporary Service by Trustee...........................................................79 Eligibility Requirements for Master Servicer ....................................80 Bid Procedure for Appointment.........................................................80 Acceptance of Appointment ..............................................................80 Successor Master Servicer. ................................................................80 Concerning Reimbursement for Delinquency Advances, Servicing Advances and Guaranty Reimbursement Amounts...........81 Section 11.3 Notification to Holders upon Termination.......................................................81 ARTICLE XII GUARANTOR EVENTS OF DEFAULT....................................................81 Section 12.1 Guarantor Events of Default ............................................................................81 ARTICLE XIII TRUST TERMINATION..............................................................................82 Section 13.1 Termination......................................................................................................82 Section 13.2 Notice of Termination......................................................................................82 ARTICLE XIV AMENDMENTS ............................................................................................82 Section 14.1 Voting Rights. ..................................................................................................82 14.1(1) Transferor, Affiliates and Agents ......................................................82 14.1(2) Exceptions..........................................................................................82 14.1(3) Guarantor as Holder...........................................................................83 Section 14.2 Amendments to Trust Documents ...................................................................83 Section 14.3 Permissible without Action by Holders ...........................................................83 Section 14.4 Waivers and Amendments with Consent of Holders.......................................83 14.4(1) With 51% Holder Consent .................................................................83 14.4(2) With 100% Holder Consent ...............................................................84 Section 14.5 Documentation of Amendment........................................................................84 14.5(1) Form of Amendment..........................................................................84 14.5(2) Notice of Amendment........................................................................84 ARTICLE XV MISCELLANEOUS ......................................................................................84 Section 15.1 Holders.............................................................................................................84 15.1(1) Death or Incapacity ............................................................................84 15.1(2) No Right to Participate.......................................................................84 15.1(3) No Right to Act..................................................................................85 vii TABLE OF CONTENTS (continued) Section 15.2 Governing Law ................................................................................................85 Section 15.3 Assignment ......................................................................................................85 Section 15.4 Demands, Notices and Communications .........................................................85 Section 15.5 Severability of Provisions ................................................................................86 Section 15.6 Recordation ......................................................................................................86 Section 15.7 Authorized Officers and Signatures.................................................................86 FORMS OF MULTIFAMILY ISSUE SUPPLEMENTS Exhibit A Fixed-Rate Mortgage Loans ......................................................................... A-1 Exhibit B Adjustable-Rate Mortgage Loans ..................................................................B-1 Exhibit C Discount Participation Interest.......................................................................C-1 viii AMENDED AND RESTATED 2007 MULTIFAMILY MASTER TRUST AGREEMENT THIS AMENDED AND RESTATED 2007 MULTIFAMILY MASTER TRUST AGREEMENT is executed by Federal National Mortgage Association (“Fannie Mae”), in its corporate capacities as Issuer, Master Servicer and Guarantor, and in its capacity as Trustee. RECITALS: A. Fannie Mae previously executed the Multifamily Master Trust Agreement effective as of September 1, 2007, and pursuant to clause (a) of Section 14.2, wishes to amend and restate that document. B. Fannie Mae is a corporation organized and existing pursuant to the Charter Act, and has full corporate authority and power to enter into, and to undertake the obligations set forth in, this Trust Agreement. C. Fannie Mae has purchased and intends to purchase mortgage loans secured by liens on multifamily properties and participation interests in such loans. D. Fannie Mae intends to set aside and transfer mortgage loans acquired by it to various Trusts established pursuant to this Trust Agreement and the related Issue Supplements and to issue guaranteed mortgage pass-through certificates representing undivided beneficial ownership interests in the assets of the related Trusts. E. Fannie Mae intends to guarantee to each Trust sufficient funds to permit timely distributions to Holders of principal and, if applicable, interest on Certificates, as required by this Trust Agreement. F. Fannie Mae intends to be the Master Servicer of the Mortgage Loans held in each Trust and to arrange for and supervise the contractual servicing of the Mortgage Loans by Primary Servicers. G. Fannie Mae intends to be the Trustee for each Trust. NOW, THEREFORE, the signatories to this Trust Agreement, in the capacities and with the responsibilities described above, irrevocably declare and establish this Trust Agreement and undertake the following: ARTICLE I DEFINED TERMS AND RULES OF CONSTRUCTION Section 1.1 Definitions. Capitalized terms in this Trust Agreement will have the meanings given to them in this Section 1.1 or elsewhere in this Trust Agreement, unless the context clearly indicates a different meaning. Accepted Servicing Practices: To the extent particular servicing practices are specified in the Trust Documents, such servicing practices; to the extent not specified in the Trust Documents, the servicing practices specified in the related Servicing Contract and the Guide; and to the extent not specified in the Trust Documents, the related Servicing Contract or the Guide, the customary servicing practices of prudent servicers in servicing and administering mortgage loans similar to the Mortgage Loans for their own accounts. For purposes of clarification, in the event that specific provisions contained in the related Servicing Contract or the Guide are supplemental to and otherwise not inconsistent with the express terms of the Trust Documents, then such specific provisions will be included in Accepted Servicing Practices. Similarly, if the customary servicing practices of prudent servicers in servicing and administering mortgage loans similar to the Mortgage Loans for their own accounts are supplemental to and otherwise not inconsistent with either the express terms of the Trust Agreement or the specific provisions of the related Servicing Contract and the Guide, then such customary servicing practices will be included in Accepted Servicing Practices. Accepted Servicing Practices will at all times be subject to applicable law and regulation. Additional Trust Expenses: As to any Trust, the fees and expenses allocable to that Trust (including indemnification under Subsection 10.2(2) and legal expense reimbursements under Subsection 10.2(3), but excluding any fees and expenses paid out of the Spread) that are incurred by the Trustee pursuant to the Trust Documents. Adjustable-Rate Mortgage Loan: A Mortgage Loan on which the Mortgage Interest Rate is adjusted by reference to an Adjustment Reference, with both the Adjustment Reference and the manner of adjustment being described in the related Mortgage Documents. Adjustment Reference: An index, formula or other specific and definite basis for the determination of the Mortgage Interest Rate of an Adjustable-Rate Mortgage Loan. Amendment: A document that amends or supplements either this Trust Agreement or an Issue Supplement. Assignment of Mortgage: With respect to any Mortgage Loan, an assignment of the related Mortgage, notice of transfer or equivalent instrument that transfers the Mortgage. Book-Entry Rules: The provisions in effect from time to time, currently contained in Title 24, Part 81, Subpart H of the Code of Federal Regulations, which govern the terms and conditions under which the Issuer may issue securities on the book-entry system of the Federal Reserve Banks and authorize a Federal Reserve Bank to act as the Issuer’s agent in connection with such securities. Books and Records: As to any Trust, the records, as determined by the Trustee, used to account for the activity of the Mortgage Loans in the related Pool and other assets of the related Trust Fund, including electronic records as well as physical documents, which may include accounting records. Borrower: The primary obligor or obligors (including any co-borrower) or any successor primary obligor under a Mortgage Loan. 2 Business Day: Any day other than (i) a Saturday, (ii) a Sunday, (iii) a day on which the Fiscal Agent or Paying Agent is closed, (iv) a day on which the Federal Reserve Bank of New York is closed or (v) with respect to any required withdrawal for remittance to a Paying Agent, a day on which the Federal Reserve Bank is closed in the district where any Certificate Account from which such withdrawal is made is maintained. Certificate: A guaranteed mortgage pass-through certificate issued pursuant to this Trust Agreement and the related Issue Supplement, representing an undivided beneficial interest in the related Trust Fund. Certificate Account: Any account or accounts created and maintained pursuant to Section 7.2, which may hold funds of one or more Trusts and Other Fannie Mae Trusts. Certificate Distribution Amount: For each Distribution Date with respect to a Trust, the sum of the Certificate Interest Distribution Amount and the Certificate Principal Distribution Amount for that Trust. Certificate Interest Distribution Amount: For each Distribution Date with respect to a Trust, one month’s interest calculated as (a) the product of (x) the Pass-Through Rate and (y) the aggregate Certificate Principal Balance for all outstanding Certificates of that Trust as of the immediately preceding Distribution Date (or in the case of the initial Distribution Date, the original aggregate Certificate Principal Balance) minus (b) in the case of a Trust that holds a Pool of Negative Amortization Mortgage Loans, the aggregate amount of Deferred Interest for all Negative Amortization Mortgage Loans in that Pool that was added to the outstanding principal balances of such Mortgage Loans during the Due Period related to the current Distribution Date; provided, however, that the Master Servicer in calculating or causing to be calculated the amount to be distributed on any Distribution Date will make any adjustments as are necessary to reconcile prior payments made in error. Certificate Principal Balance: As to any Certificate (other than a Certificate related to a Trust holding a Discount Participation Interest) on any date of determination, the product of (a) the aggregate of the Stated Principal Balances of the Mortgage Loans in the related Pool (i) in the case of a date of determination other than a Distribution Date, on the immediately preceding Distribution Date (or, prior to the first Distribution Date for a Trust, on the Issue Date for that Trust), and (ii) in the case of a date of determination that is a Distribution Date, on that Distribution Date (in either case, after giving effect to any distribution of principal of the Certificates on the applicable Distribution Date and any addition to principal of the Certificates on such Distribution Date as a result of Negative Amortization with respect to the related Mortgage Loans during the Due Period relating to that Distribution Date) and (b) the Undivided Beneficial Interest represented by that Certificate. As to any Certificate related to a Trust holding a Discount Participation Interest, the product of (x) the Stated Principal Balance of the Discount Participation Interest in the related Pool and (y) the Undivided Beneficial Interest represented by that Certificate. Certificate Principal Distribution Amount: For each Distribution Date with respect to a Trust, the aggregate of the principal payments for all Mortgage Loans included in the related 3 Pool (or for which payment has been received as provided in Section 2.7) for which the Stated Principal Balance has not been reduced to zero, consisting, without duplication, of: (i) scheduled principal due on those Mortgage Loans during the related Due Period (as adjusted for any change in the amortization schedule resulting from a Prepayment but without giving effect to any Loss Mitigation Alternative); (ii) the Stated Principal Balance of each of those Mortgage Loans as to which a Prepayment in full (whether by or on behalf of the Borrower or through a purchase from the related Trust) was received during the calendar month immediately preceding the month in which that Distribution Date occurs; and (iii) any partial Prepayment received in respect of any of those Mortgage Loans during the calendar month preceding the month in which that Distribution Date occurs; provided, however, that the Master Servicer in calculating or causing to be calculated the amount to be distributed on any Distribution Date will make any adjustments as are necessary to reconcile prior payments made in error. Notwithstanding the provision in clause (ii) above, any full Prepayment of a Mortgage Loan from or on behalf of a Borrower that is received by the first Business Day of a month will be deemed received in the prior calendar month for purposes of distribution, rather than on the date of receipt, if the related Servicing Contract with the Primary Servicer (or, if applicable, the related Subservicer) in effect on the Issue Date of the applicable Trust provides that, in the ordinary course of servicing Mortgage Loans of the same remittance type as that Mortgage Loan, the Primary Servicer will pass through those full Prepayments as though received in the prior calendar month (“alternate timing clause”). Full Prepayments on any Mortgage Loans from or on behalf of a Borrower that are subject to a servicing transfer will be serviced in accordance with the Servicing Contract applicable to Mortgage Loans of the same remittance type of the related transferee Primary Servicer (or, if applicable, the related transferee Subservicer) at the time of the servicing transfer. A Servicing Contract may be amended after the Issue Date of the applicable Trust or date of servicing transfer to add an alternate timing clause for a remittance type, but only if the amendment applies to all Mortgage Loans of that remittance type serviced by that Primary Servicer (or, if applicable, that Subservicer) for the Master Servicer or the Trustee. Once a Servicing Contract includes an alternate timing clause for a particular remittance type, it may not be amended to delete that clause for that remittance type. For purposes of this definition a “remittance type” means, as provided in the Servicing Contract, the requirements for the timing and method by which a Primary Servicer (or, if applicable, a Subservicer) transfers principal and interest payments on Mortgage Loans and, if applicable, Delinquency Advances to the Master Servicer. Mortgage Loans, including PFP Loans, may be categorized as one or more separate remittance types. Further, until such time as the related Servicing Contract requires a partial Prepayment of a PFP Loan of a particular remittance type specified by the Issuer to be passed through in accordance with clause (iii) above, then any partial Prepayment on a PFP Loan of that particular remittance type will be passed through in the second calendar month following the month of receipt. As a result, the Certificate Principal Distribution Amount for Pools including such PFP Loans will 4 include partial Prepayments of such PFP Loans of such remittance type received in respect of any Mortgage Loan during the second calendar month preceding the month in which that Distribution Date occurs. Charter Act: The Federal National Mortgage Association Charter Act (12 U.S.C. §§ 1716 et seq.), as in effect from time to time. Collateral Agreement: An agreement under which Supplemental Collateral may be pledged, transferred, or otherwise provided to secure the Borrower’s obligations under a Mortgage Loan, and which may include a cash collateral agreement, achievement agreement, replacement reserve and security agreement, loan agreement, completion, repair and security agreement, or other contractual arrangement. Custodial Account: Section 6.1. Any account or accounts created and maintained pursuant to Custodian: A Person that maintains custody of the Mortgage Notes (and may have custody of other Mortgage Documents or Supplemental Collateral) relating to one or more Mortgage Loans for and on behalf of the Trustee. Either an unaffiliated third party or any of the following Persons, or an affiliate of any of the following Persons, may serve as a Custodian: the Issuer, the related Seller, the Master Servicer, the Trustee, a Primary Servicer, a Special Servicer or a Subservicer; provided that any Custodian will be required to hold documents in accordance with Fannie Mae’s applicable document custodian requirements. Defeasance: With respect to all or part of a Mortgage Loan, the procedure by which (i) all or a portion of the lien of a Mortgaged Property securing a Mortgage Loan is released and replaced with a pledge of Defeasance Securities, (ii) the Borrower assigns the Defeasance Securities to a Substitute Borrower, and (iii) the Substitute Borrower assumes, and the prior Borrower is released from, liability on the Mortgage Loan, to the extent that Defeasance Securities have replaced all or a portion of the Mortgaged Property as collateral for the Mortgage Loan. Defeasance Securities: Securities of the type and maturity permitted under the terms of the related Mortgage Documents to be used in Defeasance. Deferred Interest: For a Negative Amortization Mortgage Loan, the amount, if any, by which the periodic interest accrued on such Mortgage Loan exceeds the Borrower’s required periodic interest payment then due under the related Mortgage Note, which excess interest amount is not paid by the Borrower at that time, but rather is deferred and added to the unpaid principal balance of the Mortgage Loan. Delinquency Advance: An amount advanced by a Primary Servicer in respect of regularly scheduled interest or principal due on one or more Mortgage Loans, to the extent required under its Servicing Contract. Designated Excess Spread: Any portion of the Spread on a Mortgage Loan that has been designated as “excess yield” pursuant to the related Servicing Contract but that has not yet been transferred to an Other Fannie Mae Trust and become Securitized Excess Spread. 5 Discount Participation Interest: A Participation Interest having a term of not more than twelve months and with respect to which no principal or interest payments are due prior to the maturity date of the Participation Interest. A Discount Participation Interest is initially purchased at a discount to its full stated principal amount and provides for payment of the full stated principal amount on its maturity date. Distribution Date: With respect to a Trust that holds one or more Mortgage Loans (other than a Discount Participation Interest), the 25th day of any month, or if that day is not a Business Day, the next Business Day. The first Distribution Date with respect to such a Trust will occur in the first month that follows the month in which the Issue Date occurs. With respect to a Trust that holds a Discount Participation Interest, the Final Distribution Date is the sole Distribution Date. Due-on-Transfer Provision: A provision in the Mortgage Documents that permits the owner of that Mortgage Loan to accelerate the maturity of that Mortgage Loan upon certain transfers of direct or indirect ownership interests in the Borrower or Key Principal or transfers of interests in the Mortgaged Property, whether voluntary or involuntary (which may include a sale, assignment, encumbrance, or other disposition of: (i) all or any part of that Mortgaged Property; or (ii) a direct or indirect interest in the Borrower or Key Principal). Due Period: As to any Distribution Date for a Trust (other than a Trust that holds a Discount Participation Interest), the period beginning on the second calendar day of the month immediately preceding the month in which such Distribution Date occurs and ending on the first calendar day of the month of such Distribution Date. With respect to a Trust that holds a Discount Participation Interest, the period beginning on the Issue Date and ending on the Final Distribution Date. Effective Date: February 1, 2009. Electronic Note Registry System: A system of recording the existence and ownership of a Mortgage Note that is signed electronically. Eligible Depository: (a) Any Federal Reserve Bank, (b) any Federal Home Loan Bank, or (c) any other depository institution that: (i) has its accounts insured by the Federal Deposit Insurance Corporation, the National Credit Union Share Insurance Fund or such other governmental insurer or guarantor as may be acceptable to the Guarantor; (ii) is rated as “well capitalized” by its applicable federal or state regulator or, if not rated by a federal or state regulator, satisfies the capital requirements that would apply for categorization as “well capitalized” under federal or state regulations; and (iii) has a financial rating that meets or exceeds at least one of the following criteria: (a) a short-term issuer rating by S&P of “A-3,” or if no short-term issuer rating by S&P is available, a long-term issuer rating of “BBB-” by S&P; 6 (b) a short-term bank deposit rating by Moody’s of “P-3,” or if no short-term bank deposit rating by Moody’s is available, a long-term bank deposit rating of “Baa3” by Moody’s; (c) a financial rating of “125” by IDC; (d) a financial rating of “C+” by LACE; or (e) satisfies any other standard determined by the Guarantor, provided that such other standard is comparable to the rating requirements set forth above. If a depository institution satisfies the standards in clauses (i) and (ii) and has a rating that meets or exceeds at least one of the ratings specified in clause (iii), that depository institution will be considered an “Eligible Depository” even if another organization rates such depository institution below the minimum level specified. Eligible Investment: Any one or more of the following obligations, securities or holdings, provided that its term satisfies the applicable maturity requirement in this Trust Agreement: (i) obligations of, or obligations guaranteed as to the full and timely payment of principal and interest by, the United States; (ii) obligations of any agency or instrumentality of the United States that have a longterm rating or a short-term rating, as applicable, from S&P or from Moody’s, in either case in one of its two highest ratings categories for long-term securities or in its highest ratings category for short-term securities; (iii) certificates of deposit, time deposits and bankers’ acceptances of any depository institution or trust company, provided that the short-term securities of the depository institution or trust company are rated by S&P or Moody’s in the highest applicable ratings category for short-term securities; (iv) commercial paper of any corporation that is rated by S&P or Moody’s in its highest short-term ratings category; (v) asset-backed commercial paper that is rated by S&P or Moody’s in its highest short-term ratings category; (vi) debt securities that have a long-term rating or a short-term rating, as applicable, from S&P or from Moody’s, in either case in one of its two highest ratings categories for long-term securities or in its highest ratings category for short-term securities; (vii) money market funds that are rated by S&P or Moody’s in one of its two highest ratings categories for money market funds; 7 (viii) discount notes and other short-term debt obligations issued by Fannie Mae, a Federal Home Loan Bank, the Federal Home Loan Bank System, the Federal Farm Credit Bank or another entity that is an agency or instrumentality of the United States, provided that the issuer then has a long-term rating or short-term rating, as applicable, from S&P or Moody’s, in either case in one of its two highest ratings categories for long-term securities or in its highest ratings category for short-term securities; (ix) repurchase agreements on obligations that are either specified in any of clauses (i), (ii) or (vi) above or are mortgage-backed securities insured or guaranteed by Fannie Mae or another entity that is an agency or instrumentality of the United States; provided that the counterparty to the repurchase agreement is an entity whose short-term debt securities are rated by S&P or Moody’s in its highest ratings category for short-term securities; and (x) any other investment that is approved by the Guarantor and is rated in one of the two highest ratings categories of the applicable rating agency for long-term securities or the highest ratings category of the applicable rating agency for shortterm securities. In each case in which a rating level is required, if the relevant securities, issuer or fund is rated by both S&P and Moody’s, both such ratings must meet the stated rating level in order for the requirement to be satisfied. The rating level will be construed as provided in Subsection 1.2(11) and, accordingly, will not be satisfied by a rating that is the minimum rating followed by a minus sign. Escrow Account: An account created and maintained pursuant to paragraphs (a) and (b) of Subsection 5.3(2). Estimated Funding: Amounts transferred to a Certificate Account by the Master Servicer or Guarantor pursuant to Subsection 7.5(4). Excess Spread: With respect to a Mortgage Loan other than a Discount Participation Interest, that portion of the Spread that exceeds the sum of (i) the related Servicing Fee, (ii) the related Guaranty Fee, and (iii) any other fee or expense authorized by the related Servicing Contract to be paid out of the Spread as provided pursuant to paragraph (c) of Subsection 5.1(6) ; provided, however, that as of any date of determination with respect to that Mortgage Loan, Excess Spread will be deemed to exclude any Designated Excess Spread and any Securitized Excess Spread. For a Discount Participation Interest, there is no Excess Spread. Fannie Mae: Federal National Mortgage Association, a body corporate organized and existing under the laws of the United States, or any successor or assign. Fannie Mae Web site: The site maintained by Fannie Mae on the World Wide Web, which is currently www.fanniemae.com, or any successor site or medium of communication, electronic or otherwise, that is available for access by the Person who is the intended recipient of the relevant notification or information. 8 FAS 140: Statement of Financial Accounting Standards No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, or any successor to that accounting standard. Federal Home Loan Bank: A Federal Home Loan Bank (as that term is used in Section 2 of the Federal Home Loan Bank Act, 12 U.S.C. § 1422, as in effect from time to time). Federal Reserve Bank: A Federal Reserve Bank (as that term is used in Section 2 of the Federal Reserve Act, 12 U.S.C. § 225, as in effect from time to time). Final Distribution Date: With respect to a Trust that holds one or more Mortgage Loans (other than a Discount Participation Interest), the first Distribution Date after the Due Period or calendar month, as applicable, in which the final payment on the last Mortgage Loan then remaining in that Trust is made or would be considered made for purposes of determining the Certificate Principal Distribution Amount (whether the final payment is made by a Borrower or by means of a Delinquency Advance, Guaranty payment, a purchase pursuant to Section 2.5, any other full Prepayment or otherwise), but in no event later than the first Distribution Date after the Final Maturity Date. With respect to a Trust that holds a Discount Participation Interest, the Final Maturity Date (or, if the Final Maturity Date is not a Business Day, the next Business Day). Final Maturity Date: With respect to a Trust that holds one or more Mortgage Loans (other than a Discount Participation Interest), the date, calculated as of the Issue Date, that is (i) the first day of the month coinciding with the last scheduled payment date of the Mortgage Loan in that Trust that has the latest final scheduled payment date, as shown in the related Issue Supplement or (ii) if the Mortgage Loan’s scheduled payment dates do not fall on the first day of the month, then the first day of the month next following such last scheduled payment date. With respect to a Trust that holds a Discount Participation Interest, the date that coincides with the maturity date of that Discount Participation Interest, which is also the Final Distribution Date for that Trust. Fiscal Agent: A Person designated by the Issuer to perform the functions of a fiscal agent under the Trust Documents, currently the Federal Reserve Bank of New York. Fiscal Quarter: January 1 through March 31, April 1 through June 30, July 1 through September 30, or October 1 through December 31, as applicable. Fixed-Rate Mortgage Loan: A Mortgage Loan that, as of the related Issue Date (or, in the case of a substitute Mortgage Loan, as of the date the Mortgage Loan is transferred to the Trust), provides for an interest rate that is a fixed rate of interest and by its terms remains unchanged (other than after a default) until the last scheduled payment date of that Mortgage Loan. Government Mortgage Loan: A Mortgage Loan that is insured or guaranteed in whole or in part by an agency or department of the government of the United States (including the Federal Housing Administration, the Veterans Administration, the Rural Housing Service, the Department of Housing and Urban Development or any successor agency to any of them), any state or territory of the United States or the District of Columbia. 9 Guarantor: Fannie Mae, in its corporate capacity as guarantor under this Trust Agreement, or any successor or assign that assumes the responsibilities provided for this capacity in the Trust Documents. Guarantor Event of Default: An event of default described in Section 12.1 that has not been cured or waived. Guaranty: The Guarantor’s guaranty obligations to a Trust, as described in Section 7.5. For purposes of clause (a) of Subsection 7.4(4) and Subsection 7.5(3), any Delinquency Advance deposited to a Certificate Account will be treated as a payment made under the Guaranty. Guaranty Fee: With respect to each Mortgage Loan in a Pool, a fee payable to the Guarantor for providing the Guaranty. Guaranty Reimbursement Amount: The amount, if any, recovered with respect to a Mortgage Loan as to which the Guarantor has made payment pursuant to its Guaranty (including any Estimated Funding paid by the Guarantor) and has not been previously reimbursed. Guide: The Issuer’s Delegated Underwriting and Servicing Guide or Negotiated Transactions Guide, in each case as it is amended, supplemented, restated or succeeded from time to time, as applicable to loans of the type included in the Pool with respect to any Trust. Holder: With respect to any Certificate, the Person in whose name that Certificate is registered in the records of the Fiscal Agent. Holders’ Prepayment Premium Portion: With respect to a Mortgage Loan that provides for a Prepayment Premium, that portion of the Prepayment Premium, if any, that is payable to Holders of the related Certificates if so provided in the related Prospectus or other related disclosure document. IDC: IDC Financial Publishing or its successor. Internal Revenue Code: The United States Internal Revenue Code, as in effect from time to time; references to any section refer to that section or any successor or replacement section. Issue Date: As to any Trust, the first day of the month in which at least one Certificate evidencing undivided beneficial interests in the related Trust Fund is issued. Issue Date Loan Balance: As to any Mortgage Loan (other than a Discount Participation Interest), the principal balance of that Mortgage Loan as of the related Issue Date (after giving effect to all scheduled payments of principal due on or before such Issue Date), as that principal balance is specified in the Mortgage Loan Schedule; provided, however, that in the case of any substitute Mortgage Loan, the Issue Date Loan Balance is the principal balance on the first day of the month of substitution, after giving effect to all scheduled payments of principal due on or before such day and any unscheduled payments of principal received and applied on or before such day. As to any Discount Participation Interest, the original principal 10 amount of the Discount Participation Interest as of the Issue Date, as set forth in the related Issue Supplement. Issue Date Pool Balance: As to any Trust, the sum of the Issue Date Loan Balances of all Mortgage Loans included in that Trust as of the Issue Date, without regard to any substitute Mortgage Loans. Issue Supplement: Any one or more physical or electronic documents or records (signed or unsigned) prepared by the Issuer as provided in Section 3.1, that, together with this Trust Agreement, documents the establishment of a Trust, as such documents or records may be amended from time to time. An Issue Supplement may be comprised of a document or record in one of the forms appended to this Trust Agreement as Exhibits A through C or such other form as the Issuer may designate from time to time. Issuer: Fannie Mae, in its capacity as sponsor of each issuance of Certificates and settlor of each of the Trusts, or any successor or assign that assumes the responsibilities specified for this capacity in the Trust Documents. Key Principal: With respect to a Mortgage Loan, any Person identified as such in the Mortgage Documents or any Person other than the Borrower (i) that has or assumes an obligation, liability or indebtedness under the Mortgage Documents, or (ii) whose ownership interests are directly or indirectly restricted from transfer under the Due-on-Transfer Provisions in the Mortgage Documents. LACE: LACE Financial Corporation or its successor. Latest Servicer Remittance Date: With respect to each Distribution Date and Primary Servicer or Subservicer, the latest related Servicer Remittance Date under the related Servicing Contract on which funds to be distributed to Holders on that Distribution Date are required to be transferred for deposit to a Certificate Account. Loss Mitigation Alternative: Following a default on a Mortgage Loan or the Primary Servicer’s receipt of information indicating that the Borrower will be unable in a timely manner to make scheduled payments or otherwise comply with one or more of the material covenants in the Mortgage Documents, an agreement between the Borrower and the Trustee or the Master Servicer (or, if permitted by the Servicing Contract, the Primary Servicer) under which the parties agree to refrain from pursuing remedies following a default under the Mortgage Documents by the Borrower while attempts to resolve the default are continuing. The agreement may include whatever loss mitigation measures are considered by the Master Servicer (or, if permitted under the related Servicing Contract, by the Primary Servicer) to be appropriate to that Borrower under the applicable facts, consistent with Accepted Servicing Practices, including providing for a period of forbearance, reduced payments, loan modifications or other actions under which the Borrower will cure the default and reinstate the Mortgage Loan within a period of not more than 18 months from the effective date of such measure; and provided further, that such measure does not include any Mortgage Loan modification of the types prohibited by Subsection 5.3(4) while the Mortgage Loan remains in the Pool. 11 MALA: A multiple asset lending arrangement with one or more primary obligors (which may include Borrowers) consisting of one or more loans (which may be funded as separate advances at different times) secured by one or more Mortgages on Multifamily Properties, Defeasance Securities or Supplemental Collateral pursuant to which (i) all liens secure all outstanding loans, and (ii) a default under any such loan constitutes a default under all such loans. A MALA may include any combination of Mortgage Loans and other mortgage loans that are not Mortgage Loans under this Trust Agreement. MALA Advance: An advance of funds made pursuant to a MALA. Master Servicer: Fannie Mae, in its capacity as master servicer under this Trust Agreement, or any successor or assign that will have the responsibilities specified for this capacity in the Trust Documents. Moody’s: Moody’s Investors Service, Inc. or its successor. Mortgage: The mortgage, deed of trust, deed to secure debt, security agreement, security instrument and any other instrument creating a lien or encumbrance on one or more Mortgaged Properties securing a Mortgage Note. Mortgage Documents: With respect to each Mortgage Loan, the applicable documents identified in Subsection 3.4(1), together with any related documents, instruments and agreements delivered in connection with, evidencing, or securing, the Mortgage Loan, as the same may be amended, extended, restated, modified and replaced from time to time in a manner consistent with the Trust Documents. Mortgage Insurance: A policy, contract, guaranty (other than the Guaranty) or arrangement (including any statutory arrangement) with respect to a single Mortgage Loan, issued under or arising from a program established by a Person (whether a governmental unit or other than a governmental unit), under which all or a portion of the obligations owing under the Mortgage Loan, if not paid by the Borrower, will be paid by the applicable Person unless an exclusion under such single-loan policy, contract, guaranty or arrangement applies. Mortgage Interest Rate: With respect to a Mortgage Loan (other than a Discount Participation Interest) on any date, the annualized rate at which interest accrues on such Mortgage Loan in accordance with the provisions of the related Mortgage Note, as such rate may be limited by the contract pursuant to which the Issuer purchased that Mortgage Loan. Interest does not accrue with respect to a Discount Participation Interest for purposes of the Trust Documents. Mortgage Loan: (i) A loan (including a MALA Advance) secured by one or more Mortgages on one or more Multifamily Properties, Defeasance Securities or Supplemental Collateral or (ii) a Participation Interest (including a Discount Participation Interest) in a loan secured in whole or in part by a lien on one or more Multifamily Properties, Defeasance Securities or Supplemental Collateral, which loan or Participation Interest, as applicable, has been identified in the Mortgage Loan Schedule for the related Trust. Any reference to “Mortgage Loans” will be deemed to include any loan or interest in a loan described in (i) or (ii) above as the context requires in order to effectuate the purposes of the Trust Documents. 12 Mortgage Loan Schedule: The list of Mortgage Loans that is included or determined by the Issuer to be included as part of each Issue Supplement pursuant to Section 3.1. Mortgage Note: The promissory note or other instrument evidencing the indebtedness of a Borrower under a Mortgage Loan. Mortgage Registry System: A system of recording beneficial ownership, identity of servicer, and transfers of mortgages electronically that is acceptable to the Master Servicer, which may include the system operated by Mortgage Electronic Registration Systems, Inc., a corporation organized and existing under the laws of the State of Delaware, or any successor. Mortgaged Property: The real property, all improvements (without regard to when erected) on and appurtenant to any such real property, and any personal property that secures a Mortgage Loan (and which also may secure other mortgage loans made pursuant to a MALA) through the lien or encumbrance of a Mortgage or the security provisions of any Mortgage Document. Mortgaged Property may be real or personal property under applicable law. Multifamily Property: A residential property that contains five or more dwelling units, including five or more single unit residential properties that are managed as rental units by or for the same Borrower. Negative Amortization: Any increase in the unpaid principal balance of a Mortgage Loan resulting from the addition of Deferred Interest to that principal balance. Negative Amortization Mortgage Loan: A Mortgage Loan under the terms of which the required periodic interest payment, at one or more times during the life of the Mortgage Loan, may be less than the interest accrued for the period to which that payment relates. A Discount Participation Interest cannot be a Negative Amortization Mortgage Loan. Net Rate: With respect to a Mortgage Loan (other than a Discount Participation Interest) on any date, (a) for a Fixed-Rate Mortgage Loan, the Pass-Through Rate of the related Trust, and (b) for an Adjustable-Rate Mortgage Loan the related Mortgage Interest Rate minus the Spread Rate for that Mortgage Loan. For any Discount Participation Interest, th